Anti-suit injunction, Arbitral seat, Domestic Courts, EU Regulation 44/ 2001, European Union, Jurisdiction, Lis Pendens, New York Convention, Parallel Proceedings

(Loyola University Chicago School of Law)/ /1 Comment
Institute for Transnational Arbitration (ITA)

One purpose for anti-suit injunctions is to stop parallel proceedings, that is, to stop parties from pursuing litigation or arbitration involving the same parties and the same claims in two different jurisdictions simultaneously. To stop parallel proceedings in arbitration, a party will go to the court at the seat of the arbitration and will ask…

Anti-arbitration, Arbitration, Commercial Arbitration, Dispute resolution clause

(MDisputes)/ /Leave a comment

Even when I think I know what I’m doing (be it self-confidence or self-deception), I still find checklists can be useful. Sometimes they can help validate or compare processes with others, but mostly they are good at making sure I haven’t forgotten some critical step. Below is a checklist for when someone – a business…

BIT, ICSID Convention, Investment Arbitration, State of necessity

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At the time the General Assembly of the United Nations was deciding to include in the agenda of its fifty-sixth 1)Resolution A/RES/56/83 – 12 Dec. 2001 GA/9998 session the text of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (The Draft) adopted by the International Law Commission (ILC), the Argentine Republic was…

New York Convention, Set aside an international arbitral award

(Norton Rose Fulbright)/ /Leave a comment
YSIAC

If it isn’t pleaded, you can’t consider it. That in a nutshell appears to be the holding established recently by the Singapore High Court in Kempinski Hotels SA v PT Prima International Development [2011] SGHC 171 (“Kempinski”). That case saw the setting aside of three related international arbitration awards on the basis that the tribunal…

Investment agreements, Public Policy

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A few years ago, stabilization clauses in investment contracts became the subject of increased attention by human rights and development groups. A report on Stabilization Clauses and Human Rights, issued by the UN Secretary-General’s Special Representative for Business and Human Rights, John Ruggie, was the first comprehensive study to draw on a range of heretofore…

Costs in arbitral proceedings, English Law, Third party funding

(Conway & Partners)/ /1 Comment

Third party funding probably has its longest history in Australia, followed by the United Kingdom. The irony is that both of these are common law jurisdictions in which the legal principles of maintenance and champerty exist. Indeed, they originated in the United Kingdom. What are maintenance and champerty exactly and do they exist today? More…

Confidentiality

(Jones Day)/ /Leave a comment
ArbitralWomen

Confidentiality in arbitration arises through the agreement of the parties, by selecting arbitration rules with explicit provisions thereof, or under domestic statutory regulations. Few national laws regulate confidentiality in arbitration. This is because a large number of countries follow the UNCITRAL Model Law on International Commercial Arbitration, whose drafters made it clear that “confidentiality may…

Investment agreements, Investment Arbitration, Investment protection

(Investment Arbitration Reporter)/ /2 Comments

As Roger Alford mentioned previously, New York University Law School hosted a discussion of the Chevron-Ecuador dispute on October 24th. The event was subject to the Chatham House rules, so my notes below should not be attributed to any particular panelist or audience members. However, in the case of moderator Michael Goldhaber, his views have…

Africa, BIT

(Africa International Legal Awareness (AILA))/ /3 Comments

Challenges are opportunities in disguise. Despite the global economic slowdown which has significantly affected developed economies, Africa, particularly Sub-Saharan Africa, has apparently shown good signs of economic expansion. According to the International Monetary Fund World Economic Outlook of September 2011, the region’s economy is expected to expand by up to 5¾ per cent in 2012…

Costs in arbitral proceedings, Third party funding

(Conway & Partners)/ /5 Comments

Third party funding is currently receiving a lot of attention in the international arbitration community. An ethical topic for sure, third party funding can provide the financing necessary for an international arbitration to move forward. This logically opens doors to those who may otherwise not be able to pursue the claim or assist those clients…

Uncategorized

(Kluwer Law International)/ /Leave a comment

It gives me great pleasure to announce that the publishers of this blog and Kluwer Arbitration are hosting their first Webinar designed for corporate counsel on Wednesday 9th November (4pm Central European time/3pm UK time/10am Eastern Standard Time). The webinar is entitled Shell vs GE: The Employer-Contractor Debate. The Best Way to Resolve Conflicts and…

Arbitration Institutions and Rules, Arbitration Proceedings, Arbitrators, arbitrators’ conduct, Bias, BIT, Class arbitration, Due process, Efficiency, Foreign Investment Law, Investment agreements, Investment Arbitration, Investment protection, Public Policy

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

In its 4 August 2011 Decision on Jurisdiction and Admissibility, the majority of the Tribunal in Abaclat and Others (Case formerly known as Giovanna a Beccara and Others) v. Argentine Republic affirmed that it had jurisdiction to hear the claims of over 60,000 Italian investors against Argentina arising out of Argentina’s default on various sovereign…

Arbitration, Canada, Enforcement, ICSID Convention, International arbitration, Investment Arbitration, Jurisdiction, Jurisdiction of the arbitral tribunal, NAFTA

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

As we approach the first anniversary of the UK Supreme Court’s landmark decision in the case of Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan, it is only fitting that we would encounter a case which would cause us to revisit the issue of the proper standard of…

Enforcement, Investment Arbitration, Investment protection

(Investment Arbitration Reporter)/ /2 Comments

Recent reports of the freezing of Russian government funds at the Stockholm Arbitration Institute may be premature, but it still remains possible that a Swedish bailiff could move to seize such funds. At the time of this writing, a freezing request by German businessman Franz Sedelmayer remained under active review at a Swedish government debt…

Domestic Courts, ICSID Convention, Investment, Investment Arbitration

(Wilmer Cutler Pickering Hale and Dorr LLP)/ /Leave a comment
WilmerHale

In August 2011, the tribunal in Abaclat and others v Argentina decided (by a majority) that it had jurisdiction over claims brought by approximately 60,000 Italian investors, and that the claims were admissible.1)Argentina has in the meantime requested the disqualification of the two arbitrators responsible for the decision and the proceedings are currently suspended. The…

Investment Arbitration

(Notre Dame Law School)/ /Leave a comment

On Monday, October 24, I’ll be participating in a panel discussion at NYU on the The Implications of Chevron v. Ecuador for Investor-State Arbitration. The event will be held at 6 p.m. at Furman Hall 900, 245 Sullivan Street, New York. The event is sponsored by NYU Law School’s Institute for International Law and Justice….

BIT, ICSID Convention, Investment agreements, Investment Arbitration

(University of Michigan Law School)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

My previous post described years of apparently intractable debate between two opposing camps of international lawyers about what kinds of economic activity should get international investment protections. This post will explain how that dispute was settled for the purpose of ICSID jurisdiction, and with what legal result. As the dispute ground on throughout the final…

BIT, ICSID Convention, Investment agreements, Investment Arbitration

(University of Michigan Law School)/ /1 Comment
Institute for Transnational Arbitration (ITA)

My last post described the ongoing controversy about the proper scope of “investment” under Article 25 of the ICSID Convention. The next two posts will draw on my recent article to argue that this controversy should be resolved consistently with the historical understanding of the term. Far from incorporating the limitations exemplified by the Salini…

BIT, Investment agreements, Investment Arbitration

(University of Michigan Law School)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

Article 25 of the ICSID Convention famously limits ICSID jurisdiction to “legal dispute[s] arising directly out of or in relation to an investment.” Uncertainty about the outer limits of this provision erupted into controversy about a decade ago, when Salini Costruttori v. Morocco kicked off a series of cases that imposed sharp limits on the…

English Law, Jurisdiction, kompetenz-kompetenz

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

Adjudicating contract disputes where it is alleged that the contract has been tainted by bribery, either in its procurement or in its performance, presents difficult issues for arbitrators, as well as for counsel. While the arbitrability of disputes involving allegations of bribery is generally no longer in doubt, a tribunal will still confront a number…

Arbitration Proceedings, Disclosure, Expedited arbitration, ICC Arbitration, International arbitration, Multiple parties

(Clyde & Co.)/ /Leave a comment
Clyde & Co.

Amendment to the International Chamber of Commerce Rules of International Arbitration The International Chamber of Commerce has issued a revised set of rules for International Arbitration, due to come into force from 1 January 2012 (the “2012 Rules”). The 2012 Rules are clearly an attempt by the ICC to respond to the business needs of…

Appointment of arbitrators, Arbitration Institutions and Rules, Arbitrators, Costs in arbitral proceedings

(Editor in Chief, ASA Bulletin; LALIVE)/ /Leave a comment

The ASA seminar on “Arbitral Institutions under Scrutiny” on 9 September in Zurich yielded some interesting insight in the practice of arbitration institutions, and views of well-known practitioners on the problems faced by modern arbitration systems. After the general introduction from ASA President Michael E. Schneider, Lara Bander and Mehtap Tari Hirt, two post-graduate students…

BIT

(Notre Dame Law School)/ /Leave a comment

Luke Peterson passed along a tip about this interesting declaration attached to the U.S.-Rwanda Bilateral Investment Treaty: Articles 3 through 10 and other provisions that qualify or create exceptions to these Articles are self-executing. With the exception of these Articles, the Treaty is not self-executing. None of the provisions in this Treaty confers a private…