Arbitration, Energy Charter Treaty, Expropriation, Germany, Investment Arbitration, Legitimate Expectations

(NL-Investmentconsulting)/ /8 Comments

On 6 December 2016 the German Constitutional Court (GCC) delivered its judgment in the case of Vattenfall and other nuclear power energy companies against Germany. This dispute and final judgment – which have attracted far less attention and criticism from anti-ISDS groups than the Vattenfall dispute currently under the Energy Charter Treaty (ECT) – provide…

Brazil, BRICS, Fair and Equitable Treatment, India, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor, Model BIT, The Netherlands

(Lazareff Le Bars)/ /Leave a comment
ArbitralWomen

Much Ado About India’s Protectionist Model BIT The last week of November 2016 was an eventful and rather paradoxical week for India. While India and Brazil successfully concluded negotiations for a new Bilateral Investment Treaty (“BIT”), the India-Netherlands BIT expired. India has spent the past year refurbishing its investment agreements. According to UNCTAD, India is…

Asset Management, Financial Industry, ICC Commission Report on Financial Institutions and International Arbitration

(Lazareff Le Bars) and (BCH Advogados)/ /Leave a comment

General Considerations In the context of the series of posts dedicated to the Final Report of the ICC Task Force on Financial Institutions and International Arbitration, this post aims at providing a broad picture of the scope, survey and conclusions related to the use of arbitration in disputes involving asset management matters. As a matter…

Advisory Matters, Arbitration, Financial Industry, ICC Commission Report on Financial Institutions and International Arbitration

(Linklaters) and (Linklaters LLP)/ /Leave a comment
Linklaters

Advisory works generally include advisory services rendered by investment banks to their clients in two main areas: M&A (mergers and acquisitions) and equity capital markets. In this context, a financial institution will enter into a various number of agreements, either with its clients (mandate, etc.) or with its counterparty to a transaction where the deal…

Arbitration Agreement, English Arbitration Act, Lex Arbitri, Lex Fori, Separability

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

Introduction It is a key principle in many jurisdictions across the world that arbitration clauses should be separable from the underlying contract in which they are contained. This prevents arbitration clauses from being denuded of their effect, particularly where the contract is void for fraud. However, not all jurisdictions uphold the separability principle. Therefore, in…

Arbitral Award, Austria, Procedure, Public Policy, Reasoning, Set aside an arbitral award

(Schoenherr) and / /Leave a comment
Schoenherr

The decisive underlying reasoning (motifs, Begründung) is, without doubt, an essential part of any arbitral award and as such bears the potential of frustrating parties and arbitrators alike. On the one hand, elaborate reasoning in arbitral awards more often than not comes at the price of long waiting periods for the issuance of the awards,…

Financial Industry, ICC Commission Report on Financial Institutions and International Arbitration, International Financing

(White & Case) and (Jeantet)/ /Leave a comment
White & Case

The ICC Commission on Arbitration and ADR’s Task Force on Financial Institutions and International Arbitration recently published its ‘Report on Financial Institutions and International Arbitration’ (the “Report”). The undersigned had the honour of leading the work stream on “International Financing” and the findings of that team are summarized in Section IX (International Financing) of the…

ICC Commission Report on Financial Institutions and International Arbitration

(ICC Court of Arbitration) and (AFFAKI)/ /Leave a comment

The new ICC Report on Financial Institutions and International Arbitration finds that the oft-cited financial institutions’ averseness to arbitration, abstractly stated, is incorrect. Financial institutions’ perception of arbitration is rapidly evolving in the wake of the global financial crisis, the sovereign debt crisis, the digitalization of banking, and the new regulatory approach to bank resolution….

Belgium, CETA, CJEU, ECJ, European Law, European Union, Germany, Intra-EU BITs, The Netherlands, Transatlantic Trade and Investment Partnership, Ukraine, Vietnam

(NL-Investmentconsulting)/ /3 Comments

The recent developments concerning the signature of the Comprehensive Economic Trade Agreement (CETA) between Canada and the EU have illustrated the paralysis and inability of the EU and its Member States to deliver economic prosperity and create jobs – which used to be one of the very reasons for establishing the EU and giving it…

Arbitration, Dispute Resolution

(BMA Advogados)/ /Leave a comment

In the 1980s, a study conducted by Stanford University showed that after watching the same television reports on the Sabra and Shatila massacre in Beirut, both a pro-Israeli and a pro-Arab group concluded that the coverage was biased in favor of the other side. The researchers found that the partisans of the two groups evaluated…

Arbitral Tribunal, Discovery, International arbitration, Section 1782 Discovery, United States

(Quinn Emanuel Urquhart & Sullivan, LLP)/ /Leave a comment

Section 1782 has become the weapon of choice for international litigants seeking discovery in aid of foreign proceedings. Section 1782 allows an “interested person” to apply for discovery over a person or entity “found” in the U.S. “for use” in a proceeding “in a foreign or international tribunal.” Significant uncertainty exists, however, in whether Section…

Journal of International Arbitration

(WilmerHale & Queen Mary University of London)/ /Leave a comment

The Kluwer Journal of International Arbitration (JOIA) is pleased to announce a forthcoming Special Issue on “Dispute Resolution in Asia.” This Special Issue will focus on the use of international arbitration as means of resolving cross-border disputes in Asia.  Slowly but steadily, Asia has established its presence on the international arbitration world map.  The main…

Brexit, Fair and Equitable Treatment, Investment Arbitration

(Notre Dame Law School)/ /2 Comments

Last month I was privileged to organize a conference at the University of Notre Dame’s London Global Gateway on the topic of UK trade and Brexit. The conference had three sessions: (1) UK trade negotiations with the EU; (2) UK trade negotiations outside the EU; and (3) UK’s post-Brexit status within the WTO. You can…

Arbitration, BEPS Convention, OECD, Tax

(Temple Tax Chambers; King’s College London)/ /Leave a comment

“A camel is an animal designed by a committee” – Anonymous In launching the BEPS programme in 2013, the OECD warned that replacement of the current consensus-based framework by unilateral measures, could lead to global tax chaos marked by the massive re-emergence of double taxation (OECD: Action Plan on Base Erosion and Profit Shifting (2013))….

Arbitration, Dispute Resolution, Intellectual Property, Media and Telecoms Disputes, Surveys

(Swiss International Law School (SiLS))/ /Leave a comment

The 2016 International TMT Dispute Resolution Survey, sponsored by Pinsent Masons LLP, is the seventh survey carried out by the School of International Arbitration since 2006. It is part of a major investigation into international dispute resolution practices and trends worldwide. This year’s survey, the largest industry-sector empirical study ever conducted in international arbitration, sought…

Germany, Kluwer Mediation Blog, Mediation, Ukraine

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

From mediation legislation developments in the Ukraine to the contribution of mediation and mediators in these times of uncertainty and opportunity, over the past month the posts on the Kluwer Mediation Blog have addressed a wonderful assortment of topics. In Putting Away Childish Things, John Sturrock considers the loss of civility which appears commonplace nowadays,…

Arbitration, Arbitration Agreements, Arbitration Institutions and Rules, Arbitrators, Expedited arbitration, ICC Arbitration, ICC Rules, Party autonomy, Procedure

, (Hogan Lovells)/ /Leave a comment

Over the past few decades, responding to the need to control the growing costs and time of arbitration proceedings, the International Court of Arbitration of the International Chamber of Commerce (“ICC Court”) has continuously sought to achieve greater efficiency of the ICC arbitration proceedings (examples of such efforts can be found on the links available…

Ad hoc arbitration, Arbitrability, Arbitration, Arbitration Act, Corporate disputes, Institutional Arbitration, Lex Arbitri, Russia

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

Russia has recently revised its arbitration laws. The key development of the reform is to address the arbitrability of so-called “corporate disputes.” The new laws lift the longstanding ban on arbitrating most types of controversies relating to a Russian company. There is a catch, though: the lawmakers set out mandatory procedural conditions with which any…

Arbitral Tribunal, Arbitration, Arbitration Proceedings, Best practices, Commercial Arbitration, Confidentiality, Confidentiality and Transparency, HKIAC, ICC Arbitration, ICCA, ICSID Arbitration, Independence and Impartiality, Institutional Arbitration, International arbitration, Investment Arbitration, ISDS, LCIA Arbitration, Powers of the tribunal, Procedure, SCC Rules, Secretary of the Arbitral Tribunal, SIAC, Singapore International Arbitration Centre, Tribunal Secretary, Uncategorized

, , (Clifford Chance) and (Clifford Chance Asia)/ /Leave a comment

“Help! I need somebody Help! Not just anybody Help! You know I need someone, help … And now my life has changed in oh so many ways, My independence seems to vanish in the haze …” Help raises a question of need, but does it lead to a loss of the fundamental decision-making power vested…

HKIAC, Hong Kong, Joint Venture, Set aside an arbitral award

, (Clifford Chance)/ /Leave a comment
HK45

This post looks at a recent Hong Kong High Court judgment by Mimmie Chan J (Arjowiggins HKK2 Ltd v X Co [2016] HKEC 2472) firmly rejecting a set aside application, brought by a paper producer in relation to an HKIAC award for USD 24 million against it, and which led to indemnity costs being ordered…

Appellate Body, BIT, Free Trade Agreements, Free Trade Area of the Asia-Pacific, International arbitration, Investment Arbitration, ISDS, Regional Comprehensive Economic Partnership, TPP

(Peking University School of Transnational Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

Investment obligations and investor-State arbitration provisions normally have been negotiated under bilateral investment treaties (BITs), or, more recently, in the larger context of free trade agreements (FTAs). For investment provisions, the movement from BITs to FTAs recently has taken an additional, significant step: the negotiation of such provisions in the even larger context of mega-regional…

Arbitration, Arbitration Proceedings, Investment Arbitration, Investor, Montenegro

(International Moot Court Competition Association (IMCCA))/ /Leave a comment

Co-authored with: Oleg Temnikov, Wolf Theiss Background In a recent award issued in the case of CEAC Holdings Limited v. Montenegro (ARB/14/8, Award, 26 July 2016) the arbitral tribunal had to decide whether CEAC Holdings Limited (hereinafter: “CEAC”) was a protected investor within the meaning of the applicable Cyprus–Serbia and Montenegro BIT. Under Article 1…

Emergency Arbitrator, Enforcement, India

, / /1 Comment

India took a big leap in reforming its arbitration law by amending the Arbitration & Conciliation Act, 1996 (“Act“) in December 2015 (“2015 Amendments“). The 2015 Amendments coupled with setting up of the Mumbai Centre for International Arbitration (“MCIA“) within a year of the amendments and the increased emphasis by the Government on arbitration bode…

Arbitration Agreement, Brazil

(FERRERE Abogados)/ /Leave a comment

  On 15 September 2016, the Superior Justice Tribunal (“STJ” for its Brazilian acronym) of Brazil, in the case “Odontologia Noroeste LTDA v. GOU – Grupo Odontologico Unificado Franchising LTDA (REsp. N° 1.602.076 – SP)”, affirmed the invalidity of an arbitration clause contained in a franchising agreement based on its pathology for not complying with…