Should arbitrators be permitted to serve as mediators of the disputes they might ultimately determine? Instinctive reactions to this question are likely to be coloured by a party’s legal background and cultural expectations. To those from common law traditions, the idea of combining the roles of mediator and arbitrator is rather alien, whereas in civil…
Today an Ecuador court fined Chevron $8.6 billion for environmental damage. According to the Wall Street Journal, $5.4 billion of that is to restore polluted soil, $1.4 billion to create a health system for the community, $800 million to treat individuals injured by the pollution, $600 million to restore polluted waters, $200 million to restore…
The goal had seemed an impossible one for many years. And then, recently, a tribunal in Berlin came close to breaking the famed barrier. Their noble effort was thwarted only by the Teutonic lapse of the chair who, on the verge of declaring the proceedings closed at 4 minutes and 43 seconds, spontaneously suggested terms…
The recent Commercial Court decision of A v B [2010] EWHC 3302 (Comm) (16 December 2010) is notable for two reasons. Firstly, the Commercial Court provided clarification of the requirements for pursuing an application for security under section 70(7) of the Arbitration Act 1996. Secondly, the decision is an indication of how the Supreme Court…
During the last quarter of 2010 the German Arbitration Institution (‘DIS’) and the Chartered Institute of Arbitrators (‘CIAarb’) held a conference in Frankfurt to debate the relative merits of the ways in which civil law/common law court procedures are adopted or adapted for use in international arbitrations. One of the more interesting sessions was devoted…
According to a well-placed contact at a major arbitral institute, a significant proportion of new arbitration matters involve post-acquisition disputes; in particular, claims brought against vendors of businesses who are accused of having misrepresented, sometimes fraudulently, an acquired business’s true financial position. Many of these claims relate to transactions carried out at the peak of…
On December 1, 2010, an ICSID tribunal composed of Sir Franklin Berman (President), Prof. Emmanuel Gaillard, and J. Christopher Thomas, QC, in Global Trading Resource Corp. and Globex International, Inc. v. Ukraine [Disclosure: White & Case LLP was counsel to Ukraine in this case], became the first tribunal ever to dismiss a case under the…
Introduction On 1 December 2010 an Arbitral Tribunal, constituted under the auspices of the International Center for Settlement of Investment Disputes (ICSID) delivered its award in the case Global Trading Resource Corp. and Globex International, Inc. vs. Ukraine. The Tribunal decided to dismiss all claims filed by Global Trading Resources Corp. and Globex International Inc….
In a landmark decision dated 29 October 2010, published on 19 November 2010 (case 4A_234/2010), the Swiss Federal Tribunal dismissed a motion to set aside a Court of Arbitration for Sport (“CAS”) award based on the alleged impartiality of one of the co-arbitrators. The Court firstly clarified that the independence and impartiality expected from any…
Two ICSID tribunals have now weighed in on the much-debated question of whether Art. 22 of Venezuela’s Foreign Investment Law provides Venezuela’s consent to ICSID arbitration. In Decisions on Jurisdiction dated June and December 2010, the Mobil and Cemex tribunals (both presided by the former president of the ICJ, Judge Gilbert Guillaume), rejected investors’ submissions…
On Thursday, 13 January 2011, France revealed its long-awaited new arbitration law. The décret n° 2011-48 portant réforme de l’arbitrage, was published in France’s Official Journal, alongside a report commenting on the reform. The new law can be found here, as well as the accompanying commentary here. The reform concerns both domestic and international arbitration…
Hong Kong has unveiled its new Arbitration Ordinance. We take a look in this blog at how this is likely to affect parties and practitioners dealing with, or considering, arbitration in Hong Kong. After a lengthy and detailed consultation process, the Hong Kong Legislative Council has passed the new Arbitration Ordinance (Cap. 609) (‘new Arbitration…
I received this notice from my friend Gary Born and thought it worth sharing. Sounds like a wonderful opportunity for any academic interested in international arbitration. My Pepperdine colleague Tom Stipanowich was the resident scholar last semester, and he could not say enough about the experience. Here’s the formal announcement: The International Arbitration Group at…
We have all seen it before. The same names, the same faces are chosen consistently to act as arbitrators. Is it bad? No, but it certainly occurs. The same names are respected, experienced professionals that undoubtedly anyone would be grateful to have serve as an arbitrator for their proceedings. However, are there downsides to always…
The Greek Parliament recently voted on a new piece of legislation that enables the parties to a dispute to submit to mediation at any stage of the dispute and in effect comply with the provisions of the EU Mediation Directive 2008/52/EC for various commercial law matters. The draft paper on this new law was just…
Certain practices are as unwholesome as they are repeated with hard-headed stubbornness that they merit the denomination “worst practice”. A good New Year’s resolution for those engaging in international arbitration would be to pledge to stop engaging in them. I’ll limit myself to throwing stones at my own glass house: the worst practices committed by in-house counsel like myself and the lawyers we appoint.
Last year, around this time, I offered a list of 10 investor-state arbitral awards I hoped to see in 2010. If time permits, I may do another list for 2011. But, first I thought I’d take a look back at last year’s list and offer a brief update on those cases. Rather, than do all…
On Monday, December 13, 2010, the United States Supreme Court denied cert for Certain Underwriters at Lloyd’s, London v. Lagstein, and in so doing denied the opportunity to further clarify the debate surrounding manifest disregard. The central issue is whether this doctrine survived after Hall Street Associates LLC v. Mattell, Inc. In Lloyds v. Lagstein,…
In July this year, the European Commission published its communication “Towards a comprehensive European international investment policy” (COM(2010) 343 final) and a draft Regulation “establishing transitional arrangements for bilateral investment agreements between Member States and third countries” (2010/0197 (COD)). This initiative is based on the still controversial change brought about by the Lisbon Treaty, by…
In two recent decisions, the Singapore High Court reaffirmed its stance on minimal intervention in arbitration proceedings. The two decisions were made against different sets of circumstances but the Court nonetheless abided by its policy of minimal intervention. This posting examines the two recent decisions, in particular, the approach taken by the High Court. In…
Despite what the title may imply, this is not another prose on the legal theories around whether a BIT claim could be made in lieu or in addition to a contract with an arbitral clause in place. It is more about – should it? In my years of practice, working on both types of cases,…
Stolt-Nielsen v. Animal Feeds, 130 S. Ct. 1758 (2010), is an extraordinary case. In Stolt-Nielsen, the U.S. Supreme Court vacated the award of a distinguished arbitral tribunal essentially because the tribunal did not reach the result favored by the Supreme Court. In Stolt-Nielsen, charterers were arbitrating against shipping companies, alleging violations of antitrust law. The…
If a national court is called upon, in the context of an application to refer parties to arbitration, to determine whether a valid arbitration agreement exists, how probing should the court’s examination of the existence or validity of the putative agreement be? Judicial authorities in countries that have adopted the UNCITRAL Model Law on International…
International arbitration often involves parties, arbitrators, and counsel from both Common Law and Civil Law traditions, which sometimes creates misinterpretations about how evidence production will occur. The recent São Paulo court opinion determining that an ICC arbitral tribunal should widen the scope of the expert evidence it was considering in a dispute regarding the construction…
