The Institute of Transnational Arbitration (ITA), in collaboration with the ITA Board of Reporters, is happy to inform you that the latest ITA Arbitration Report was published: a free email subscription service available at KluwerArbitration.com delivering timely reports on awards, cases, legislation, and current developments from over 60 countries and 12 institutions. To get your free subscription to the ITA Arbitration Report, click here.
The ITA Board of Reporters have reported on the following awards.
Hong Kong International Arbitration Centre, ITA Reporter for the Hong Kong International Arbitration Centre (HKIAC)
In an arbitration under the 2018 HKIAC Administered Arbitration Rules (the ‘2018 Rules’) where the Claimants initiated a single arbitration under multiple contracts, HKIAC determined not to proceed with a single arbitration under all three invoked contracts due to the incompatibility of the arbitration clauses. HKIAC decided to inform the Claimants that a single arbitration under two of the invoked contracts may proceed and invited the Claimants to amend their Notice of Arbitration in the captioned matter.
Hong Kong International Arbitration Centre, ITA Reporter for the Hong Kong International Arbitration Centre (HKIAC)
In this case, the first co-arbitrator designated by Claimant had been previously designated by Claimant and served as co-arbitrator in a related CIETAC arbitration, where a favourable award was issued. HKIAC noted that the designation of the first co-arbitrator may give rise to concerns regarding predisposition and prejudgment of matters in dispute and there was no mitigating factor since Respondent could not be presumed to have agreed to such appointment. In light of this, HKIAC decided not to confirm the overlapping arbitrator as the first co-arbitrator as per Claimant’s designation.
A. v. B. & Anor (Determination of Fees), HKIAC Case ID CD2023/09/02, 1 July 2023
Hong Kong International Arbitration Centre, ITA Reporter for the Hong Kong International Arbitration Centre (HKIAC)
In this case, HKIAC upheld the fees of the former presiding arbitrator and former tribunal secretary following a request for reduction of the fees by one of the parties.
Hong Kong International Arbitration Centre, ITA Reporter for the Hong Kong International Arbitration Centre (HKIAC)
Claimants and Respondents signed the Memorandum to record the parties’ transition arrangement from the First Charterparty to the Second Charterparty. Claimants commenced the arbitration pursuant to (i) the Second Charterparty and (ii) the Memorandum. HKIAC was of the view that it had prima facie power to proceed with the arbitration under the 2018 Rules and granted Claimants’ application for commencing a single arbitration pursuant to Article 19.5 of the 2018 Rules.
Hong Kong International Arbitration Centre, ITA Reporter for the Hong Kong International Arbitration Centre (HKIAC)
In this matter, HKIAC refused the consolidation of the two arbitrations on the ground that not all of the requirements under Article 28.1(c) of the 2018 Rules had been satisfied.
Heiko Heppner, Diora Ziyaeva, Daniel Wisehart, and Thomas W. Davis, Dentons, ITA Reporters for the International Centre for Settlement of Investment Disputes (ICSID)
In Nachingwea et al. v. Tanzania, the Tribunal upheld jurisdiction over an investment that was purportedly ‘inactive’ under the relevant investment treaty, ruling against previous case law. In so doing, it found that Tanzania had unlawfully expropriated a mining retention license held by a group of foreign companies.
Cody Anthony, Ana Restrepo Londoño, Shalin Shah, and Diora Ziyaeva, Dentons, ITA Reporters for the International Centre for Settlement of Investment Disputes (ICSID)
The award concerns claims of expropriation and violations of minimum standards of treamtent under the Free Trade Agreement between Canada and the Republic of Colombia, dated November 21, 2008 and entered into force on August 15, 2011. The award is interesting in light of its similarities and differences with earlier mining-disputes in the region analyzed by ICSID—particularly the Eco Oro decision.
Charles H. Brower, II, ITA Reporter for the North American Free Trade Agreement (NAFTA)
In NAFTA Chapter 11 proceedings conducted under the ICSID Convention, the tribunal granted one of the claimant’s four requests for provisional measures.
Charles H. Brower, II, ITA Reporter for the North American Free Trade Agreement (NAFTA)
In NAFTA Chapter 11 proceedings conducted under the ICSID Convention, the tribunal declined to revoke its recommendation of provisional measures because respondent could not establish any material change of circumstances.
Charles H. Brower, II, ITA Reporter for the North American Free Trade Agreement (NAFTA)
In NAFTA Chapter 11 proceedings conducted under the ICSID Convention, the tribunal rejected the respondent’s request for bifurcation because the jurisdictional objection could be examined separately from, but concurrently with, ongoing proceedings on merits. In addition, the tribunal rejected the jurisdictional objection because the claimant had not violated the waiver required by NAFTA Article 1121 by commencing a second arbitration against Mexico.
Charles H. Brower, II, ITA Reporter for the North American Free Trade Agreement (NAFTA)
In NAFTA Chapter 11 proceedings conducted under the ICSID Convention, the tribunal allowed ordered bifurcation of the proceedings because the respondent’s jurisdictional objections were prima facie serious and involved only legal questions sounding in treaty interpretation and related principles of public international law.
Charles H. Brower, II, ITA Reporter for the North American Free Trade Agreement (NAFTA)
In NAFTA Chapter 11 proceedings conducted under the ICSID Convention and the legacy provisions of the USMCA, a tribunal held that it lacked jurisdiction over a claim involving the cancellation of emissions allowances without compensation. In so doing, the tribunal held that the emissions allowances did not qualify as investments for purposes of NAFTA Article 1139 because they were not ‘property’ for purposes of Ontario law and did not constitute ‘interests’ arising from the commitment of capital in Ontario to economic activity in Ontario. Also, the tribunal rejected arguments that jurisdiction could be established by estoppel. Finding that the investor had pursued a ‘very close’ and ‘novel’ case in good faith, the tribunal concluded that each side should bear their own legal expenses as well as half the cost of the proceedings.
Charles H. Brower, II, ITA Reporter for the North American Free Trade Agreement (NAFTA)
In NAFTA Chapter 11 proceedings conducted under the ICSID Convention and the legacy provisions of the USMCA, a tribunal denied the respondent’s request to suspend the proceedings pending the decisions of two other tribunals regarding the scope of the USMCA’s legacy provisions. In so doing, the tribunal emphasized that the respondent had not acted in a timely manner. Also, suspension would offer no obvious benefits, delay the proceedings, and confer an unfair advantage on the respondent.
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