As international arbitration becomes ever more sophisticated and complex, one wonders whether it will continue to have the institutional capacity to address its protean tasks. Claims in the billions of dollars are now common. Thousands of individuals are affected by the outcome of a single arbitration decision. And the complexity of the cases is such…

The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) has recently proposed the inclusion of an “Emergency Arbitrator” procedure in the SCC Rules (see Draft New Rules with Notes). On 18 June 2009, the drafting committee for the Emergency Arbitrator proposal presented the main amendments gathered from the comments of the arbitration community to…

One of the greatest challenges for international arbitration in recent times is the users’ complaint that the process has become too costly. In-house counsel are under pressure to control costs, and they grumble that arbitrators and international arbitration counsel are not sufficiently responsive to their concerns. Outside counsel are rightly troubled by these complaints. Frustrating…

How should tribunals apply investment treaties to measures adopted during times of crisis? Recognizing crisis as the point at which foreign investors become most vulnerable (and therefore require the most protection), should tribunals guard against any temptation to dilute the rigor of external discipline? Conversely, recognizing crisis as the point at which states can lay…

The already much debated Paris Court of appeal judgment in Tecnimont, rendered on 12 February 2009, has put into light the dangers arising from the lack of uniformity in the field of conflict disclosure. The Paris Court of appeal has quashed a partial award because the chairman of the arbitral tribunal, a well-known international arbitrator…

The Paris Court of appeal, on 25 September 2008, and the Swiss Federal Tribunal, on 5 December 2008 have rendered two interesting decisions. These two decisions address issues of primary importance, such as the “extension” of the arbitration agreement, joinders, and the scope of review by courts of award having declined the tribunal’s jurisdiction. These…

Tribunals in investment arbitrations currently impose a fairly consistent set of restrictions to the submissions of amici curiae in proceedings before them, such as short page limits, no access to the arbitral record, etc. The question is whether there are instances where these restrictions need to be tempered.

ICSID arbitration proceedings against Germany (Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG & Co. KG v. Federal Republic of Germany – ICSID On April 17, 2009, the government-owned Swedish energy company Vattenfall initiated Case No. ARB/09/6, reported in IA Reporter, April 2nd, 2009 (Vol. 2, No. 6)). The dispute concerns the construction by…

By now almost everyone in the international arbitration world is aware of the gavel-to-gavel coverage of the oral pleadings in the so-called Abyei Arbitration before the Permanent Court of Arbitration. The case included many of the leading lights of international arbitration, including Pierre-Marie Dupuy, Stephen Schwebel, and Michael Reisman among the arbitrators, and James Crawford,…

The relationship between Arbitration and European Judicial Private Law has not always been easy. The bedrock European Law principle in this field, as embedded in the European Council Regulation (EC) No. 44/2001 of December 22, 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (“the Judgment Regulation”), is the…

Dedicated to the late Thomas Wälde, The Future of Investment Arbitration examines some of the current pressures on investment arbitration and looks toward the future of the system as a whole. The authors address issues such as gaps in the procedural rules, the lack of development in certain substantive areas of international investment law, inconsistencies…

In the early 1990’s, then World Bank Senior Vice President and General Counsel, Ibrahim Shihata, and then ICSID Legal Advisor, Antonio Parra, observed that there “was hardly any case law” on the full protection and security standard. In so doing, Messrs. Shihata and Parra also posited that “[a]rbitrators in future cases will undoubtedly have the…

In Switzerland, the Federal Supreme Court has recently, and for the first time, had the opportunity to hear and reject the challenge of an award rendered pursuant to the Expedited Procedure (Article 42) of the Swiss Rules. There is nowadays a recurring complaint that arbitration is becoming too long and too expensive a dispute resolution…

What could be more basic? Arbitrations begin with each side naming an arbitrator. References are occasionally made to “the fundamental right” to name one’s arbitrator. But there is no such right. Moreover, if it existed, it would certainly not be fundamental. The original concept that legitimates arbitration is that of an arbitrator in whom both…

George Bermann, the ALI Reporter for the Restatement (Third) on the U.S. Law of International Commercial Arbitration, presented a wonderful summary of the current progress on the Restatement at the ASIL annual meeting last week. Here are a few key thoughts from my notes. The Restatement is in its early stages and it could take…

In a recent decision of 22 January 2009 (4A_424/2008), the Swiss Federal Supreme Court had to consider an appeal against a decision of the Court of Arbitration for Sport (CAS). In the run-up to the 2008 Summer Olympics in Beijing, a qualifying competition was held for the women’s Olympic hockey tournament. The Spanish team won…

“…so many construction disputes are now heading towards arbitration” remarks the calling notice for the next Society of Construction Law-Gulf event in Dubai in April. Around the world, the economic downturn is producing very many financial disputes. The speculation is that with the global recession deepening, the number of arbitrations is set to spiral upwards….

A recent decision of the English High Court (F Ltd v M Ltd [2009] EWHC 275 (TCC)) confirms that the Court may intervene and allow successful challenge of an arbitral award in order to protect parties against the unfair conduct of an arbitration. However, the case also demonstrates that the applicable test (i.e. a serious…

Article 186 of the Swiss Private International Law Act (“PIL Act”) provides as follows: “1. The arbitral tribunal shall decide on its own jurisdiction. 1bis. It shall decide on its jurisdiction notwithstanding an action on the same matter between the same parties already pending before a state court or another arbitral tribunal, unless there are…

Two weeks ago, an LCIA tribunal issued its Award on Remedies in a dispute filed by the U.S. against Canada under the 2006 Softwood Lumber Agreement (SLA). This dispute is interesting in many respects. Most obviously, it is a state-to-state dispute adjudicated under the auspices of the LCIA, more commonly used for commercial arbitration. This…

Last week I attended a wonderful conference at Pepperdine Law School on international sports arbitrations administered by the Court of Arbitration for Sport (CAS). It is a remarkably sophisticated regime that deserves far greater attention than it typically receives by the international arbitration community. Under the CAS Rules, all CAS tribunals have their seat in…

On August 14, 2008, while the armed conflict over Abkhazia and South Ossetia between Georgia and Russia was raging, Georgia filed a request for the indication of provisional measures with the International Court of Justice (ICJ) in The Hague in order to preserve its rights under the International Convention on the Elimination of All Forms…

In light of interest in the international arbitration community concerning investment treaty cases against Argentina since the 2001 economic crisis, we thought it could be useful to share Freshfields’ working collation. We caution that this is based only on public records and press reports. Corrections are welcome. According to our data, 46 treaty cases have…