Arbitration Agreements, Arbitration Awards, Commercial Arbitration, Domestic Courts, Enforcement, Europe, European Law, Jurisdiction, Lis Pendens, National Arbitration Laws, New York Convention, Seat of the arbitration

(Castaldi Mourre & Partners)/ /Leave a comment

Professor Hess is the author of the chapter of the Heidelberg Report on the interplay between arbitration and the Regulation 44/2001 (“the Regulation”). As such, and quite understandably, he actively promotes the suggestion that the arbitration exception should be deleted from the Regulation. The Heidelberg proposal has been followed by a Green Paper of the…

Arbitration Institutions and Rules, Arbitration Proceedings, Investment Arbitration, Other Issues

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

Procedural Order No. 3 (Confidentiality Order) dated 27 January 2010 in Giovanna a Beccara and others v. The Argentine Republic (the “Order”) addresses the competing considerations of confidentiality, transparency, public information, equality of the Parties’ rights, and orderly conduct of the proceedings in investment treaty arbitration.  Although the Tribunal’s Order provides a nuanced approach to…

Investment Arbitration

(Investment Arbitration Reporter)/ /4 Comments

I recently gave a talk at a Sydney Law School conference about the unexplored relationship between bilateral investment treaties and freedom of expression. In a longer paper on BITs and human rights published last year I’d highlighted some potential tensions, including the need for states to balance the rights of citizens to speak and protest…

International Legal Theory and Teaching, Investment Arbitration, Other Issues

(The London School of Economics and Political Science)/ /1 Comment

It is not easy to get a grip on the vast amount of case-law being churned out by investment treaty arbitration panels. However, if law students wanted examples of the ultimate slap-dash arguments being put together by claimant lawyers, then go no further than to sample some of arguments launched in this case. It is…

Europe, Set aside an international arbitral award, Sport arbitration

(von Segesser Law Offices)/ /3 Comments

In a decision dated 10 February 2010 (4A_612/2009), the Swiss Federal Tribunal rejected a petition to set aside a November 2009 CAS Award against German speed-skater Claudia Pechstein. The Federal Tribunal took some unusual procedural steps – including foregoing the usual exchange of written pleadings – to speed up the proceedings and to decide the…

Commercial Arbitration, Domestic Courts, New York Convention, North America

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

On January 15, 2010, the United States Supreme Court granted a writ of certiorari in Rent-A-Center West, Inc. v. Jackson, Case No. 09-497, agreeing to revisit the oft-litigated issue of whether the court or arbitrator should determine arbitrability under the Federal Arbitration Act (“FAA”). The Court’s prior jurisprudence has established the general rule, as a…

Arbitration Proceedings, Costs in arbitral proceedings

(Conway & Partners)/ /1 Comment

It is interesting to consider how to handle the situation when a party refuses to pay its portion of the advance on costs. I have previously published an article on this matter and, looking to the ICC Rules, would recommend an alternative route to the traditionally referenced ones. I will consider the options that exist…

Arbitration Proceedings, Europe, Legislation

(von Segesser Law Offices)/ /Leave a comment

As of 1 January 2011, Swiss domestic arbitration proceedings will be governed by Articles 353 et seq. of the new Swiss Code on Civil Procedure (“CCP”). Articles 353 et seq. CCP will replace the Concordat on Arbitration (“Concordat”), currently governing domestic arbitration proceedings. The dichotomy between domestic arbitration and international arbitration will continue to exist,…

Arbitration Proceedings, Domestic Courts, Investment Arbitration, Jurisdiction, New York Convention

(UC Davis School of Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

I am in Australia in advance of the investment law conference at Sydney Law School at the end of the week, and I took advantage of many plane hours to read the docket in the case pending between Ecuador and Chevron/Texaco Petroleum Company (TexPet) in the Southern District of New York. They repay study. In…

Arbitration Awards, Energy Charter Treaty, Jurisdiction, Limitation Clause, Vienna Convention on the Law of Treaties

(Conway & Partners)/ /Leave a comment

On November 30, 2009, an arbitral tribunal issued three interim awards for Yukos Universal Limited, Hulley Limited Enterprises, and Veteran Petroleum Limited v. the Russian Federation under the Energy Charter Treaty (“ECT”). These interim awards addressed the issue of jurisdiction over the Russian Federation, analyzing the Provisional Application under Article 45(1) and (2), labeling the…

Arbitration Awards, Domestic Courts, Enforcement, Europe, European Law, Public Policy

(Castaldi Mourre & Partners)/ /Leave a comment

In holding that “Article 85 of the [EU] Treaty [now article 101 of the Treaty on the Functioning of the European Union – TFEU] constitutes a fundamental provision which is essential for the accomplishment of the tasks entrusted to the Community and, in particular, for the functioning of the internal market”, and that “the provisions…

Arbitration Institutions and Rules, International Courts, UN and Int’l Organizations

(International Council for Commercial Arbitration)/ /Leave a comment
Freshfields Bruckhaus Deringer

International claims settlement involves a number of challenges that are relevant for the international arbitration community, including fact-finding and burden of proof, principles of State responsibility, treaty interpretation and damages under international law. One recent development of note involves Israel’s recent settlement of a claim brought by the United Nations. In July 2009, the United…

Arbitration Agreements, Domestic Courts, Jurisdiction, Legislation, National Arbitration Laws, New York Convention

(von Segesser Law Offices)/ /Leave a comment

The Swiss Parliament is currently contemplating a reinforcement of the negative effect of the “competence-competence” principle in the Swiss legislation. According to a parliamentary initiative, a Swiss court that is seized on the merits and faced with a plea of lack of jurisdiction based on the existence of a valid arbitration agreement should review such…

Arbitration Institutions and Rules, Arbitration Proceedings, Investment Arbitration

(Notre Dame Law School)/ /1 Comment

ICSID has just published a report on its caseload, and there is plenty of interesting data. The one that particularly caught my attention is the chart on the basis of consent invoked to establish ICSID jurisdiction. Sixty-two percent of all cases came from Bilateral Investment Treaties, while twenty-two percent came from investment contracts. An additional…

Arbitration Agreements, Arbitration Awards, Arbitration Institutions and Rules, Arbitration Proceedings, International Courts, Investment Arbitration, Jurisdiction, Public Policy

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

In my last post I questioned whether investor misconduct (such as fraud, illegality and corruption) is invariably a jurisdictional issue.  This post focuses on the use of admissibility as a filtering mechanism to screen investor claims.  Although it has been suggested by at least one investment treaty tribunal that the concept of admissibility does not…

Other Issues

(Notre Dame Law School)/ /Leave a comment

We are pleased to announce that Kluwer Arbitration Blog will add two new permanent contributors to the blog: Alexis Mourre of the law firm of Castaldi Mourre & Partners in Paris, France, and the Institute for Transnational Arbitration in Dallas, Texas. Alexis Mourre is a founding partner of Castaldi Mourre & Partners, a 25-lawyer firm…

Investment Arbitration, Public Policy

(Investment Arbitration Reporter)/ /Leave a comment

In a recent post , Andrew Newcombe queried whether investor misconduct should be dealt with by arbitrators not as a jurisdictional issue, but rather at the merits, damages or costs phase. His post was published as I was wading through 100’s of pages of old international claims commission awards (for reasons too obscure to get…

Arbitrators, International Courts, Investment Arbitration

(M. & M. Bomchil Abogados)/ /1 Comment
YIAG

By Federico Campolieti* and Nicholas Lawn** Introduction In a recent decision related to the ICSID case Perenco Ecuador Limited v. The Republic of Ecuador [1], the Secretary-General of the Permanent Court of Arbitration at The Hague (“PCA”) has upheld a challenge against a leading arbitrator, Judge Charles N. Brower, on the basis that from the…

Arbitration Agreements, Arbitration Awards, Arbitration Proceedings, Commercial Arbitration, Domestic Courts, Enforcement, Europe, European Law, National Arbitration Laws

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

On 8 July 2009, the French Supreme Court rendered a decision confirming its position that the existence and the validity of an arbitration agreement should be determined primarily in light of the common intent of the parties (Société d’études et représentations navales et industrielles (SOERNI) et autres vs. Société Air Sea Broker limited (ASB), July…

Arbitration Agreements, Arbitration Awards, Arbitration Proceedings, Investment Arbitration, Jurisdiction, Public Policy

(University of Victoria Faculty of Law)/ /3 Comments

The treatment of investor misconduct in investment treaty arbitration raises a series of complex issues.  Allegations of investor misconduct (such as fraud, illegality and corruption) can arise in the context of the making of an investment, during its operation, or in the investment treaty claim making process.   How should a tribunal address investor misconduct if…

Arbitration Agreements

(von Segesser Law Offices)/ /Leave a comment

In a recent decision dated 6 November 2009 (4A_358/2009), the Swiss Federal Supreme Court set aside an award by the Court of Arbitration for Sport (CAS) in Lausanne. The Supreme Court held that although its practice regarding the validity of arbitration agreements was generally liberal, in the present case the mere fact that the appellant…

Commercial Arbitration

(University of Cologne, Center for Transnational Law (CENTRAL))/ /Leave a comment

One of the major problems related to the doctrine of the New Lex Mercatoria (NLM) is to determine its contents. The UNIDROIT Principles of International Commercial Contracts, of which a third edition will perhaps be finalized this year, have used the Restatement technique of the American Law Institute as a means to “codify” transnational contract…

International arbitration, Settlement

(von Segesser Law Offices)/ /1 Comment

In international arbitration proceedings in Continental Europe, particularly in Germany but also in Switzerland and other countries, it has become increasingly popular for arbitral tribunals to get involved and even take active steps in facilitating a settlement between the parties during the course of a pending arbitration. This raises a number of issues, and parties…