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Arbitration Agreements, Arbitration Awards, Arbitration Institutions and Rules, Arbitration Proceedings, Arbitrators, Commercial Arbitration, Domestic Courts, International arbitration, Other Issues, Suggestions to improve transparency and access to usable data, Transparency in investment arbitrations

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White & Case

The views of lawyers involved in international commercial and investment arbitration are being sought for a new international arbitration survey from Queen Mary, University of London (QMUL). Conducted by QMUL’s School of International Arbitration and sponsored by White & Case LLP, the 2012 survey aims to examine whether a “harmonised international arbitration procedure is emerging,…

Arbitrators, Commercial Arbitration, Confidentiality, Other Issues

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White & Case

A major new survey on international arbitration conducted by Queen Mary University London and sponsored by White & Case revealed several interesting findings on corporate choices concerning international arbitration.* As already reported by Global Arbitration Review, the survey shows “the extent to which the governing law is a driver of choice among those framing arbitration…

BIT, Europe, European Law, Investment Arbitration, Other Issues, Vienna Convention on the Law of Treaties

(White & Case LLP)/ /2 Comments
White & Case

The growing success of investment arbitration may collide with the European Commission’s attitude towards intra-EU BITs, as shown recently by a development reported in August 2010 (the IA Reporter, August 5, 2010, Vol. 3, No. 12) regarding the Eureko v. Slovakia arbitration. In this case, Eureko initiated a claim against the Slovak Republic based on…

Arbitration Institutions and Rules, Arbitration Proceedings, Arbitrators, Other Issues

(International Council for Commercial Arbitration)/ /4 Comments
Freshfields Bruckhaus Deringer

I recently spoke at a conference co-sponsored by the Milan Chamber of Arbitration and the ICC on the occasion of the publication of the new Italian arbitration treatise entitled Commentario Breve al Diritto Dell’Arbitrato Nazionale ed Internazionale (CEDAM 2010) by my colleague Massimo Benedettelli, along with co-authors Claudio Consolo and Luca Radicati di Brozolo. The…

Arbitration Agreements, Arbitration Institutions and Rules, Other Issues

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White & Case

The United States’ Supreme Court opinion in Stolt-Nielsen S.A. v. Animalfeeds International Corp. has already been the focus of much discussion in both U.S. and international arbitration circles. One area of interest for arbitration practitioners is the impact which the decision may or should have on how drafters of arbitration clauses should address the issue…

Commercial Arbitration, Other Issues

(Wilmer Cutler Pickering Hale and Dorr LLP)/ /1 Comment
WilmerHale

A defining characteristic of international arbitration is the ability to choose the decision-makers who determine the dispute. The parties’ right to choose their arbitrator is qualified by the requirement that the arbitrator adhere to standards of independence and impartiality. Where the parties consider that the arbitrators do not meet these standards, they can bring a…

Arbitration Institutions and Rules, Middle East, Other Issues

(Habib Al Mulla & Co.)/ /Leave a comment

The most commonly used form of construction contract in the Gulf is the FIDIC form. Although the FIDIC forms, for project procurement and consultantcy services, progressed slowly over the years, culminating in the burst of colours in the suite of contracts issued in 1999, some parts of the Middle East still use the 1987 (Red…

Investment Arbitration, Other Issues

(New York Law School)/ /1 Comment
Institute for Transnational Arbitration (ITA)

In the last month, two professors mused to one of the authors that “international investment arbitration is undertheorized”. One of the professors is a serious scholar of international law. The other professor was a former clerk at The Hague and writes about international investment arbitration. Their comment got us thinking: Is international investment arbitration undertheorized?…

Domestic Courts, Europe, kompetenz-kompetenz, Other Issues

(Wilmer Cutler Pickering Hale and Dorr LLP)/ /Leave a comment
WilmerHale

In a post last year we considered the English Court of Appeal’s judgment in the case of Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2009] EWCA Civ 755, where the Court of Appeal held that an order giving leave to enforce a French ICC arbitration award was rightly set aside by the High Court as it had been established, pursuant to section 103(2)(b) of the Arbitration Act 1996 (“the Act”), that as a matter of French law the respondent government was not a party to the arbitration agreement. The High Court and Court of Appeal agreed that an application under section 103(2) of the Act required a rehearing of the facts in contention (in Dallah the existence of an arbitration agreement), not just a review of the award.

Arbitration Agreements, Other Issues

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White & Case

Given that the arbitration clause is often relegated to the status of boiler-plate during contractual negotiations, it will come as no surprise that arbitration clauses may be inadequately drafted. While not every clause will be so deficient as to be ‘pathological’, many readers of this blog will have first-hand experience of dealing with the fall-out…

Arbitration Institutions and Rules, Arbitration Proceedings, Investment Arbitration, Other Issues

(University of Victoria Faculty of Law)/ /1 Comment

Procedural Order No. 3 (Confidentiality Order) dated 27 January 2010 in Giovanna a Beccara and others v. The Argentine Republic (the “Order”) addresses the competing considerations of confidentiality, transparency, public information, equality of the Parties’ rights, and orderly conduct of the proceedings in investment treaty arbitration.  Although the Tribunal’s Order provides a nuanced approach to…

International Legal Theory and Teaching, Investment Arbitration, Other Issues

(The London School of Economics and Political Science)/ /1 Comment

It is not easy to get a grip on the vast amount of case-law being churned out by investment treaty arbitration panels. However, if law students wanted examples of the ultimate slap-dash arguments being put together by claimant lawyers, then go no further than to sample some of arguments launched in this case. It is…

Other Issues

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We are pleased to announce that Kluwer Arbitration Blog will add two new permanent contributors to the blog: Alexis Mourre of the law firm of Castaldi Mourre & Partners in Paris, France, and the Institute for Transnational Arbitration in Dallas, Texas. Alexis Mourre is a founding partner of Castaldi Mourre & Partners, a 25-lawyer firm…

Arbitration Awards, Investment Arbitration, Other Issues

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White & Case

Until recently, no arbitral tribunal had found an investor’s claim under a BIT to be barred by a fork-in-the-road clause. Previous tribunals have found that for a fork-in-the-road clause to apply, the same dispute between the same parties must have been submitted to the local courts before resort to international arbitration and have drawn clear…

International Legal Theory and Teaching, Other Issues

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This week the good folks at Kluwer have launched a new blog, Kluwer Construction Blog. According to the press release, Managing Editor of the blog, Sarah Thomas, partner and international projects expert at Pinsent Masons, will draw contributions from a panel of pre-eminent construction lawyers and barristers covering Europe, the United States, Canada, Africa, South…

Arbitration Awards, Arbitration Proceedings, Domestic Courts, Enforcement, Europe, Other Issues, Public Policy

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White & Case

On May 6, 2009, the French Supreme Court rendered a decision relating to the consequences of insolvency proceedings commenced in France against a party to pending international arbitration proceedings (Jean X. v. International Company For Commercial Exchanges (Income), May 6, 2009, Case no. 08-10281). A French company had signed three contracts for the sale of…

Arbitration Awards, Arbitration Proceedings, Investment Arbitration, Other Issues

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White & Case

In 2006, the ICSID Arbitration Rules were amended to allow a party to make a preliminary objection to claims that are “manifestly without legal merit.” The procedure for this objection is embodied in Rule 41(5). An ICSID Tribunal composed of Dr. Briner (President), Professor Stern and Professor Böckstiegel, in Brandes Investment Partners, LP v. Venezuela…

Arbitration Awards, Enforcement, New York Convention, Other Issues

(White & Case LLP)/ /2 Comments
White & Case

Given the fundamental nature of the exceptions to the recognition and enforcement under the New York Convention (the “Convention”) it should not be forgotten that their application is in fact discretionary: Article V.1 of the Convention states that “Recognition and enforcement of the award may be refused at the request of the party against whom…

Other Issues

(von Segesser Law Offices)/ /Leave a comment

Under the applicable Swiss law, fees and charges arising in connection with the exercise of functions of arbitration are exempted from VAT. Specifically, the respective section of Article 23(1) of the Swiss Federal Act of 2 Sept. 1999 on Value Added Tax (“VATL”) reads as follows: “[…] For services which they perform in sovereign right,…

Arbitration Awards, Arbitration Institutions and Rules, Arbitration Proceedings, Commercial Arbitration, Other Issues

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White & Case

One of the greatest challenges for international arbitration in recent times is the users’ complaint that the process has become too costly. In-house counsel are under pressure to control costs, and they grumble that arbitrators and international arbitration counsel are not sufficiently responsive to their concerns. Outside counsel are rightly troubled by these complaints. Frustrating…