As I discuss in a recent article published in the Santa Clara Journal of International Law, one of the most significant developments signaling the convergence of trade and arbitration is the use of trade remedies to enforce arbitration awards. This is done primarily when a developed country threatens to remove preferential trade benefits to a…
Introduction In BG Group v. Republic Argentina, a divided U.S. Supreme Court (“the Court”) continued to hold that arbitrators are the proper decision makers in gateway questions of arbitrability, not courts. The issue here concerned whether or not the local litigation requirement in the U.K-Argentina BIT was a procedural prerequisite to investor-state arbitration, or a…
The Competence-Competence Principle is a fundamental principle of international arbitration. It is recognized in article 8 of Brazilian Arbitration Law. However, in Companhia de Geração Térmica de Energia Elétrica – CGTEE v. Kreditanstalt Fur Wiederaufbau Bankengruppe, the Rio Grande do Sul Court of Appeals raised some doubts about it is applicability in Brazil. (Rio Grande…
Setting the scene Iraq currently ranks with Libya and Yemen amongst those recalcitrant Arab states that have thus far failed to ratify the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention or Convention). This state of affairs and the inadequacy of the country’s domestic and…
The recent Bangladesh factory disaster has brought the plight of labourers in developing countries to the forefront in the international arena. Reforms in the labour legislations in Bangladesh have been demanded, which could lead to the implementation of stricter labour standards in the country. This could possibly lead to investment arbitration claims against Bangladesh, if…
The views expressed are those of the author alone and should not be regarded as representative of or binding upon the author’s law firm.1)Dr. Pair works at LP-Legal in Zürich, Switzerland. She is licensed to practice law in the US, Germany and Switzerland, and teaches at the Universities of Geneva and St. Gallen. Consolidation of multiple…
On 28 February 2014, the Regional Court of Munich rendered a decision in the matter opposing German speed skater Claudia Pechstein to the ISU (Judgment of the Regional Court of Munich I, Case Number 37 O 28331/12; the judgment is not final). This decision is sending waves through the sports arbitration community. In a matter…
We are truly grateful to all those persons who have submitted answers to the survey. It will remain open until March 13, 2013. If you haven’t taken the poll yet, please do share your experience. You will contribute to the knowledge-building of the worldwide arbitration community. An analysis of the results will be published in…
By Ben Knowles and Khaled Moyeed at Clyde & Co LLP A recent arbitration award has highlighted the question of the enforceability of forfeiture provisions in oil and gas JOAs. The effect of such provisions is that a defaulting party forfeits its participating interest (“PI“) in a project on account of a default, such as…
By Peter Godwin, Elaine Wong and James Allsop, Hebert Smith Freehills The Japan Commercial Arbitration Association (“JCAA”) has introduced an amended version of its Commercial Arbitration Rules (the “New Rules”). The New Rules, which contain comprehensive amendments, came into force on 1 February 2014 and will apply to all arbitrations initiated on or after that…
and Niyati Gandhi On 14 February 2014, the Supreme Court of India (SCI) in Enercon India v. Enercon GMBH [Civ. App. 2086/7 of 2014] (Enercon) found occasion to revisit issues in connection with potential laws that govern an arbitration agreement. The impugned arbitration agreement contained the following clause: 18. DISPUTES AND ARBITRATION 18.1 * *…
Defective arbitration clauses are certainly uncommon, but do appear on a recurring basis in domestic and international arbitration practice. Many practitioners can go their entire professional lives without seeing any, while others encounter two or three cases over their career. The types of defective arbitration agreements or clauses are varied. Obviously, in most cases the…
An arbitral award (PCA Case No. 2011-17, 31 January 2014) arising out of the nationalisation of an electricity generation business in Bolivia has provided useful guidance on: (1) the ability of multiple investor claimants to bring joint claims against a state under separate BITs in a single proceeding; and (2) the time at which a…
Arbitration proceedings sometimes spawn a host of parallel court proceedings. It is not unheard for parties to seek to instrumentalise courts, sometimes with the complicity of the courts themselves, to escape the jurisdiction of an arbitral tribunal. Such conduct may, however, expose parties to liability for breach of the arbitration agreement, as was confirmed by…
As announced in my earlier post we will interview Gary Born at the occasion of his new edition of International Commercial Arbitration. This second edition is an authoritative 4,500 page treatise, in three volumes, providing the most complete and up-to-date available commentary and analysis on all aspects of the international commercial arbitration process. We will…
The views expressed are those of the author alone. Technology in arbitration is of course a vast subject which has been addressed extensively by a number of writers. This article focuses briefly on the issue of reducing paper in arbitrations. It considers: How are practitioners currently dealing with paper reduction at the various stages of…
Co-authored by Christopher Smith and James Menz, Schellenberg Wittmer On 10 January 2014, the U.S. Court of Appeals for the Eleventh Circuit issued a highly anticipated decision in Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 2014 WL 104132 (11th Cir. Jan. 10, 2014) (hereinafter Consorcio II). The holding vacated the same panel’s…
By Carmen Núñez-Lagos and Javier García Olmedo In an award rendered on 31 January 2014, an arbitral tribunal constituted under the UNCITRAL Rules declined jurisdiction over the claims brought by one of two claimants against the Plurinational State of Bolivia on the basis of the application of a denial of benefits clause in the US-Bolivia…
and Oleg Temnikov “Put forth your best” by Bill Clennan The contest lasts for moments Though the training’d taken years. It wasn’t winning alone that was worth the work and tears. The applause will be forgotten The prize will be misplaced. But the long hard hours of practice will never be a waste. For in…
By Beth Cubitt and Tom French The proposed Trans-Pacific Partnership Agreement (TPPA) – a multi-lateral agreement proposed between a number of countries, currently including Australia, Canada, Japan, Malaysia, Mexico, Peru, the United States and Vietnam (although it is hoped to be an open platform welcoming other countries to participate) – is currently the subject of…
and Niyati Gandhi, National Law School of India University in Bangalore The issues arising out of allegations of fraud in international commercial arbitration can be listed by way of two closely connected questions: 1) Do arbitral tribunals have the substantive jurisdiction to make determinations upon allegations of fraud? 2) If the contract containing an arbitration…
A uniform regulation of substantive, procedural or ethical aspects of international commercial disputes through intergovernmental cooperation has proven to be an unachievable goal or hardly a goal at all. Nonetheless, while national laws are widely used as framework for international arbitration, a number of initiatives have emerged aiming at creating intrinsically international rules (soft law…
Factual background On 4 October 2013 the Tribunal constituted under Metal-Tech Ltd.’s claim against Republic of Uzbekistan (G. Kauffman-Kohler, C. von Wobeser, J. Townsend) issued the award on jurisdiction in the ICSID case ARB/10/03. The peculiar factual background of the case has been previously discussed here. The approach taken by the Tribunal in this case…
By Justin D’Agostino and Sean Izor In the past, arbitration laws and arbitral institutions in Asia have often been seen as less well developed when compared to their Western counterparts. However, just as Asia’s economies have grown at a rapid pace, catching up to (or surpassing) those of Europe and the United States, so has…
