ICSID has just published a report on its caseload, and there is plenty of interesting data. The one that particularly caught my attention is the chart on the basis of consent invoked to establish ICSID jurisdiction. Sixty-two percent of all cases came from Bilateral Investment Treaties, while twenty-two percent came from investment contracts. An additional…
In my last post I questioned whether investor misconduct (such as fraud, illegality and corruption) is invariably a jurisdictional issue. This post focuses on the use of admissibility as a filtering mechanism to screen investor claims. Although it has been suggested by at least one investment treaty tribunal that the concept of admissibility does not…
On 8 July 2009, the French Supreme Court rendered a decision confirming its position that the existence and the validity of an arbitration agreement should be determined primarily in light of the common intent of the parties (Société d’études et représentations navales et industrielles (SOERNI) et autres vs. Société Air Sea Broker limited (ASB), July…
The treatment of investor misconduct in investment treaty arbitration raises a series of complex issues. Allegations of investor misconduct (such as fraud, illegality and corruption) can arise in the context of the making of an investment, during its operation, or in the investment treaty claim making process. How should a tribunal address investor misconduct if…
Agency as a mechanism for compelling a non-signatory to join arbitral proceedings By Hanna Roos for YIAG International investors, and those who advise them, continue to be vexed by the question of when a non-signatory, such as a sovereign state, can be compelled to join arbitral proceedings. A typical scenario involves a private investor who…
When mapping the present trajectory of investment treaties, common themes include the “rebalancing” or “recalibration” of substantive disciplines, concepts that signal a retreat from the high-water mark of investor protection and a reorientation towards the preservation of regulatory space for host states. Generally, this phenomenon takes two forms: preparation of new model treaties (the prospective…
In a recent decision dated 26 October 2009 (4A_428/2009), the Swiss Federal Tribunal held that a party that enters into a procedural agreement in parallel state court proceedings following unsuccessful compulsory judicial conciliation does not waive its right to arbitration when that party does not proceed on the merits without making any objections.
In two recent decisions, the Swiss Federal Supreme Court rejected petitions for annulment and revision of an arbitral award by the Court of Arbitration for Sport. The decisions highlight the importance of raising new facts in arbitral proceedings without delay and as explicitly as possible.
The seat of an arbitration is a crucial factor. It determines the lex arbitri and the courts with supervisory jurisdiction over the arbitration. The important consequences of the seat require parties to choose the seat carefully. Cases where no seat is chosen by the parties are not uncommon. The English High Court in Shashoua v…
In a decision of 25 August 2009 (4A_160/2009), the Swiss Federal Supreme Court held that where a claimant by piercing the corporate veil can assert a contractual claim against the majority shareholder, all rights and obligations from the respective agreement, including the arbitration clause, become binding on the majority shareholder, thus precluding the jurisdiction of…
Earlier this year, the Hong Kong Court of First Instance ruled that, in future, when it hears unsuccessful attempts to resist enforcement of arbitral awards under the New York Convention, it will “normally consider” awarding costs on an indemnity basis (i.e., in full, regardless whether they were reasonably incurred). This was a bold pro-enforcement statement…
On May 6, 2009, the French Supreme Court rendered a decision relating to the consequences of insolvency proceedings commenced in France against a party to pending international arbitration proceedings (Jean X. v. International Company For Commercial Exchanges (Income), May 6, 2009, Case no. 08-10281). A French company had signed three contracts for the sale of…
Summary In a decision of 6 October 2009 (4A.596/2008), the Swiss Federal Tribunal granted revision of a final international arbitral award that was influenced by fraud. This is the first time since the entry into force of the Federal Statute on the Federal Tribunal in 2007, and only the second time since the entry into…
In one of the most recent NAFTA awards, Glamis Gold v. United States, the United States (“US”) raised objections to the tribunal’s “subject matter jurisdiction” against Glamis’ claims of expropriation under NAFTA Chapter 11. The US argued that the Canadian mining company’s claims based on recently passed California legislation were not “ripe” because the legislative…
In a decision of 23 June 2009 (4A_62/2009), the Swiss Federal Supreme Court held that the right to be heard is not violated where an arbitral tribunal bases its decision on a written submission of a third party and the parties to the proceedings had enough time to comment on such written submission.By letter of…
The 9.10.2009 session of the New York Convention subcommittee of the IBA in Madrid saw a lively discussion on the topic of enforcement of annulled arbitral awards. The discussion related to the “Yukos Capital” decision issued by the Amsterdam Court of Appeals in April 2009. The Amsterdam Court of First Instance had previously upheld the…
Earlier this year, the ICSID ad hoc committee in the Sempra v. Argentina annulment proceedings decided to continue the stay of the enforcement of the tribunal’s award in that case for the duration of the annulment proceedings on the condition that Argentina pay USD 75 million into an escrow account. After Argentina failed to make…
It is always satisfying for an academic when research interests contribute to teaching. So, as I began teaching first year contracts this year, I read the 8 September 2009 award in Azpetrol International Holdings B.V., Azpetrol Group B.V. and Azpetrol Oil Services Group B.V. v. The Republic of Azerbaijan, ICSID Case No. ARB/06/15 (Azpetrol) with…
There is a lingering perception amongst the international arbitration community that English courts tend to be more interventionist in relation to arbitration proceedings and awards compared to some of their continental counterparts. In reality, English courts are much less interventionist than some imagine, despite provisions such as section 69 of the Arbitration Act 1996 which…
In 2006, the ICSID Arbitration Rules were amended to allow a party to make a preliminary objection to claims that are “manifestly without legal merit.” The procedure for this objection is embodied in Rule 41(5). An ICSID Tribunal composed of Dr. Briner (President), Professor Stern and Professor Böckstiegel, in Brandes Investment Partners, LP v. Venezuela…
In 2006, I conducted a review of the most frequently selected arbitrators in the then-pending 103 ICSID cases. (See “Precedent in Investment Treaty Arbitration: A Citation Analysis of a Developing Jurisprudence” (2007), 24 J. Int’l Arb 129). My 2006 review of the 103 pending ICSID cases (ranging from cases registered in February 1997 to November…
One can observe two rather opposing trends. On the one hand there is a steady (and more recently significant) increase in the number of arbitration cases; one the other hand there is a rather systematic criticism expressed by certain voices, predominately in the corporate world.Most well established institutions have recorded a 10% increase in their…
Introduction If a party during arbitral proceedings withdraws its claim and the other party does not exercise its right to request an award in respect of the withdrawn claim, it has been suggested in Swedish legal doctrine that the parties, under certain circumstances, may have implicitly agreed that the arbitration agreement shall cease to be…
Article 25 of the ICSID Convention, which draws the outer limits for the exercise of ICSID jurisdiction, does not define the concepts of “nationality” and “investment.” Aaron Broches, the principal author of the Convention, explains that this reflects a deliberate decision by the drafters to leave the choice of what constitutes an investment and who…
