We are happy to inform you that the latest issue of the journal is now available and includes the following contributions: Michael Hwang, Gökçe Uyar & Cosima Wimmers, The Enka v. Chubb/Anupam Mittal v. Westbridge Controversies: Why Not the Hong Kong (Partial) Solution? This paper explores the critical theme of determining the governing law…
It is not unnoticed that good faith gained relevance in investment treaty arbitration. There is an increasing number of decisions where good faith was relied on by tribunals on the basis of Article 31(1) of the Vienna Convention on the Law of Treaties (“VCLT”), the general rule of interpretation, according to which “[a] treaty shall…
Mass arbitration has become extraordinarily expensive and highly volatile. The practice originated during a low tide for conventional class action certification and a high tide for judicial enforcement of individual arbitration agreements and class action waivers. Over the past decade, plaintiffs’ firms embraced this legislative and jurisprudential landscape and coordinated mass filings of individual arbitration…
Against the backdrop of the ongoing war in Ukraine, numerous commercial disputes have arisen. In a (further) significant ruling dated 1 June 2023, the Higher Regional Court Berlin (Kammergericht or the “Court”) reinforced the integrity of arbitration by confirming the admissibility of arbitration to the exclusion of (Russian) state courts (Case No. 12 SchH 5/22)….
On 4 July 2024, Russia’s Arbitrazh Court of the North-Western Region (cassation) confirmed the earlier decision of the Arbitrazh Court of Saint Petersburg (first instance) to grant an anti-suit injunction prohibiting German Uniper Global Commodities SE (“Uniper”) and Methanhandel GmbH (“Metha”) from continuing ad hoc arbitration proceedings in Stockholm (Case No. А56-16212/2024). The reasons behind…
There is no dull moment in the intra-EU realm. Pandora’s box has long been opened by the Court of Justice of the European Union (“CJEU”) with its Achmea decision leading to numerous ongoing challenges. In a recent ruling, the District Court of Amsterdam (“Amsterdam Court”) had to address a strategic manoeuvre by the Kingdom of…
The third update of materials for the 2024 Yearbook Commercial Arbitration is available on the KluwerArbitration database, with 29 court decisions from 13 countries. Here are some of the highlights. In a dispute between the Turkish company Etrak Insaat Taahhüt Ve Ticaret Anonim Sirketi and Libya concerning the execution of a settlement agreement governing payment…
From 1st to 3rd September 2024, the Brazilian Arbitration Committee—CBAr held its 23rd International Arbitration Conference (“23rd CBAr IAC” or “Conference”) in Brasília, Brazil’s federal capital. The theme of this year’s Conference was “Arbitration and Infrastructure.” The Organizing Committee, composed of both the current and previous CBAr Board members, succeeded in providing a program that…
The 23rd CBAr IAC was a resounding success. The second day of the Conference included a first Panel on the Circulation of Contractual Models and Infrastructure Arbitrations, a second Panel on Contractual Incompleteness and Infrastructure Arbitrations, and a third Panel on the Limits of Consent, Arbitrability, and Judicial Review in Infrastructure Arbitrations. Below, we summarize…
Continuing the central theme of the CBAr 23rd International Arbitration Conference, focused on discussing “Arbitration and Infrastructure,” the two panels held on September 3rd, 2024 were focused on the rendering of technical evidence in infrastructure disputes and the impact of foreign investment and sustainability in Brazil—topics of great complexity, yet essential for the continued development…
Arbitration and insolvency embody, to some extent, countervailing legal policies. Courts in many jurisdictions have grappled with the extent to which claims involving an insolvent company should be permitted to be resolved through arbitration. In the October 2023 decision of Indian Oil Corporation Ltd v Arcelor Mittal Nippon Steel India Ltd (“Indian Oil”), the Delhi…
On 11 April 2024, the Permanent Court of Arbitration published the award in Mason Capital L.P. and Mason Management LLC v. Republic of Korea (PCA Case No. 2018-55) (“Mason”), reaching the same substantive result as last year’s award in Elliott Associates L.P. v. Republic of Korea (PCA Case No. 2018-51) (“Elliott”), while disagreeing on the…
In a decision of 1 June 2023 (Case No. 12 SchH 5/22) that was praised as landmark, the Higher Regional Court of Berlin (Kammergericht) (“KG”) addressed some of the legal issues arising from the complex dispute between Siemens and Russian Railroads (“RZhD”) concerning the unilateral termination of an electric trains maintenance and repair contract by…
Many arbitration practitioners nowadays trace their initial interest in arbitration back to their student days, when they competed at the world’s largest and most renowned law student competition in the field of arbitration – the Willem C. Vis International Commercial Arbitration Moot. Created in 1993 by Prof. Dr. Eric E. Bergsten, the Vis Moot Competition…
Early this year, the European Union (“EU”) finalized the required internal procedures for the entry into force of the Sustainable Investment Facilitation Agreement concluded between the European Union and the Republic of Angola on 18 November 2022 (“SIFA” or the “Agreement”). This landmark agreement, the EU’s first “sustainable investment facilitation agreement,” could set a precedent…
On 11 June 2024, the Swiss Federal Supreme Court (the “Court”) rendered another pair of decisions in the high-stakes arbitration saga Crescent Petroleum Co. International Ltd. (“Crescent”) v. National Iranian Oil Company (“NIOC”) (decisions no. 4A_288/2023 and 4A_572/2023). The Court rejected two separate applications for revision by NIOC, requesting revision of an interim award following…
On 12 July 2024, more than 25 years after adopting its current arbitration law, the German government agreed on a draft reform law (“Draft Law”). It is based on a White Paper issued in April 2023 (reported here), including comments received thereon (see here). The now adopted version (dated 26 June 2024, to be submitted…
In the era of ‘big data,’ a term that undoubtedly describes the large and complex datasets that businesses generate and exchange, it is increasingly complex for international businesses to navigate the challenge of storing, processing, and analysing their data. Indeed, today’s businesses generate and exchange greater and greater volumes and varieties of data at an…
In the last decade, India has emerged as a prominent pro-arbitration jurisdiction owing to several factors including legislative changes to the Arbitration and Conciliation Act, 1996 (“Arbitration Act”). Indian courts have been at the forefront of this movement and consistently interpreted Indian law in favour of arbitration rather than against arbitration. A noticeable trend has…
On 7 August 2024, the High Court of Australia (“Court”) delivered judgment in the much-anticipated Tesseract International v Pascale Construction [2024] HCA 24 in which the Court held that proportionate liability statutes apply in arbitration. This post seeks to draw attention to critical aspects of the decision of Australia’s highest court, and suggests that, properly…
On 4 August 2023, in an investor-State dispute settlement (“ISDS) arbitration commenced against Australia on 29 March 2023 under the Association of Southeast Asian Nations (“ASEAN”) Australia New Zealand Agreement for a Free Trade Area (“AANZFTA”), Singapore-incorporated Zeph filed an application for interim measures including an unusual request. Zeph sought an order that Australia’s “officers…
Rusoro Mining Ltd. (“Rusoro”), a Canadian corporation, filed an investment claim against The Bolivarian Republic of Venezuela (“Venezuela”), pursuant to the International Centre for Settlement of Investment Disputes (“ICSID”) Additional Facility Arbitration (“AF”) Rules of April 2006 (Case No. ARB(AF)/12/5). Rusoro claimed that, between 2009 and 2010, Venezuela expropriated its investment over mining rights and…
Although often seen as theoretical, the recognition and enforcement of annulled arbitral awards remain a fascinating issue in international arbitration. As the text of the New York Convention (“NYC”) provides limited guidance, there has been substantial consideration in both academic commentaries and national court decisions. While global arbitration hubs such as Paris, London, or Singapore…
The doctrine of immunity from execution, viewed as the “last bastion of State immunity“, has traditionally shielded sovereign assets from being used to satisfy adverse arbitral awards. While municipal laws on State immunity vary, the dominant view in modern international legal practice is that a State’s consent to arbitration, whether under a treaty or a…
