Part I of this article analyzed the three jurisdictional requirements under the ICSID Convention for submission of counterclaims. Now we turn to three investor-State tribunal decisions decided within the last two years, and how they have contributed to the jurisprudence on counterclaims: Metal-Tech v. Uzbekistan (ICSID Case No. ARB/10/3, Award, 4 October 2013), Al-Warraq v….
The engines of economic growth in India are moving towards full throttle. In this resurrection of India as an economic giant, foreign investors are keenly looking at safeguards the Government of India is prepared to offer to ensure that the commercial bases of their investments are protected. The corner stones of investor confidence have always…
In the last two years, three tribunals have enriched the investor-state dispute jurisprudence on counterclaims. Metal-Tech v. Uzbekistan (ICSID Case No. ARB/10/3, Award, 4 October 2013), Al-Warraq v. Indonesia (UNCITRAL, Final Award, 15 December 2014), and Perenco v. Ecuador (ICSID Case No. ARB/08/6, Interim Decision on the Environmental Counterclaim, 11 August 2015) are the relevant…
The 2015 International Arbitration Survey is out. Subtitled “Improvements and Innovations in International Arbitration,” the most recent effort by Queen Mary / White & Case has a lot to say about efforts to date to improve the practice and what more can be done. The survey’s methodology and sample size have themselves been the subject…
Registration is now CLOSED for Kluwer Arbitration London 2015, but with less than a week to go, I would like to offer all Blog readers an opportunity to submit a QUESTION for our Q&A Author Panel. I know that sadly not all readers are able to attend the live event at Tower Hill next week, but I’m delighted to announce that…
For natural persons, possession of the nationality of the host state is an absolute bar to becoming a party to ICSID proceedings against that state. Article 25 of the ICSID Convention delimits the scope of arbitral jurisdiction to investment disputes between a ‘Contracting State’ and a ‘national of another Contracting State’, defined as ‘any natural…
In 1996, when the Brazilian Arbitration Act (“BAA”) came into force, the New York Convention (“NYC”) was still facing considerable resistance from the Brazilian Executive and Legislative branches. At that time, there were few indications that the NYC would be ratified in the near future. This is why the draftsmen of the bill (a bill…
While the focus of the debate concerning free trade and investment agreements in Europe has been almost exclusively on the transatlantic deals with the US (TTIP) and Canada (CETA), there is far more going on in Asia with potentially much more at stake. Indeed, nothing less than a very competitive race is going on between…
Financial, trade and political sanctions have long been used by states as a tool of foreign policy. This is no less true today, where high profile sanctions regimes have been imposed against Iran, Myanmar, Sudan, North Korea, and Zimbabwe amongst many others. See, for example, the lists of sanctions maintained by the EU (see here),…
In international arbitration, the effect of international sanctions regulations usually arises at two key stages. First, at the commencement of arbitration, where arbitral institutions, arbitrators and counsel involved in the proceedings must consider if they are potentially in breach of such regulations. Secondly, at the enforcement stage, if an award is challenged under the New…
The issue of a unilateral (optional, alternative, hybrid) arbitration clause is highly controversial in commercial arbitration. The approach to these clauses varies from jurisdiction to jurisdiction. In 2012, the Supreme Arbitration Court of Russia (a state court), in Russian Telephone Company v. Sony Ericsson, declared a unilateral arbitration clause invalid. The decision attracted attention of…
It is not unusual that a foreign investor is put in a situation where the investment has not been infringed yet and no damage has been caused, but an infringement is very likely to happen. The investor is then often left without any available domestic recourse, which is particularly true as regards general legislative measures….
Introduction It is often said that the choice of a party-nominated arbitrator is the single most important decision a party will make in any arbitration. The right to appoint one of the decision-makers sets the arbitral process apart from litigation, and is touted as a key selling point. When exercising this right, it is now…
and Vyapak Desai, Nishith Desai Associates The Delhi High Court, in the case of PCP International Limited (“Petitioner”) v. Lanco Infratech Limited (“Respondent”), OMP (I) No. 350/2015, recently had occasion to decide which Indian court would have territorial jurisdiction in a domestic arbitration. The court, distinguishing the venue of arbitration from the seat, held that…
This is the second part of a post related to arbitration and antitrust follow-on damages claims in Europe. Part 1, which addressed problems of jurisdiction ratione materiae that arise in relation to follow-on damages claims, is accessible here. Part 2 of this commentary addresses additional challenges and opportunities that warrant attention when the possibility of…
This post, which will be presented in two parts, proposes to pick-up on a subject addressed in an earlier commentary posted by R. Bellinghausen and J. Grothaus regarding the CJEU’s decision in CDC v. Akzo Nobel et al [See Judgment C-352/13]. As highlighted in the earlier post, the CJEU’s recent decision raises a number of questions…
By a recent judgment in Malini Ventura v Knight Capital Pte Ltd and others [2015] SGHC 225 (“Malini“), the Singapore High Court affirmed its commitment to the primacy of arbitration even in situations where the existence of the arbitration agreement is in question. In Malini, Prakash J decided that prima facie existence of an arbitration…
Queen Mary University of London & Wilmer Cutler Pickering Hale and Dorr LLP The Journal of International Arbitration was created over thirty years ago to “exchange ideas, share experiences and learn from each other of the practical problems encountered in arbitration proceedings”. Since then, the issues raised in, and problems faced by, the international arbitration…
for YSIAC In an age of ever-increasing complexity, where your watch can open your garage and answer your phone (yes, the Apple watch can really do that), many of us in the international arbitration community have lost sight of the most powerful weapon in the advocate’s toolbox: simplicity. A previous post on this blog eloquently…
The views expressed in this article are those of the author alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or ICC, the Court or its Secretariat. Hypochondria is defined as an excessive preoccupation with one’s health, usually focusing on some particular symptom. Could excessive preoccupation about the place of arbitration…
and Katherine Bell, Schellenberg Wittmer In decision 4A_554/2014 dated 15 April 2015, the Swiss Federal Supreme Court considered an application to set aside an award on the ground of violation of the right to be heard where the sole arbitrator had based her award on a legal concept that had not been explicitly pleaded by…
The effects of bankruptcy on arbitration remain unclear and they differ from jurisdiction to jurisdiction. Although being oft-discussed in doctrine as well in court and arbitral practice, there is still no uniform answer to the question of which law governs such effects. We saw this question again in the Svea Court of Appeal’s [“Svea Court”]…
Background Article 399A included in the Criminal Law of People’s Republic of China, provides for criminal liability to arbitrators for “perversion of law” (Wangfa Zhongcai Zui). The provision has been a Part of the Criminal Law since 2006. However, on 24 June 2015, the Supreme People’s Court (‘SPC’) and the Supreme People’s Procuratorate (SPP) of…
It comes as no surprise to those familiar with investment treaty law to see the concept of legitimate expectations continuously refined by case law. One of the facets of legitimate expectations, which is most often the topic of intensive debate in the investment treaty arbitration arena, is the analysis of the extent to which representations…
