So we all know that investment arbitration tribunals have relied on WTO precedent for persuasive authority as to the meaning of various terms in bilateral investment treaties. (Think the emergency exception in the Argentina arbitrations and references to WTO Article XXI). But does the reverse also happen? Do WTO panels or the WTO Appellate Body…
On 6 September 2012, the Indian Supreme Court delivered its much-awaited judgment in Bharat Aluminium Co v. Kaiser Aluminium Technical Services (‘BALCO’). For the reasons discussed in detail below, the 190-page long BALCO decision is likely to go down in the annals of arbitration reports as the watershed decision that heralded a new dawn for…
On 15 April 2012, the Central Magistrate Court revoked ICAC arbitration awards obtained by the Ukrainian Ministry of Internal Affairs and declared them unenforceable due to what the court considered to be unjust arbitration procedures under Section 5 of the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. Vioans Ltd. (“Vioans”) is…
The English Court of Appeal’s recent decision in Sulamerica CIA Nacional De Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638, which is discussed in a recent post by Guy Pendell, underscores an important weakness in the international arbitration system’s legal framework. While everyone accepts that the arbitration agreement is the foundation of an…
During a bitter battle with anti-doping authorities, international cycling champion Lance Armstrong publicly campaigned against the anti-doping arbitration process. Armstrong’s offensive provides insights into widespread misconceptions about arbitration. On 20 August 2012, a U.S. Federal District Court dismissed Armstrong’s petition to enjoin the U.S. Anti Doping Agency (USADA) from further pursuing allegations that he was part…
Last Monday I was honored with the opportunity to serve as one of the speakers for the annual ICC New York Conference. With an overflowing turnout and impressive list of panelists, it was a successful event. One interesting event of note was that the ICC took this opportunity to release the ICC Commission Report on…
Monday’s New York conference on “Arbitration with States and State Entities under the ICC Rules” got me thinking about the possibility of amicus submissions in investment cases before the ICC or other institutions beyond ICSID. A few musings: Are amicus debates likely to arise in the ICC context? The answer is yes. Although most ICC…
The Supreme Court of India has finally spoken to deliver a definitive ruling on the role of Indian courts in international arbitrations seated outside India. Overruling the controversial decision of Bhatia International v Bulk Trading (2002), the Supreme Court held that Indian courts do not have supervisory authority over international arbitrations taking place outside India….
Mandatory research and development investment requirements (hereinafter ‘R&D Requirements’) may be prohibited under Chapter 11 of the North American Free Trade Agreement (‘NAFTA’). A decision in Mobil Investments Canada Inc. and Murphy Oil Corporation v. Government of Canada (‘Mobil v. Canada’) is highly anticipated after a U.S. website leaked the fact that Canada had lost…
The decision handed down by the High Court of Australia, just weeks ago, regarding Australia’s plain packaging legislation is just the beginning of what is destined to be a long battle. And a battle that is being closely watched by legislators around the world, including the EU which is shortly due to publish a draft…
and Julia Popelysheva, Clifford Chance LLP Introduction On 19 June 2012 the Presidium of the Supreme Arbitrazh Court of the Russian Federation (“SAC RF“) issued a decree (“Decree“) in case No. VAS-1831/12 in which it examined the validity of an optional jurisdictional clause. The full text of the Decree setting out the rationale for the…
In the recent case of Itochu Corporation vs. Johann M.K. Blumenthal GMBH & Co KG & Anr [2012] EWCA Civ 996 (“Itochu vs. Blumenthal”), the English Court of Appeal decided obiter that – in the absence of an agreement on the number of arbitrators – a sole arbitrator should be appointed even when the arbitration…
As explored in some detail in Part I of this blog post, recent UAE supervisory court case law has heralded a new era of enforcement of international awards in strict compliance with the 1958 New York Convention on the Recognition and Enforcement of Foreign Awards (the “New York Convention”). To recap, the Maxtel line of…
Investment arbitration under intra-EU investment treaties has been a controversial topic for years. The European Commission has repeatedly expressed the view that arbitration clauses in bilateral investment treaties between EU Member States are in conflict with EU law and therefore inoperative, while arbitral tribunals have, on several occasions, assumed jurisdiction on the basis of such…
For those of us in the arbitration world, the closing ceremony which took place on 12 August 2012 not only marked the end of the London Olympic Games. It also signalled the conclusion of the jurisdiction of the Court of Arbitration for Sport’s (‘CAS’) Ad hoc division (the ‘CAS AHD’) (as it will not be…
In a French-language decision dated 18 June 2012 in Case 4A_488/2011, the Swiss Supreme Court considered as “convincing” the view that the Court of Arbitration for Sport has jurisdiction to hear an appeal filed after expiry of the time limit. Since the time limit to appeal turned out to be met in this case, the…
In Shanghai Construction (Group) General Co. Singapore Branch v Tan Poo Seng [2012] SGHCR 10, the Singapore High Court granted a temporary stay of proceedings in exercise of its inherent jurisdiction. The stay was granted on the ground that there was an arbitration which was intended to take place and the outcome of that arbitration…
Reminder — The September 1 deadline is now drawing near for the Call for Papers, for the Institute of Transnational Arbitration (ITA)’s Winter Forum in Miami on January 24-25. Details of the Call for Papers, which focuses on works-in-progress in the area of international arbitration, are available at: https://www.cailaw.org/ita/2013winforum_papers.pdf and/or https://wolterskluwerblogs.com/?s=winter. We anticipate announcing the…
Our interest on this topic has been provoked by a reading of the Repsol v. Petroecuador Stay Orders (See ICSID Case No. ARB/01/10, Procedural Order No. 1 (Unofficial translation), 22 December 2005; Procedural Order No. 4 Termination of Stay (Unofficial translation), 22 February 2006) in the context of a research on conditional stay of enforcement…
On 16 May 2012, the Court of Appeal of England & Wales (“CA”) dismissed an appeal against an anti-suit injunction restraining three insured entities from pursuing proceedings in the Brazilian courts against their insurers (Sulamerica CIA Nacional De Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638). This is the latest in a series…
As Rusty Park remarked, “[I]n real estate the three key elements are ‘location, location, location,’ … in arbitration the applicable trinity is ‘arbitrator, arbitrator, arbitrator.”’ Empirical studies consistently verify that parties’ ability to select arbitrators is one of the primary reasons they select arbitration as a means of dispute resolution. Parties also consistently vote with…
The saga with Yukos Oil and its nationalization – and the effects on its various related entities – has been ongoing for quite some time. As reported in the news of late (see e.g. Business Wire.com and Cisarbitration.com), in late July an arbitral award was rendered under the auspices of the Stockholm Chamber of Commerce….
and Sam Moss, Lalive In its recent decision dated 2 July 2012 in case 5A_754/2011, the Swiss Supreme Court ruled for the first time on the issue of whether, pursuant to Art. IV(2) of the New York Convention (“NYC”), a full translation of an award must be produced by parties seeking recognition and enforcement in…
LONDON OLYMPICS, August 1, 2012 — Badminton officials took the extraordinary step today of tossing out four teams for deliberately trying to lose their preliminary matches. The eight disciplined players were found to have conducted themselves “in a manner that is clearly abusive or detrimental to the sport.” Imagine immediate (and less severe) consequences for…
