Most institutional rules share a common procedural framework for arbitral proceedings—the origins of which are traceable to the first set of ICC Rules in 1922. This skeletal framework broadly describes the lifecycle of the arbitration, and provides for the order of pleadings, constitution of a tribunal, conduct of proceedings, and making of the award, in…
If the Canada-China BIT is any guide, then the US-China BIT may prove to be profoundly state-friendly. Unlike Canada’s 2004 model investment agreement and the investment chapter of the 2014 Canada-European Union Comprehensive Trade and Economic Agreement (CETA), the Canada-China BIT offers only negligible establishment-phase protections and lacks disciplines on state-owned enterprises. With such provisions,…
The Main Approaches Regarding Enforcement of Annulled Foreign Awards The ongoing issue of whether an award that was set aside in the country of origin should be enforced has recently arisen in England and Wales. This issue has divided jurisdictions in two camps: the first camp is comprised of jurisdictions that are ready to enforce…
Negotiations over the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) have highlighted the growing debate over investment arbitration. Last week the New York Times published an article summarizing objections to the TPP investment chapter. The article notes that politicians, law professors and liberal activists “have expressed fears the provisions would infringe…
Notwithstanding 2014’s political and constitutional upheavals, arbitration in Hong Kong has continued its successful trajectory as a popular and well-regarded means of alternative dispute resolution. Recent Hong Kong court decisions and developments at the Hong Kong International Arbitration Centre (HKIAC) reinforce the pro-arbitration attitude of the courts and HKIAC’s position as a world-class arbitral institution….
The DIFC Courts Practice Direction No. 2 of 2015 on the Referral of Judgment Payment Disputes to Arbitration (available online on the official website of the DIFC Courts at https://difccourts.ae/difc-courts-practice-direction-no-2-2015-referral-judgment-payment-disputes-arbitration/) was finally adopted on 16 February 2015 and is now in full force. For conceptual accuracy, the more appealing title of “Practice Direction on the…
In recent years, international arbitration has increasingly been recognised as the preferred dispute resolution mechanism for cross-border derivative transactions, particularly those involving parties from emerging markets. The key reasons for this popularity include the growing diversity of counterparties and jurisdictions involved in derivatives trading, worldwide enforceability of arbitral awards against assets located in over 150…
On 17 March 2015, the UN Convention on Transparency in Treaty-Based Investor-State Arbitration was opened for signature. So far, nine countries have signed the treaty (among them, Canada, France, Germany, the United Kingdom and the United States). The Convention will enter into force six months after the first three instruments of ratification have been deposited…
The University of Virginia’s Spring 2014 symposium focused on the topic of international development. One panel focused on the role of international politics in the context of international dispute settlement. With the mandate to examine elements related to both politics and development, I was asked to explore outcomes in investment treaty arbitration (ITA) as a…
An often cited advantage of arbitration, as opposed to litigation, is the finality of the process. The grounds for time-consuming and costly challenges and appeals are limited. Under the English 1996 Arbitration Act (the “Act”), parties can only challenge or appeal an arbitration award on three grounds: (i) a challenge on the grounds that the…
and Queen Mary University of London This article is published as a result of the cooperation agreement between Kluwer Arbitration Blog and ArbitralWomen. 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 the author’s law firm. Issues relating to…
International investment law is shaped by key terms such as “investment”, “indirect expropriation”, “national treatment”, “most favored nation”, “fair and equitable treatment”, among others, which are at the heart of most investment treaties. But after 1959, when West Germany and Pakistan signed what is known as the first ever bilateral investment treaty, and, since then,…
In November 2014, a new arbitration center was established in Bulgaria – the KRIB Court of Arbitration (KRIB – Confederation of Employers and Industrialists in Bulgaria). The establishment of this institution was awaited by the Bulgarian business. The establishment of a new arbitral institution in Bulgaria is an important step, since arbitration is a widely…
In the Swedish case Profura v. Blomgren (T 2863-07, Court of Appeals for Western Sweden), from 19 March 2008 known as Profura v. Stig Blomgren, an appeal was brought against award according to which the arbitral tribunal had rejected its jurisdiction.1)Case also commented in Hobér, Kaj, International Commercial Arbitration in Sweden, 2011, p. 110. The…
The terms ‘variable interest entity’ (‘VIE’), ‘valuation adjustment mechanism’ (‘VAM’) and ‘public (social) interest of China’ (otherwise, Chinese ‘public policy’) each entail complex legal issues. They have in the past caused heated debate in China as to their legality (in the cases of VIE and VAM) and their boundaries in the context of enforcement of…
On 29 September 2014, the Calcutta High Court in Board of Trustees of the Port of Kolkata v. Louis Dreyfus Armaturs SAS & Ors delivered the first decision by an Indian Court on a case directly arising from an investment treaty arbitration. The case concerns an anti-arbitration injunction sought against Louis Dreyfus Armateurs SAS (“LDA”),…
We are pleased to announce the publication of a Model Bilateral Arbitration Treaty for comment by interested governmental, commercial and other parties. Comments can be sent to whbilateral_arbitration_treaty@wilmerhale.com or posted for public review by commenting below. The Model Bilateral Arbitration Treaty (“BAT”) provides a default arbitration mechanism for the resolution of defined international commercial disputes….
and Mona Wright The School of International Arbitration at Queen Mary University of London (QMUL) and White & Case LLP are partnering once again to carry out cutting-edge empirical research in the field of international arbitration. Titled “Improvements and Innovations in International Arbitration”, the 2015 International Arbitration Survey seeks to explore “whether and how international…
The Mongolian government has recently been required to pay one Canadian mining company approximately $100 million for expropriating that company’s uranium extraction licences in 2009. This sum is payable to Khan Resources Inc (Khan) pursuant to an arbitral award that is the climax of an arbitration proceeding initiated by Khan in 2011 as a result…
and Alexandra Mitretodis, Fasken Martineau DuMoulin LLP In 0927613 BC Ltd v 0941187 BC Ltd, 2014 BCJ No 2659, decided on August 21, 2014, the British Columbia Supreme Court stated that in the domestic context, an arbitrator must comply with the rules of natural justice and consider what assistance can be useful to provide unrepresented…
The Higher Regional Court Frankfurt (OLG Frankfurt) has recently strengthened the efficiency of parties’ wills embodied in arbitration agreements. In a crucial decision (OLG Frankfurt am Main, 26 Sch 3/13, Ruling, 18 December 2014), the judges have added clarity to the practical problem of how to resolve friction between an increasingly dense net of treaty…
Last week, two decisions by emergency arbitrators were made public which had been rendered in separate cases based on investment treaties. Both cases were arbitrated pursuant to the SCC Rules and initiated in 2014 and 2015 respectively; together they likely constitute the first known examples of emergency arbitrators in non-contractual disputes. This blog post will…
The availability of expedited procedures providing for fast-track arbitration is by now commonplace under many modern institutional rules; however, the effectiveness of these mechanisms lies ultimately in enforcement and set-aside proceedings before national courts. In AQZ v ARA,1)(2015) SGHC 49. the Singapore High Court recently had to consider, for the first time, a challenge to…
It is well known that the Singapore Court of Appeal refused enforcement of Awards in favour of Astro in 2013 (discussed here), on the grounds that the tribunal lacked jurisdiction over the claimants. The same Awards have now been enforced against First Media, a Lippo company, in Hong Kong (Astro Nusantara International B.V. v PT…
