By Odysseas G. Repousis In a given investment dispute, it is not impossible to imagine that two or more investment treaties will be applicable and will concurrently provide for recourse to international arbitration. In addition, a host of other instruments may also be in force and pave the way for an international investment claim, such…

As reported earlier, the US Supreme Court has recently adjudicated on the issue of the standard of review in relation to arbitration agreements in international investment arbitration. It is a fact that the majority of the Court has decided that deference should be given to arbitral tribunals to examine questions of procedural conditions, as it…

and Niyati Gandhi A done to death topic in arbitration gatherings in emerging markets, particularly in India, is the debate about ad hoc versus institutional arbitration. The basic arguments in favour and against both have been discussed time and again. However, renewed support for institutional arbitration can be found in two recent judgments from the…

Facts The applicant, Darie Engineering (Darie), and the first respondent, Alstom Transport SA (Alstom), had a business relationship spanning over 20 years in which Darie acted as Alstom’s representative in the transportation sector in Israel. Darie filed an action against Alstom and the second respondent, Alstom Israel Ltd. (the Respondents), in the Israeli District Court,…

Apropos of a recent decision in ConocoPhillips v. Venezuela (ICSID Case No ARB/07/30), this post discusses the potential underlying concerns an arbitral tribunal may consider when deciding whether it can revise earlier decisions within the context of fragmented proceedings. Background The ICSID proceedings in ConocoPhillips v. Venezuela (ICSID Case No ARB/07/30) commenced in November 2007…

By Maria Eugenia Ramirez and Roland M. Potts According to a recent study, as many as seventy-five percent (75%) of contracts entered into by the 500 largest global multinationals contain arbitration clauses. The arbitration clauses are as diverse and varied as the agreements containing them and the parties who enter into such agreements. What is…

Simon Lester has a thoughtful response to my earlier post about using trade remedies to enforce arbitration awards. He questions whether conditioning GSP benefits on compliance with arbitration awards is consistent with WTO obligations. My answer is essentially yes. Because there are so many issues at play, I thought it best to respond in a…

This post suggests revisiting the issue of whether bankruptcy of a foreign company party to arbitration proceedings pending in Switzerland can prevent the arbitration from moving forward and questions whether a specific provision should be introduced in Swiss legislation to specifically address the issue. The State of Play As it stands, the issue is not…

and Oleg Temnikov I. Foreword At the end of 2013, the Financial Times reported that a referendum will be held in Berlin on the question whether the State shall take over power supply from the hands of Vattenfall. We use this as an occasion to examine the legal implications in the field of investment arbitration…

As I discuss in a recent article published in the Santa Clara Journal of International Law, one of the most significant developments signaling the convergence of trade and arbitration is the use of trade remedies to enforce arbitration awards. This is done primarily when a developed country threatens to remove preferential trade benefits to a…

Introduction In BG Group v. Republic Argentina, a divided U.S. Supreme Court (“the Court”) continued to hold that arbitrators are the proper decision makers in gateway questions of arbitrability, not courts. The issue here concerned whether or not the local litigation requirement in the U.K-Argentina BIT was a procedural prerequisite to investor-state arbitration, or a…

The Competence-Competence Principle is a fundamental principle of international arbitration. It is recognized in article 8 of Brazilian Arbitration Law. However, in Companhia de Geração Térmica de Energia Elétrica – CGTEE v. Kreditanstalt Fur Wiederaufbau Bankengruppe, the Rio Grande do Sul Court of Appeals raised some doubts about it is applicability in Brazil. (Rio Grande…

Setting the scene Iraq currently ranks with Libya and Yemen amongst those recalcitrant Arab states that have thus far failed to ratify the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention or Convention). This state of affairs and the inadequacy of the country’s domestic and…

The recent Bangladesh factory disaster has brought the plight of labourers in developing countries to the forefront in the international arena. Reforms in the labour legislations in Bangladesh have been demanded, which could lead to the implementation of stricter labour standards in the country. This could possibly lead to investment arbitration claims against Bangladesh, if…

The views expressed are those of the author alone and should not be regarded as representative of or binding upon the author’s law firm. Consolidation of multiple disputes into a single arbitration proceeding is considered progress with respect to the efficiency of the arbitration process. Consolidation is a procedural mechanism allowing for two or more…

On 28 February 2014, the Regional Court of Munich rendered a decision in the matter opposing German speed skater Claudia Pechstein to the ISU (Judgment of the Regional Court of Munich I, Case Number 37 O 28331/12; the judgment is not final). This decision is sending waves through the sports arbitration community. In a matter…

We are truly grateful to all those persons who have submitted answers to the survey. It will remain open until March 13, 2013. If you haven’t taken the poll yet, please do share your experience. You will contribute to the knowledge-building of the worldwide arbitration community. An analysis of the results will be published in…

By Ben Knowles and Khaled Moyeed at Clyde & Co LLP A recent arbitration award has highlighted the question of the enforceability of forfeiture provisions in oil and gas JOAs. The effect of such provisions is that a defaulting party forfeits its participating interest (“PI“) in a project on account of a default, such as…

By Peter Godwin, Elaine Wong and James Allsop, Hebert Smith Freehills The Japan Commercial Arbitration Association (“JCAA”) has introduced an amended version of its Commercial Arbitration Rules (the “New Rules”). The New Rules, which contain comprehensive amendments, came into force on 1 February 2014 and will apply to all arbitrations initiated on or after that…

and Niyati Gandhi On 14 February 2014, the Supreme Court of India (SCI) in Enercon India v. Enercon GMBH [Civ. App. 2086/7 of 2014] (Enercon) found occasion to revisit issues in connection with potential laws that govern an arbitration agreement. The impugned arbitration agreement contained the following clause: 18. DISPUTES AND ARBITRATION 18.1 * *…

Defective arbitration clauses are certainly uncommon, but do appear on a recurring basis in domestic and international arbitration practice. Many practitioners can go their entire professional lives without seeing any, while others encounter two or three cases over their career. The types of defective arbitration agreements or clauses are varied. Obviously, in most cases the…

An arbitral award (PCA Case No. 2011-17, 31 January 2014) arising out of the nationalisation of an electricity generation business in Bolivia has provided useful guidance on: (1) the ability of multiple investor claimants to bring joint claims against a state under separate BITs in a single proceeding; and (2) the time at which a…

Arbitration proceedings sometimes spawn a host of parallel court proceedings.  It is not unheard for parties to seek to instrumentalise courts, sometimes with the complicity of the courts themselves, to escape the jurisdiction of an arbitral tribunal.  Such conduct may, however, expose parties to liability for breach of the arbitration agreement, as was confirmed by…