Introduction East and Central Asia sees further efforts to promote arbitration through legislative and regulatory developments. Domestic courts clarified issues fundamental to arbitration and the judicial enforcement of arbitral awards. Domestic legislative and judicial bodies and arbitral institutions continue to grapple with recent trends and come up with innovative solutions that reflect the unique experience…

Introduction  On September 1, 2023, the Standing Committee of the National People’s Congress promulgated the People’s Republic of China (“PRC”) Foreign State Immunity Law (“CFSIL”, bilingual version here).  It will enter into force on January 1, 2024, together with the amended Chinese Civil Procedure Law 2023 (“CPL 2023”, English translation here).  The new legislation not…

On 24th of February 2022, the Russian Federation commenced a full-scale and open invasion of Ukraine after annexation of Crimea and eight years of hiding behind its puppet republics, the so-called Donetsk and Luhansk People’s Republics. The main difference between the start of armed conflict in the Donbas region in 2014 and the start of…

The permissive language of Article V(1)(e) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) continues to tease parties challenging recognition and enforcement of arbitral awards with the prospects of success.  That is the case for Nigeria in its latest efforts to fend off the confirmation of a…

When States participate in investor-State arbitration and lose, they become award debtors like any other losing party in for instance international commercial arbitration. When it comes to execution against States, however, the plea of sovereign immunity presents a serious obstacle to award-creditors. Assets available for execution (i.e., such used for non-governmental commercial purposes) are not…

There has been much debate about immunity this last year. While, most were discussing concepts of “herd immunity” against the novel coronavirus, the Delhi High Court (Court) ventured into and addressed aspects of “sovereign immunity”. In a batch of petitions (KLA Const Technologies v. The Embassy of the Afghanistan and Matrix Global v. Ministry of…

In May 2021, Cairn Energy PLC filed a lawsuit before a New York Court to enforce a USD 1.2 billion investor-State arbitral award against India passed by the Permanent Court of Arbitration. It sought, in particular, a proclamation that State-owned entity (SOE), Air India “should be held jointly and severally responsible for India’s debts, including…

The International Convention on the Settlement of Investment Disputes (ICSID Convention) contains two provisions regulating compliance with arbitral awards. Article 53(1) provides that an award shall be binding on the parties. Article 54(1) requires each contracting State to recognise an ICSID award as binding. In this regard, it is common for parties to comply with…

In the last decade, fifteen cases have been filed by foreign investors against India under various bilateral investment treaties (BITs).  Of these, three major cases were spurred by the ill-reputed retrospective taxation by India in 2012, allegedly targeted towards certain foreign investors namely: (i) Vodafone International Holdings BV v. The Republic of India (Vodafone case);…

The latest decision in the long running investment dispute saga of Stati, Ascom and others v. Kazakhstan came in June 2020, when the Svea Court of Appeal (Svea hovrätt) in Sweden annulled the Swedish Enforcement Agency’s (Kronofogden) (EA) attachment decisions. In this case, the Court of Appeal’s decision effectively expanded the definition of property covered…

The recent decision issued by the United States Court of Appeals for the District of Columbia in Pao Tatneft v. Ukraine reopened the door to whether a country waives sovereign immunity under the Foreign Sovereign Immunities Act (the “FSIA”) by signing the New York Convention or other international treaties. In Pao Tatneft v. Ukraine, Tatneft,…

One of the main objectives of investment arbitration, as a feature of international investment law, is to provide a neutral forum for the parties in dispute. Neutrality is necessary because the parties are fundamentally different: while the investor is a private entity, the state is a sovereign entity with sovereign immunity. However, the scenario of…

Several authors have already discussed the enforcement of arbitral awards in Russia (see for example the recent posts on the issue estoppel and public policy in recognition and enforcement proceedings, on the confusion relating to the material scope of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and on the enforceability of…

Introduction Pursuant to Article 47 of the ICSID Convention, an ICSID Tribunal may “recommend any provisional measures which should be taken to preserve the rights of either party”. The use of “recommend” is concerning. Its lack of imperative character triggers a debate on whether ICSID provisional measures have legally binding effect, i.e. require mandatory state…

Introduction The issues pertaining to “sovereign immunity” in international arbitration are not new. Nevertheless, several aspects remain unresolved.1)Kaj Hobér, Sovereign Immunity and International Arbitration – Recent developments, Arbitrators’ Insights, Essays in Honour of Neil Kaplan (Sweet & Maxwell, 2012), 91. Sovereign immunity from execution is said to be “the last fortress, the last bastion of State…

In Mobil Cerro Negro, Ltd., et al v. Bolivarian Republic of Venezuela, a New York federal district court rejected Venezuela’s sovereign immunity challenge and upheld use of an ex parte procedure available under New York law to convert an ICSID award into a U.S. court judgment. The decision highlights the delocalized nature of ICSID awards…

Uniform jurisprudence on Sovereign immunity still seems a long distance away in international sphere for the reason that the national laws and approaches adopted by the States govern this issue. There have been attempts in the past to somehow streamline the approach by adopting legislations and, in a broader sense, by bringing a multilateral treaty….

An important issue for any business engaged in international transactions is the ability to obtain effective relief if it becomes involved in legal proceedings. A key benefit of international arbitration is the ability of successful parties to enforce awards across multiple jurisdictions, which is made easier because of the 1958 New York Convention on the…

2011 has delivered some significant arbitration developments in Hong Kong, most of which (with some exceptions!) have been undoubtedly positive. So, what were the highlights of the Hong Kong arbitration year – and what challenges might lie ahead? First, Hong Kong’s new Arbitration Ordinance (cap. 609) came into effect on 1 June 2011 (blogged here)….

Almost every country of the world has seen an enormous increase in the involvement of the State in economic activity over the past century. This trend is particularly pronounced in those economies, China foremost among them, in which the State takes an active role in commercial life. But can State owned entities and other private…

In a landmark provisional judgment in Democratic Republic of the Congo v. FG Hemisphere Associates FACV Nos. 5, 6 & 7 of 2010, the Hong Kong Court of Final Appeal (CFA) has held by a majority of 3:2 that absolute sovereign immunity applies in Hong Kong, with no exception for purely commercial transactions or assets….

Everyone is looking at China at the moment, and rightly so. It’s a very exciting place to be. Many MNCs are already here and many others are determined to get a piece of the action. But where there’s business, there are disputes. And where there’s international business, there’s arbitration. There is no doubt that the…