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 setting aside of an arbitral award is a rarity in the Austrian legal landscape. However, on 3 April 2024, the Austrian Supreme Court (the “ASC”) issued a landmark decision setting aside an arbitral award on the grounds of non-arbitrability of the subject matter. As explained below, the court’s reasoning is remarkable and its implications…
On 11 April 2024, the Ontario Superior Court of Justice (“Court”) issued its decision in Ballantry Construction Management Inc. v GR (CAN) Investment Co. Ltd., arising from an application to enforce two arbitration awards filed by Ballantry Construction Management (the “Applicant”). The Respondent in this application, Investment Co. Ltd, sought an order setting aside the awards…
The advantages of exclusive jurisdiction agreements (“EJAs”) are well known; chiefly, that of knowing where a party can sue and be sued. In Brazil, EJAs are widely used in both cross border litigation and in the context of domestic contractual relations. Even in contracts providing for arbitration, it is typical for sophisticated parties to agree…
“Small is Beautiful”, a collection of essays by the economist E. F. Schumacher, was published first in 1973, more than 50 years ago. Schumacher’s basic thesis was that the latest, shiniest or most complex technology was not necessarily the best option for developing countries. Instead, he argued in favor of a practical, more “people-centric” approach,…
On 26 July 2024, the Russian Supreme Court issued a landmark ruling (the “Ruling”) outlining a novel stance on the recognition and enforcement of foreign arbitral awards. This jurisprudential shift, which is decidedly not pro-arbitration, erects new barriers for persons domiciled in countries deemed “hostile” or “unfriendly” by Russia to obtain their consideration in the…
Ethiopia has been on the pursuit of market liberalization in an effort to boost economic growth. We have been witnessing a wave of new laws in Ethiopia with significant implications to a market that has long been closed to foreigners. In April 2024, a law passed by the Investment Authority opened the import, wholesale, retail…
On 12 July 2024, the Dutch Supreme Court (the “Supreme Court”) rendered its much anticipated decision on whether clauses providing for mediation as a procedural step before arbitration (or court litigation) are binding upon the parties, requiring an arbitral tribunal (or court) to decline jurisdiction to hear the case or, at least, requiring a stay…
The recent decision by the Bahrain Court of Cassation (“COC”) in Case No. 31 of 2023, issued on 8 January 2024 (“COC Judgment”), marks a significant development in the application of arbitration clauses to non-signatories for Bahrain-seated arbitrations. The case centred on the interpretation of an arbitration clause in a sub-subcontract (“Sub-Subcontract”) and its applicability…
Through Ruling No. 3232-19-EP/24, Ecuador’s Constitutional Court (“Court”) settled a long-standing discussion and confirmed that recognition prior to the enforcement of foreign arbitral awards is an unreasonable requirement in light of the Ecuadorian legal system. In this post, we describe the factual background of the Court’s ruling and examine the procedural issues underlying the recent…
On 7 June 2024, the Dutch Arbitration Association (“DAA”) held its annual conference (the Dutch Arbitration Day “DAD”). Themed “Arbitration for the Next Generation”, this year’s edition highlighted the challenges and opportunities in future arbitral disputes faced by the next generation of arbitrators and practitioners. Tomorrow Must be a Better Day In his keynote…
The Irish High Court (“the High Court”) in a recent decision in Jephson & Jephson v. Aviva Insurance Ireland DAC [2024] IEHC 309 (“the Jephson decision”) made an Order to lift a stay previously made on court proceedings where there was an arbitration agreement. The judgment to lift the stay previously granted is an unusual…
For the first time under Rule 54(2) of the ICSID 2022 Arbitration Rules, the Tribunal in Ruby River Capital LLC v. Canada (ICSID Case No. ARB/23/5) had to decide on a request for suspension of the proceeding. In its Request for Suspension, Canada asked the Tribunal to suspend the proceeding until the Tribunal in TC…
The judgment of the Singapore Court of Appeal (“Court”) in Voltas Ltd v York International Pte Ltd [2024] SGCA 12 (“Voltas v York”) helpfully settles the question of whether or not an arbitrator is able to impliedly reserve his or her jurisdiction after rendering a final award as a matter of Singapore law. Additionally, the…
The present post focuses on the latest European development on the modernization of the Energy Charter Treaty (“ECT”). It will do so by putting it in a broader geopolitical context and linking it to the fossil fuel-related investments carve-out, not originally envisaged in the EU proposal. It will then analyse carve-outs in investment treaties in…
The chasm between the Section 1782 and arbitration worlds just got wider. In Webuild S.p.A. v. WSP USA Inc. (“Webuild S.p.A.”), the Second Circuit determined that a tribunal in an arbitration administered by the International Centre for Settlement of Investment Disputes (“ICSID”) was not a “foreign or international tribunal” under Section 1782, the U.S. federal…
Most international commercial disputes of moderate-high complexity are expensive. While this may be good for the counsel representing parties, it is less so for the parties. The evolution of alternative fee arrangements (“AFA”) allows parties to nonetheless pursue such disputes without compromising their economic viability. Unfortunately, in India, the courts have opposed the more novel…
The impact of arbitration clauses on winding-up proceedings (i.e., if both are present, when and how can the former get prioritized over the latter) has long been an issue with diversified practices throughout various jurisdictions. With the judgment by the Hong Kong Court of Appeal (“HKCA”) in Re Simplicity & Vogue Retailing (HK) Co Limited…
On 18 June 2024, the Brazilian Superior Court of Justice issued an important decision, which it clearly established the distinction between the breach of the duty of disclosure and the loss of impartiality or independence of arbitrators. Among other arguments, there was the claim of a violation of the duty of disclosure, capable of generating…
On February 13, 2024, a tribunal comprising of Alexis Mourre, Eduardo Siqueiros and Eduardo Zuleta Jaramillo rendered an award in the case of Latin American Regional Aviation Holding S. de S.R.L. v. Uruguay (ICSID Case No. ARB/19/16), under the Panama – Uruguay bilateral investment treaty (the “Treaty”). The dispute concerned Uruguay’s national airline Pluna, where…
While Pakistan is heading towards promulgating a new arbitration law, developments continue to take place under the extant Arbitration Act, 1940 (“the Act”). Section 34 is one of the most availed provisions of the Act, which provides for the stay of court proceedings where an arbitration agreement exists between the parties. This provision can be…
In Vento Motorcycles, Inc. v. United Mexican States (“Vento”), a recent decision of the Ontario Court of Appeal in an investor-State arbitration case, a proposed intervener suggested that procedural fairness protections under the UNCITRAL Model Law should be harmonized with those of domestic administrative law. This suggestion fuels the debate, which has been raging since…
In a recent book and a report published by the OECD (“Expert contribution Prof Dumberry: Cost of inaction – arbitral practice in respect on FET”, Track 2 program, “Future of Investment Treaties”), I have examined the way tribunals have assessed the relationship between Fair and Equitable Treatment (“FET”) clauses and the Minimum Standard of Treatment…
