In a recent decision of November 2019 the Austrian Supreme Court (“OGH” in German) considered whether an arbitral award rendered by the Chamber of Industry and Commerce of Belarus shall be declared enforceable and emphasized the importance of deliberations in the context of the ordre public standard to reach an enforceable award. In a nutshell,…

Since 2017, the appointment of members of the Appellate Body (‘AB’) of the Dispute settlement system of the World Trade Organisation (‘WTO’) has been blocked by the United States (‘US’). This has disrupted the functioning of the WTO dispute settlement system. The US claims that it has blocked the appointment for serious reasons: the AB…

The long-awaited Agreement to terminate intra-EU BITs (bilateral investment treaties) was signed on 5 May 2020 (the “Termination Agreement”). According to the European Commission, the Termination Agreement “implements the March 2018 European Court of Justice judgment (Achmea case), where the Court found that investor-State arbitration clauses in [intra-EU BITs] are incompatible with EU Treaties.” The…

This blog has previously discussed the issue of jurisdiction of Indian courts over foreign-seated arbitrations and the issue of Indian parties choosing a foreign seat of arbitration. However, a more fundamental issue concerns the interpretation of arbitration agreements to determine the choice of seat. Since September 2018, the Supreme Court of India (“Supreme Court”) has…

China’s Belt and Road Initiative (“BRI”) is well known as the largest infrastructure construction program in world history. President Xi Jinping announced its two components in 2013; one is a land-based Silk Road Economic Belt and one a sea-based 21st Century Maritime Silk Road. His grand plan includes overland and maritime work to build bridges,…

Traditionally, nationality for corporate entities has been regulated by national law, often by reference to whether a corporation has a seat in a country or was incorporated under its laws. However, international investment law has departed from the generally accepted rules of international law on the nationality of corporate persons. Already in the 1960s, the…

The year 2020 marks the 40th anniversary of the United Nations Convention on Contracts for the International Sale of Goods (CISG), one of the most important substantive instruments in international commercial law. To celebrate this occasion, the ICDR Young and International (Y&I) group and NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law organized a…

International background on IP arbitration The past decade has witnessed a substantial growth in the use of arbitration to solve Intellectual Property (“IP”) disputes. To the day, the WIPO Arbitration and Mediation Center (“WIPO Center”) has administered over 650 arbitration, mediation and expert determination cases, a number which grows faster every year, as portrayed by…

The Paris Court of Appeal recently upheld an ICC award where the arbitral tribunal exclusively applied the UNIDROIT Principles of International Commercial Contracts (‘the Principles’) as lex contractus failing any agreement on the applicable law between the parties. This recent development deserves further analysis as it confirms French courts’ favourable attitude towards the application of…

The Ruta del Sol arbitral award was one of the most important awards in 2019 in Colombia and possibly in the entire region. The arbitral tribunal sitting to resolve the Ruta del Sol arbitral proceeding (the “Tribunal”) determined the consequences of securing an infrastructure concession contract in Colombia through corrupt practices and served as pioneers…

Necessity is the golden chord that lies at the base of every innovation and invention. As countries around the world continue to implement different measures to combat the COVID-19 pandemic and to contain and deal with its ramifications, all stakeholders (including businesses and institutions) are now forced to innovate and make significant changes to the…

The strength of any dispute settlement mechanism will depend upon its consistency with the requirements of independence and impartiality. Disclosures made by adjudicators prior to adjudicating a dispute, and challenges raised against adjudicators during the course of dispute settlement, target a perceived absence of independence or impartiality. The purpose of this post is to juxtapose…

The availability and scope of ‘discovery’ or document production significantly differs across jurisdictions, most notably when comparing litigation in common law and civil law courts. In the field of international arbitration, the compromise position adopted by the International Bar Association’s Rules on the Taking of Evidence in International Arbitration is to permit disclosure of documents…

In the recent ruling of 29 April 2020, the England and Wales Court of Appeal, departing from Sulamérica, has held the seat of arbitration as an implied choice of the law of the arbitration agreement in cases where parties expressly chose the law applicable to the main contract and the seat of arbitration under a…

In a recent post, we were told to ‘Roll Out the Red Carpet’ for the Hague Rules on Business and Human Rights Arbitration (the “Rules”). Indeed, the Rules are a new development within the field to assist with disputes relating to human rights and their violations. Following a process of draft reports and public consultations,…

On January 24, 2020, Peru enacted the Emergency Decree No. 020-2020 (the “Decree”), published in Peru’s Official Gazette, El Peruano. The Decree amends Peru’s Legislative Decree No. 1071 (the “Arbitration Law”), in force since 2008, to provide protections to any arbitration in which the Peruvian Government is involved.  The Decree’s changes are, in fact, protectionist…

In January 2009, Professor Roger Alford published the first post on the Kluwer Arbitration Blog (the Blog), launching what is now considered an indispensable tool for arbitration practitioners and academics alike. Today, the Blog offers daily perspectives on the latest developments in international arbitration, reflecting our “unique” and “fascinating” international arbitration community. Our 31 editors,…

On 3 February 2020, the Republic of Seychelles became the 162nd Contracting State of the New York Convention (already followed by Palau as number 163, reported here). The New York Convention thus comes into force for the Seychelles today (Article XII(2) New York Convention). The Cabinet and the National Assembly had approved the accession on…

On May 1, 2020, the Secretariats of ICSID and UNCITRAL released the first draft of the Code of Conduct for Adjudicators in Investor-State Dispute Settlement (ISDS). I had the privilege of working extensively on the drafting of the Code as a Scholar in Residence at ICSID, and I think this is an important development in…

The 1958 New York Convention (“NY Convention” or “Convention”) was adopted in the era when probably the fastest form of communication in which an arbitration agreement could have been concluded was via telegrams. The Convention requires written form for an arbitration agreement (clause) to be valid, but the electronic communication of our times had not…

A widespread debate on the legitimacy of (and backlash against) investor state dispute settlement (ISDS) has been on-going for several years now. Put colloquially, this debate asks essentially whether ISDS in its current form is capable of handling international investment disputes, generally, and such disputes that implicate a public interest element, in particular. Moreover, it…

On March 25, the European Commission issued a set of guidelines addressed to Member States, concerning foreign direct investment (FDI) from third countries and the protection of European critical assets. In face of the current crisis caused by the outbreak of Covid-19, the European Commission calls upon Member States to make full use of their…

The use of expert witness is common in international arbitration. Recent discussions amongst Chinese practitioners have centered on the case related to the world-famous Chinese athlete Sun Yang in which the WADA’s expert opinion was believed to be material to the ruling of the CAS tribunal (“WADA vs. Sun Yang”). However, it is less common…

On 11 December 2019, the Advocate General Priit Pikamäe delivered its Opinion recommending the Court of Justice of the European Union (“CJEU”) to declare that it does not have jurisdiction to rule in infringement of European Union (“EU”) law proceedings concerning the long-running border dispute between Slovenia and Croatia, which the CJEU endorsed in the…