The Achmea judgment, passed on the 6th of March 2018, and addressed in the Kluwer blog posts available here and here, prompted us to think about what could be the way forward for an effective investment and investor protection within the EU. Now that the CJEU decided that investment treaty arbitration based on intra-EU BITs…
For many years, investor-state dispute settlement (ISDS), supported by thousands of bilateral investment treaties (BITs), has served as the main mechanism for deciding investment disputes. This controversial system permits affected investors to sue states for damages before arbitral panels on the grounds that their investments have been treated unfairly. For many commentators, the main problem…
Before answering the titular question, let’s start with the more basic question: What is a race to the top? The phrase seems self-explanatory. It is a compelling and vivid metaphor that has by now entered to the public lexicon. But the phrase “race to the top” originated as a counterpart to the more ominous phrase:…
Professor Stacie Strong has noted on this blog that “[c]ritics of international arbitration often express concerns about the quality of legal reasoning in arbitration, even though conventional wisdom…suggests that international arbitral awards reflect relatively robust reasoning that is often on a par with that of decisions rendered by commercial courts” . However, adopting a…
It has been on the cards for many years. But on 6 February 2018, days before the Kuwait reconstruction conference, the Iraqi cabinet officially agreed to endorse the ratification of New York Convention of 1958 and table it with Parliament. The decision finally to accede to the treaty coincides with the eradication of Da-esh…
At the end of a lengthy and complex arbitration, the tribunal issues an award that summarises the evidence and submissions of both parties, and concludes with a single paragraph which states, “For the reasons given by the Claimant, which are accepted by this Tribunal, the claim is allowed in full.” Can an award of this…
It is trite that economic growth in Africa and the scale of investment into the region has thrust international arbitration to the forefront of dispute resolution on the continent. Indeed, the proliferation of African international arbitration centres (there are more than 40 currently in existence) is testament to the fact that African governments are alive…
Following the entry into force of the new act on arbitration (Act LX of 2017 on Arbitration, the “Act”) this year, the Arbitration Court attached to the Hungarian Chamber of Commerce and Industry (“HCCI”) adopted its new procedural rules (“Arbitration Rules”) effective and applicable as of 1 February 2018. It was to some degree expected…
2017 was yet another significant year for international arbitration. Many arbitral institutions amended their arbitration rules, including: – the Stockholm Chamber of Commerce (SCC) Arbitration Rules and Singapore International Arbitration Centre (SIAC) Investment Arbitration Rules which both came into effect on 1 January 2017, – the Thai Arbitration Institute (TAI) Arbitration Rules on 31 January…
Introduction In a much anticipated judgment in Slovak Republic v. Achmea B.V. (Case C-284/16), the Court of Justice of the European Union (“CJEU”) ruled yesterday that the arbitration clause contained in Article 8 of the 1991 Netherlands-Slovakia BIT (the “BIT”) has an adverse effect on the autonomy of EU law, and is therefore incompatible with…
Introduction It is generally accepted in international arbitration that an arbitral tribunal has an inherent power, and duty, to preserve the fairness and integrity of the arbitral proceedings and the enforceability of the award. On the other hand, it is equally uncontested that a party to an arbitration has a right to be represented by…
Blockchain and its potential applications are well-documented by technologists and early-adopters. Over the last 12 months, however, this technology has started to take centre stage in more mainstream industry discussions. With the price of Bitcoin spiking early this year (following which the cryptocurrency lost over 50% of its value), blockchain has become big news and…
The 5th Annual ITA-IEL-ICC Joint Conference on International Energy Arbitration was held in Houston last month, and the focus was on the year past and the year ahead in the arbitration of international disputes in the energy industry. From the topics discussed, predictions rendered and questions raised at the conference, attendees departed considering whether the…
There have been a number of occasions in Indonesia when domestic court proceedings and foreign arbitration proceedings of the same matter were carried out concurrently. In some of those occasions, the arbitral tribunal, upon the claimant’s request, issued an anti-suit injunction in respect of the Indonesian court proceedings brought by the respondent. In Astro Nusantara…
With posts on the new Japan International Mediation Centre, on reflections from the coach of the winning team in the recent ICC Mediation Competition, on top TED talks for mediators, and finally on analogies between cricket and mediation, there is something for everyone in the posts from the Kluwer Mediation Blog in February. Below you’ll…
Introduction The two main reasons why countries generally agree to sign bilateral or multilateral investment treaties (BITs or MITs) are to attract foreign direct investments, while at the same time protecting their own citizens’ investments abroad by reducing political risk. Arguably, there might be multiple added values on top of these reasons for a specific…
Mr Daniel Kahneman is a Nobel Prize winner in Economic Sciences, and the author of the bestselling book “Thinking, Fast and Slow”. His book focuses on behavioural science, and explains how cognitive biases fool us into making suboptimal decisions. In December 2017, PwC updated its International Arbitration damages research (“PwC Research”). It reviewed multiple international…
Today, most arbitration practitioners have heard about Arbitrator Intelligence. They have seen it referenced in this blog space, heard it mentioned at a conference, or noticed that it has been identified as an important new innovation. But as often as people say they have heard of Arbitrator Intelligence, they also still have basic questions about…
Introduction – the usual reasons Assumptions are made about the reasons corporate counsel choose particular methods of dispute resolution in contracts. It is said that the usual factors of enforcement, confidentiality, flexibility, informality, time, cost and so on are determinative. For some corporate counsel they might be. For others, as I have written elsewhere, the…
Besides the inverted initialism, what does international arbitration (“IA”) and artificial intelligence (“AI”) have in common? Sure, both IA and AI are leading alternatives to the status quo: IA to traditional dispute resolution, AI to traditional methods of production. The former promotes freedom from the judiciary, the latter freedom from cognitive limitations. Beyond that, comparisons…
The IBA Guidelines on Conflict of Interest in International Arbitration (hereafter, Guidelines) have gained widespread legitimacy across jurisdictions and types of arbitrations. The Guidelines lay down General Standards (Part I) and provide Practical Application List (Part II). Its soft law nature is an example of codification by compilation (Part I) and innovation (Part II). The…
The views expressed herein are the personal views of the authors and do not reflect those of their law firm. In France, until recently, rules governing the issue of sovereign immunity from enforcement, and in particular those setting out the scope and conditions under which such immunities apply, derived from case law. Although relevant international…
Issue 35/1 Guilherme Rizzo Amaral, Burden of Proof and Adverse Inferences in International Arbitration: Proposal for an Inference Chart Abstract: This article addresses two subjects that are relevant to the finding of facts in international arbitration, namely, the burden of proof and the power of the arbitral tribunal to draw adverse inferences. Regarding the burden…
The (Indian) Arbitration and Conciliation Act, 1996 does not specify which disputes are arbitrable and which are not. The arbitrability of disputes is a contested issue and has been left for the courts to decide on a case-by-case basis. In Himangni Enterprises v. Kamaljeet Singh Ahluwalia (“Himangni Enterprises”), the arbitrability of disputes under a lease…
