Brazil, foreign direct investment

(Nasser Sociedade de Advogados), (Nasser Advogados), and / /Leave a comment

For a long time, Brazil remained one of the few main economies without foreign investment agreements – in the 1990s, 14 Bilateral Investment Treaties (“BITs”) were signed, but never ratified. This landscape began to change in 2015, with the emergence of the model Agreement on Cooperation and Facilitation of Investments (“ACFI”), promoted by the Brazilian…

Arbitrability, Arbitration clause, Consent, Domestic arbitration, Domestic Courts, Domestic law, Enforcement of an arbitration clause, Federal Arbitration Act (FAA), United States

, (Mayer Brown) and (Goldman Ismail Tomaselli Brennan & Baum LLP)/ /Leave a comment

Businesses that are party to an arbitration agreement governed by Nevada law should understand that a little-known Nevada statute renders these agreements unenforceable if a contract lacks so-called “specific authorization” indicating that a person affirmatively assented to the arbitration provision itself. While the Nevada Supreme Court has applied this rule to invalidate arbitration agreements, a…

Arbitration, Arbitrator Intelligence

(Director Content and Market Development, Wolters Kluwer Legal & Regulatory, International Group)/ /1 Comment

In June 2014, at the ITA Workshop in Dallas, I heard a passionate woman presenting her mission of increasing fairness, transparency, accountability, and diversity in the arbitrator selection process, and how she intended to do this. “I want to support this” is what I thought. Roger Alford was so kind to introduce me to this…

Kluwer Mediation Blog, Mediation

(Centre for Commercial Law Studies, Queen Mary University of London)/ /Leave a comment

From the mediation of sports disputes to a recent mediation law in Brazil and onto lessons learnt from teaching mediation and negotiation courses in universities in Germany and New Zealand, the past month on the Kluwer Mediation Blog has provided a rich assortment of posts. A short summary of each post follows. In Investing In…

Arbitration, Code of Ethics, Counsel, Counsel conduct

(General Editor, ICCA Publications; Amsterdam Center for International Law, University of Amsterdam)/ /3 Comments
Institute for Transnational Arbitration (ITA)

Who Should Regulate the International Bar? The regulation of professional ethics of the international bar is among the most hotly debated issues in international arbitration (inter-state, investor-state, and commercial). It reflects the regulatory gap that has developed as proceedings before international courts and tribunals have proliferated and counsel diversified. Addressing this issue is crucial, as…

Arbitration, Brexit, European Law, European Union, Investment, Investment agreements, Investment Arbitration, Investment protection, UK

(Notre Dame Law School)/ /Leave a comment

On May 30, 2017, Volterra Fietta and the University of Notre Dame hosted a debate of whether foreign investors can sue the United Kingdom for a hard Brexit. The recorded video is now available for viewing. Markus Burgstaller and I presented the case that foreign investors may have viable claims against the UK, while Jeremy…

ADR, Arbitration, Arbitration Awards, Arbitrator Intelligence, Arbitrators, Global Pound Conference, ICC

(MDisputes) and (International Dispute Resolution)/ /1 Comment

Mark Twain once wrote that a person with a new idea “is a crank until the idea succeeds.”1)Pudd’nhead Wilson’s New Calendar, in Following the Equator (1897). The Merriam Webster dictionary defines “crank” as “an annoyingly eccentric person.” Innovations and new ideas on the verge of implementation seem to arrive almost weekly in international arbitration. They…

Arbitration, Portugal, Public Policy

(BCH Advogados)/ /Leave a comment

1. I have written elsewhere about the uncertainty that the Portuguese courts have experienced in defining the “international public policy” of the Portuguese State and, more specifically, in finding in some particular cases that there was a situation amounting to a violation of that standard for the purposes of annulment of (or refusal to recognise)…

Appointment of arbitrators, Arbitral Tribunal, Arbitration

, (Allen & Overy)/ /2 Comments
YSIAC

In April 2010, Professor Jan Paulsson delivered his inaugural lecture as holder of the Michael R. Klein Distinguished Scholar Chair at the University of Miami School of Law where he expressed the view that the practice of unilateral appointments (or nominations) of arbitrators is a moral hazard which should be removed. This lecture sparked debate…

Investment, Mediation, Vietnam

(Dzungsrt & Associates LLC ) and (Dzungsrt & Associates LLC)/ /1 Comment
Young ICCA

On 24 February 2017, the Government of Vietnam promulgated Decree No.22/2017/ND-CP on Commercial Mediation (the “Decree”). It is the first legislation specifically governing commercial mediation in Vietnam. The Decree is inspired by the UNCITRAL Model Law on International Commercial Conciliation (the “UNCITRAL Model Law”), but includes several local modifications. From the drafting process, the Decree…

Arbitration, Croatia, Enforcement, Interstate arbitral awards, Slovenia

(Yale Law School)/ /1 Comment

On Thursday, the arbitral tribunal in Croatia/Slovenia rendered a final award on the merits of the dispute despite what a previous post on this blog called “severe breaches of duty of confidentiality and impartiality” during the arbitral proceedings. In commercial and investment arbitration, where procedural irregularities arise, either party can seek annulment of the award…

Arbitration, Arbitration Awards, Enforcement, FOSFA, GAFTA, International arbitration, Ukraine

(AGA Partners Law Firm) and / /Leave a comment

The analysis of Ukrainian court practice enables us to share our thoughts on trends regarding the recognition and enforcement of GAFTA/FOSFA awards in Ukraine, and to provide tips that may help to enforce this type of awards in the future. Seven Trends on the Recognition and Enforcement of GAFTA/FOSFA Awards in Ukraine 1. Ukrainian courts…

Arbitration, Arbitration Institutions and Rules, Emergency Arbitrator, SCC, SCC Rules

(Climate Change Counsel)/ /1 Comment

SCC was one of the first institutions to provide for emergency arbitrator proceedings in its rules. In 2010, the new Appendix II was added to the SCC Arbitration Rules and the Rules for Expedited Arbitrations (“SCC Rules”), allowing a party in need of prompt interim relief to receive a decision from an emergency arbitrator where…

Arbitration, Arbitrator Intelligence, Arbitrators

(Stockholm University)/ /1 Comment

Wolters Kluwer Legal & Regulatory U.S. today announced its collaboration with Arbitrator Intelligence (AI) to improve resources available to the arbitration community and bring more transparency to the arbitration process. Through this collaboration, Wolters Kluwer will provide AI’s Arbitrator Intelligence reports on Kluwer Arbitration, making highly valuable data widely available and providing users with important…

Arbitration, Hong Kong

, (Fangda Partners)/ /Leave a comment

In a judgment dated 8 June 2017, the Hong Kong Court of First Instance (the “Court”) rejected an assertion of Crown immunity by China National Coal Group Corporation (“China Coal”) (a PRC state-owned enterprise (“SOE”)) and granted a charging order against the shares it held in a Hong Kong company, China Coal Hong Kong Limited…

Arbitration Act, Bulgaria, Consumer disputes

/ /Leave a comment
ArbitralWomen

Since the end of January 2017, a new law amending and supplementing the Code of Civil Procedure became effective (the “Law”). It also provides for amendments to the International Commercial Arbitration Act (“ICAA”) and to the Consumers Protection Act (“CPA”). Below is a summary of some of the key changes introduced by the Law. Consumer…

Qatar

, , (Al Tamimi & Company)/ /2 Comments

In a recent judgment, the Qatari Court of Cassation ruled that an arbitral tribunal may only hear a dispute arising from a contract that is valid and that the validity of a contract is to be determined solely and exclusively by the courts (Civil Appeal No. 65-2017). Notably, the judgment was issued on 18 April…

Uncategorized

(Harvard Law School)/ /Leave a comment

Introduction: In December 2016, Morocco and Nigeria signed the Reciprocal Investment Promotion and Protection Agreement (“Bilateral Investment Treaty” or “BIT”) – an agreement between two countries for the provision of foreign investment to the nationals and companies from one country, in the other. This BIT contains some innovative provisions that attempt to strike a balance…

Arbitration, Evidence, Japan, Witness

(Permanent Court of Arbitration)/ /1 Comment
Young ICCA

I. Introduction A deposition is a “witness’s sworn out-of-court testimony” (Legal Information Institute “Wex, Deposition”). In U.S.-based litigation, a deposition is available as part of the discovery procedure. In the United States, a deposition is also available in arbitration. Arbitral tribunals seated in the United States may order a deposition of a witness if s/he…

Energy Charter Treaty, Fair and Equitable Treatment, Spain

(FERRERE Abogados)/ /1 Comment

A previous post analyzed the application of the fair and equitable treatment (“FET”) and legitimate expectations in the recent award in Eiser Infrastructure Ltd. v. Spain (ICSID Case No. ARB/13/36), the first ICSID case to reach a final award related to the measures Spain applied to roll-back certain incentives and benefits offered to promote investment…

Arbitration, Corruption, Criminal law and arbitration, Economic, Jurisdiction, Jurisdiction of the arbitral tribunal, Provisional measures

/ /Leave a comment

The Twenty-eighth ITF Public Conference on Economic Crime and International Investment Law, hosted by the British Institute of International and Comparative Law (BIICL) on 22 May 2017, attracted 13 distinguished speakers and more than 100 participants for a day discussion on the issues of economic crime in investor-state arbitration. The conference provided a forum for…

Energy, Energy Charter Treaty, Fair and Equitable Treatment, Legitimate Expectations, Spain

(BakerHostetler)/ /Leave a comment

On May 4, 2017 the third final award on the Spanish energy arbitration saga was unveiled. After two wins against Charanne and Isolux Infrastructure (both SCC), this time the foreign investors scored a point, leaving the overall score table at 2-1. In Eiser, the first ICSID case to reach a final award related to the…

Enforcement, Hague Convention on Choice of Court Agreements, New York Convention, Recognition and enforcement of arbitral award

, (Bryan Cave)/ /1 Comment
Bryan Cave Leighton Paisner LLP

We make reference to the Kluwer Arbitration Blog post of 23 September 2016 by Sapna Jhangiani and Rosehana Amin, entitled ‘The Hague Convention on Choice of Court Agreements: A Rival to the New York Convention and a ‘Game-Changer’ for International Disputes?’. That blog concluded that the Hague Convention was potentially a game changer. We respectfully…

Fair and Equitable Treatment, Investment protection, Investor, U.S. Supreme Court, United States

(Three Crowns LLP)/ /Leave a comment
Three Crowns LLP

The U.S. Court of Appeals for the Fourth Circuit recently issued an en banc decision, in International Refugee Assistance Project IRAP v Trump, affirming the district court’s injunction against President Trump’s Executive Order temporarily suspending entry into the United States by individuals from six Muslim-majority countries. Although the case concerns the application of specialized U.S….