The Swiss Supreme Court recently rendered a decision (4_A428/2008, dated 31 March 2009) regarding the effects of insolvency proceedings on international arbitrations seated in Switzerland. This case concerns a multi-party arbitration conducted under the ICC Rules with its seat in Geneva. One of the co-respondents in the arbitration, a Polish company, informed the tribunal that…
1. Is Arbitral Jurisprudence anything more than a myth? 2. How does persuasiveness of past awards operate? 3. Is Precedent the product of the intrinsic qualities of one or more particularly well-reasoned awards? 4. Why do arbitral awards need to be available? 5. Why is reliance on arbitral precedents not frequent? 6. Should all awards…
In a Swiss Chambers for Arbitration and Mediation case decided in May last year and reported in ASA Bulletin, vol. 26, no. 4, p. 731, the Arbitral Tribunal admitted a counterclaim submitted with the rejoinder based on Article 20 Swiss Rules. The Swiss Rules do not contain a provision as we find in Article 19…
On 1 September 2008, the Hong Kong International Arbitration Centre (the “HKIAC”) adopted a new set of arbitration rules, entitled the Hong Kong International Arbitration Centre Administered Arbitration Rules (the “Administered Rules”). In a press release in January 2009, the HKIAC announced that it had already received cases under the Administered Rules. The Administered Rules…
On 1 May 2009, the new “Online” Arbitration Rules (the “Online Rules”) of the China International Economic and Trade Arbitration Commission (“CIETAC”) came into effect. At this stage, it appears that the Online Rules are only available in Chinese. The Online Rules are aimed primarily at e-commerce disputes, although parties are free to agree to…
“A systemic underestimation of the risks associated with bilateral investment treaties”. That’s how Alvaro Galindo put it. Dr. Galindo, is the Ecuadorian lawyer charged with coordinating that country’s defence of a bevy of international arbitration claims. Last week, speaking in his private capacity, he told a conference of the British Institute for International and Comparative…
The already much debated Paris Court of appeal judgment in Tecnimont, rendered on 12 February 2009, has put into light the dangers arising from the lack of uniformity in the field of conflict disclosure. The Paris Court of appeal has quashed a partial award because the chairman of the arbitral tribunal, a well-known international arbitrator…
When does a most-favoured-nation (MFN) treatment clause in an investment treaty confer jurisdiction on an investor-state arbitration tribunal? Most readers will be aware that in a series of decisions investment treaty tribunals have given very different responses to this question. On the one hand, a line of decisions suggests that, unless there is a express…
We at Kluwer Arbitration blog are most pleased to welcome Andrew Newcombe as our newest contributor. Andrew teaches commercial, international economic and arbitration law at the Faculty of Law, University of Victoria, Canada. His research and writing focuses primarily on investment treaty law and arbitration. In 2004, he established investment treaty arbitration, a resource website…
Under Swiss arbitration law, the validity of an arbitration agreement is in general subject to formal and substantive requirements (Article 178 of the PILA). With regard to the formal validity, Article 178(1) of the PILA requires the arbitration agreement to be in writing and allows the parties to use any means of communication which permits…
Germany has introduced an amendment to its Foreign Trade and Payments Act. It is a direct response to increased activities and acquisitions by sovereign wealth funds (SWFs), as they are often perceived to pursue economic as well as political aims. Despite this origin, the legislation does not only apply to SWFs. Instead, it allows the…
The Paris Court of appeal, on 25 September 2008, and the Swiss Federal Tribunal, on 5 December 2008 have rendered two interesting decisions. These two decisions address issues of primary importance, such as the “extension” of the arbitration agreement, joinders, and the scope of review by courts of award having declined the tribunal’s jurisdiction. These…
Tribunals in investment arbitrations currently impose a fairly consistent set of restrictions to the submissions of amici curiae in proceedings before them, such as short page limits, no access to the arbitral record, etc. The question is whether there are instances where these restrictions need to be tempered.
In a post last month, I offered a few thoughts on the future of moral damages in investment treaty arbitration. One arbitration where I thought we might see an award of moral damages is a case pitting a group of Dutch farmers (Funnekotter, et.al.) against the Government of Zimbabwe. By way of update, I wanted…
ICSID arbitration proceedings against Germany (Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG & Co. KG v. Federal Republic of Germany – ICSID On April 17, 2009, the government-owned Swedish energy company Vattenfall initiated Case No. ARB/09/6, reported in IA Reporter, April 2nd, 2009 (Vol. 2, No. 6)). The dispute concerns the construction by…
By now almost everyone in the international arbitration world is aware of the gavel-to-gavel coverage of the oral pleadings in the so-called Abyei Arbitration before the Permanent Court of Arbitration. The case included many of the leading lights of international arbitration, including Pierre-Marie Dupuy, Stephen Schwebel, and Michael Reisman among the arbitrators, and James Crawford,…
The relationship between Arbitration and European Judicial Private Law has not always been easy. The bedrock European Law principle in this field, as embedded in the European Council Regulation (EC) No. 44/2001 of December 22, 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (“the Judgment Regulation”), is the…
Dedicated to the late Thomas Wälde, The Future of Investment Arbitration examines some of the current pressures on investment arbitration and looks toward the future of the system as a whole. The authors address issues such as gaps in the procedural rules, the lack of development in certain substantive areas of international investment law, inconsistencies…
For international arbitrations seated in the United States, there has sometimes been a tension between the so-called “American rule” against the shifting of attorneys’ fees and litigation costs to the loser of the proceedings, and the more accepted practice of fee-shifting in international arbitrations as expressed in procedural rules such as the UNCITRAL and LCIA…
Kluwer Arbitration Blog is pleased to introduce Alexis Mourre as a guest blogger for the next month. Alexis specialises in international arbitration and international litigation with the law firm of Castalde Mourre & Partners in Paris. He has served as counsel to party, co-arbitrator, sole arbitrator or expert in more than 80 international arbitral procedures,…
In a decision dated 5 December 2008 (4A_376/2008), the Swiss Federal Court (“SFC”) had the opportunity to address two legal topics in the context of international arbitration: The first topic was the interpretation of a pathological arbitration clause. B___ Ltd. (“Claimant-Company”) had initiated arbitration proceedings in Lugano under the ICC rules against A.___ (“Respondent”) on…
The relevance of the Supreme Court’s Hall decision in Hall Street Associates, L.L.C. v. Mattel, Inc., 128 S. Ct. 1369 (2008) for the question of whether “manifest disregard of the law” can constitute a ground for vacatur of an arbitral award by a U.S. court has already been addressed in an earlier post to this…
In a post last month, I queried whether not-for-profit organizations could use bilateral investment treaties to challenge abusive treatment by host states. My guess (and that of a colleague with whom I’ve written on this topic) is that such organizations would have little difficulty qualifying as investors under most BITs – and that at least…
On Tuesday, the United States Supreme Court decided Iran v. Elahi, a case that appears to fall within a data set of one. As I reported elsewhere, the case is extraordinarily complex, focusing on whether a terrorist victim judgment creditor can attach a confirmed arbitration award rendered in Iran’s favor. Although it involves exotic issues…
