Arbitration

Arbitration, ECT Modernisation, Energy Charter Treaty, EU Law, European Union, Investment Arbitration, Reform

(University of Bedfordshire)/ /Leave a comment

The Energy Charter Treaty (ECT) has recently become a household name, moving from the oblivion of the 1990s, when the treaty was drafted, to one of the most hotly debated topics in legal (and other) circles nowadays. Some have demonized it as an instrument for the corporate usurpation of democratic functions, such as the host…

Arbitration, ECT Modernisation, International arbitration, Investment Arbitration, Reform

(Concepción Global, PLLC, Universidad Complutense de Madrid) and / /1 Comment

In the absence of a uniform standard of compensation under the Energy Charter Treaty (“ECT”), tribunals have been tasked with filling the gap and have done so by exercising an important margin of appreciation for the assessment of damages. Such wide discretion has resulted in divergent approaches in assessing damages. Since the first ECT decision,…

Arbitration, ECT Modernisation, Energy Charter Treaty, Investment Arbitration

(Energy Charter Secretariat)/ /Leave a comment

Modernisation of any multilateral treaty is a category of tasks on its own. There are several prerequisites which shall be in place, apart from obsolete language and provisions. The most crucial element is a steady political will of a critical mass of countries based on the strong motivation, which will break inertia and create new…

Arbitration, Arbitration Institutions and Rules, ECT Modernisation, International arbitration, Investment Arbitration, ISDS, ISDS Reform, Reform

(Australian National University) and / /Leave a comment

The Energy Charter Treaty (‘ECT’) opened for signature in 1994, entered into force in 1998, and now boasts some 50 member States. The ECT has since given rise to some 130 investor-State arbitrations, making it “the most frequently invoked international investment agreement”. This high use, coupled with a perception that the ECT is frequently invoked…

Arbitral Award, Arbitral seat, Arbitral Tribunal, Arbitration, Arbitration Institutions and Rules, Arbitration Proceedings

(Kabine Law Office) and (Equanimity Arbitration)/ /Leave a comment

The COVID-19 pandemic catapulted discussions on online dispute resolution methods like no other phenomenon. With this, determining the proper seat for online arbitration has become the center of conversation. As the world adapted to the challenges presented by the pandemic, so too did international arbitration. Suddenly, there was a wave of virtual hearings, webinars and…

Arbitration, Contingency Funding, Hong Kong, Singapore, Third party funding

(Shearman & Sterling LLP) and (Shearman & Sterling)/ /Leave a comment

While Hong Kong and Singapore legislated in 2017 to allow third party funding of arbitrations (“TPF”),1)In Hong Kong, the amendments to the Arbitration Ordinance (Cap. 609) ultimately took effect in February 2019. both jurisdictions presently still bar “No-Win, No-Fee” and other outcome related fee arrangements between parties to arbitration and their lawyers. This is out-of-step…

Arbitration, Courts, Enforcement, interim relief, Philippines, Singapore, Virtual hearings

(Freshfields Bruckhaus Deringer)/ /Leave a comment
YSIAC

A special COVID-19-themed SIAC Philippines webinar took place on 18 June 2020. The webinar examined the availability of interim relief to parties to commercial disputes, both in international arbitration and through courts in the Philippines and Singapore, with the panel members sharing their observations on trends and changes since the outbreak of the COVID-19 pandemic….

Africa, Arbitration, COVID-19, Diversity, International arbitration, Social networks, Webinar, Willem C. Vis Moot, Workshop

, / /Leave a comment

“When written in Chinese, the word ‘crisis’ is composed of two characters. One represents danger and the other represents opportunity.” (John F. Kennedy, Former US President). The current Covid-19 pandemic has wreaked havoc globally impacting people in grievous ways. The resultant containment measures by governments have severely limited or otherwise rendered physical interactions impossible. As…

Arbitration, Arbitration Proceedings, Crimea, International arbitration, Investment Arbitration

(Lindeborg Counsellors at Law)/ /Leave a comment

The Crimea crisis has received attention by UNCLOS and investment tribunals, as well as by the Swiss Federal Tribunal in appeals and annulment proceedings. However, their analyses have been limited to jurisdiction. The implicated issue was whether the (bilateral) investment treaties (BIT) of the occupying, and a fortiori annexing, State could be applied extraterritorially. These…

Arbitration, Arbitration Proceedings, Australia, International arbitration, Investment Arbitration, United States, USMCA

(University of Wollongong)/ /1 Comment

The investor-state dispute settlement (ISDS) arrangements provided in Chapter 14 of the United States-Mexico-Canada Agreement (USMCA) are a radical shift from those that have been in force for the past 25 years under Chapter 11 of the North American Free Trade Agreement (NAFTA). As explored in Wednesday’s post, Canada has effectively opted-out of ISDS under…

Arbitration, Arbitration Proceedings, Investment Arbitration, NAFTA, USMCA

, (Dentons)/ /Leave a comment

On July 1, 2020, the investment chapter of the North American Free Trade Agreement (NAFTA) expired quietly in its North American home, at the age of 26.  It left behind a generation of investment treaties and investment chapters in free trade agreements that are its direct descendants.  It served as inspiration for many other agreements. …

Arbitration, Arbitration Awards, Arbitration Proceedings, Enforcement, Investment Arbitration

/ /Leave a comment

The filing of new actions continues in the United States District Court for the District of Columbia (“D.D.C.”) to enforce ICSID awards rendered against Spain. The latest petition was filed on April 24, 2020, by Watkins Holdings S.à.r.l. and Watkins (Ned) B.V., both affiliates of the UK company Bridgepoint Advisers Limited, seeking the enforcement of…

Arbitration, Arbitration Proceedings, Human Rights, ICSID Amendments, International arbitration, Investment Arbitration, Reform, Working Group III

(Georgetown Law) and (Columbia Law School)/ /Leave a comment

Reforms Are Afoot Calls for investor-State dispute settlement (“ISDS”) reform have catalyzed efforts to evolve the regime. Concurrently, the ISDS system continues to wrestle with tensions between an investment regime primarily oriented towards protecting investor rights, and the human rights normative architecture for protection of individual rights and associated State obligations for protection of such rights. ISDS…

Arbitration, Arbitration Proceedings, Corruption, International arbitration, Investment Arbitration

, , (Vinson & Elkins LLP)/ /Leave a comment
Young ITA

Recent years have seen an uptick in the expansion and enforcement of anti-corruption laws worldwide. In 2017, China amended its Anti-Unfair Competition Law, broadening the scope of bribe recipients covered by the law, and increasing penalties. In 2019, Italy widened its anti-bribery law, No. 3/2019, increasing penalties for both individuals and companies found guilty of…

Africa, Arbitration, Arbitration Proceedings, BIT, Investment Arbitration, Investor duties

, (Addis Law Group LLP)/ /Leave a comment

Africa is in the vanguard of investor obligations in international investment law. As it prepares to seek a continental investment code for the second time, it finds itself at a crossroads. In tracing the emergence and trajectory of investment instruments toward the historic juncture to which Africa presently arrives, one glimpses the promise of a…

Arbitration, bankruptcy, Commercial Code of Iran, Iran, TRAC

, (Tehran Regional Arbitration Centre)/ /Leave a comment

Introduction For the purpose of this article, there are some words and principles that shall be defined before raising the main issue. Article 412 of the Commercial Code of Iran (CCI) defines the bankruptcy of an entity (natural or legal person) as the result of its cessation in payment of its debt. In this situation,…

Arbitration, Arbitration Proceedings, BIT, Investment Arbitration

(School of Law, University of Westminster)/ /Leave a comment

Chinese involvement in 5G infrastructure development has been an issue of concern for policy makers globally. This post addresses the question of whether the Chinese multinational Huawei would have an investment claim against the German government were they to prohibit its participation in 5G deployment. Germany is selected as a case study due to the…

Arbitration, Arbitration Institutions and Rules, Arbitration Proceedings, Investment Arbitration, Organization of Islamic Cooperation

(Allen & Overy LLP)/ /Leave a comment

The recent case of Itisaluna Iraq LLC and Others v. Republic of Iraq represents the first time that an ICSID tribunal had been constituted under the Agreement on Promotion and Protection and Guarantee of Investments among Member States of the Organization of Islamic Cooperation (the “OIC Agreement”). The tribunal affirmed that the OIC Agreement contains a…

Arbitration, Arbitration Proceedings, BIT, Investment Arbitration

(Bottega Di Bella)/ /Leave a comment

This post examines an illustrative case of a successful diplomatic protection claim under an old Bilateral Convention of Establishment (BCE). These were early precursors to Bilateral Investment Treaties (BITs), which aimed to encourage and protect foreign investments. While revisiting Switzerland’s unlawful expropriation of Italian-owned real estates, the post proposes an alternative solution to that case…

Arbitration, Arbitration Institutions and Rules, Arbitration Proceedings, COVID-19, Institutional Rules, International arbitration, International Commercial Arbitration, SIAC, Virtual hearings

(SIAC)/ /1 Comment

Background There is much public discourse on the impact of the ongoing pandemic on international arbitrations. Commentators and scholars have provided perspectives on how to navigate and find safe harbours in the uncharted waters of COVID-19. In the “new normal” of wide-ranging travel advisories and restrictions, there is an emerging consensus to better integrate the…

Arbitration, Commercial Arbitration, Jurisdiction, Merits, Venezuela

, (Herbert Smith Freehills)/ /Leave a comment
Herbert Smith Freehills

Recently, the Constitutional Chamber of the Venezuelan Supreme Court of Justice (the “Court”) issued an interlocutory judgment ordering the Business Center for Conciliation and Arbitration (CEDCA) to stay an arbitration and to forward the arbitration file in order to decide on a request for “avocamiento” filed by one of the parties before the Court. This…

Arbitration, Arbitration Agreement, EU Law, Europe, Immunity, Intra-EU BIT's, Intra-EU BITs, Intra-EU Investment Arbitration, Intra-EU ISDS, Reform

(University of Passau) and (Freshfields Bruckhaus Deringer LLP)/ /Leave a comment

Whenever litigating against states or sovereign entities – or international organisations for that matter – outside of their home jurisdiction there is a roadblock to consider: immunities. On closer inspection, immunities turn out as two roadblocks: immunity from jurisdiction and immunity from enforcement. Whereas the general assumption is that an agreement to arbitrate waives immunity…

Arbitration, Expert evidence, Germany, Prague Rules

(White & Case)/ /2 Comments

As in most jurisdictions, Germany based arbitral tribunals and German state courts assessing challenges to arbitral awards are often confronted with questions regarding the conflict between the parties’ right to be heard and the denial of the parties’ requests for evidence. In recent years, the German Federal Court of Justice (Bundesgerichtshof – BGH)1)E.g. BGH case…

Arbitration, IBA Guidelines on Conflicts of Interest, Nigeria, Set aside an arbitral award

(AELEX)/ /2 Comments

The ruling given on 25 February 2020 (‘Ruling’) by the High Court of Lagos State in Nigeria (‘Lagos High Court’), setting aside an award in the case of Global Gas and Refinery Limited (‘Global Gas’) and Shell Petroleum Development Company (‘Shell’) on the ground of arbitrator non-disclosure, raises concern to the arbitral community both in…