Arbitration Institutions and Rules, Arbitration Proceedings, Arbitrators, Investment Arbitration, Legal Practice, Public Policy

(School of International Arbitration, Queen Mary University of London (QMUL))/ /Leave a comment
Institute for Transnational Arbitration (ITA)

One can observe two rather opposing trends. On the one hand there is a steady (and more recently significant) increase in the number of arbitration cases; one the other hand there is a rather systematic criticism expressed by certain voices, predominately in the corporate world.Most well established institutions have recorded a 10% increase in their…

Arbitration Agreements, Arbitration Awards, Arbitration Proceedings, Arbitrators, Domestic Courts, Europe, National Arbitration Laws

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

Introduction If a party during arbitral proceedings withdraws its claim and the other party does not exercise its right to request an award in respect of the withdrawn claim, it has been suggested in Swedish legal doctrine that the parties, under certain circumstances, may have implicitly agreed that the arbitration agreement shall cease to be…

Investment Arbitration

(Investment Arbitration Reporter)/ /Leave a comment

In the latest twist in the ongoing war between foreign investors and the Republic of Argentina, a panel at the International centre for Settlement of Investment Disputes (ICSID) has lifted a stay on a $128 Million arbitral award. US energy company, Sempra, won its arbitration with Argentina in 2007, when arbitrators ruled that measures taken…

Arbitration Awards, Arbitration Proceedings, Investment Arbitration, Jurisdiction

(Debevoise & Plimpton LLP)/ /Leave a comment
American Society of International Law (ASIL)

Article 25 of the ICSID Convention, which draws the outer limits for the exercise of ICSID jurisdiction, does not define the concepts of “nationality” and “investment.” Aaron Broches, the principal author of the Convention, explains that this reflects a deliberate decision by the drafters to leave the choice of what constitutes an investment and who…

Arbitration Proceedings, Investment Arbitration

(University College Cork)/ /Leave a comment

As previously reported, in a decision rendered on 15 April 2009, an ICSID Tribunal declined jurisdiction to hear claims submitted by Phoenix Action Ltd (“Phoenix”) against the Czech Republic. Phoenix, an Israeli company, purchased two Czech companies, Benet Praha and Benet Group, in 2002 while these two companies were involved in ongoing legal disputes. The…

Domestic Courts, Europe, Legal Practice, Public Policy

(von Segesser Law Offices)/ /1 Comment

In the same arbitration proceedings, the Swiss Federal Supreme Court had to decide twice -albeit based on different grounds – whether facts discovered after the issue of an award (so called “nova”) may entail the amendment of the rendered award. In these decisions the Swiss Federal Supreme Court had the opportunity to restate its rigorous…

Arbitration Proceedings, Commercial Arbitration, Europe, National Arbitration Laws, Res Judicata

(Notre Dame Law School)/ /Leave a comment

I have been reading with interest the ILA’s Final Report and Recommendation on Res Judicata and Arbitration adopted at the 2006 Toronto conference. Recommendation 2 provides that: The conclusive and preclusive effects of arbitral awards in further arbitral proceedings set forth below need not necessarily be governed by national law and may be governed by…

Arbitration Awards, Enforcement, New York Convention, Other Issues

(White & Case LLP)/ /2 Comments
White & Case

Given the fundamental nature of the exceptions to the recognition and enforcement under the New York Convention (the “Convention”) it should not be forgotten that their application is in fact discretionary: Article V.1 of the Convention states that “Recognition and enforcement of the award may be refused at the request of the party against whom…

Arbitration Institutions and Rules, Arbitration Proceedings, Asia-Pacific, Commercial Arbitration, National Arbitration Laws

(Borris Hennecke Kneisel)/ /Leave a comment
Freshfields Bruckhaus Deringer

As arbitration continues its upward trajectory in the world of dispute resolution, eyes have remained fixed on legal developments in China. With the significant growth of international transactions involving Chinese parties, there has been an equally staggering rise in the number of disputes. In China, arbitration has quickly become an accepted method of resolving international…

Investment Arbitration, Legal Practice, North America

(Investment Arbitration Reporter)/ /Leave a comment

Following on from Patrick Dumberry’s post, I wanted to offer some information on another pending investor-state dispute where a version of the persistent objector argument has arisen. There is an ongoing discussion in the Grand River Enterprises v. USA NAFTA arbitration, as to whether there is an “emerging” customary international law norm which requires States…

Arbitration Awards, Arbitration Proceedings, International Courts, International Legal Theory and Teaching, Investment Arbitration, Legal Practice, South America, UN and Int’l Organizations

(University of Ottawa Faculty of Law, Civil Law Section)/ /1 Comment

The question of the existence of legal protection for foreign investors under customary international law has always been controversial. States have indeed entered into BITs precisely because of the lack of development of relevant custom rules in the field of international investment law. It is nonetheless largely agreed today that some rules of customary law…

Investment Arbitration

(Investment Arbitration Reporter)/ /Leave a comment

After several months of increasingly angry political rhetoric, and a formal green-light from the country’s Legislature, Ecuadorian President Rafael Correa has made his country the second state to denounce the ICSID Convention in recent years. It’s no secret that ICSID has been singled out for particular opprobrium from some governments in Latin America, and it…

Arbitration Awards, Arbitration Proceedings, Europe, Investment Arbitration, Jurisdiction

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

In a decision rendered on April 15, 2009, a three-member tribunal composed of Brigitte Stern as chairperson, Andreas Bucher and Juan Fernandez-Armesto rejected Phoenix Action Ltd’s (“Phoenix”) claims against the Czech Republic. By way of background, Phoenix is an Israeli company which purchased two Czech companies, Benet Praha (“BP”) and Benet Group (“BG”), in 2002…

Arbitration Agreements, Arbitration Awards, Arbitration Institutions and Rules, Arbitration Proceedings, Asia-Pacific, Domestic Courts, Investment Arbitration, Seat of the arbitration

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

It is well accepted that state responsibility arises under international law for denial of justice. This might occur, for example, where a state court abuses its supervisory function over an international arbitration. In the investment treaty context, a denial of justice by host state courts would normally lead to a fairly straight forward breach of…

Arbitration Awards, Commercial Arbitration, Domestic Courts, North America

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

One of the benefits of international commercial arbitration is the ability to resolve disputes between the parties in a single, neutral forum that gives neither party a “home court advantage.” After a dispute arises, however, litigious parties sometimes engage in tactical maneuvering aimed at circumventing the parties’ agreement to arbitrate. A recent US case gives…

Investment Arbitration

(Investment Arbitration Reporter)/ /1 Comment

Over on the always-interesting International Economic Law and Policy Blog, Simon Lester has been musing about the recent controversy over internet-filtering software in China. As has been widely reported in the financial press, computer makers are facing demands to install internet-filtering software (ostensibly to combat the problem of Chinese internet users being exposed to online…

Arbitration Institutions and Rules, Arbitration Proceedings, Arbitrators, Domestic Courts, North America

(Notre Dame Law School)/ /Leave a comment

As international arbitration becomes ever more sophisticated and complex, one wonders whether it will continue to have the institutional capacity to address its protean tasks. Claims in the billions of dollars are now common. Thousands of individuals are affected by the outcome of a single arbitration decision. And the complexity of the cases is such…

Other Issues

(von Segesser Law Offices)/ /Leave a comment

Under the applicable Swiss law, fees and charges arising in connection with the exercise of functions of arbitration are exempted from VAT. Specifically, the respective section of Article 23(1) of the Swiss Federal Act of 2 Sept. 1999 on Value Added Tax (“VATL”) reads as follows: “[…] For services which they perform in sovereign right,…

Commercial Arbitration, Domestic Courts, Legal Practice, National Arbitration Laws, North America

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

Addressing an issue of first impression, the United States Court of Appeals for the Sixth Circuit recently held that, notwithstanding a prior-filed lawsuit in Australia, the doctrine of international abstention did not prevent a federal court from deciding a motion to compel arbitration under Chapter 2 of the Federal Arbitration Act. Answers in Genesis of…

South America

(Lee Taube Gabardo; Editor in Chief, Brazilian Arbitration Journal)/ /4 Comments

Dear all, As you know, arbitration in Brazil has become a reality. After several decades of being considered as the last frontier of international arbitration in Latin America, Brazil is now one the most important country in the practice of arbitration on this continent. The last years’ ICC International Arbitration Court statistics show the influential…

Arbitration Institutions and Rules, Arbitration Proceedings

(Freshfields Bruckhaus Deringer LLP)/ /Leave a comment
YIAG

The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) has recently proposed the inclusion of an “Emergency Arbitrator” procedure in the SCC Rules (see Draft New Rules with Notes). On 18 June 2009, the drafting committee for the Emergency Arbitrator proposal presented the main amendments gathered from the comments of the arbitration community to…

Investment Arbitration, North America, Public Policy

(Crowell & Moring LLP)/ /1 Comment
American Society of International Law (ASIL)

On May 4, 2009, the Obama administration proposed far-reaching measures designed to curb the tax benefits enjoyed by U.S.-based multinational corporations with offshore operations. Based on 2004 figures, those corporations are said to enjoy an effective tax rate of about 2.3% on their foreign revenue. The measures seek to end the practice of U.S. multinationals…

Arbitration Agreements, Europe, Investment Arbitration

(Freshfields Bruckhaus Deringer)/ /Leave a comment
Freshfields Bruckhaus Deringer

Conference: Fifty Years of Bilateral Investment Treaties December 1-3, 2009, Frankfurt Fifty years ago, Germany and the Islamic Republic of Pakistan concluded the first ever bilateral investment treaty. To mark (and celebrate) this important milestone in the development of investment protection, the German Society for the Promotion of Foreign Investments (GFA) and the German Federal…