This is the second article in a three-part series summarising the main valuation methodologies used for the purposes of determining economic loss. In part one, I provided an overview of the market-approach methodology. I now turn to the income-based approach, focusing on the discounted cash flow (DCF) methodology. In my previous article, I noted that…
What makes an international arbitrator different from a national judge? All of us in the arbitration world have a pretty solid answer to this question. At what point do the distinctions between an international arbitrator and an international judge melt away? That’s a bit of a trickier question, depending on the case. With the increase…
On December 14, the Second Circuit rendered its decision in Figueiredo Ferraz e Engenharia de Projecto Ltda. v. Republic of Peru, 2001 WL 6188497 (2d Cir. Dec. 14, 2011), which represents a significant development in the court’s jurisprudence on forum non conveniens dismissals of actions to enforce foreign arbitral awards. As explained below, the decision…
On behalf of the many contributors to this blog and the good folks at Kluwer Law International, I am pleased to announce that this blog has won CPR’s 2011 award for best electronic media focused on ADR. The press release is here. As most of you know, the CPR Institute is a nonprofit think tank…
The P.R.I.M.E. Finance dispute resolution services and its Arbitration and Mediation Rules were launched at the opening conference of P.R.I.M.E. Finance in the Peace Palace in The Hague on 16 January 2012. Dutch Minister of Finance Jan-Kees de Jager officially opened P.R.I.M.E. Finance, which offers dispute resolution services in the area of complex financial products….
At its session of 15 November 2011, the International Council of Arbitration for Sports (ICAS) amended Article 14 of the Statutes of the bodies working for the settlement of Sport-related Disputes (Article S14) and abandoned the old regime which provided that with regard to the list of CAS arbitrators, the ICAS had to respect a…
The recent decision in Spyridon Roussalis v. Romania (ICSID Case No. ARB/06/1) is prompting renewed debate over whether ICSID arbitration, now the leading mechanism for investors to pursue treaty-based claims against host States, may also be used by those States to assert related counterclaims against the investors, allowing all such claims to be settled in…
Last month’s judgment of the Hong Kong Court of Appeal (“CA“) in Gao Haiyan and Xie Heping v. Keeneye Holdings and another CACV 79/2011, is the latest in a long line of cases demonstrating the pro-enforcement approach of the Hong Kong courts. The decision makes clear that it is not the place of the Hong…
The International Bar Association annual conference in Dubai in November put the spotlight on the arbitral regime in Dubai. Several “hot topics” were discussed, including the possibility that counsel representing parties in arbitrations in Dubai would be charged a hefty fee by the Dubai government and the prospect of a new United Arab Emirates (UAE)…
On Tuesday, 10 January 2012, a Constitution Bench of the Indian Supreme Court began hearings in Bharat Aluminium v Kaiser Aluminium (Civil Appeal No. 7019 of 2005) and related matters to reconsider its earlier judgment in Bhatia International v Bulk Trading SA, (2002) 4 SCC 105 (“Bhatia”). In Bhatia, the court held that the Indian…
After the 2011 Decree which reformed French arbitration law, the number of countries having arbitration acts expressly providing for the possibility of waiving setting aside proceedings at the seat has increased. In view of the fact that arbitration rules of some institutions provide for a waiver of “any form of recourse” against awards rendered under…
Yograj Infrastructure Ltd. Vs. Ssang Yong Engineering and Construction Co. Ltd. (on 1 September 2011) As reported in this blog, in May 2011 the Supreme Court of India (SCI) moderated the controversial principle it established in 2002 that allowed the Indian courts to intervene in arbitrations held outside of India unless that possibility was expressly…
On January 3, 2012 an Ecuador Appeals Court affirmed the $18 billion judgment against Chevron in the long-running battle over environmental damage. (Available in English and the original Spanish here). According to an unofficial English translation of the sixteen page opinion, the Court dismissed all of Chevron’s arguments, including the allegations of fraud. Here is…
When the strong federal policy in favor of honoring arbitration agreements in the U.S. comes into conflict with another strong legal principle, which one should come out on top? The United States Court of Appeals for the Ninth Circuit recently illustrated this tension in Kolev v. Euromotors West/The Auto Gallery, 658 F.3d 1024, holding that…
Iura novit curia (usually translated as “the court knows the law”) refers to the power and/or obligation of a court to conduct its own legal analysis outside the parties’ pleadings. While there are very few decisions on iura novit curia in the investment treaty arbitration context, a small number of investment treaty arbitral tribunals and…
As a university professor and a member of one of the last generations of arbitrators not initially trained in this field (in my case, coming from administrative law), I have been wondering for some time on the effect that the blossom of international arbitration is having in Latin-American students and young practitioners. There is no…
Conventional wisdom holds that one of the virtues of international arbitration is the ability to blend divergent procedures, generally referring to civil and common law traditions. The IBA Rules of Evidence, for example, seek to strike a balance among different legal cultures. “Harmonization” and “flexibility” are the terms commonly used to refer to this mixing…
It is not unusual for retired judges to serve as arbitrators. But what about sitting judges? A number of European countries permit sitting judges to serve as arbitrators. See Gary B. Born, International Commercial Arbitration 1449 (2009); see, e.g., U.K. Arbitration Act 1996, § 93. In the United States, however, ethics rules generally prohibit judges…
With the release of the Dissenting Opinion in Abaclat v. Agentina, we now have the benefit of a forceful critique of the majority’s decision that the Abaclat Tribunal has jurisdiction to hear the claims of over 60,000 Italian investors against Argentina under the ICSID Convention and the Argentina-Italy BIT. Professor Georges Abi-Saab’s Dissenting Opinion (the…
As World Bank protests go, today’s was a pretty mild one. This afternoon, a group of labor and environmental activists huddled outside World Bank headquarters in DC to protest the on-going Pacific Rim v. El Salvador CAFTA arbitration, complete with a giant balloon of a sinister corporate-looking orange cat, an ensemble of guitarists, and panels…
2011 has delivered some significant arbitration developments in Hong Kong, most of which (with some exceptions!) have been undoubtedly positive. So, what were the highlights of the Hong Kong arbitration year – and what challenges might lie ahead? First, Hong Kong’s new Arbitration Ordinance (cap. 609) came into effect on 1 June 2011 (blogged here)….
and Sandrine Giroud, Lalive In a decision issued on 23 November 2011, the Swiss Federal Supreme Court gave some welcome guidance on the rules of immunity applicable to the enforcement of ICSID awards in Switzerland (Decision 5A_681/2011 dated 23 November 2011 – The published decision is redacted but mentions the date of the ICSID award…
The recently published abstracts of LCIA Court decisions on arbitrator challenges between 1996 and 2010 (Arbitration International, vol. 27, no. 3, 2011) make surprisingly interesting reading. They are an important reminder of the types of egregious arbitrator conduct that, while fortunately rare, can give the system a bad name unless promptly corrected. At the same…
My friend David Bederman, the K.H. Gyr Professor in Private International Law at Emory Law School, has passed away. Emory Law School has offered kind remarks of his passing here, and here, and others offer their reflections on his life here, here, here and here. Bederman was a prince of a guy, and a great…
