Jurisdiction

Estoppel, International Court of Justice, Lotus Principle, New York Convention, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Non-signatory, Permanent Court of Arbitration, Permanent Court of International Justice, SCOTUS, United States, United States Courts

(Hughes Hubbard & Reed)/ /Leave a comment

On June 1, 2020, the United States Supreme Court issued its opinion in GE Energy Power Conversion France SAS v. Outokumpu Stainless USA. The Court held that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) does not prohibit a Contracting State from applying the domestic law doctrine…

Arbitration, Arbitration Proceedings, Australia, International arbitration, Investment Arbitration, United States, USMCA

(University of Wollongong)/ /1 Comment

The investor-state dispute settlement (ISDS) arrangements provided in Chapter 14 of the United States-Mexico-Canada Agreement (USMCA) are a radical shift from those that have been in force for the past 25 years under Chapter 11 of the North American Free Trade Agreement (NAFTA). As explored in Wednesday’s post, Canada has effectively opted-out of ISDS under…

Investment agreements, Investment Arbitration, Investment protection, Investment Treaties, United States, USMCA

(Jenner & Block LLP)/ /Leave a comment

The Investment Chapter of the United States-Mexico-Canada Agreement “USMCA,” Chapter 14 has had a controversial trajectory.  Chapter 14 reflects a remarkable evolution in United States (“U.S.”) policy on the protection of its investors and their investments in Canada and Mexico.  It is remarkable because – from 2023 – it will limit the scope of protected…

Canada, Investment agreements, Investment Arbitration, Investment law, USMCA

(De Brauw Blackstone Westbroek) and (Three Crowns LLP)/ /Leave a comment

Amid global economic uncertainty, the years-long project of the United States-Mexico-Canada Agreement (“USMCA”) (also known as “the new-NAFTA” or “NAFTA 2.0”) has finally reached fruition. On March 13, 2020, Canada became the final North American party to ratify the agreement and now the treaty will enter into force on July 1, 2020. Kluwer Arbitration Blog has…

Canada, International agreement, International arbitration, Investment agreements, Investment Arbitration, Investment protection, Investment Treaties, Mexico, NAFTA, United States, USMCA

(Law Offices of Kiran N Gore PLLC; The George Washington University Law School) and (Australian National University)/ /Leave a comment

On July 1, 2020, the United States – Mexico – Canada Agreement (USMCA) will enter into force. Although the media widely refers to the treaty by its American name, USMCA, it also carries two other names: Canada has adopted it as the Canada – United States – Mexico Agreement (CUSMA), while Mexico has settled on…

Deliberations, Dissenting opinions, Germany, Ordre Public, Set aside an arbitral award

(Taylor Wessing)/ /Leave a comment

The Frankfurt Court of Appeals (Oberlandesgericht) has recently taken the view that the publication of a dissenting opinion by the minority arbitrator violates the procedural ordre public, thus constituting a reason to set aside the arbitral award pursuant to Section 1059 para. 2 no 2 b) of the German Code of Civil Procedure (Zivilprozessordnung, ZPO).1)To…

Due process, Set aside an arbitral award, Singapore, Virtual hearings

(Withers KhattarWong LLP)/ /Leave a comment

Introduction The use of virtual hearings is not new in international arbitration. However, the COVID-19 pandemic has necessitated, and accelerated, a shift from in-person hearings to virtual hearings. With travel bans in place and no visibility of when countries will open their borders again, in-person hearings will likely be the exception rather than the norm…

Adverse Inference, China, Document Production, Evidence, Legislation

, (Shanghai International Arbitration Center)/ /Leave a comment
Shanghai International Arbitration Center (SHIAC)

The practice of adverse document production or disclosure is largely foreign in civil law jurisdictions like mainland China. Despite resistance, the growth of judicial practice on document production prompted the Supreme People’s Court of China (“SPC”) to make the new Rules of Evidence on Civil Procedure (“Rules of Evidence”) on December 25, 2019, effective as…

Enforcement, Foreign arbitral awards, Kingdom of eSwatini

(Taylor Wessing)/ /Leave a comment
YIAG

The answer to the question of how to recognize and enforce foreign arbitral awards in currently at least 164 jurisdictions worldwide usually starts with a reference to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). Not so in the Kingdom of eSwatini, one of the few…

Due process, judicial review, Malaysia, Singapore

, (Debevoise & Plimpton)/ /Leave a comment

Due process is an essential aspect of international arbitration or, indeed, any contentious proceeding. Due process rules act as a shield for parties against unfairness. They ensure that the exercise of a tribunal’s jurisdiction is constrained, such that all parties are given a reasonable opportunity to present their cases. There has been a notable increase…

COVID-19, Force majeure, India, Insolvency, Public Policy, United States, United States Courts

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The COVID-19 pandemic and the ensuing lockdowns have the legal community debating and exploring force majeure. That, however, does not rule out the imminent likelihood of international arbitration locking horns with domestic insolvency law. Arbitration agreements and subsequent awards may possibly be left redundant and award-holders remediless where insolvency proceedings are commenced in respect of…

Africa, Arbitration, Arbitration Proceedings, BIT, Investment Arbitration, Investor duties

, (Addis Law Group LLP)/ /Leave a comment

Africa is in the vanguard of investor obligations in international investment law. As it prepares to seek a continental investment code for the second time, it finds itself at a crossroads. In tracing the emergence and trajectory of investment instruments toward the historic juncture to which Africa presently arrives, one glimpses the promise of a…

Arbitration institution, Interview, Interviews with Our Editors, SCC, SCC Rules, Sweden, UNCITRAL

(Hogan Lovells)/ /Leave a comment

    Welcome to the Kluwer Arbitration Blog, Ms. Magnusson! We are grateful for this opportunity to learn more about the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) and your experience with international arbitration in the region.   To start, could you briefly introduce yourself and explain your role at SCC? Thank you….

Arbitration, bankruptcy, Commercial Code of Iran, Iran, TRAC

, (Tehran Regional Arbitration Centre)/ /Leave a comment

Introduction For the purpose of this article, there are some words and principles that shall be defined before raising the main issue. Article 412 of the Commercial Code of Iran (CCI) defines the bankruptcy of an entity (natural or legal person) as the result of its cessation in payment of its debt. In this situation,…

China, Commercial Arbitration, Discovery, Document Production

(Herbert Smith Freehills LLP) and (Kewei Law Firm)/ /Leave a comment
Herbert Smith Freehills

Document production in China – getting to maybe Document production (also known as “discovery”) is still a very foreign concept in China’s civil law court system. The traditional notion of “who claims, proves” (“谁主张，谁举证“) in China’s Civil Procedural Law has ingrained in people’s mind that one has to prove its case by its own evidence….

Arbitration Agreement, India, kompetenz-kompetenz, Negative Effect, Positive Effect, UNCITRAL

(Avsai Legal) and / /Leave a comment

The Prolonged saga of enforcement of the ICC commercial arbitration award of 2015 in Devas v. Antrix (ICC Case No. 18051/ CYK of 2011) has not only raised several interesting questions in respect of pathological arbitration agreements but has also highlighted the ineffectiveness of the “Negative Effect” of the doctrine of Kompetenz-Kompetenz, given the possible…

Canada, England, English Arbitration Act, UK

(Choudhry Law and WZB Berlin Social Science Centre)/ /Leave a comment

The Supreme Court of Canada’s recent decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 potentially poses an inadvertent, yet serious, threat to judicial deference to domestic commercial arbitration in Canada. Until Vavilov, courts hearing appeals on questions of law from arbitral tribunals applied the deferential “reasonableness” standard of review. Vavilov…

Australia, Enforcement, England, Hong Kong, New York Convention, Public Policy, Singapore

, (Debevoise & Plimpton)/ /Leave a comment

Public policy defences to the recognition and enforcement of arbitral awards continue to generate uncertainty. Under Article V(2)(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), an award may be refused recognition or enforcement if “[t]he recognition or enforcement of the award would be contrary…

Arbitration, Commercial Arbitration, Jurisdiction, Merits, Venezuela

, (Herbert Smith Freehills)/ /Leave a comment
Herbert Smith Freehills

Recently, the Constitutional Chamber of the Venezuelan Supreme Court of Justice (the “Court”) issued an interlocutory judgment ordering the Business Center for Conciliation and Arbitration (CEDCA) to stay an arbitration and to forward the arbitration file in order to decide on a request for “avocamiento” filed by one of the parties before the Court. This…

Arbitration Act 1996, English Arbitration Act, English courts, Foreign Dispute, UK, Witness Statement

, (Squire Patton Boggs)/ /Leave a comment

In A and B v C, D and E [2020] EWCA Civ 409, the English Court of Appeal issued on 19 March 2020 an order compelling a non-party to arbitration proceedings seated in New York to give evidence in support of the arbitration.   The Arbitration The dispute arose under two settlement agreements between A…

Arbitrability, Iran, Public Policy, Sanctions, United States

, / /2 Comments

In January 2020, following the Executive Order of President Trump, the United States imposed additional sanctions targeting predominately Iran’s metals sector including copper, iron and steel manufactures (the “Order”). These sanctions were designed to expand secondary sanctions to cover new industry sectors such as mining, textiles and construction. The secondary sanctions aim to deter and…

Annulment, France, Public Policy, Set aside an arbitral award

(CastaldiPartners)/ /Leave a comment

The Paris Court of Appeal considers that the arbitral awards annulled at the place of the arbitration do not amount to a valid cause for refusal of enforcement in France. Recently, the Court specified that whether the interests at stake are international or national does not change this position.   Background of the Dispute  On…

Arbitration, Arbitration Agreement, EU Law, Europe, Immunity, Intra-EU BIT's, Intra-EU BITs, Intra-EU Investment Arbitration, Intra-EU ISDS, Reform

(University of Passau) and (Freshfields Bruckhaus Deringer LLP)/ /Leave a comment

Whenever litigating against states or sovereign entities – or international organisations for that matter – outside of their home jurisdiction there is a roadblock to consider: immunities. On closer inspection, immunities turn out as two roadblocks: immunity from jurisdiction and immunity from enforcement. Whereas the general assumption is that an agreement to arbitrate waives immunity…

Achmea, CJEU, EU Law, Germany, Intra-EU ISDS

(HHP Chambers)/ /Leave a comment

On 5 May 2020, which tellingly was the day before the last day in office of the President of the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) Voßkuhle, the Bundesverfassungsgericht rendered its judgment on the constitutionality of the participation of the German Central Bank (Bundesbank) and the German Government in the European Central Bank (ECB)’s programme…