India, judicial review

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While refusing to interfere with an award under Section 68 of the English Arbitration Act, Justice Teare pithily quipped that “by choosing to resolve disputes by arbitration the parties clothe the tribunal with jurisdiction to make a ‘wrong’ finding of fact”. These observations made in the set-aside proceedings are rooted in the fundamental principle that…

Annulment, Commercial Arbitration, Corruption, Latin America, Peru

(Pontificia Universidad Católica del Perú and Universidad Peruana de Ciencias Aplicadas)/ /Leave a comment

On 12 March 2024, Judge Ana C. Reyes, presiding over the District of Columbia (“D.C.”) Circuit, issued a decision on the petition to set aside filed by the Municipalidad de Lima concerning two arbitral awards. Judge Ana C. Reyes denied the petition from the Municipalidad de Lima. This post describes the background to this long-standing…

Advisory Centre, ICSID, PCA, Permanent Court of Arbitration, UNCITRAL, UNCITRAL WG III Series, UNCITRAL WG3 Series

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On 8 April 2024, following lengthy discussions dating back to 2019, the UNCITRAL Working Group III (“WGIII”) completed the draft statute of an advisory centre on international investment dispute resolution (“Advisory Centre”) (see previous coverage). The statute, incorporating inputs from over 70 state delegations and 40 international organisations, will be presented for approval at the…

Chile, Good Faith, Intellectual Property, International Commercial Arbitration, Latin America

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In a recent decision dated April 8, 2024, a sole arbitrator seated in Santiago de Chile ruled in favor of Saudi Arabian Oil Company (“Aramco” or the “Claimant”) in an internet domain property dispute. The dispute between Aramco and Mr. Joaquín Poblete (“Mr. Poblete” or the “Respondent”) arose when Mr. Poblete registered and obtained property…

Arbitration Award, Chinese Arbitration Law, Enforcement

(Arnold & Porter), (JunHe LLP), and / /Leave a comment

It is well-recognized in the world of international arbitration that the curial courts—those at the seat of the arbitration—have supervisory jurisdiction over their local arbitral proceedings (the so-called “seat standard”). Despite this, Chinese courts have historically been reluctant to take on the mantle of this supervisory jurisdiction for arbitrations administered by foreign arbitration institutions within…

English courts, English Law, Virtual hearings, Witness

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Taking witness evidence by video has long been considered acceptable practice in many jurisdictions.  The Covid-19 pandemic of recent years has further affirmed the acceptability and use of this method of evidence-taking in both litigation and arbitration proceedings, especially since the only alternative to a remote hearing during those years was the even less desirable…

Annulment, Enforcement, Investor-State arbitration, Public Policy, Swiss Private International Law Act, Switzerland

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On 26 April 2024, the Swiss Federal Supreme Court (“SFSC”) rendered decision 4A_486/2023, upholding the unpublished Final Award in Clorox Spain S.L. v. Bolivarian Republic of Venezuela (“Clorox v. Venezuela”) (PCA Case No. 2015-30). In the underlying investment treaty arbitration, Clorox sought compensation for the alleged expropriation and unfair treatment of its investment by Venezuela,…

Brazilian Arbitration Act, CAM, COVID-19, Eastern Europe, Economic Sanctions, English courts, English Law, French Law, French Supreme Court, Italy, LCIA, Nigeria, Nigeria Arbitration and Mediation Act, Revision of Award, Russia, Sanctions, UK Supreme Court, Ukraine, UNIDROIT Principles

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On 13 June 2024, Italian Arbitration Day took place in Rome. The full-day conference saw a large number of arbitration practitioners dealing with the issue of globalization and geography in the arbitration. This post offers an overview of the key takeaways from the discussion.   Introduction: The Past, Present, and Future of Globalization   After…

Energy, International agreement, Investment Arbitration

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If an international arbitration practitioner hears “renewable energy,” “renewable energy source,” (“RES”) or even “energy transition” disputes, chances are that he or she may think of the Energy Charter Treaty (“ECT”) and the torrent of claims filed by investors against European Union (“EU”) Member States. These claims challenge retroactive regulatory changes to feed-in tariff and…

Arbitration – The International Journal of Arbitration

(General Editor International Journal of Arbitration, Mediation and Dispute Management; Queen Mary University of London), , (Chartered Institute of Arbitrators), (Queen Mary University of London), and (Three Crowns)/ /Leave a comment

The ever-recurring issue of investment treaty law and arbitration reform takes again center stage in this issue, courtesy of Noah Barr’s excellent piece focusing on the EU Commission’s ‘model’ of international investment protection as such model arises from the so-called new-generation International Investment Agreements (‘IIAs’) which the EU signed in recent years. Noah discusses the…

Canada, Enforcement, Interim measures, UNCITRAL Model Law

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The Supreme Court of Canada (“SCC”) recently delivered a judgment which, while dealing primarily with the issue of bank guarantees, serves as a window into a Paris-seated ICC arbitration between a Canadian aircraft manufacturer Bombardier inc. and the Hellenic Ministry of Defense (“HMOD”). The case of Eurobank Ergasias v. Bombardier inc. brings to the forefront…

Denial of Benefits, Energy Charter Treaty, EU Law, European Commission, European Union, Investment Arbitration

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The European Commission’s “Proposal for a Council Decision on the partial suspension of the application of the Energy Charter Treaty between the Union and any legal entity that is owned or controlled by citizens or nationals of the Russian Federation or of the Republic of Belarus, and any Investment within the meaning of the Energy…

Arbitration Institutions and Rules, Artificial Intelligence, Confidentiality and Transparency, Expedited arbitration, JAMS

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On 23 April 2024, JAMS announced its Artificial Intelligence Disputes Clause and Rules (“JAMS AI Rules”), effective 15 April 2024.  According to JAMS, these Rules “reflect the latest developments and trends in the ADR space and address the rise in usage and development of AI systems and smart contracts.” Today, artificial intelligence (“AI”) is a…

Arbitration Awards, Enforcement, New York Convention, Supreme Court of Pakistan

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The recognition and enforcement of foreign arbitral awards in Pakistan has been a subject of significant legal scrutiny and development. The Supreme Court of Pakistan has recently issued a landmark judgment aimed at clarifying and rectifying the legal framework surrounding this issue, aligning it more closely with international standards.    Historical Background Historically, the enforcement…

Culture, Empirical Research, Evidence, FAI, International arbitration, Language, Legal Design, Psychology

(King’s College London and 3 Verulam Buildings)/ /Leave a comment

It was around 367 BCE when Plato wrote Νόμοι (The Laws), marking the first proper consideration of arbitration as a method for resolving private disputes. This work highlighted arbitration’s cost-effectiveness, the autonomy it provides through arbitrator selection, and the expertise and impartiality of arbitrators. Fast forward to today, arbitration is increasingly embraced by the international…

Advisory Centre, UNCITRAL, UNCITRAL WG III Series, UNCITRAL WG3 Series

(International Institute for Environment and Development)/ /Leave a comment

At its 57th Session, taking place in New York between 24 June and 12 July 2024, the United Nations Commission on International Trade Law (“UNCITRAL”) will discuss the adoption “in principle” of the draft statute of an advisory centre on international investment dispute resolution. The text is the result of much deliberation in UNCITRAL Working…

Brazil, Latin America

(Fonseca e Salles Lima Advogados Associados)/ /1 Comment

On May 14, 2024, the traditional Rio de Janeiro International Arbitration Conference promoted by Canal Arbitragem, under the academic coordination of João Bosco Lee, Lauro Gama, and Maurício Almeida Prado, was held at the auditorium of the Fundação Getúlio Vargas (‘FGV-RJ’). Conceived nearly 20 years ago by two of the greatest authorities in national arbitration,…

Constitutional Court, Ecuador, ICSID Arbitration, International arbitration, International Investment Arbitration, Investment Arbitration, Investor-State arbitration, ISDS, Latin America, Trade and investment agreements

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The Ecuadorian government held a referendum and a public consultation on 21 April 2024. Question D of the referendum asked citizens: “Do you agree that the Ecuadorian State recognizes international arbitration as a method to resolve disputes related to investment, contractual, or commercial matters?” (free translation). The substantive proposal of the question was merely based…

Artificial Intelligence, SVAMC AI Guidelines

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The Silicon Valley Arbitration and Mediation Center’s (SVAMC) Guidelines on the Use of Artificial Intelligence in Arbitration (“Guidelines”) strive to become the first set of rules governing artificial intelligence (“AI”) recognized within the international arbitration community. These have previously been briefly discussed here, here and here. After more than a year of preparation, including a…

Expropriation, ICSID, Investor-State arbitration, Latin America, Panama

, (Reed Smith)/ /1 Comment

In the 2022 case of Omega Engineering LLC and Oscar Rivera v. Republic of Panama (ICSID Case No. ARB/16/42), the Tribunal faced the challenge of distinguishing between a state’s sovereign acts and its commercial activities. This case raised the critical question of when a state’s conduct shifts from exercising sovereign authority to acting as a…

Expedited Proceedings, Expert Determination, ITA, Mining Sector

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On 6-7 March 2024, experienced practitioners in international arbitration and mining disputes gathered at the Shangri-La in Toronto for the 2nd ITA Conference on International Arbitration in the Mining Sector. At the commencement of the conference, the attendees were welcomed by Tomasz J. Sikora (Exxon Mobil Corporation), the ITA Chair. In his introduction, Mr. Sikora…

ICCA Awards Series, Yearbook Commercial Arbitration

(General Editor, ICCA Publications; Amsterdam Center for International Law, University of Amsterdam)/ /Leave a comment

Recently, the first upload of awards from the ICCA Awards Series 2024 and the second upload of court decisions from the Yearbook 2024 went online on Kluwer Arbitration. The first upload of materials for the 2024 volume of the ICCA Awards Series features the preliminary and the final ad hoc awards in the Sulu case, a dispute between the heirs…

Full Protection and Security, Latin America, Mexico, Mining Sector, Organized crime

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The growing interference of Mexican drug cartels in mining activities questions whether international investors can be protected by investment treaties. This post offers an initial outlook as to whether cartel extortion could constitute a violation of the Full Protection and Security (“FPS”) standard typically found in such treaties.   Background During the last 17 years,…

Brexit, ECT Modernisation, ECT Withdrawal, Energy Charter Treaty, England, Investment Arbitration, UK

(Luther Rechtsanwaltsgesellschaft mbH)/ /Leave a comment

At the end of February 2024, the United Kingdom (“UK”)’s Energy Security and Net Zero Minister Graham Stuart announced his country’s decision to withdraw from the Energy Charter Treaty (“ECT”). On 28 May 2024, the Energy Charter Secretariat revealed in a press release that the UK’s formal notification of withdrawal had already been received by…