On 30 November, Australia’s Joint Standing Committee on Treaties (JSCOT) released its Report 165 on its inquiry into the Trans-Pacific Partnership Agreement (TPP). JSCOT is a 16-member parliamentary committee tasked with advising the Australian parliament on ratification of treaties. This article presents an overview and discussion of the Report’s findings on ISDS, the most common…
On 6 December 2016 the German Constitutional Court (GCC) delivered its judgment in the case of Vattenfall and other nuclear power energy companies against Germany. This dispute and final judgment – which have attracted far less attention and criticism from anti-ISDS groups than the Vattenfall dispute currently under the Energy Charter Treaty (ECT) – provide…
Advisory works generally include advisory services rendered by investment banks to their clients in two main areas: M&A (mergers and acquisitions) and equity capital markets. In this context, a financial institution will enter into a various number of agreements, either with its clients (mandate, etc.) or with its counterparty to a transaction where the deal…
In the 1980s, a study conducted by Stanford University showed that after watching the same television reports on the Sabra and Shatila massacre in Beirut, both a pro-Israeli and a pro-Arab group concluded that the coverage was biased in favor of the other side. The researchers found that the partisans of the two groups evaluated…
“A camel is an animal designed by a committee” – Anonymous In launching the BEPS programme in 2013, the OECD warned that replacement of the current consensus-based framework by unilateral measures, could lead to global tax chaos marked by the massive re-emergence of double taxation (OECD: Action Plan on Base Erosion and Profit Shifting (2013))….
The 2016 International TMT Dispute Resolution Survey, sponsored by Pinsent Masons LLP, is the seventh survey carried out by the School of International Arbitration since 2006. It is part of a major investigation into international dispute resolution practices and trends worldwide. This year’s survey, the largest industry-sector empirical study ever conducted in international arbitration, sought…
Over the past few decades, responding to the need to control the growing costs and time of arbitration proceedings, the International Court of Arbitration of the International Chamber of Commerce (“ICC Court”) has continuously sought to achieve greater efficiency of the ICC arbitration proceedings (examples of such efforts can be found on the links available…
Russia has recently revised its arbitration laws. The key development of the reform is to address the arbitrability of so-called “corporate disputes.” The new laws lift the longstanding ban on arbitrating most types of controversies relating to a Russian company. There is a catch, though: the lawmakers set out mandatory procedural conditions with which any…
“Help! I need somebody Help! Not just anybody Help! You know I need someone, help … And now my life has changed in oh so many ways, My independence seems to vanish in the haze …” Help raises a question of need, but does it lead to a loss of the fundamental decision-making power vested…
Co-authored with: Oleg Temnikov, Wolf Theiss Background In a recent award issued in the case of CEAC Holdings Limited v. Montenegro (ARB/14/8, Award, 26 July 2016) the arbitral tribunal had to decide whether CEAC Holdings Limited (hereinafter: “CEAC”) was a protected investor within the meaning of the applicable Cyprus–Serbia and Montenegro BIT. Under Article 1…
This post is based on my paper published in the American Review of International Arbitration (Vol. 27, No. 2, pp. 239-246, 2016) and posted on SSRN. The paper presents the saga of Hungary’s controversial arbitration regime in cases involving national property. It analyzes Hungary’s legislative efforts and ultimate failure to exclude arbitration in matters involving…
Escalation clauses (or multi-tiered dispute resolution clauses) need careful drafting so that the wording is both enforceable and commercially useful – and does not produce unexpected surprises. With regard to clauses that provide for ‘final’ dispute resolution by means of arbitration, in particular, there is uncertainty as to the consequences of the parties’ failure to…
Readers of this blog will need no reminding that, in the Queen Mary-White & Case 2015 International Arbitration Survey, the seats of Hong Kong and Singapore were amongst the top five most preferred and widely used seats by respondents to that survey. Both jurisdictions are known for adopting competitive and innovative arbitration laws to promote…
Judicature modernisation reforms, which passed through New Zealand’s Parliament in October, represent the most significant revamp of the country’s court system since the Judicature Act 1908. In addition to several changes to court structures and processes, the reforms made two modest amendments to New Zealand’s Arbitration Act 1996 (the Act). First, the definition of “arbitral…
James Crawford described the principle of state immunity as “…a rule of international law that facilitates the performance of public functions by the state and its representatives by preventing them from being sued or prosecuted in foreign courts…it precludes the courts of the forum state from exercising adjudicative and enforcement jurisdiction in certain classes of…
Critics of the TPP, and ISDS protections more generally, have often argued that a particular concern is that the US is not only a large source of FDI, but that it is ‘the nation whose corporations use ISDS the most’ (referring to ANU’s Professor Thomas Faunce). A recent paper by ANU’s Dr Kyla Tienhaara for…
Security for costs, a measure which is perceived as a savior for those who are forced to arbitrate with (allegedly) impecunious parties, can have several connections with the industry of third party funding. Third party funding, as a new trend in international arbitration, has certainly disturbed many waters, including those related to security for costs….
If James Bond practiced law, it would be international arbitration. Don’t believe me? Just consider how many international arbitration cases could be great plots for a James Bond movie. Take, for example, the case in which an Israeli investor was arrested in Tbilisi and jailed following a cognac-laced sting operation that caught the investor on…
Liability in international arbitration is a recurrent yet unsettled issue. Occasionally, we hear of a fearless party that dares to sue an arbitrator and/or an arbitral institution based on allegations of a conflict of interest, procedural irregularity, error of law, or a failure to oversee the good conduct of the arbitration proceedings. The discussions prompted…
1 September 2016 marks the key date in the long-awaited Russian arbitration law reform, publicly announced by the President of the Russian Federation already in 2013. Since then, the Russian arbitration law reform has been in the public eye attracting significant publicity (previous blog posts on this can be read: here, here, here, and here)….
1. In the past weeks, much ink has been spilt over the recent decision of the High Court of Justice in the Essar v. Norscot case. In his decision, J. Waksman QC confirmed the award made by Sir Philip Otto in an ICC arbitration seated in London. A broad description of this case has already…
The Trans-Pacific Partnership free trade agreement, signed on 4 February 2016 among 12 Asia-Pacific economies, faces a rocky road to ratification. In the run-up to the US presidential election in November, both Donald Trump and (for now) Hillary Clinton say they are opposed. Yet Australian Prime Minister Turnbull urged President Obama to put the FTA to a vote in Congress…
Introduction After recent amendments to the Polish Arbitration Law (part five of the Polish Code of Civil Procedure, Official Journal of Laws of the Republic of Poland, No 43, item 296, as amended, available in Polish here) (“CCP”) , which were a subject of my previous posts, the Polish legislator commenced in June 2016 the…
Arbitration has long been the favorite of the ADR family. Mediation, however, has established an increasingly relevant position for itself when it comes to resolving (international) commercial disputes quickly, cost-efficiently, and successfully. Efforts to render mediated settlement agreements enforceable persist and will likely further bolster mediation as an independent and, possibly, even superior alternative to…
