James Crawford described the principle of state immunity as “…a rule of international law that facilitates the performance of public functions by the state and its representatives by preventing them from being sued or prosecuted in foreign courts…it precludes the courts of the forum state from exercising adjudicative and enforcement jurisdiction in certain classes of…
On 4th October, 2016, a Division Bench of the Indian Supreme Court, in A. Ayyaswamy v. A. Paramasivam (“Ayyaswamy”) [2016], sought to clear the muddied waters surrounding the arbitrability of issues relating to fraud, albeit offering little clarity in the end. The uncertainties regarding arbitrability of fraud claims had previously reached a legal impasse following…
Currently, around 190 bilateral investment treaties between EU Member States (“intra-EU BITs”) are still in force. Most of these intra EU-BITs were concluded in the 1990s. Prior to the two enlargement rounds in 2004 and 2007, relatively little attention was paid to the two existing intra-EU BITs. However, after 2004, the status of intra-EU BITs…
The issues of impecuniosity and access to justice arise cyclically in different jurisdictions and under different forms. Recently, the debate has been raised again in France. On 24 May 2016, the Paris Court of Appeal quashed a decision of the French juge d’appui (judge acting in support of the arbitration) enjoining the ICC to reintroduce…
Critics of the TPP, and ISDS protections more generally, have often argued that a particular concern is that the US is not only a large source of FDI, but that it is ‘the nation whose corporations use ISDS the most’ (referring to ANU’s Professor Thomas Faunce). A recent paper by ANU’s Dr Kyla Tienhaara for…
On 20 September 2016, in a somewhat unanticipated move, the Dubai International Arbitration Centre (DIAC) and the Dubai International Financial Centre (DIFC) Dispute Resolution Authority (DRA) – which comprises both the DIFC Academy of Law and the DIFC Courts, the autonomous common law judiciary based in the DIFC – signed a Memorandum of Understanding to…
Part I of this two-part blog post summarized the recent judgment of the Singapore Court of Appeal (“SGCA” or the “Court”) in Sanum Investments Ltd. v Government of the Lao People’s Democratic Republic (“Sanum v Laos”). This Part II provides some comments on that judgment and its significance, including its impact on future Singapore court…
On 29 September 2016, the Singapore Court of Appeal (“SGCA” or the “Court”) released its much-anticipated judgment in Sanum Investments Ltd. v Government of the Lao People’s Democratic Republic (“Sanum v Laos”). In a carefully reasoned decision, Singapore’s apex court reversed a decision of the Singapore High Court, which had previously held that an UNCITRAL…
Security for costs, a measure which is perceived as a savior for those who are forced to arbitrate with (allegedly) impecunious parties, can have several connections with the industry of third party funding. Third party funding, as a new trend in international arbitration, has certainly disturbed many waters, including those related to security for costs….
As Professor Luke Nottage and Dr. Jarrod Hepburn have observed in a forthcoming case note,1)Hepburn, J., Nottage, L. (2016), Case Note: Philip Morris Asia v Australia (Forthcoming), Journal of World Investment and Trade the most recent ruling in the long-running case of Philip Morris Asia v Australia has highlighted the consequences of agreeing to arbitrate…
In recent weeks, criticism of the TPP has been increasingly focused on the Investor-State Dispute Settlement (ISDS) mechanism contained in its Chapter Nine. Massachusetts Senator Elizabeth Warren initiated the charge against the TPP’s ISDS mechanism, and her attacks were recently supported by more than two hundred economists and law professors, who addressed a letter to…
If James Bond practiced law, it would be international arbitration. Don’t believe me? Just consider how many international arbitration cases could be great plots for a James Bond movie. Take, for example, the case in which an Israeli investor was arrested in Tbilisi and jailed following a cognac-laced sting operation that caught the investor on…
In February 2016, the Egyptian Conseil d’État rejected a draft sports law (the “Sports Law” or the “Law”) proposed by the Egyptian Ministry of Youth and Sports (the “Ministry”) because its dispute resolution provisions did not comply with the Egyptian Constitution. Among its many responsibilities, the Conseil d’État is the authority in charge of reviewing…
In recent weeks, it has become clear that the latest lightning rod for TPP criticism is the Investor-State Dispute Settlement (ISDS) mechanism contained in its Chapter Nine. With Massachusetts Senator Elizabeth Warren leading the charge in this new fight, and a recent letter circulated to members of Congress by more than two hundred economists and…
The line between third-party funders and law firms is blurring. Originally, there were only two traditional types of third-party funding arrangements. In the first type, the third-party funder makes an agreement to finance the legal expenses of the claimant or respondent in a case in exchange for a portion of the claimant’s awarded amount, if…
Liability in international arbitration is a recurrent yet unsettled issue. Occasionally, we hear of a fearless party that dares to sue an arbitrator and/or an arbitral institution based on allegations of a conflict of interest, procedural irregularity, error of law, or a failure to oversee the good conduct of the arbitration proceedings. The discussions prompted…
Lawyers might sometimes wish for Solomonic justice; that parties would agree to “split the difference” or that someone would do it for them. Where, however, it appears that such an approach has been taken by an arbitral panel—in substitution for a carefully reasoned decision—the lack of engagement with their arguments is likely to leave the…
On 19 September 2016, Freshfields hosted an ICC YAF event at its London offices on gender diversity in arbitration and the Pledge for Equal Representation in Arbitration (“Pledge”), a topic which has been the centre of discussions on panels organised by ArbitralWomen around the world. The Pledge initiative, orchestrated by Sylvia Noury of Freshfields and…
Two years ago, in the case of Banyan Tree v Meydan Group, an arbitral award rendered outside the Dubai International Financial Centre (DIFC) was enforced by the DIFC courts in circumstances where neither party was based nor had assets in the DIFC. The case demonstrated the willingness of the DIFC’s courts to enforce awards rendered…
Authors: Amirhossein Tanhaei, Gheidi & Associates and Shiva Ghahremani, Konrad & Partners As all eyes are focused on the changing political scene in Iran, and notably the lifting of international sanctions in relation to economic activities, thoughts also shift to the legal environment. In particular, what is required to ensure a stable, predictable framework, and…
Iran. The country with enormous trade potential and a juicy market for many foreign companies around the globe. Following partial lifting of sanctions in Iran, it is expected that more and more businesses from different industries will enter the Iranian market. Needless to say, along with the development of international trade in Iran more disputes…
1 September 2016 marks the key date in the long-awaited Russian arbitration law reform, publicly announced by the President of the Russian Federation already in 2013. Since then, the Russian arbitration law reform has been in the public eye attracting significant publicity (previous blog posts on this can be read: here, here, here, and here)….
Following the referendum on 23 June 2016 the UK’s Prime Minister has recently indicated that the UK will invoke Article 50 of the Treaty on European Union (“TEU”) by the end of March 2017. It is expected that within two years from then the UK will withdraw from the EU. In this entry we consider…
Modern institutional arbitration rules commonly provide for emergency relief at the outset of the arbitration either through the expedited formation of a tribunal or the appointment of an emergency arbitrator, or both. This could either be viewed as a broadening of options for a party seeking immediate remedy or a constraint of the court’s powers…
