On 12 June 2018, the Xiamen Intermediate People’s Court of PRC (“Court”), in Subway International B.V. v Xiamen Woguan Enterprise Management Co., Ltd, upheld an ICDR award made by sole arbitrator Charles J. Moxley Jr., Esq.1)The author would like to thank Judge Chen Yanzhong of Xiamen Maritime Court for his comments on the earlier drafts of…
The discussion about whether and how the arbitral tribunals can apply the iura novit arbiter (INA) principle has been widely debated in different studies of international arbitration. INA allows the arbitrator to amend and to replace wrongly invoked law or the law not invoked by the parties. However, the arbitrator cannot go beyond the request,…
On Friday December 7th, a distinguished panel of government negotiators, experienced investment arbitrators and senior legal advisors gathered in Paris at the law faculty of the University Paris II Panthéon-Assas (Paris II) to discuss the US-Mexico-Canada Trade Agreement (USMCA) also called the “New NAFTA” signed on November 30th. The panel was held as part of…
The Kluwer Arbitration Blog thanks everyone who responded to the New Year Arbitration Quiz, and have decided that all those who responded will receive free subscriptions to this blog for 12 months.1) It is true that the Kluwer blog is already free. In keeping with the theme of arbitration, however, we felt our award should…
INTRODUCTION It is fairly known that the Indian Limitation Act, 1963 (the Limitation Act) constitutes “general law” for Time Periods and its computation. Section 29(2) of the said Act contains the fundamental rule that provisions of Limitation Act would apply for computation of time period prescribed by any special law only to the extent it…
Section 16 (1) of the Arbitration and Conciliation Act, 1996 [“the Indian Act”] confers power upon the arbitral tribunal to decide on matters relating to its jurisdiction. Under section 16 (5), a decision accepting the plea of lack of jurisdiction shall be an appealable order; while decision rejecting the same plea can be challenged only…
Recently, the 2018 White & Case International Arbitration Survey confirmed London, Paris, Singapore, Hong Kong, Geneva, New York and Stockholm as the most in-demand places for arbitration in the world. Brazil is well represented by São Paulo – the economic hub of the country – which occupied eighth place in the overall ranking. This result…
The World Trade Organization (WTO) was born on January 1, 1995 and its Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) provides a binding means for WTO members to resolve disputes arising under WTO agreements. This post summarizes WTO DSU dispute settlement and considers, whether in light of recent developments, article 25…
In a marked departure from its usual closed-doors policy, the Swiss Federal Supreme Court (the “Supreme Court”) recently held public deliberations in two separate appeal proceedings concerning foreign investment arbitrations. In both cases, a public deliberation by all five judges of the first civil chamber was necessitated due to the lack of unanimity among the…
Arbitration in the 21st Century requires some bold, fresh thinking. We must seek flexibility and innovation if legal civilization is to survive. 1) Thomas E. Carbonneau, The Law and Practice of United States Arbitration, xxix (6th. ed. 2018) Similarly, when the market speaks strongly, we should listen very carefully. We believe that open and free…
The endeavours of the ICC go beyond the definition of an arbitration institution; it is indeed one of the most important agents of cultural integration, incubator of diversity and best arbitration practices. 1)Stavros Brekoulakis, The Culture in International Arbitration: Integration or Fragmentation?, CBAr Conference, Salvador Bahia, 18 September 2018 A true manifestation of this is the…
Hong Kong v. Singapore. It’s not the next big football match or title of an upcoming Japanese monster film. It’s the question of where to bring international arbitration claims in Asia. It’s a topic whispered at cocktail receptions and routinely reserved for hushed discussion in law firm conference rooms. It’s the topic rarely if ever…
A little under ten years ago Sir Rupert Jackson proposed significant reforms to reduce the costs of litigation in England and Wales. It is fair to say that while his reforms have received both praise and criticism over the past decade, they are largely considered to have been a success in curtailing the costs of…
The New Year is upon us. You have a major submission that is now due and a hearing about to start in another case. How did that happen? Not to worry! To help you keep procrastinating, the Kluwer New Year’s International Arbitration Quiz is here to help. As in years past, the first reader to…
While the jury is still out on whether winter is coming or has already arrived regarding ISDS and investment treaties, I would rather turn to agriculture and use the metaphor of sowing the seeds and harvesting. Since July 2010, when the European Commission published its very first Communication on ISDS and investment treaties, it has…
Commensalism of IIL Critique While the popular criticism of investment arbitration provides fertile ground for the academic proposals for ISDS reform, the latter hardly shape the development of (investment) law and even less so, its popular perception. Reform proposals are usually firmly grounded in positive law, and as such they are inherently constrained. Alternatively, general…
In a decision from June 6, 2018, the Third Chamber of the Paraguayan Court of Appeal (the “Court”) decided an annulment application, recognizing that issues of illegality and corruption are arbitrable, as long as such decision does not imply the imposition of sanctions, something that is left to the local criminal courts1)Recurso de Nulidad interpuesto…
Arbitration in Argentina is finally finding its way to certainty. On 4 July of this year, Argentina passed the International Commercial Arbitration Act, based on the UNCITRAL Model Law. Furthermore, Argentinian domestic courts have recently handed down arbitration-friendly decisions. In this regard, a new judgment just been issued by the Argentine Federal Supreme Court of…
In 2014, Tanzania was identified as the top destination for foreign direct investment in East Africa by the United Nations Conference on Trade and Development (“UNCTAD”). Between 2011 and 2013, the country signed five new Bilateral Investment Treaties (“BITs”). With these, it would seem like the country is opening up and attracting foreign investors. However,…
Introduction Section 11 of the Arbitration and Conciliation Act of India, 1996 (the Act), demonstrates in detail the procedure for appointment of arbitrators. It empowers the court to examine the existence of an arbitration agreement while deciding the application for such appointment. The gravity and significance of such proceedings is vast, in both domestic and…
The decision made in the case of Hardy Exploration & Production (India), Inc. v. Government of India, Ministry of Petroleum & Natural Gas (Civ. Action No. 16-140 (D.D.C. 7 June 2018)) (“Hardy case”) is yet another decision in a string of outcomes under the New York Convention proving that the repeated adagio “if it ain’t broken,…
December is the month when we slow down, enjoy the festive season and (the well-deserved) holidays. December is also the month of retrospection and of planning for the year to begin, always hoping to do better, and today we would like to do the same for the Kluwer Arbitration Blog. Last year, we were expecting…
In a recent judgment providing a preliminary ruling in the case, Apple Sales International et al. v. EBizcuss.com (C-595/17, October 24, 2018) (“EBizcuss.com”), the Court of Justice of the European Union (“CJEU”) affirmed that jurisdiction clauses subject to EU law may be enforced by Member State courts in the context of actions for damages for…
Arbitral institutions commonly offer model arbitration clauses for parties to incorporate into their contracts. Gary Born has stated that “[i]n the overwhelming majority of cases, … international arbitration agreements are straightforward exercises, adopting either entirely or principally the model, time-tested clauses of a leading arbitral institution.”1) Gary B. Born, International Commercial Arbitration 212 (2d ed….
