The session on International Investment Disputes of the LIDW 2019 was divided in three panels discussing the hot topics in investment law and the Investor-State Dispute Settlement (ISDS) system: investment protection post-Achmea, interim measures, security for costs, emergency arbitration procedures, and transparency in investment arbitration, as well as the wider issue of ISDS reform. The…
The admissibility of illegal evidence in international commercial arbitration is for sure, at the moment, a widely discussed topic among law students and arbitration lawyers thanks to this year’s problem at the Willem C Vis International Commercial Arbitration Moot competition (“Vis Moot Problem”). The Kluwer Arbitration Blog (“KAB”) covered the topic extensively as well in…
This is the 1st part of the report highlighting the most significant arbitration-related decisions of the Swiss Federal Supreme Court (the “Supreme Court”) published in 2018. Consent to Arbitrate In two decisions, the Supreme Court dealt with the validity of an arbitration agreement under Swiss law. It set aside both awards – two of rather…
This is the 2nd part of the report highlighting the most significant arbitration-related decisions of the Swiss Federal Supreme Court (the “Supreme Court”) published in 2018. Jura Novit Arbiter In the decision 4A_525/2017 of 9 August 2018, published on 26 September 2018, the Supreme Court dealt with the principle of jura novit arbiter, controversial…
Foreign Direct Investment into Africa has increased from $10 billion in 19991)UNCTAD, World Investment Report (2000), p. 40. to $41,8 billion in 2017.2)UNCTAD, World Investment Report (2018), p. 38. Makhtar Diop, former World Bank Vice President for the Africa Region, pointed out that “Intra-African investment is also on the rise, creating a virtuous circle”.3)M. Diop,…
The Supreme Court of the Russian Federation recently ruled that initiation of a second arbitration from the same contract violates the principle of legal certainty which forms part of the Russian ordre public (Ruling of the Supreme Court of Russian Federation dated 27.09.2017 docket number N 310-ЭС17-5655, А54-3603/2016). The reasoning of the decision is comparable to the…
In May 2018, the Cairo Court of Appeals issued an intriguing judgment concerning the enforcement of an arbitral interim measure. In the words of the Court, the arbitral tribunal has issued a procedural order against Damietta International Ports (“DIP”) ordering the latter to refrain from suing the guarantor bank regarding the liquidation of a letter…
Commensalism of IIL Critique While the popular criticism of investment arbitration provides fertile ground for the academic proposals for ISDS reform, the latter hardly shape the development of (investment) law and even less so, its popular perception. Reform proposals are usually firmly grounded in positive law, and as such they are inherently constrained. Alternatively, general…
The decision made in the case of Hardy Exploration & Production (India), Inc. v. Government of India, Ministry of Petroleum & Natural Gas (Civ. Action No. 16-140 (D.D.C. 7 June 2018)) (“Hardy case”) is yet another decision in a string of outcomes under the New York Convention proving that the repeated adagio “if it ain’t broken,…
The applicability of the European Convention on Human Rights (“ECHR”) to arbitral proceedings is a complex issue. The recent decision of the European Court for Human Rights (“ECtHR”) in the so-called Mutu/Pechstein cases brings some clarification in this regard, but also raises some new questions1)ECtHR, Mutu and Pechstein v. Switzerland, Decision of 2 October 2018,…
Document production is one of the most important and controversial topics in international arbitration. Some practitioners consider the document production as “an essential element of justice”, whereas some others consider it as “a waste of time and money”. So, where does the truth lie? Does Common Law Provide Better Justice than Civil Law or Vice…
For AfricArb It is twelve years since an ICSID tribunal dismissed World Duty Free’s claim against the Republic of Kenya for breach of a lease agreement signed in 1989. As is well known, the claimant obtained the contract with a $2 million bribe to former President Moi, and the tribunal held, inter alia, that it…
Over the last century, arbitration has established itself as one of the most popular means for resolving commercial disputes1) Gary B. Born, ‘Chapter 1: Overview of International Commercial Arbitration’, International Commercial Arbitration (2nd edition, Kluwer Law International 2014), 6–224, at 93-97; Queen Mary University London, 2015 International Arbitration Survey: Improvements and Innovations in Arbitration. and…
In February 2018, the Arbitrazh (Commercial) Court of the City of Moscow issued a ruling1) Ruling of the Arbitrazh (Commercial) Court of the City of Moscow dated 8 February 2018, case No. A40-176466/17-83-1232. denying the recognition and enforcement of an ICC award issued in favor of Dredging and Maritime Management SA (Luxembourg) against JSC Inzhtransstroy…
With development in the African continent on the rise, the region is seeing the introduction and/ or revamping of its arbitration centres. One such development is the establishment of the China Africa Joint Arbitration Centre (CAJAC) to resolve commercial disputes between Chinese and African parties. Not an unsurprising development given China’s commitment to invest $60…
The authors write this contribution strictly in their own name. Most arbitration laws require parties to identify in their arbitration agreement the “defined legal relationship” for which they wish to submit disputes to arbitration. Nonetheless, this requirement has given rise to little case law in practice. In a judgment of 29 August 2018 (“Judgment”), however,…
Witness evidence is an integral part of international arbitration, but challenges can arise from the interaction of different legal cultures, norms and languages. Although issues can arise with any testimony given through an interpreter, Mandarin-speakers are more challenged, and challenging, because of 1) the stark differences between Mandarin and English (the lingua franca of IA);…
Sometimes, the establishment needs to step aside to let the next promising generation create a new way forward: So it commences with entrepreneurial students at the University of Miami, combining talents of engineering, technology, and international law and arbitration. It is by thinking out of the box that disruptive changes happen and they must in…
Introduction Despite a rapid emergence at a global stage, third-party funding (TPF) appears yet as unfamiliar to businesses in the Nordic region. According to a survey included in the 2018 edition of the Roschier Disputes Index, merely 5 per cent of the Nordic companies have used TPF for financing litigation or enforcement proceedings. Arguably, these…
The arbitral tribunal in Glencore Finance (Bermuda) Limited v. Bolivia has recently hinted at its intent to address an old question: What is the doctrine of “clean hands” in investment arbitration? On 31 January 2018, an arbitral tribunal composed of Professor Ricardo Ramírez Hernández, Professor John Gotanda and Professor Philippe Sands issued a Procedural Order…
It is not uncommon for practitioners acting for claimants in an arbitration to encounter a respondent who chooses to boycott the arbitral process. In cases involving such ‘non-participating’ respondents, what are the rights and obligations of each party? Specifically, insofar as Model law jurisdictions are concerned, if a Tribunal decides on jurisdiction as a preliminary…
In the world of International Arbitration (“IA”), one distinguishes between commercial arbitration and investment arbitration, the latter widely referred to as Investor-State Dispute Settlement or ISDS, as a dispute resolution mechanism based on bilateral treaties, multilateral treaties, and free trade agreements. IA is lauded as the best method for dispute resolution in international trade. This…
This season the draft Rules on Conduct of the Taking of Evidence in International Arbitration (the Prague Rules) are a regularly occurring topic at European arbitration events. In a nutshell, the Prague Rules are a set of rules close to civil law systems, intended to replace the IBA Rules on the Taking of Evidence in…
The New York Convention’s 60th Anniversary renewed the debate about its future. One must recognize that a treaty that is sixty years old and has been ratified in almost 160 countries can no longer be replaced. Even with compatibility clauses, provisions that would provide for retroactive application and the other tools that the Vienna Convention…
