Dispute Resolution, Investment, Investment agreements, Investment Arbitration, Investment protection, Uncategorized

(Investment Arbitration Reporter)/ /1 Comment

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…

Arbitral Tribunal, Arbitration, Arbitration Awards, Arbitration Proceedings, Arbitrator Challenges, Arbitrators, arbitrators’ conduct, Confidentiality, Conflicts of interest, Costs, Costs in arbitral proceedings, Damages, Disclosure, Dispute Resolution, Enforcement, Investment

(University of Portsmouth)/ /1 Comment
Institute for Transnational Arbitration (ITA)

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…

Arbitrator Challenges

(Herbert Smith Freehills LLP)/ /Leave a comment
Herbert Smith Freehills

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, Asia-Pacific, Domestic Courts, Domestic law, Enforcement, Set aside an arbitral award, Set aside an international arbitral award, Uncategorized

(Chapman Tripp)/ /2 Comments

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…

BIT, ICSID Convention, Umbrella clause

(International Moot Court Competition Association (IMCCA))/ /Leave a comment

by Inna Uchkunova and Oleg Temnikov Foreword “The whole exercise was great fun and for me, I was then 26 years old, a great eye-opener – I learned a lot.” – Sir Elihu Lauterpacht on his advice given to the Anglo-Iranian Oil Co. in 1954, on which occasion it emerged the idea that “any contract…

Arbitration, BIT, Damages, ICSID Convention, International arbitration, International Law, Latin America, Manifest disregard of the law

(New York Law School)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

By Tai-Heng Cheng* & Lucas Bento** Introduction On October 5th, 2012, a split ICSID tribunal determined that the Republic of Ecuador had breached the US-Ecuador bilateral investment treaty (“BIT”), and awarded damages of US$1.77 billion (US$2.3 billion with interest applied), reportedly the largest award ever to have been issued by an ICSID tribunal. This award…

BIT, Europe, European Law, European Union

(Perréard de Boccard)/ /Leave a comment

Two major events have taken place recently regarding the situation of Bilateral Investment Treaties concluded between European Member States (“Intra-EU BITs”) and Bilateral Investment Treaties concluded between an European Member State and a State not Member of the EU (“Extra-EU BITs”). The fate of these agreements was surrounded up until now by a veil of…

Arbitration, Arbitration Awards, Arbitration clause, Arbitration Institutions and Rules, Arbitration Proceedings, Commercial Arbitration, Corporate Counsel's view, Domestic law, English Law, Expedited arbitration, ICC Arbitration, ICSID Convention, International arbitration, Investment Arbitration, LCIA Arbitration, New York Convention

(Conway & Partners)/ /Leave a comment

There are many clients who are often engaged in industrious works that result in disputes. Typically, the applicable arbitral agreements requirement submitting claims to international arbitration and, in this author’s opinion, appropriately so. However, these same clients may also be subject to frequent claim assertions that lack any true merit. Despite this, there is not…

Appointment of arbitrators, Efficiency, International arbitration, Suggestions to improve transparency and access to usable data

(Bocconi University)/ /9 Comments
Arbitrator Intelligence

In a recent post, here, I argued that the time has come to move on from the gumshoe clue-hunting approach currently employed to select international arbitrators. Existing practices are severely outdated and unduly expensive in an era of information and technological efficiency. The process for selecting arbitrators, I argued, should be more transparent and key…

Insolvency, Jurisdiction, Jurisdiction of the arbitral tribunal, Law governing the arbitration, Switzerland

(Schellenberg Wittmer Ltd, Switzerland)/ /1 Comment
Schellenberg Wittmer

Nathalie Voser and Anya George Few Swiss cases have sparked as much debate in the arbitration community as the Swiss Supreme Court’s 2009 decision in Vivendi vs. Elektrim. In that decision, the Supreme Court upheld the award of an arbitral tribunal seated in Switzerland which had declined jurisdiction over one of the respondents, Elektrim, after…

Attribution, BIT, ICSID Convention, Responsibility of States

(Central European University)/ /Leave a comment

Whereas cases of direct expropriation have become relatively rare in international investment arbitration and claims of breach of fair and equitable treatment obligation or indirect expropriation are currently more common, the profile of respondents in ICSID arbitration proceedings has also changed. However, if both investors and host governments are likely to agree that States may…

Arbitral seat, Arbitration, International arbitration, Middle East, New York Convention, Seat of the arbitration

(Mechantaf Law)/ /Leave a comment

On 14 October 2012, Justice David Williams of the DIFC Court of First Instance (Dubai International Financial Centre) applied a course correction by issuing a decision confirming the jurisdiction of the DIFC Courts to grant a stay in the presence of a valid arbitration agreement providing for a seat of arbitration outside the DIFC. Justice…

Arbitration Proceedings, Interim Orders

(Herbert Smith Freehills LLP)/ /Leave a comment
Herbert Smith Freehills

In the recent decision of PT Pukuafu Indah and others v. Newmont Indonesia Ltd and another ([2012] SGHC 187) the Singapore High Court (the Court) confirmed that it did not have jurisdiction to set aside an interim anti-suit injunction ordered by an arbitral tribunal. In reaching this decision, the Court added to a growing body…

Arbitration, Arbitration Institutions and Rules, International arbitration, Latin America

(Linklaters)/ /1 Comment

A few months ago I wrote a post on this Blog about what I saw as “work left to do” in the Spanish arbitration system. I started with the need to build a regional court of arbitration on a par with those well-known centres in other jurisdictions, with the fundamental aim of taking advantage of…

China, CIETAC, Domestic Courts, Enforcement, Provisional measures

(Eversheds)/ /Leave a comment

The recent revisions to the Chinese Civil Procedure Law (the “CPL”) made some significant amendments to the arbitration law in China. In particular, the new CPL for the first time provides for pre-arbitration preservation measures to be available from the Chinese courts. The revisions will come into force on 1 January 2013. Under the existing…

Asia-Pacific, Enforcement, Hong Kong, Jurisdiction, New York Convention, Singapore International Arbitration Centre

(Norton Rose Fulbright)/ /2 Comments
YSIAC

In Astro Nusantara International BV v PT Ayunda Prima Mitra [2012] SGHC 212, the Singapore High Court set out the available recourse against an international arbitration award made in Singapore. This case has significant implications for Singapore as a seat of arbitration, and this note contrasts the position between Singapore and Hong Kong against the…

Domestic Courts, Enforcement, Middle East, New York Convention, United Arab Emirates

(Blanke Arbitration LLC)/ /Leave a comment

In a recent ruling of 18 October 2012, the Dubai Court of Cassation, the highest court in the Emirate of Dubai, against whose judgments lies no further appeal, confirmed the enforcement of a trilogy of DIFC-LCIA awards – one on liability and two on costs (all forming part of the same reference) – rendered by…

Set aside an arbitral award, Set aside an international arbitral award

(Taylor Wessing)/ /10 Comments

It must be an arbitrator’s nightmare: Imagine a high-stake arbitration that goes on for years, the entire distance, including witness hearings and expert evidence, only for the final award to be set aside on procedural grounds. And this is exactly what the Frankfurt Court of Appeals (Oberlandesgericht Frankfurt) did in a judgment in February 2011:…

Arbitration Proceedings, Discovery, Evidence, IBA Rules of Evidence, Witness

(Conway & Partners)/ /Leave a comment

Broadly defined, the word “deposition” refers to the taking of a “written record of a witness’s out-of-court testimony.” (Bryan A. Gardner, Black’s Law Dictionary, 8th edition , p. 472.) This general definition notwithstanding, in practice the word “deposition” has become closely associated with US pre-trial discovery. The witness deposition, which is attended by lawyers for…

arbitrators’ conduct, Evidence, IBA Rules of Evidence

(Loyola University Chicago School of Law)/ /2 Comments
Institute for Transnational Arbitration (ITA)

The addition of the good faith requirement to the 2010 IBA Rules on the Taking of Evidence in International Arbitration has been criticized in a recent law review article.  In Good Faith, Bad Faith, But Not Losing Faith:  A Commentary on the 2010 IBA Rules on the Taking of Evidence in International Arbitration, Pedro J….

Arbitration, Arbitration Agreements, Costs, Costs in arbitral proceedings, Enforcement

(Wilmer Cutler Pickering Hale and Dorr LLP)/ /1 Comment
WilmerHale

In its important 2011 decision AT&T Mobility v. Concepcion, the United States Supreme Court sharply limited the grounds on which a court may invalidate an arbitration agreement. A recent ruling by the United States Court of Appeals for the Eleventh Circuit, In re Checking Account Overdraft Litigation MDL No. 2036, illustrates how lower courts are…

Applicable Law, BIT, Damages, ICSID Convention, Investment Arbitration, State entity, Treaty, Umbrella clause

(International Moot Court Competition Association (IMCCA))/ /Leave a comment

The problem of the law applicable to State contracts (i.e. contracts concluded between a foreign national and a State or a state entity) as well as the responsibility of States for the breach of these contracts has entertained the minds of scholars and practitioners ever since the famous PCIJ dictum in the 1929 Serbian Loans…

China, CIETAC

(Taylor Wessing)/ /1 Comment

by Peter Bert and Joachim Glatter Disputes between the China International Economic and Trade Arbitration Commission (“CIETAC”) and its sub-commissions in Shanghai (“CIETAC Shanghai”) and Shenzhen (“CIETAC South China”) currently cause significant legal uncertainty. These internal issues at CIETAC create risks for parties that have agreed arbitration proceedings with these local sub-commissions in their contracts,…