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…
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…
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…
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,…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
My former Pepperdine colleague, Kathryn Lee Boyd, has just filed a fascinating complaint relating to the distribution of funds secured by a treaty between the United States and Libya on behalf of U.S. victims of Libyan-sponsored terrorism.
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…
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…
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…
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…
