I have posted on SSRN my latest article, “Ancillary Discovery to Prove Denial of Justice” just published in the Virginia Journal of International Law. It analyzes Section 1782 discovery proceedings in the context of BIT arbitration and argues that there is now uniform agreement among federal courts that investment arbitration panels are “international tribunals” within…
Winter holidays invite fun reading, including good professional reading, that most of the rest of the year forbids. Not exactly beach reads, but the same idea. And, this year, readers from the United States with interests in international arbitration, had their choice among a host of new offerings. Three warrant special mention. First, Professor Bo…
An earlier post examined the general limitations on arbitral discretion. This part will look into the question of actions taken proprio motu and the limits thereto. Functions exercisable proprio motu are perceived as a special case of application of the discretionary powers enjoyed by a tribunal. Actions taken proprio motu must be distinguished from functions…
Here at the Blog, we do our fair share of pontificating and opinionating. But now, we’d like to hear more from you! Today we’re launching our first poll question, and we hope you’ll participate in droves. Our first topic concerns the under-representation of women in arbitration, a topic I blogged about a few months ago….
In an earlier post, I’d highlighted five notable legal highlights from 2012. Below, and somewhat belatedly, I offer my post-mortem on some key policy developments from 2012. 1. Venezuela and South Africa beat a retreat Venezuela’s exit from ICSID was perhaps the most visible policy story of 2012. The move could bolster the caseload of…
Those who feared that following Sir David Steel J’s ruling in Injazat Capital Limited and Injazat Technology Fund B.S.C. v. Denton Wilde Sapte & Co before the Dubai International Financial Centre (DIFC) Court of First Instance (ruling of 6 March 2012 in Claim No. CFI 019/2010, for previous reporting see here), the DIFC Courts and…
Last year, international media reported that the Ministry of Defense of Iran and Aerospace Industries Organization have commenced an arbitration against their Russian state-owned defense contractor Rosoboronexport over the latter’s refusal to deliver five batteries of the potent S-300 surface-to-air missiles under the contract signed back in 2007. Following the adoption of UN Security Council…
The problem of arbitral discretion has major implications on the rights of the parties. It is a concept foundational to international arbitration. Yet, it has proven to be so elusive as to escape any definition or treatment in literature. Why is this topic important? In order to answer this question, let us take pre-award interest…
Co-authored by Christopher Boog and Benjamin Moss, Schellenberg Wittmer An arbitral tribunal’s duty to render an enforceable award is frequently used by commentators and counsel alike in support of positions on myriad matters ranging from procedural fairness and jurisdiction to the application of mandatory foreign law. Its considerable malleability has indeed made it very attractive…
So you placed your bets on Argentina’s recovery after the 2001 crisis? It is not too late to give it another thought. While Argentina’s economy grew by approximately 9 percent in 2011, it fell dramatically in 2012 to around 3 percent. The (unofficial) inflation rate is set to 25% and the dollar reached a staggering…
If the answer is London, Paris, Geneva, New York, Tokyo and Singapore, what is the question? International cities? Fashion hot spots? Location of Manchester United supporters’ clubs? It may well be the answer to all three questions (although I confess that I have not actually checked the Manchester United one), but they are also the…
On 2 November 2012, President Thein Sein approved, after several months of intense debate between Parliament and the Government, Myanmar’s new Foreign Investment Law (‘FIL’ or ‘the Law’). The new Law revises the framework for foreign investment in Myanmar which had been in place since a military coup in 1988. Considering the country’s abundant natural…
by Patricio Grané and Brian Bombassaro The year 2012 brought eight new investor-state arbitration decisions on umbrella clauses.1)(1) Société Générale de Surveillance S.A. v. Republic of Paraguay, ICSID Case No. ARB/07/29, Award (Feb. 10, 2012), (2) EDF International S.A., SAUR International S.A. and Leon Participaciones Argentinas S.A. v. Argentine Republic, ICSID Case No. ARB/03/23, Award…
by Kah Cheong Lye (Partner) and Chuan Tat Yeo (Associate), Norton Rose (Asia) LLP Like computer programs, the length of time between updates for institutional rules seems to get shorter and shorter. New editions of institutional arbitral rules were introduced by the SIAC in 2010, the ICC in 2012, and the HKIAC’s revised Administered Arbitration…
My friend and colleague David Caron, C. William Maxeiner Distinguished Professor of Law at the University of California, Berkeley, has been named the new Dean at the Dickson Poon School of Law at King’s College London. The press release is here. I have known David Caron for over twenty years and always thought he would…
On November 9, 2012, the U.S. Supreme Court granted certiorari in American Express Co. v. Italian Colors Restaurant. A decision will be rendered in 2013. At issue is the enforceability of an arbitration clause that includes a class action waiver in a federal antitrust case. The case has attracted considerable attention in the United States,…
As described in Part 1 of this post, the mounting debate about investor-state dispute resolution (ISDR) has crescendoed in the current Trans-Pacific Partnership (TPP) negotiations. There are at least two “schools” of concern with ISDR, both of them voiced inside and outside the TPP context. Threats to Public Interest Policy For a growing array of…
In International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd [2012] SGHC 226 (per Chan Seng Onn J) (“International Research”), the Singapore High Court addressed the issue of whether an arbitration clause contained in one contract between two parties binds a third party who subsequently enters into a supplemental agreement with the original…
Trans-Pacific Partnership (TPP) negotiations have become the territory where a brewing perfect storm over investor-state dispute resolution (ISDR) is making landfall. The June 2012 leak of the draft TPP Investment Chapter text added energy, but much more is fueling this tempest. In general the ISDR system is coming under increased scrutiny. Public and policymaker concerns…
By Pia Eberhardt, Corporate Europe Observatory, and Cecilia Olivet, Transnational Institute At the end of November, Corporate Europe Observatory and the Transnational Institute published Profiting from Injustice, a report that looks at the role of law firms, arbitrators and third-party funders in investment treaty arbitration. In it, we argued that the arbitration industry has fuelled…
In the final days of 2012, I spent some time flipping back through the stories we’ve covered at Investment Arbitration Reporter, looking to identify the year’s most notable developments. I’ve settled on ten that I think are particularly noteworthy. Half of them are legal in nature, and are highlighted below. The other five are in…
As its Council Member I attended the ICC Institute of World Business Law’s 32nd annual meeting on ‘Third-Party Funding in International Arbitration’ held in Paris on 26 November 2012. It was a grand success as it drew many professionals, arbitrators, experts, academic specialists and, above all, representatives from some major third-party funding bodies such as…
By Claudia Ludwig and Jennifer Hartzler Whenever a hearing in an arbitration is on the horizon, the question of how far you can go in preparing your witnesses arises. Apart from particularly litigious clients, most clients will not have appeared as a witness in an arbitration or any other proceedings before. They are therefore regularly…
Arbitration is underpinned by natural justice. Article 18 of the Model Law, enshrining the right of the parties to be treated with equality, and given a full opportunity to present their case, was described by UNCITRAL in 1985 as the “Magna Carta of Arbitral Procedure”. Yet the Model Law does not in Articles 34 and…
