Yesterday voters in Oklahoma voted overwhelmingly (70% in favor to 30% against) to ban the use of international law and Sharia law in state courts. It appears that the referendum will be headed to the courts for review, for as my colleague Michael Helfand has noted, the ban on Sharia law may well be unconstitutional…
The European Convention on International Commercial Arbitration 1961 (ECICA) is a multilateral treaty regulating certain aspects of international arbitral proceedings. Some of its provisions cover issues also governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, also known as the New York Convention (NYC), which was concluded three years earlier…
In our experience, many lawyers tend to shift a little uncomfortably in their seats when conversation turns to section 69 of the English Arbitration Act 1996, which gives parties to an arbitration sited in England & Wales the opportunity to appeal against an award on a point of law where the substantive law governing the…
British legal thinker Richard Susskind famously hypothesized in his book, End of Lawyers?,that the practice of lawyering will not actually end so much as gravitate towards extremes of “commoditized” legal work at one end and “bespoke” work on the other. The commoditization of some dispute resolution work has already begun to occur via the process…
Last week I had the privilege to attend an investment arbitration conference and FDI moot court competition at Pepperdine. Kudos to Murdoch University of Australia for winning the competition and my alma mater NYU for winning the highest overall ranking. There was much to ponder in the conference from the likes of Andrea Bjorkland, Todd…
The Supreme Court of Greece, further to its recent ruling in favor of enforcing international arbitral awards in Greece, issued a second ruling in favor of international ADR. In a recent decision, the Supreme Court found that a major dispute deriving from a contract which contained an arbitration clause with a clear reference to ICC…
A judge of the public law courts of the State of São Paulo concluded that a dispute arising out of a turn-key agreement entered into by a State-owned company and several construction companies for the construction of a new underground line in the city of São Paulo should not have been referred to arbitration. The…
A major new survey on international arbitration conducted by Queen Mary University London and sponsored by White & Case revealed several interesting findings on corporate choices concerning international arbitration.* As already reported by Global Arbitration Review, the survey shows “the extent to which the governing law is a driver of choice among those framing arbitration…
The “Instant Cost Order” is the practical implementation of a means to address the much discussed issue of (the lack of) cost efficiency in international arbitration. It also tackles the question of how pro-active tribunals should be in order to control party-driven arbitral proceedings. The majority of the costs incurred in an arbitral proceeding does…
A recent discussion on the OGEMID list about “elite arbitrators” prompted one participant to humorously compare the discussion to the frequent flier programs of airlines. This led to some fanciful speculation by in-house counsel of arbitration institutions offering their own loyalty programs, awarding us with “Frequent Arbitrating” points. For example, would there be free “upgrades”…
In a recent contribution to this list serve Alexis Mourre vigorously defended the parties’ right to appoint their own arbitrator. The appointment of an arbitrator is probably one of the single most important decisions during an arbitration. In so far it is not surprising that the right to appoint ones own arbitrator is regularly mentioned…
Several months ago, I drew attention on this blog to Uruguayan press reports which hinted that Uruguay might be prepared to compromise in the face of an arbitral claim filed by Phillip Morris International. (For background on the claim, see this Investment Arbitration Reporter account.) Following the flurry of Uruguayan press coverage, I spent a…
In last week’s post, I mentioned how some outspoken in-house counsel have undeservedly acquired a reputation for being anti-arbitration for having advocated improvements. I tried to explain how most in-house lawyers will want to be perceived as “dispute resolution neutral,” i.e., open to whatever type of procedure may best achieve the party’s goals. So what…
*The Miami Draft was originally called ‘the new NYC: a hypothetical draft’ by its drafter Albert Jan van den Berg, subsequently dubbed ‘the Dublin Convention’ at the occasion of the ICCA conference in Dublin 2008 and finally, echoing the influential 1961 “Harvard Draft” on the responsibility of States, renamed ‘the Miami Draft’ when re-presented by…
As a forensic accountant specializing in the quantification of damages, I listened with keen interest to the various presentations at the recent Swedish Arbitration Days event ‘damages and other relief in international arbitration’. One of the more lively debates centered on whether it is appropriate, as has happened in several well-known treaty cases, to make…
In his April 2010 inaugural lecture as holder of the Michael R. Klein’s Chair at the Miami University, Jan Paulsson advocated a fundamental change in the culture and practice of international commercial arbitration (Moral Hazard in International Arbitration, Miami, 29 April 2010, see also on this blog). In a nutshell, his views can be summarized…
Two recent incidents reminded me of just how much, in international arbitration, impressions and even reputations can completely miss the mark. One was a discussion I recently had with a well-known arbitrator who only half-jokingly commented on my “anti-arbitration” view, although he then qualified me as appearing more moderate than my fellow members of the…
The growing success of investment arbitration may collide with the European Commission’s attitude towards intra-EU BITs, as shown recently by a development reported in August 2010 (the IA Reporter, August 5, 2010, Vol. 3, No. 12) regarding the Eureko v. Slovakia arbitration. In this case, Eureko initiated a claim against the Slovak Republic based on…
“To the rest of the world, the English legal profession is a very strange species indeed” (Berlins and Dyer, The Law Machine) As autumn, season of mists, beckons there is, in London at least, a sense of the legal profession going ‘back to school’. During the summer, many firms will, like my own, have run…
The sense of relief enjoyed by NGO observers and other followers that UNCITRAL Working Group II’s Arbitration Rules revision project was finally completed in the Summer of 2010, after seemingly endless debate, has been diminished to some extent by the publication of the agenda for the next WGII meeting, to be held in Vienna in…
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….
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,…
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…
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…
