2016 was a great year for Brazil, especially because it hosted the Rio 2016 Olympic Games, which has brought many good things: thousands of sports enthusiasts came to Rio de Janeiro to see high profile athletes; others just came for a good caipirinha on the Copacabana Beach; and, of course, many athletes from different countries…
On 30 November, Australia’s Joint Standing Committee on Treaties (JSCOT) released its Report 165 on its inquiry into the Trans-Pacific Partnership Agreement (TPP). JSCOT is a 16-member parliamentary committee tasked with advising the Australian parliament on ratification of treaties. This article presents an overview and discussion of the Report’s findings on ISDS, the most common…
Traditionally, arbitration agreements do not designate the law governing the arbitration agreement. In BCY v BCZ [2016] SGHC 249 (“BCY v. BCZ“), the Singapore High Court clarified the position in relation to the law applicable to the arbitration agreement where such choice is absent. In doing so, the High Court differentiated between the situations where…
On January 1, 2016 the Milan Chamber of Arbitration (“Milan CAM”), issued Rules for Dispute Boards (“Milan Rules”) exactly one year after the Arbitration and Mediation Center of the Santiago Chamber of Commerce (“CAM Santiago”) did so in Chile (“Santiago Rules”). Milan CAM has around 950 mediation filings per year and over 130 arbitration proceedings…
The last month of 2016 offered a compelling collection of posts on the Kluwer Mediation Blog, from the third-party funding of dispute resolution to the value and difficulty of forgiveness. For those of you looking for a New Year’s resolution, you’ll find inspiration in the posts by Greg Bond and John Sturrock (links to which…
The Paris Agreement does not include an enforcement mechanism. However, trends show that different actors have been innovative in using different legal mechanisms to address environmental and climate change issues. As noted by the Stockholm Chamber of Commerce in this respect, “[g]reen investors have resorted to international arbitration to resolve disputes related to, among others,…
The fact that foreign States are normally entitled to immunity from enforcement before national jurisdictions pursuant to customary international law, has always been the stumbling block in the enforcement of arbitral awards against them. In France to the date State immunity from enforcement has been regulated by case law, but a new Bill on transparency,…
On 6 December 2016 the German Constitutional Court (GCC) delivered its judgment in the case of Vattenfall and other nuclear power energy companies against Germany. This dispute and final judgment – which have attracted far less attention and criticism from anti-ISDS groups than the Vattenfall dispute currently under the Energy Charter Treaty (ECT) – provide…
Much Ado About India’s Protectionist Model BIT The last week of November 2016 was an eventful and rather paradoxical week for India. While India and Brazil successfully concluded negotiations for a new Bilateral Investment Treaty (“BIT”), the India-Netherlands BIT expired. India has spent the past year refurbishing its investment agreements. According to UNCTAD, India is…
General Considerations In the context of the series of posts dedicated to the Final Report of the ICC Task Force on Financial Institutions and International Arbitration, this post aims at providing a broad picture of the scope, survey and conclusions related to the use of arbitration in disputes involving asset management matters. As a matter…
Advisory works generally include advisory services rendered by investment banks to their clients in two main areas: M&A (mergers and acquisitions) and equity capital markets. In this context, a financial institution will enter into a various number of agreements, either with its clients (mandate, etc.) or with its counterparty to a transaction where the deal…
Introduction It is a key principle in many jurisdictions across the world that arbitration clauses should be separable from the underlying contract in which they are contained. This prevents arbitration clauses from being denuded of their effect, particularly where the contract is void for fraud. However, not all jurisdictions uphold the separability principle. Therefore, in…
The decisive underlying reasoning (motifs, Begründung) is, without doubt, an essential part of any arbitral award and as such bears the potential of frustrating parties and arbitrators alike. On the one hand, elaborate reasoning in arbitral awards more often than not comes at the price of long waiting periods for the issuance of the awards,…
The ICC Commission on Arbitration and ADR’s Task Force on Financial Institutions and International Arbitration recently published its ‘Report on Financial Institutions and International Arbitration’ (the “Report”). The undersigned had the honour of leading the work stream on “International Financing” and the findings of that team are summarized in Section IX (International Financing) of the…
The new ICC Report on Financial Institutions and International Arbitration finds that the oft-cited financial institutions’ averseness to arbitration, abstractly stated, is incorrect. Financial institutions’ perception of arbitration is rapidly evolving in the wake of the global financial crisis, the sovereign debt crisis, the digitalization of banking, and the new regulatory approach to bank resolution….
The recent developments concerning the signature of the Comprehensive Economic Trade Agreement (CETA) between Canada and the EU have illustrated the paralysis and inability of the EU and its Member States to deliver economic prosperity and create jobs – which used to be one of the very reasons for establishing the EU and giving it…
In the 1980s, a study conducted by Stanford University showed that after watching the same television reports on the Sabra and Shatila massacre in Beirut, both a pro-Israeli and a pro-Arab group concluded that the coverage was biased in favor of the other side. The researchers found that the partisans of the two groups evaluated…
Section 1782 has become the weapon of choice for international litigants seeking discovery in aid of foreign proceedings. Section 1782 allows an “interested person” to apply for discovery over a person or entity “found” in the U.S. “for use” in a proceeding “in a foreign or international tribunal.” Significant uncertainty exists, however, in whether Section…
The Kluwer Journal of International Arbitration (JOIA) is pleased to announce a forthcoming Special Issue on “Dispute Resolution in Asia.” This Special Issue will focus on the use of international arbitration as means of resolving cross-border disputes in Asia. Slowly but steadily, Asia has established its presence on the international arbitration world map. The main…
Last month I was privileged to organize a conference at the University of Notre Dame’s London Global Gateway on the topic of UK trade and Brexit. The conference had three sessions: (1) UK trade negotiations with the EU; (2) UK trade negotiations outside the EU; and (3) UK’s post-Brexit status within the WTO. You can…
“A camel is an animal designed by a committee” – Anonymous In launching the BEPS programme in 2013, the OECD warned that replacement of the current consensus-based framework by unilateral measures, could lead to global tax chaos marked by the massive re-emergence of double taxation (OECD: Action Plan on Base Erosion and Profit Shifting (2013))….
The 2016 International TMT Dispute Resolution Survey, sponsored by Pinsent Masons LLP, is the seventh survey carried out by the School of International Arbitration since 2006. It is part of a major investigation into international dispute resolution practices and trends worldwide. This year’s survey, the largest industry-sector empirical study ever conducted in international arbitration, sought…
From mediation legislation developments in the Ukraine to the contribution of mediation and mediators in these times of uncertainty and opportunity, over the past month the posts on the Kluwer Mediation Blog have addressed a wonderful assortment of topics. In Putting Away Childish Things, John Sturrock considers the loss of civility which appears commonplace nowadays,…
Over the past few decades, responding to the need to control the growing costs and time of arbitration proceedings, the International Court of Arbitration of the International Chamber of Commerce (“ICC Court”) has continuously sought to achieve greater efficiency of the ICC arbitration proceedings (examples of such efforts can be found on the links available…
