There are many uncertainties in relation to the proper behavior of counsel in arbitration, in particular, in terms of avoiding conflicts of interest, identifying minimum ethical standards, and the overriding question of tribunal control. These uncertainties arise for two main reasons. The first is the lack of consensus as to whether arbitrators have powers of…
by James Menz and Anya George, Schellenberg Wittmer The (proper) use of administrative secretaries is a recurring topic in the arbitration community. The debate has flared up again in recent months, following the issuance, in August 2012, of the ICC Secretariat’s new Note on the Appointment, Duties, and Remuneration of Administrative Secretaries and, a few…
On 16 May 2013, Belgium’s House of Representatives adopted the bill no. 53-2743 that is meant to replace the Sixth Part of the Belgian Code of Civil Procedure (Code judiciaire/Gerechtelijk Wetboek) and thoroughly modernize the Belgian arbitration law. The travaux préparatoires leading to this new law may be consulted here (in French and Dutch). The…
Foreword For centuries people have searched for the formula which may give them more gold. It may turn out that some investors have found it. As it will be explained, indirect investments through a chain of intermediary companies hides the risk of multiplication of claims and double recovery. But not according to the tribunal in…
Readers of this blog may be interested to know of an opportunity to participate in the creation of a forthcoming special issue of Transnational Dispute Management (TDM), entitled “Reform of Investor-State Dispute Settlement: In Search of A Roadmap.” Co-edited by myself (Arnold & Porter LLP and Georgetown University Law Center) and Anna Joubin-Bret (Cabinet Joubin-Bret…
[Written with the assistance of Nina Tandon and Andrew Behrman of Hogan Lovells US LLP] A recent ruling from a U.S. federal district court has highlighted an emerging doctrine in United States courts with respect to a party’s ability to seek provisional remedies from a court in support of international arbitration. The recent ruling, together…
One of the most important elements to consider when participating in arbitration proceedings is the available mechanisms to challenge the award of the arbitral tribunal. This element acquires an added significance when it comes to international arbitration where the award may be enforced in several jurisdictions. With that in mind, it is pertinent to refer…
In a judgment dated 10 May 2013 (Sanofi-Aventis Deutschland GmbH v. Genentech, Inc., Appeal No 2012-1454) the United States Court of Appeals for the Federal Circuit (the ‘CAFC’) affirmed a first-instance decision refusing the grant of an injunction preventing Sanofi-Aventis Deutschland GmbH (‘Sanofi’) from continuing to participate in an ICC arbitration where issues of infringement…
In a ruling of 3rd February 2013 (Case No. 282/2012 – Real Estate Cassation, judgment of 3rd February 2013 of the Dubai Court of Cassation), the Dubai Court of Cassation has found against the recoverability of Counsel fees in arbitrations under the 2007 Rules of the Dubai International Arbitration Centre (DIAC). In doing so, the…
Investing Across Borders, a World Bank Group’s initiative, compares the regulation for foreign direct investment around the world. Among different indicators, it publishes considerations concerning arbitration of commercial disputes from different jurisdictions. However, the prospective investor must read with caution this Summary, at least regarding arbitration in Brazil. Here is the Summary regarding arbitration in…
and Lucas Bento, Quinn Emanuel Urquhart & Sullivan, LLP, New York The United States Supreme Court’s recent decision in Oxford Health Plans LLC v. Sutter, 569 U.S. __ (2013) (the “Decision”), is the latest installment on whether class arbitration has met its end in the United States. For now, class arbitration survives, subject to the…
Resolution A/67/L.28 on the Status of Palestine at the United Nations was passed with an overwhelming majority at the General Assembly on November 29, 2012, thus upgrading the Palestinian Authority’s status from a United Nations permanent observer entity to a non-member observer State. Although the Resolution does not necessarily mean that all States, such as…
Getting over the skepticism. Since the International Bar Association adopted its Rules for Investor-State Mediation last October, there has been an uptick in discussions regarding the topic, including a mock mediation panel presented this spring during the American Society of International Law’s Annual Meeting. Nonetheless, investor-State mediation still faces skepticism from many arbitration professionals, both…
Kluwer Arbitration and Kluwer Law International are delighted to announce that the inaugural Kluwer Arbitration User Forum will be held in London (at the International Dispute Resolution Centre (IDRC), 70 Fleet Street, London, EC4Y 1EU) on Tuesday 10th September. This (free) half-day event, will be open to all London-based users of Kluwer Arbitration. With summer…
The facts On January 9, 2008, in the middle of the Amazon Rainforest, the dam of a hydroelectric power plant ruptured liberating 3.1 billion liters of water and precipitating an environmental mishap. Brazilian authorities hastily cornered the electricity generation company. The electricity generation company hastily pointed the finger at the builder of the hydroelectric power…
Article 52(4) of the ICSID Convention identifies the provisions of the Convention that apply, mutatis mutandis, to annulment proceedings: “[t]he provisions of Articles 41–45, 48, 49, 53 and 54, and of Chapters VI and VII . . . .” While there is wide agreement that an annulment committee may neither “amend or replace the award…
On April 18, 2013, the Colombian Council of State –Consejo de Estado– changed its previous case law, regarding the waiver of arbitration agreements concluded between public state entities and private contractors. Prior to this decision, the parties could waive arbitration by presenting their case before an administrative court of law, in so far none of…
Over the last two decades the world has witnessed a spectacular growth of investor-state dispute resolution by arbitration (i.e. from a few dozen in 1992 shooting up to 514 cases by the end of 2012). But that trend could stall in the foreseeable future with the realization of the users that international arbitration (investor-state arbitration,…
By Alessandro Villani and Manuela Caccialanza One of the more debated issues in the process of the implementation and review of Regulation No. 44/2001 (“Brussels Regulation”) was the general exclusion of arbitration from the matters covered by the Brussels Regulation. The debate about the opportunity to mitigate such exclusion arises from the subsequent difficulty in…
and Amgad T Husein, Dentons (Managing Partner, Saudi Arabia) 1. Overview Since the enactment of Saudi Arabia’s new Arbitration Law in July 2012, more foreign investors have opted for arbitration in Saudi Arabia rather than in foreign forums. By simplifying dispute resolution and streamlining the enforcement of arbitral awards, the Arbitration Law has sought to…
The Danish Institute of Arbitration (“DIA”) revised its rules effective May 1, 2013, an overhaul from the prior 2008 iteration of its rules that brings the DIA rules into line with those of leading arbitral institutions. As part of these revisions, the DIA has both reorganized the structure of its rules and updated various key…
The recent Rompetrol Group NV v Romania award provides rare guidance as to the requirements to be satisfied for a successful treaty claim arising from State conduct against individual company officers rather than the claimant investor itself. The investor claimed, inter alia, that the arrest, detention, criminal investigations and wire-tapping of its directors constituted State-sponsored…
When the UNCITRAL Model Law on International Commercial Arbitration was approved by the United Nations General Assembly in 1985, “uniformity of the law of arbitral procedures” was a stated purpose. The uncertainty produced by the disparity among the national laws was one of the drafters’ concerns. The other was the inadequacy of domestic laws to…
On April 22, 2013, representatives of Members States of the Bolivarian Alliance for the Americas (“ALBA” for its acronym in Spanish) met in Guayaquil, Ecuador. The purpose of the meeting was to discuss the manner in which their interests are affected by the activities carried out by transnational companies, under a reunion known as the…
