Among its over 50 decisions on appeals against arbitral awards rendered in 2020, the Swiss Federal Supreme Court (“Supreme Court”) in two decisions yet again addressed a delicate issue on the interaction of human rights and arbitration: can private parties challenge arbitral awards on the basis that the arbitral tribunal violated their human rights under…

The aftermath of Achmea Since the judgment of the Court of Justice of the European Union (CJEU) in Achmea, defending EU Member States and the European Commission have questioned the validity of the application of the investment arbitration clause in the Energy Charter Treaty (ECT) to intra-EU disputes. Although the motions to challenge jurisdiction on…

A unilateral option clause (“UOC”) can take many forms. It may grant its beneficiary the exclusive right to choose between litigation and arbitration when a dispute arises, or to choose to litigate before a specific jurisdiction, while constraining the non-beneficiary to a specific forum or a specific mode of dispute settlement. Consequently, UOCs are undoubtedly…

The Achmea judgment, passed on the 6th of March 2018, and addressed in the Kluwer blog posts available here and here, prompted us to think about what could be the way forward for an effective investment and investor protection within the EU. Now that the CJEU decided that investment treaty arbitration based on intra-EU BITs…

On 1 March 2016, the European Court of Human Rights (“ECtHR” or the “Court”) rendered a decision in the case of Tabbane v. Switzerland (application no. 41069/12). In that decision, which was published on 24 March 2016, the Court, for the first time, examined the compatibility of a waiver of recourse against an arbitral award…