As it has been extensively discussed on this blog, in its landmark Achmea case the Court of Justice of the EU (“CJEU”) found the arbitration provision of the bilateral investment treaty (“BIT”) between the Netherlands and Slovakia to be incompatible with EU law. This decision potentially affects the effectiveness of the roughly 200 BITs concluded…
The concept of attorney-client privilege is a unique creation of common-law jurisdictions which has influenced all types of legal regimes over the world. Common-law regimes developed such a concept to curb the wide sphere of document production and discovery in litigation. As the name of the concept entails, it was created as a privilege for…
The Singapore High Court in BQP v BQQ [2018] SGHC 55 (judgment rendered on 14 March 2018) (the “Judgment”) dismissed a challenge against an arbitration tribunal’s award on jurisdiction and in so doing confirmed that where parties have agreed that the tribunal shall determine the relevance, materiality, and admissibility of all evidence, the tribunal would…
Introduction In March 2017, Senator Emmanuel Andy Uba introduced the Arbitration and Conciliation Act (Repeal and Re-enactment) Bill (the Bill). While the first reading of the Bill was done at the Nigerian Senate Chambers in March 2017, the second reading of the Bill was not done till April 2017 and only thereafter was it referred…
After three high-value infrastructure and energy projects cases at ICSID and the Permanent Court of Arbitration, Bosnia and Herzegovina (“BiH”) is now facing a new US$40 million investment treaty claim. This time it involves the privatization of an insurance company – Krajina osiguranje a.d. Banja Luka, based in the Republic of Srpska (one of the…
On 5 January 2018, the Central Government introduced New Delhi International Arbitration Centre Bill, 2018 (the “Bill”) in the lower house of Indian Parliament (Lok Sabha). This was with the objective of making India an investor-friendly nation. There are few arbitral institutions operating in India – Indian Council of Arbitration (“ICA”), International Centre for Alternative…
For the past few years, Brazil has gained recognition as an “arbitration-friendly” seat when it comes to the enforcement of foreign arbitral awards. However, last year, in a groundbreaking decision, the Brazilian Superior Court of Justice (in Portuguese, “Superior Tribunal de Justiça” or “STJ”) denied recognition of two US arbitral awards. Abengoa has appealed from…
This post summarises the key features of the Rio de Janeiro State Decree No. 46.245/2018, which regulates arbitrations between state-owned entities and private corporations and came into force on February 20, 2018. As a brief introduction, and to provide context of the enactment of the referred statute, it is relevant to set forth three pieces…
In the context of the backlash against investor-state dispute settlement (“ISDS”), one of the main criticisms is the asymmetric nature of investment treaties, which impose numerous obligations on the States, but do not seem to hold corporations accountable for the social, environmental and economic consequences of their activities. Some recent developments reflect a redirection away…
Cruising around investment cases against the Caribbean islands is not only a recreational journey. It is also an informative one. This article aims at presenting key observations made during this journey. As mentioned in a previous publication, since 1973, the sovereign islands of the Caribbean Sea, have concluded over 140 international investment agreements. The ICSID…
With the focus of the arbitral community being taken over by the recent discourse surrounding an important branch of international arbitration, i.e., investor state dispute settlement, after the 6 March 2018 Judgment of the Court of Justice of the European Union in Case C-284/16, Slowakische Republik v Achmea BV, there may be a risk today,…
This post gives a bird’s eye view of an imminent investment arbitration and forecasts procedural and/or jurisdictional hurdles to the case, by analyzing the dispute resolution provision and relevant precedents, with the intention of highlighting recurring inconsistencies on a key procedural issue and urging for more predictable outcomes for the benefits of the stakeholders in…
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“Convention”), 1958 was adopted by Pakistan on 14 July 2005 through the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Ordinance, 2005. This was re-promulgated in the years 2006, 2007, 2009 and 2010 until it was finally enacted in 2011 (“2011 Act”). …
Principles of adverse inferences are applied universally. International law endorses the arbitrator’s inherent authority to draw adverse inferences against a party for unjustified non-compliance with an order to produce information. Moreover, arbitrators can rely on general principles of law when applying adverse inferences as a basis for decisions. The general principle of good faith imposes…
On 6 March 2018, the Court of Justice of the European Union (“CJEU”) in the case no. C‑284/16 Slovak Republic v. Achmea BV (“Achmea case”) (available here) stated that arbitration agreements concluded between the Member States of the European Union (“EU”) in the so-called intra-EU BITs have an adverse effect on the autonomy of EU…
The morning session of the last day of the ICCA Sydney 2018 Conference on “Potential of Arbitration Involving New Stakeholders” was moderated by Ndanga Kamau and had the insightful contributions of Dr. Campbell McLachlan QC, Prof. Makane Moïse Mbengue and Silvia Marchili. Ndanga Kamau opened the final plenary session by asking the following question: why…
On 5 March 2018, the ICC Court announced the establishment of a commission to address dispute resolution in relation to China’s Belt and Road Initiative. The commission will drive the development of ICC’s existing dispute resolution procedures and infrastructure to support Belt and Road disputes. The Belt and Road The Belt and Road is China’s…
In the midst of challenges to the very legitimacy of Investor-State Dispute Settlement (ISDS), the International Centre for Settlement of Investment Disputes (ICSID) celebrated its 50th anniversary and embarked on the fourth ICSID Rules amendment process in ICSID history. The previous amendment processes brought notable additions to the ICSID Rules, such as enhanced transparency in…
If you are a counsel in an ongoing arbitration, you have two obligations: 1) navigate your ways through provisions of the applicable law so that you can litigate as a professional; 2) satisfy your client with your service and make sure that all his questions are answered properly. Especially, if an arbitrator (whether or not…
The recent decision by an intermediate New York appellate court in AlbaniaBEG Ambient Sh.p.k. v. Enel S.p.A.1)A.D.3d, No. 152679/14, 2018 WL 755355 (N.Y. App. Div. 1st Dep’t Feb. 8, 2018). has sharply curtailed “a procedural loophole in Chapter 2 of the Federal Arbitration Act”2)Commissions Imp. Exp. S.A. v. Republic of Congo, 916 F. Supp. 2d…
Many arbitration lawyers’ initial reaction to the CJEU’s Achmea judgment resembles the first three of the famous “five stages of grief” (denial, anger, bargaining, depression and acceptance). Some deny Achmea’s relevance under international law, others angrily dismiss it as unreasoned and politically motivated, while many attempts to “bargain” a way out for intra-EU arbitrations under…
After almost 20 years, the Swedish Arbitration Act (“SAA” or “Act”) may be getting a well-deserved face lift. In February 2014, the Swedish Government decided to take definitive steps to begin modernising the Act. The purpose of the reform was to bring Swedish arbitration law more in line with certain advancements in arbitration and to…
At a time when Argentina is looking to modernize its arbitration culture and attract foreign investment, the IBA Arbitration Day held in Buenos Aires could not have been more opportune. Gathering more than 400 arbitration experts from more than 45 countries, the venue and the event proved to be up to the challenge. While arbitration…
Since their inception in 1975, the Vienna Rules (Rules of Arbitration and Mediation of the Vienna International Arbitral Centre) have undergone a number of major reforms keeping them abreast of the fast-moving tides of legal development in international arbitration. The latest revision of the Rules as from 1 January 2018 (previously covered in this blog)…
