“Alice again enters a fantastical world, this time by climbing through a mirror into the world that she can see beyond it. There she finds that, just like a reflection, everything is reversed”…and “walking away from something brings you towards it” (Alice’s Adventures in Wonderland, Lewis Carroll). The current worldwide outbreak forced by Covid-19 has…
There was a time when arbitrators were to a large extent immune from liability and could thus not be sued before national courts for damages caused to the parties to a dispute. This was true mainly in common law jurisdictions and was probably the case in most civil law countries as well. For instance, under…
In its unanimous decision in the Micula case the UK Supreme Court on 19 February 2020 made clear that ICSID arbitral awards rendered by tribunals established pursuant to intra-EU BITs could be enforced in the UK. As explained by Guillaume Croisant in his blog post on 20 February, the UK Supreme Court overruled the Court…
The significance of an arbitration agreement’s proper law cannot be understated, given its importance vis-à-vis the arbitration agreement’s validity and consequent implications on the tribunal’s jurisdiction and the arbitral award’s enforceability. Notwithstanding this, parties rarely specify the arbitration agreement’s proper law – hence the need for a clear legal framework governing its determination. In BNA…
On 28 January 2020, the arbitration panel has been formed in the dispute between the EU and Ukraine regarding Ukraine’s export prohibition of unprocessed timber. Notably, this is the first dispute between the EU and Ukraine under the Association Agreement (“EU-Ukraine AA”), and here, the EU invokes the dispute settlement mechanism provided by the free-trade…
We are happy to report that the latest issue of the ASA Bulletin is now available and includes the following articles and cases: ARTICLES Felix DASSER, Of Lighthouses and Rocks In his first message as ASA President, Felix DASSER points out the challenges and opportunities ASA faces during his term and sets priorities. …
In interpreting one of the most contested investment treaty protection standards – fair and equitable treatment – arbitral tribunals have increasingly referred to the necessity for an investor to conduct a due diligence investigation before investing in a host state. Foreign investors have been required to assess not only commercial, but also general socio-political risks….
COVID-19: Background and Impact on Foreign Investment in the Developing Countries As discussed on the Blog previously, the number of confirmed cases of COVID-19, the disease caused by the virus named SARS-CoV-2, continues to rise globally, as shown on this page from the WHO. Today, the virus has already spread in Western Europe and the…
A California district court held in February that 28 U.S.C. Section 1782 could be used to seek discovery for use in a private, commercial arbitration, becoming the first district court in the Ninth Circuit to do so, and, following recent decisions in the Sixth and Fourth Circuits, potentially teeing up an even more pronounced split…
A decision by the Paris Court of Appeal rendered in 2018 rejected a request by the state of Cameroon for annulment of an arbitral award that had applied OHADA law over Cameroonian law (CA Paris 16/25484, 20 December 2018). The action for annulment had been brought by the state of Cameroon against three arbitral awards…
For the 35th Annual Joint Symposium of Arbitrators, the ICC Institute of World Business Law and the School of International Arbitration proposed a debate on the participation of “States and State Entities in International Arbitration”. This year, Herbert Smith Freehills hosted the event in London. First Panel: State Involvement in International Business and Trade…
The findings of the recent decision Ali Riza et al. v. Turkey (“Riza“) of the European Court of Human Rights (“ECtHR“) dated 28 January 2020, when read in conjunction with the ECtHR’s previous decision Mutu and Pechstein v. Switzerland (“Mutu-Pechstein“) dated 2 October 2018 (which concluded the “Pechstein Saga”), could potentially have an impact on…
Although some might have considered 2019 a bit “lackluster”,1)Th. Clay, Panorama – Arbitrage et modes alternatifs de règlement des litiges: novembre 2018-décembre 2019, Dalloz, 26 December 2019. a number of noteworthy decisions by the Paris Court of Appeal and French Supreme Court have come to refine on the now well-established French case law on international…
We live in time when sanctions hit the headlines almost every quarter. Naturally, this frustrates contracts and creates additional causes for disputes. However, there exists uncertainty as to whether sanctions also render awards unenforceable on the grounds of public policy. As will be shown in this post, even within the supreme court of one country…
The Report on Online Dispute Resolution platform for consumers issued by the European Commission on 2 October 2019 concludes that “the ODR framework is underused and has yet to reach its full potential”. Against this background, the French legislator has taken a strong stance to promote the use of artificial intelligence and online dispute resolution,…
“I prefer to hope that this shift in perspective will be a chance for people, organisations, businesses, politics, whatever, to put so many of their ongoing disputes and conflicts aside because with this new perspective comes the realisation that these are not worth fighting. It is time to cooperate. May we go through and come…
Welcome to the Kluwer Arbitration Blog, Ms. Letelier! We are grateful for this opportunity to learn more about the Center for Arbitration and Mediation of Santiago (“CAM Santiago” for its initials in Spanish), and its administration of complex disputes, as well as about the attractiveness of Santiago as seat for international arbitration. To start,…
In 2019, the United States (‘U.S.’) made six non-disputing Party submissions in investment treaty arbitrations, three of which took place under the NAFTA (Lion Mexico Consol. L.P. v. Mexico; Vento Motorcycles, Inc. v. Mexico; and Tennant Energy, LLC v. Canada), and one each of which took place under U.S. agreements with Korea, Peru and Panama (Jin Hae…
Extraordinary Times These are extraordinary times in many regards. The spread of novel coronavirus (“COVID-19”), now considered a pandemic, continues to have a significant global impact on several fronts. For States, the pandemic of course presents significant public health challenges. As we are seeing, it also presents significant economic challenges, due to the convergence of…
Dr. Li Hu is Deputy Secretary-General of China International Economic and Trade Arbitration Commission (“CIETAC”), Vice Chairman of China Maritime Arbitration Commission, and also Board Member of the Arbitration Institute of Stockholm Chamber of Commerce. He has authored several publications on dispute resolution in China and has served as arbitrator in over 120 domestic and…
Due process paranoia remains a live issue in international arbitration. Arbitrators can feel under pressure to fulfil their duties to give parties an opportunity to present their case whilst also ensuring that they produce an enforceable arbitral award. This concern to be seen to have delivered due process can arguably be increased when coupled with…
Introduction Rule 29 of the 2016 SIAC Rules (“SIAC Rules”) introduced a procedure for enabling an ‘early’ dismissal of claims and defences. Rule 29 is akin to summary judgment and striking out in common law courts. It is aimed at allowing a tribunal to dismiss patently unmeritorious claims and defences without having to conduct full-fledged…
On 31 March 2020, the Republic of Palau (“Palau”) became the 163th state to accede to the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “Convention”).1)The authors were engaged by the Asian Development Bank (“ADB”) as part of a team of experts to advise on Palau’s accession to the Convention…
On 25 January 2020, India and Brazil signed an investment agreement (the “India-Brazil BIT”). As an agreement that has been signed at the dawn of the new decade, it is symbolic for a few reasons. First, it is a south-south agreement between two large and growing economies. Second, it abandons investor-state arbitration in favor of…
