Arbitration Agreements, Domestic Courts, National Arbitration Laws, New York Convention, North America

(Notre Dame Law School)/ /3 Comments

The Fifth Circuit earlier this month issued a highly unusual decision addressing whether state law could “reverse preempt” the New York Convention. As any student of international arbitration knows, state law occasionally attempts to limit the enforceability of arbitration agreements. Such a policy is preempted by the New York Convention as implemented by the Federal…

Arbitration Proceedings, Asia-Pacific, Domestic Courts, Enforcement, Legal Practice

(White & Case LLP)/ /Leave a comment
White & Case

Earlier this year, the Hong Kong Court of First Instance ruled that, in future, when it hears unsuccessful attempts to resist enforcement of arbitral awards under the New York Convention, it will “normally consider” awarding costs on an indemnity basis (i.e., in full, regardless whether they were reasonably incurred). This was a bold pro-enforcement statement…

Commercial Arbitration, Disclosure, Domestic Courts, North America, Section 1782 Discovery

(White & Case LLP)/ /Leave a comment
YIAG

United States Code Title 28 Section 1782(a) is well-known to practitioners who have participated in international arbitral proceedings involving U.S. parties. The provision governs the judicial assistance U.S. federal courts can provide in foreign discovery. It states, in relevant part, that federal trial courts “of the district in which a person resides or is found…

International Legal Theory and Teaching, Other Issues

(Notre Dame Law School)/ /Leave a comment

This week the good folks at Kluwer have launched a new blog, Kluwer Construction Blog. According to the press release, Managing Editor of the blog, Sarah Thomas, partner and international projects expert at Pinsent Masons, will draw contributions from a panel of pre-eminent construction lawyers and barristers covering Europe, the United States, Canada, Africa, South…

Europe, International Courts, Investment Arbitration, Public Policy

(Loyola Law School Los Angeles)/ /4 Comments
American Society of International Law (ASIL)

On September 9th, 2009, an intriguing editorial penned by Jeffrey Golden, a special US Counsel and global derivatives senior partner at Allen & Overy LLP, appeared on the Financial Times. It was titled “We Need a World Financial Court with Specialist Judges”. The reason why I bring this article to the attention of the readers…

International Legal Theory and Teaching, Legal Practice, North America, South America

(Investment Arbitration Reporter)/ /Leave a comment

The relationship between human rights and investment law is all the rage these days in academia. It seems like every week I come across a PhD student or a young academic who is tackling some aspect of the topic. But, while there are many scholars and writers looking to bridge the two fields, it’s rarer…

Arbitration Awards, Arbitration Proceedings, Domestic Courts, Enforcement, Europe, Other Issues, Public Policy

(White & Case LLP)/ /Leave a comment
White & Case

On May 6, 2009, the French Supreme Court rendered a decision relating to the consequences of insolvency proceedings commenced in France against a party to pending international arbitration proceedings (Jean X. v. International Company For Commercial Exchanges (Income), May 6, 2009, Case no. 08-10281). A French company had signed three contracts for the sale of…

Investment Arbitration, Lis Pendens, North America, Res Judicata, South America

(Notre Dame Law School)/ /2 Comments

My colleague Trey Childress has a nice summary of the recent decision by a federal court in Florida in Osorio v. Dole Food Company to refuse to enforce a $97 million Nicaraguan judgment. Here’s the key excerpt of the decision: “the evidence before the Court is that the judgment in this case did not arise…

Arbitration Proceedings, Europe, Legal Practice

(von Segesser Law Offices)/ /Leave a comment

Summary In a decision of 6 October 2009 (4A.596/2008), the Swiss Federal Tribunal granted revision of a final international arbitral award that was influenced by fraud. This is the first time since the entry into force of the Federal Statute on the Federal Tribunal in 2007, and only the second time since the entry into…

Arbitration Agreements, Investment Arbitration, Jurisdiction

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

The Decision on Jurisdiction and Competence (19 June 2009) in Tza Yap Shum v. The Republic of Peru (ICSID Case No. ARB/07/6) is noteworthy as the first publicly available decision involving a claim by a Chinese investor under a Chinese investment treaty. The claim is a tangible reminder of the fact that Chinese investors are…

Arbitration Awards, Arbitration Proceedings, International Courts, Investment Arbitration, Jurisdiction, North America

(UC Berkeley School of Law)/ /Leave a comment
American Society of International Law (ASIL)

In one of the most recent NAFTA awards, Glamis Gold v. United States, the United States (“US”) raised objections to the tribunal’s “subject matter jurisdiction” against Glamis’ claims of expropriation under NAFTA Chapter 11. The US argued that the Canadian mining company’s claims based on recently passed California legislation were not “ripe” because the legislative…

Arbitration Proceedings, Europe, Legal Practice

(von Segesser Law Offices)/ /Leave a comment

In a decision of 23 June 2009 (4A_62/2009), the Swiss Federal Supreme Court held that the right to be heard is not violated where an arbitral tribunal bases its decision on a written submission of a third party and the parties to the proceedings had enough time to comment on such written submission.By letter of…

Arbitration Awards, Arbitration Proceedings, Arbitrators, Commercial Arbitration, Domestic Courts, Enforcement, Europe, New York Convention

(Herbert Smith Freehills LLP)/ /Leave a comment
Herbert Smith Freehills

The 9.10.2009 session of the New York Convention subcommittee of the IBA in Madrid saw a lively discussion on the topic of enforcement of annulled arbitral awards. The discussion related to the “Yukos Capital” decision issued by the Amsterdam Court of Appeals in April 2009. The Amsterdam Court of First Instance had previously upheld the…

Arbitration Awards, Arbitration Institutions and Rules, Arbitration Proceedings, Enforcement, Investment Arbitration

(Debevoise & Plimpton LLP)/ /Leave a comment
American Society of International Law (ASIL)

Earlier this year, the ICSID ad hoc committee in the Sempra v. Argentina annulment proceedings decided to continue the stay of the enforcement of the tribunal’s award in that case for the duration of the annulment proceedings on the condition that Argentina pay USD 75 million into an escrow account. After Argentina failed to make…

Arbitration Agreements, Arbitration Awards, Arbitration Proceedings, Investment Arbitration, Jurisdiction

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

It is always satisfying for an academic when research interests contribute to teaching. So, as I began teaching first year contracts this year, I read the 8 September 2009 award in Azpetrol International Holdings B.V., Azpetrol Group B.V. and Azpetrol Oil Services Group B.V. v. The Republic of Azerbaijan, ICSID Case No. ARB/06/15 (Azpetrol) with…

Arbitration Institutions and Rules

(von Segesser Law Offices)/ /Leave a comment

The Swiss Rules of International Arbitration (the “Swiss Rules”) entered into force on 1 January 2004. These rules were originally adopted by the Chambers of Commerce and Industry of Basel, Bern, Geneva, Ticino, Vaud and Zurich, and, most recently, Neuchâtel (the “Chambers”).In the past, these Chambers each had their own, different set of arbitration rules…

Arbitration Awards, Arbitration Institutions and Rules, Arbitration Proceedings, Commercial Arbitration, Domestic Courts, Enforcement, Europe, Legal Practice, National Arbitration Laws

(White & Case LLP)/ /1 Comment
White & Case

There is a lingering perception amongst the international arbitration community that English courts tend to be more interventionist in relation to arbitration proceedings and awards compared to some of their continental counterparts. In reality, English courts are much less interventionist than some imagine, despite provisions such as section 69 of the Arbitration Act 1996 which…

Investment Arbitration, Legal Practice, Public Policy

(Wayne State University)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

While litigation and arbitration both entail binding adjudication, the traditional functions of judges and arbitrators diverge in fundamental respects. While judges resolve individual disputes, they also serve a number of secondary functions. For example, in the process of deciding cases, they also supply guidance to parties in future disputes, uphold the public interest, and contribute…

Arbitration Awards

(Baker & McKenzie)/ /2 Comments
YIAG

(AND WHY A RECENT ENGLISH HIGH COURT DECISION REMINDS US THAT A FINAL, BINDING AND CONCLUSIVE AWARD IS NOT NECESSARILY IMMUNE FROM CHALLENGE) Finality is a fundamental characteristic of arbitration and a key factor that attracts many parties to choose arbitration when providing for a contractual dispute resolution mechanism. This is because the ability to…

Arbitration Awards, Arbitration Proceedings, Investment Arbitration, Other Issues

(White & Case LLP)/ /Leave a comment
White & Case

In 2006, the ICSID Arbitration Rules were amended to allow a party to make a preliminary objection to claims that are “manifestly without legal merit.” The procedure for this objection is embodied in Rule 41(5). An ICSID Tribunal composed of Dr. Briner (President), Professor Stern and Professor Böckstiegel, in Brandes Investment Partners, LP v. Venezuela…

Investment Arbitration

(Stylopoulos & Associates)/ /1 Comment

In modern treaties, a fair and equitable treatment standard (hereinafter “FaETS”) is to be provided to foreign investors and investments by the host state. In the past, the FaETS had been viewed as merely a sub-category of the international minimum standard. However, recent practice and international case law has started taking the view that the…