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)/ /1 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…

Arbitration Awards, Arbitrators, Commercial Arbitration, Domestic Courts, Investment Arbitration, Legal Practice

(Investment Arbitration Reporter)/ /Leave a comment

Handicapping investor-state arbitration cases is a tough business. Indeed, it’s difficult to predict when decisions will come down – much less what they will say. The following somewhat-hastily-cobbled-together list constitutes my best guess as to the 10 most notable awards which may come down in 2010. I won’t hazard a guess as to what’s in…

Arbitration Awards, Commercial Arbitration, Investment Arbitration

(Investment Arbitration Reporter)/ /Leave a comment

As a political slogan, re-Belizeanization was supposed to have a brief shelf life. When the Government of Belize announced last August the “re-Belizeanization” of the tiny Central American country’s dominant telecommunications company, Belize Telemedia Limited, the government disavowed any intention to embark upon a broader programme of economic nationalization. “It is not part of any…

Arbitration Awards, Enforcement, National Arbitration Laws, New York Convention

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

The emerging rule in the U.S. that, to recognize and enforce an arbitral award under the New York Convention, a U.S. court must have personal jurisdiction over the award debtor or his or her property in the forum, has attracted criticism. International arbitration specialists argue that this requirement restricts enforcement of valid arbitral awards in…

Arbitration, Arbitration Proceedings, English Law, Investment Arbitration, Non-signatory, State entity

(Aavagard LLP)/ /3 Comments
Freshfields Bruckhaus Deringer

Agency as a mechanism for compelling a non-signatory to join arbitral proceedings By Hanna Roos for YIAG International investors, and those who advise them, continue to be vexed by the question of when a non-signatory, such as a sovereign state, can be compelled to join arbitral proceedings. A typical scenario involves a private investor who…

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

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

When mapping the present trajectory of investment treaties, common themes include the “rebalancing” or “recalibration” of substantive disciplines, concepts that signal a retreat from the high-water mark of investor protection and a reorientation towards the preservation of regulatory space for host states. Generally, this phenomenon takes two forms: preparation of new model treaties (the prospective…

Arbitration Awards, Investment Arbitration, Other Issues

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

Until recently, no arbitral tribunal had found an investor’s claim under a BIT to be barred by a fork-in-the-road clause. Previous tribunals have found that for a fork-in-the-road clause to apply, the same dispute between the same parties must have been submitted to the local courts before resort to international arbitration and have drawn clear…

Arbitration Proceedings, Europe

(von Segesser Law Offices)/ /Leave a comment

In a recent decision dated 26 October 2009 (4A_428/2009), the Swiss Federal Tribunal held that a party that enters into a procedural agreement in parallel state court proceedings following unsuccessful compulsory judicial conciliation does not waive its right to arbitration when that party does not proceed on the merits without making any objections.

Africa, Arbitration Agreements, Investment Arbitration

(Investment Arbitration Reporter)/ /Leave a comment

When I last visited South Africa in 2006, there was much talk of a potential bilateral investment treaty between SA and Zimbabwe. Three years later, as I make another visit to the region, the long-promised deal has just been sewn up. But, despite much clamouring for a protective pact – particularly from South Africans with…