*The Miami Draft was originally called ‘the new NYC: a hypothetical draft’ by its drafter Albert Jan van den Berg, subsequently dubbed ‘the Dublin Convention’ at the occasion of the ICCA conference in Dublin 2008 and finally, echoing the influential 1961 “Harvard Draft” on the responsibility of States, renamed ‘the Miami Draft’ when re-presented by…
As a forensic accountant specializing in the quantification of damages, I listened with keen interest to the various presentations at the recent Swedish Arbitration Days event ‘damages and other relief in international arbitration’. One of the more lively debates centered on whether it is appropriate, as has happened in several well-known treaty cases, to make…
In his April 2010 inaugural lecture as holder of the Michael R. Klein’s Chair at the Miami University, Jan Paulsson advocated a fundamental change in the culture and practice of international commercial arbitration (Moral Hazard in International Arbitration, Miami, 29 April 2010, see also on this blog). In a nutshell, his views can be summarized…
Two recent incidents reminded me of just how much, in international arbitration, impressions and even reputations can completely miss the mark. One was a discussion I recently had with a well-known arbitrator who only half-jokingly commented on my “anti-arbitration” view, although he then qualified me as appearing more moderate than my fellow members of the…
The growing success of investment arbitration may collide with the European Commission’s attitude towards intra-EU BITs, as shown recently by a development reported in August 2010 (the IA Reporter, August 5, 2010, Vol. 3, No. 12) regarding the Eureko v. Slovakia arbitration. In this case, Eureko initiated a claim against the Slovak Republic based on…
“To the rest of the world, the English legal profession is a very strange species indeed” (Berlins and Dyer, The Law Machine) As autumn, season of mists, beckons there is, in London at least, a sense of the legal profession going ‘back to school’. During the summer, many firms will, like my own, have run…
The sense of relief enjoyed by NGO observers and other followers that UNCITRAL Working Group II’s Arbitration Rules revision project was finally completed in the Summer of 2010, after seemingly endless debate, has been diminished to some extent by the publication of the agenda for the next WGII meeting, to be held in Vienna in…
Three different investors, with three different claims, in three different situations, have recently been in the news. All three disputes have a Canadian connection. Two involved claims by foreign investors against Canada, one that settled and one that Canada defeated. The third involves a claim by a Canadian investor against the Democratic Republic of Congo….
In arbitration, as in other aspects of business life, parties often feel most comfortable when they are (literally) on familiar ground. If things go wrong, a European or American company might understandably prefer arbitration seated in Europe or New York. On the other hand, parties from the PRC, for example, are increasingly, and equally understandably,…
In a recent post, Lisa Bench Nieuwveld raised an issue which has been discussed from time to time on this blog: the potential for not-for-profit activities to be protected under international investment treaties. There is no doubt that not-for-profit organizations face a barrage of abuse and mistreatment at the hands of host countries, and that…
In an important contribution to the ongoing debate among courts and commentators regarding the scope of 28 U.S.C. § 1782 – and the first such case related to ICSID proceedings – the D.C. district court recently exercised its discretion to decline a discovery request by Caratube International against the Republic of Kazakhstan. In re Caratube…
There are some interesting comments in the live blog of the UNCTAD International Investment Agreements Conference from the likes of Todd Weiler, Susan Franck, and Jason Yackee. (You can also watch the proceedings here). Much substance in the coverage, but also some fun. Here’s a taste: Todd Weiler: As I see Prof Franck is performing…
Everyone is looking at China at the moment, and rightly so. It’s a very exciting place to be. Many MNCs are already here and many others are determined to get a piece of the action. But where there’s business, there are disputes. And where there’s international business, there’s arbitration. There is no doubt that the…
On 31 August 2010, a group of over 35 academics (not including the current author), published a Public Statement on the International Investment Regime (Statement). The preamble to the three-page Statement outlines why the Statement has been issued: We have a shared concern for the harm done to the public welfare by the international investment…
So far in 2010, at least two jurisdictions have established specialized courts to handle international arbitration matters ─ Australia (in the state of Victoria) and India (in Bombay). Australia: Within Australia’s federal structure, international arbitration matters are in the jurisdiction of state supreme courts. In 2009, Australia’s Parliament gave the Federal Court concurrent jurisdiction over…
In an analysis published last year, the Georgian authors Mgalobishvili and Kiknavelidze concluded that “there is no doubt that Georgia needs a lot of time and efforts in order to be finally established as a country friendly towards arbitration […].” 1)Mgalobishvili/Kiknavelidze, The legal framework of arbitration in Georgia, Arbitrażowe Aktualności – Biuletyn Arbitrażowy, Sąd Arbitrażowy…
The clearest indication of a shift in the approach of the Russian arbitrazh (commercial) courts* came in April 2010, when the Presidium of Russia’s Supreme Arbitrazh (Commercial) Court issued a precedential decision, holding that interim relief measures may be ordered by Russian arbitrazh courts in aid of foreign arbitration. The ruling has resolved an ongoing…
Is there a duty to arbitrate in good faith? Is there a need for a Code of Ethics in international arbitration? Those are certainly amongst the most important questions for the future development of the law and practice of arbitration. They have been hotly debated in occasion of certain recent and much publicized cases. And…
It is well known that the New York Convention is widely recognized as a foundational instrument of international arbitration. In addition to this Convention, there are also international bilateral agreements in which Paragraph 1 of Article VII of the New York Convention specifically refers to and determines the relationship between its provisions and other agreements….
It is rather interesting to read in the news about how some governments have chosen to “fund” their own government. One government went so far as to simply clear out the checking accounts of small businesses and not-for-profit organizations (“NGOs”). Another government, not necessarily seeking funding but presumably disagreeing with the purpose and/or presence of…
A significant majority of countries in the world have demonstrated that they see benefits in being a member of ICSID by ratifying the ICSID Convention (Convention on the Settlement of Investment Disputes Between States and Nationals of Other States). 144 states have ratified the treaty, and an additional 11 – including Canada – have signed…
Often viewed as one of the leading locations for international arbitrationss, why doesn’t the state of New York have a separate arbitration act for international arbitrations? Is it simply unnecessary? It is interesting to note in my 2 previous articles, that other states have found it absolutely necessary. Recently, as previously discussed, the state of…
Following the controversial land reform programme first introduced by President Robert Mugabe in July 2000, Zimbabwe has found itself in hot water of late, with a number of international disputes being brought by dispossessed farmers against the State. The first of these disputes was mounted at ICSID in 2005 by a group of 13 Dutch…
In a landmark decision of 13 April 2010 (4A_490/2009, published on 2 July 2010), the Swiss Federal Supreme Court confirmed that the principle of res judicata is part of procedural public policy, and it set aside a CAS award for violation of that principle. At first sight, the decision of the Federal Supreme Court seems…
