One of the main advantages of arbitration vis-à-vis state court litigation, is that the parties are free to choose independent and highly specialised experts to decide their cases. Yet, if these experts negligently (or even deliberately) violate the duties that come with the acceptance of the appointment, the issue of liability arises. One may think…
In Luxembourg, international arbitration awards are enforced pursuant to the New York Convention of 10 June 1958 (the ‘Convention”), or, where that Convention does not apply, pursuant to the provisions of the Luxembourg New Civil Procedure Code. Indeed, provisions of Luxembourg law are applicable alternatively, so that the Convention is exclusively applicable when the award…
Arbitrability is a fundamental concept of arbitration law which gives an answer to a question which dispute can be submitted to arbitration. Traditionally in Russia the non-arbitrability of a dispute was explained through a public policy consideration. In other words, disputes which have or might have a public interest cannot be submitted to arbitration. The…
Introduction Saudi Arabia has changed dramatically in the past two decades, and many of those changes have potentially positive implications for international arbitration. As a crucial starting point, the Saudi government has focused intense attention and devoted vast resources to diversify the country’s economy, most interestingly by investing billions of dollars to develop the education…
Current deliberations about the need for “Sustainable Development” and “Public Private Partnerships” will lead inevitably to a more realistic consideration of a sovereign state’s right to engage and regulate the private sector more extensively than previously. In the past, the problem associated with the sovereign state’s right to exercise police powers, whether for legitimate reasons…
In its judgment of 19 November 2012 in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia), the International Court of Justice (“Court” or “ICJ”) delimited, inter alia, the continental shelf and exclusive economic zone of Nicaragua and the maritime entitlements of the islands of which it was determined to be under Colombian…
With the rise of populist politics in the 2016 U.S. presidential election and the Brexit referendum, it is not surprising that trade in general, and the Trans-Pacific Partnership in particular, have become lightning rods for controversy. The proposed treaty’s provisions on trade, investment, and intellectual property have drawn passionate criticism from both old and new…
Kocur & Partners, in cooperation with two leading Polish universities, the University of Economics in Katowice and the Kozminski University in Warsaw, conducted a survey on the practice of arbitration in Poland. The survey covered prominent issues that the arbitration community is currently discussing, and provides an insight into the opinions of Polish arbitration users….
The Second Circuit’s decision on Chevron Corporation v. Steven Donziger et. al., one more chapter of the “Chevron Saga” (discussed by the author here), arose out of a federal action commenced by Chevron Corporation in 2011 against American lawyer Steven Donziger, his law firm and the plaintiffs in the Lago Agrio claim initiated against Chevron…
McGill University Faculty of Law was delighted to receive more than 70 submissions from scholars and junior practitioners affiliated with more than 60 institutions for the 2016 Nappert Prize in International Arbitration. After an initial review, anonymized versions of more than half of the submitted papers – written by students from some two dozen countries…
The two Philip Morris cases involving restrictions on the presentation and sale of cigarettes through plain packaging measures has been used by anti-ISDS groups as the prime example for creating the myth that treaty arbitration causes states not to adopt certain measures for the protection of public goods, i.e., results in so-called “regulatory chill”. This…
The 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) is the engine that makes international arbitration an effective mechanism to resolve disputes. The purpose of the New York Convention is to encourage and simplify the recognition and enforcement of foreign arbitral awards. In the case of Figueiredo…
Introduction As noted in Part 1 of this two-part series, the ability to select an arbitrator is widely considered one of the most valuable characteristics of international arbitration. While Part 1 focused on removal of arbitrators for apparent bias, this Part 2 focuses on the parties’ ability to remove an arbitrator if he/she proves unable,…
Introduction The ability to select an arbitrator is widely considered one of the most valuable characteristics of international arbitration. According to the Queen Mary University and White & Case 2015 International Arbitration Survey, selection of arbitrators was considered its fourth most important characteristic, with 38% of respondents rating it among their top three. Surely, then,…
Introduction On 12 July 2016, a five-member arbitral tribunal (the Tribunal) constituted under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) issued its long-awaited award on the merits in an arbitration brought by the Philippines against China. The tribunal’s jurisdiction is derived from UNCLOS; all State parties to UNCLOS…
Introduction On 23 May 2016, CIETAC’s Hong Kong Arbitration Center (CIETAC HKAC) issued for public consultation draft Guidelines for third party funding (the draft Guidelines). Third party funding (TPF) is a hot topic in Hong Kong. The draft Guidelines come in the wake of recent initiatives to clarify the law on TPF in the territory,…
The Ukrainian “saga” on the enforcement of the SCC emergency arbitrator’s award continues – the case is pending the second round of cassation review. The arbitration proceedings were initiated by the Dutch and English investors OIL&GAS PLC and POLTAVA GAS B.V. (“JKX” or “Claimants”) on January 7, 2015. The case concerns the alleged Ukraine’s failure…
In August 2013, Judge Hellerstein of the US District Court for the Southern District of New York granted the enforcement of an award rendered in Mexico between Comissa (Corporación Mexicana De Mantenimiento Integral, S. De R.L. De C.V.) and PEMEX (Pemex‐Exploración Y Production) in favor of Comissa awarding it $300 million; an award that had…
More recent generations of investment treaties tend to include explicit provisions requiring claimants in investor-State arbitrations to submit waivers that – depending on the actual terminology used in these waiver provisions – generally seek to bar them from submitting their claims to other forums, such as through litigation before domestic courts or parallel international proceedings….
When allocating costs, investment arbitration tribunals apply two principles: a “pay your own way” principle which provides that each party pays its own legal costs and they effectively share the costs of the proceedings, and secondly a “costs follow the event” or “loser pays” principle which provides that the losing party bears the costs of…
Co-authored with Lucy Greenwood (Norton Rose Fulbright) and Michael McIlwrath (General Electric Company) Earlier this year, we published an article “Puppies or Kittens – How To Better Match Arbitrators to Party Expectations”, which we summarized here on Kluwer, calling for better-informed choices in appointing arbitrators. We highlighted that the lack of available information during the…
The beckoning call for an Institutional Arbitration Centre for the Country with one of the highest number of commercial disputes has finally been answered with the formation of the new Mumbai Centre for Institutional Arbitration (“MCIA”). This move, a furtherance of the Governments recent initiative to boost investment is a natural advancement after the recent…
Increasingly overburdened Courts have constrained access to judicial remedies for civil disputes in India. To enable expeditious settlement of commercial disputes, the Government of India issued the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Act”). It envisages the establishment of separate commercial Courts to hear arbitral disputes, amongst other…
On 12 April 2016, the Paris Court of Appeal rejected the request for annulment brought by the Greek Company S.A.J. & P. Avax (“Avax”) against an ICC partial award on the ground that the chairman of the tribunal lacked independence. This is the fifth decision rendered in this case by French courts and in all…
