The Obama Administration’s only current regional trade negotiations, the Trans-Pacific Partnership (TPP), continue slowly toward a possible conclusion in 2013, with 12 rounds of negotiations having been completed as of the end of May 2012. A major element of a re-energized American focus on political, security and economic considerations in Asia, the TPP if it…
On March 11, 2001, The New York Times published an article entitled “Nafta’s Powerful Little Secret; Obscure Tribunals Settle Disputes, but Go Too Far, Critics Say.” It began, ominously: “Their meetings are secret. Their members are generally unknown. The decisions they reach need not be fully disclosed.” Over the ensuing decade, while NAFTA Chapter Eleven…
I was asked the other day whether I would recommend that the United States not only ratify the U.N. Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea—known as the “Rotterdam Rules”—but also adopt optional chapters 14 and 15 on the jurisdiction of courts and arbitration.1)As of June 2012 twenty-four…
The United States Court of Appeals for the District of Columbia Circuit recently issued a decision that has some interesting implications for the enforcement of foreign arbitral awards in the U.S. against foreign state agencies or state-owned companies. American readers, get ready for a review of Civil Procedure 101 on personal jurisdiction! The United States…
Investment treaty provisions that allow joint decisions by States Parties to override or control arbitral tribunals’ interpretations of investment treaty standards scarcely appear in international investment agreements. The recently released 2012 United States Model BIT is a rare example. The 2012 version carried over Article 30(3) of the 2004 United States Model BIT, enabling States…
I have just published an article in the Utah Law Review that I wanted to flag for our readers. For the international arbitration community the article is relevant because it compares and contrasts the self-judging WTO security exception with non-self-judging emergency exceptions in various BITs. The focus of the Article is on the WTO security…
After a review process that lasted three years, expectations ran high for the revised model U.S. bilateral investment treaty (“BIT”), which was released last month. Stakeholders from many parts of society — the U.S. Congress, environmental organizations, labor groups, business groups, trade associations, academia, the public, and investment experts — weighed in during the review…
The revised Swiss Rules of International Arbitration (“Swiss Rules”) enter into force today, 1 June 2012. While some general background has been given elsewhere (see here), the following specific features of the revised Swiss Rules can be underlined. Under the revised Swiss Rules, the administration of the arbitrations by the Court remains light as it…
On 1 June 2012, the new revised version of the Swiss Rules of International Arbitration (“Swiss Rules”) will come into force. According to Article 1.3, the new Rules will apply to all Swiss Rules proceedings in which the Request for Arbitration is submitted after 1 June 2012, unless the Parties agree otherwise. The Swiss Rules…
The shoe has finally dropped. Ever since the Invictus Memo was released to the public we knew that the Ecuadorian Plaintiffs were considering twenty-seven different countries to enforce the $18.2 Ecuadorian judgment against Chevron. With Chevron’s far-flung assets, it was plausible that the Plaintiffs would choose to enforce the judgment in countries with close ties…
On 18 April 2012, South Sudan signed and ratified the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ‘ICSID Convention’). In accordance with Article 68(2) thereof, the Convention entered into force for Sudan thirty days later, i.e. on 18 May 2012. The membership of Africa’s newest republic…
In recent decades, Spanish legislators have increasingly turned their attention to private arbitration. The Spanish Arbitration Act 1953, mainly dealing with civil actions, was replaced by the 1988 Act directed at resolutions of commercial disputes, with a particular focus on international commercial arbitration. The aim was to make Spain a leader in the field, taking…
In a judgment dated 25 April 2012 (Lombard North Central plc and another v GATX Corporation [2012] EWHC 1067 (Comm)), Judge Andrew Smith of the English High Court (Commercial Court) underlined the potential risks that might arise from arbitration clauses which have a limited scope. Although this judgment is relevant to a number of different…
A recent decision of the English Commercial Court (Lombard North Central plc & Anor v GATX Corporation [2012] EWHC 1067 (Comm)) has provided some insight and clarification into how the English courts will interpret and implement Section 9(1) of the Arbitration Act 1996. Section 9 is how English law has complied with Article II(3) of…
A party who wishes to circumvent an arbitration agreement may sometimes proceed to obtain default judgment from a friendly court and then seek to enforce that judgment, under the common law, as a debt in the courts of the country where the counterparty is located. A recent Singapore decision, Giant Light Metal Technology (Kunshan) Co…
For almost 20 years, Mexico has been at the forefront of Latin-American arbitration practice. It has been widely recognized both in terms of the quality and sophistication of its practitioners, its modern legal framework (since 1993 based on the UNCITRAL Model Law on International Commercial Arbitration) and for its arbitration friendly judiciary. According to statistics…
Over the years, many arguments have been made for what are truly the benefits of international arbitration over local litigation. There are many factors that are listed and ensuing arguments over their continued veracity. Complaints are launched about whether such factors truly remain a benefit (the largest and most obvious one which comes to mind…
This week, Spanish energy firm Repsol put Argentina on notice of an arbitration claim under the Spain-Argentina bilateral investment treaty. The development comes as no surprise, as Repsol had been threatening for some weeks to take such a course if Argentina persisted in nationalizing the bulk of Repsol’s 57% stake in the Argentine firm YPF….
On 6 March 2012, Justice Sir David Steel of the Court of First Instance of the Dubai International Financial Centre – DIFC – rendered a decision refusing to grant a stay of the proceedings, and ignoring an option in the underlying contract to opt out of the Court’s jurisdiction by referring to LCIA arbitration. In…
When is an arbitral panel an international tribunal for purposes of Section 1782? Section 1782, of course, is the U.S. statute that authorizes federal courts to order discovery in aid of proceedings before foreign courts and international tribunals. As discussed in a forthcoming article in the Virginia Journal of International Law entitled, Ancillary Discovery to…
This post follows on from the highly informative Kluwer Arbitration Blog post by Elizabeth Kantor, “The ‘West Tankers’ Saga Continues: Can Damages Compensate for Breach of an Arbitration Clause?” Whilst that focussed principally on the implications for, and efficacy of, the type of award in issue the purpose this post is, in contrast, to look…
In the most recent of a long-running series of decisions in the West Tankers saga, the English court has found that the majority of the tribunal was wrong to decline jurisdiction to award equitable damages or to declare a party liable to indemnify the other as a result of the breach of an arbitration clause….
The concept of good faith has been a subject of perennial controversy since it was derived from the Roman legal equivalent ‘bonas fides’. Juristic views on and the legal conceptualization of the idea of good faith may often vary across the cultural divides and legal traditions. At a higher level of abstraction there may be…
In recent years, Korea has become an object of some attention in the international arbitration field. But less than 15 years ago, there was no “arbitration field” in Korea to speak of. I, myself, was a maritime lawyer and it was only a twist of fate – the request of a client – that put…
