While litigation and arbitration both entail binding adjudication, the traditional functions of judges and arbitrators diverge in fundamental respects. While judges resolve individual disputes, they also serve a number of secondary functions. For example, in the process of deciding cases, they also supply guidance to parties in future disputes, uphold the public interest, and contribute…
For many years, no broad international consensus emerged on the existing protection for foreign investors as a result of differences of approaches between developed and developing States. As a result of this perceived lack of established customary principles, States concluded thousands of bilateral investment treaties in the 1990s for the promotion and the protection of…
In this case, the Swiss Federal Supreme Court decided that the right to be heard (art. 182 para. 3 of the Swiss Federal Act on International Private Law, “PILA”) does not encompass a right of the parties to be specifically heard with regard to the legal qualification of the facts they had introduced into the…
A recent decision by the Eleventh Circuit Court of Appeals has attracted attention within the arbitration community as it puts into question the enforceability in the United States of international arbitration agreements where foreign (non-US) law is the governing substantive law. The Eleventh Circuit also mistakenly references Article V of the New York Convention in…
One can observe two rather opposing trends. On the one hand there is a steady (and more recently significant) increase in the number of arbitration cases; one the other hand there is a rather systematic criticism expressed by certain voices, predominately in the corporate world.Most well established institutions have recorded a 10% increase in their…
In the same arbitration proceedings, the Swiss Federal Supreme Court had to decide twice -albeit based on different grounds – whether facts discovered after the issue of an award (so called “nova”) may entail the amendment of the rendered award. In these decisions the Swiss Federal Supreme Court had the opportunity to restate its rigorous…
Following on from Patrick Dumberry’s post, I wanted to offer some information on another pending investor-state dispute where a version of the persistent objector argument has arisen. There is an ongoing discussion in the Grand River Enterprises v. USA NAFTA arbitration, as to whether there is an “emerging” customary international law norm which requires States…
The question of the existence of legal protection for foreign investors under customary international law has always been controversial. States have indeed entered into BITs precisely because of the lack of development of relevant custom rules in the field of international investment law. It is nonetheless largely agreed today that some rules of customary law…
Addressing an issue of first impression, the United States Court of Appeals for the Sixth Circuit recently held that, notwithstanding a prior-filed lawsuit in Australia, the doctrine of international abstention did not prevent a federal court from deciding a motion to compel arbitration under Chapter 2 of the Federal Arbitration Act. Answers in Genesis of…
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…
In submitting his instructions to the American delegation attending the 1907 Second Hague Conference, Secretary of State Elihu Root argued that the Permanent Court of Arbitration system needed radical improvement. In his instructions he wrote: There can be no doubt that the principal objection to arbitration rests, not upon the unwillingness of nations to submit…
In a decision dated 5 December 2008 (4A_376/2008), the Swiss Federal Court (“SFC”) had the opportunity to address two legal topics in the context of international arbitration: The first topic was the interpretation of a pathological arbitration clause. B___ Ltd. (“Claimant-Company”) had initiated arbitration proceedings in Lugano under the ICC rules against A.___ (“Respondent”) on…
I. Introduction On 9 February 2009 the Swiss Federal Tribunal (FT) quashed a Court of Arbitration for Sport (CAS) award (Case reference 4A_400/2008). Annulment of an award is a rare enough event to call attention in itself, though this case warrants further inspection. The issue is not the choice of the applicable law (Article 187…
One of the defining features of the international arbitration community is the plethora of international arbitration conferences. Every month the calendar is full of opportunities to travel the world to attend conferences. This month it is Frankfurt, Lausanne, The Hague, and Washington. Last month it was Paris, Dubai, Vienna and Bonn. It’s not exactly normal…
In a recent decision dated 10 October 2008 (4A_224/2008), the Swiss Federal Supreme Court found an arbitral tribunal competent to decide on a party’s request that its contractual partner should refrain from calling a bank guarantee. A Turkish company active in the production of fertilizer (X A.S.) had concluded a construction contract under which its…
In its decision of 6 October 2008 (5A_201/2008), the Swiss Federal Supreme Court had another opportunity to address its practice regarding conflicts of interests of part-time judges and arbitrators. It had stated in earlier decisions that a judge is deemed to be biased if he or she acts or recently acted as counsel for one…
The Kluwer Arbitration Blog is a project that has been in the works for months, and we are excited about what the future holds for this new venture. As the managing editor of this new blog, I wanted to offer a few quick thoughts about the nature of international arbitration and why I think the…
