Canada, ICSID Convention, Investment Arbitration, Investment protection, NAFTA, North America

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White & Case

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….

Arbitration clause, Arbitrators, English Law, Nationality requirement in arbitration clauses, Seat of the arbitration

(Herbert Smith Freehills)/ /3 Comments
Herbert Smith Freehills

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,…

BIT, ICSID Convention, Investment Arbitration, Investment protection, Not-for-profit organizations (NGO)

(Investment Arbitration Reporter)/ /Leave a comment

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…

Disclosure, Section 1782 Discovery

(Wilmer Cutler Pickering Hale and Dorr LLP)/ /1 Comment
WilmerHale

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…

Asia-Pacific, UN and Int’l Organizations

(Notre Dame Law School)/ /Leave a comment

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…

Asia-Pacific, Crown Immunity, Dispute resolution clause, Sovereign Immunity

(Herbert Smith Freehills)/ /1 Comment
Herbert Smith Freehills

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…

Investment Arbitration, Investment protection, Public Policy, Responsibility of States

(University of Victoria Faculty of Law)/ /1 Comment

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…

Arbitration Proceedings, Canada

(Caribbean Arbitrators, Arbitration Place, 33 Bedford Row Chambers)/ /1 Comment

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…

Legislation, UNCITRAL Model Law

(Taylor Wessing)/ /4 Comments
YIAG

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…

Commercial Arbitration, Domestic Courts, Russia

(White & Case LLP)/ /2 Comments
White & Case

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…

Commercial Arbitration

(Castaldi Mourre & Partners)/ /Leave a comment

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…

Arbitration Agreements, Arbitration Awards, Russia

(Muranov, Chernyakov and Partners)/ /4 Comments

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….

Investment Arbitration, Not-for-profit organizations (NGO)

(Conway & Partners)/ /Leave a comment

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…

Canada, ICSID Convention

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White & Case

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…

Arbitration Act, UNCITRAL Model Law, United States

(Conway & Partners)/ /Leave a comment

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…

Africa, BIT, Investment Arbitration

(Freshfields Bruckhaus Deringer LLP)/ /1 Comment
YIAG

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…

Public Policy, Res Judicata

(von Segesser Law Offices)/ /2 Comments

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…

Federal Arbitration Act (FAA), United States

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Many leading jurisdictions in international arbitration have adopted all or part of the UN Model Law on International Commercial Arbitration (“Model Law”). The question that remains is: Why Hasn’t the United States? The Federal Arbitration Act does provide many similarities to the Model Law. They both address enforcement of an arbitral award, grounds for setting…

Canada, North America, UNCITRAL Model Law

(Caribbean Arbitrators, Arbitration Place, 33 Bedford Row Chambers)/ /1 Comment

It is true that Canada did not qualify for FIFA’s World Cup and did not dominate at the Winter Olympics. However, when it comes to the UNCITRAL Model Law on Commercial Arbitration, Canada is a leader. This year marks the 25th anniversary of the Model Law. Since becoming the first state signatory to the Model…

International Law, State Responsibility for Damage

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American Society of International Law (ASIL)

In 1924, the League of Nations launched a worldwide effort to codify three important subjects of public international law: Nationality, Territorial Waters, and the Responsibility of States for Damage Caused in Their Territory to the Person or Property of Foreigners. These efforts culminated in the First Conference for the Codification of International Law, which took…

Domestic Courts, North America, South America

(Notre Dame Law School)/ /1 Comment

The ongoing saga regarding Chevron’s legal travails in Ecuador took an interesting twist this week. As I reported earlier, Chevron has secured key outtakes of the movie Crude that appeared to show alarming collusion between the plaintiff lawyers and the Court-appointed expert. According to pleadings filed yesterday pursuant to 28 U.S.C. 1782, the outtakes include…

Arbitration Act, United States

(Conway & Partners)/ /4 Comments

This year, the State of Florida, with significant help from the many international practitioners working in Florida, proposed and passed a bill changing the Florida Arbitration Act to substantially match the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”). On May 12, 2010, Governor Crist signed into law Bill CS/HB 821 modifying Florida Statutes…

Arbitration Awards, BIT, Investment Arbitration, Jurisdiction

(University of Victoria Faculty of Law)/ /Leave a comment

The 14 July 2010 Award in Saba Fakes v. Turkey (Fakes) is notable because it expressly disapproves of the approach taken by the Tribunal in Phoenix Action v. Czech Republic, which found in its 15 April 2009 Award that good faith and legality are jurisdictional requirements for access to ICSID arbitration. Fakes is a welcome addition to…

Arbitration Proceedings, Arbitrators, Enforcement, Set aside an international arbitral award

(BOPS Avocats)/ /Leave a comment
YIAG

Can arbitrators be called to give testimony on the arbitral procedure before the court in charge of annulment or enforcement actions? Courts in England and Norway had to tackle this issue and have given a similar answer to this question: arbitrators can be asked to give testimony as to the elements of facts of the…