The 2019 Moroccan Model BIT (the ‘2019 Model BIT’) is a good example of the growing body of ‘new generation’ Model BITs fuelling the ISDS reform conversation. Broadly speaking, the drafters of these agreements (including the 2019 Dutch Model BIT, 2017 Colombian Model BIT, and 2016 Pan-African Investment Code) have attempted to rethink means of…
In the absence of concrete publicly available information about arbitrators, arbitration practitioners often resort to cognitive shortcuts and just plain guesswork in the arbitrator selection process. As explored in a previous post, parties and counsel frequently rely on arbitrators’ common-law or civil-law education and practice as indicators for how they might approach key case management…
On 9 February 2022, the French Supreme Court (‘Cour de cassation’) held that a respondent party in arbitration cannot sabotage proceedings by refusing to pay its share of the advance on costs, then subsequently challenge the jurisdiction of national courts in favour of arbitration. Such behaviour, according to the French Supreme Court, constitutes a breach…
For the last 20 years Latin America has been a fertile ground for ISDS. From the cases against Argentina in the early 2000s, to those against Venezuela, Ecuador, Mexico and Bolivia in subsequent years, and more recently Peru and Colombia, investment treaty disputes in the region have continued to arise. While the seeds of the…
Ms Lucy Reed is a full-time arbitrator and a Visiting Professor at National University of Singapore. Previously, she was the Co-Head of Freshfields Bruckhaus Deringer’s Global International Arbitration Group. Her prior experience includes acting as the US Agent to the Iran-US Claims Tribunal and as General Counsel of the Korean Peninsula Energy Development Organization (“KEDO”). …
As he embarks on the second half of his term, Mexico’s President, Andres Manuel López Obrador (known as “AMLO”), continues to fight foreign investors in a myriad of sectors. By now it is clear that his presidency will be marked by his stance against the private sector and previous administrations which, in his view, “pillaged…
As part of the 2022 Paris Arbitration Week, Three Crowns held on 31 March 2022 a conference on “Renewable Energy and Arbitration”. The panel was comprised of Marc Péresse (Head of Legal Offshore Wind at EDF Renewables), Fabien Roques (Executive Vice President with Compass Lexecon and Associate Professor in Economics at Paris Dauphine and at…
Paris Arbitration Week 2022 demonstrated the arbitration community’s increasing interest in sports-related disputes, with three events dealing with sports arbitration. This post is a non-exhaustive account of those events. Panelists covered different topics, ranging from the venues of sports arbitration to diversity in arbitration panels, sports and competition law, the impact of Covid-19 and economic…
As part of the 2022 Paris Arbitration Week, Jeantet organised a round table on “The Fair and Equitable Treatment Standard: Update and Perspective”. The panel was composed of Yuriy Pochtovyk (Legal Official, Energy Charter Secretariat), Prof. Kaj Hobér (Associate Member, 3 Verulam Buildings), Barton Legum (Partner, Honlet Legum Arbitration), Irena Alajbeg (Croatian Ministry of Foreign and…
As part of the 2022 Paris Arbitration Week, Jeantet organised a conference on “The impact of Russian sanctions on international commercial arbitration: from arbitrability to enforcement”. The panel was composed of Crina Baltag (Associate Professor, Stockholm University; and Editor of the Kluwer Arbitration Blog), David Lasfargue (Partner, Jeantet), Niamh Leinwather (Secretary General, VIAC), Evgenyia Rubinina…
On 26 November 2020, the German Federal Supreme Court (Bundesgerichtshof—BGH) intervened in the “disputed” question of the applicability of the CISG to arbitration agreements (I ZR 245/19, para. 28). The Decision—based on the specific factual circumstances of the case and the most-favorable-law provision (Article VII) of the New York Convention on the Recognition and Enforcement…
One of the leading scholars in international dispute resolution today is Sundaresh Menon, the Chief Justice of the Supreme Court of Singapore. In March of 2021, he delivered the opening address at the Singapore International Commercial Court Symposium. As part of his welcome delivered virtually, he made some interesting observations: History informs us that while…
Environmental concerns now play an increasing role in investment disputes. In this regard, this post analyses the interpretation of an environmental carve-out in an investment treaty in the decision on jurisdiction and liability in Eco Oro Minerals Corp. (“Eco Oro”) v. Colombia. Background and Award This dispute arose from Colombia’s measures adopted in connection…
Long before modern litigation or arbitration, Socrates famously cross-examined one of his accusers and, through systematic lines of questioning, undermined their claims. Though it did not save him Socrates looms large in the imagination of modern lawyers as one of the best cross-examiners of all time. Cross-examination is a complex, yet exciting discipline that requires,…
When and how arbitral tribunals should give effect to international sanctions is a long-standing question in international arbitration. Unilateral economic sanctions have been traditionally characterised as factual impediments that could trigger force majeure or frustration of purpose defences. However, a growing number of scholars and practitioners have criticised this factual approach and have advocated for…
On 18 February 2022, the Brussels court of first instance set aside an UNCITRAL award regarding a claim brought against the Republic of Poland under the US-Poland bilateral investment treaty (US-Poland BIT). This is the first time we see a Belgian court set aside an investment treaty award. The court decided that the arbitral tribunal…
In Singapore, lawyers and their clients will soon be able to enter into conditional fee agreements (“CFAs”) for arbitrations and certain court proceedings. CFAs provide parties with an alternative to traditional fee arrangements and third-party funding (“TPF”) by enabling part or all of their lawyers’ fees and costs, as well as an uplift fee, to…
On 14 March 2022, the first day of the inaugural California International Arbitration Week, the Japan Commercial Arbitration Association (“JCAA”) hosted a webinar on the rising waves of arbitration in Japan and California. The session was moderated by Kazuhiko Nishihara (Secretary General, Japan International Mediation Center in Kyoto), and featured speakers Yoshinori Tatsuno (Partner, Mori…
On the third day of the Inaugural California International Arbitration Week, Silicon Valley Arbitration & Mediation Center (“SVAMC”) held a webinar on the locus of international disputes. The focus of the session was the shifting seat of international disputes, as arbitration’s centre of gravity is steadily advancing to the Pacific. This westward (from a United…
The inaugural California International Arbitration Week (“CIAW”) took place on March 14 through 18, 2022 and highlighted the attractive features of arbitrating international commercial disputes in California. What better way to begin CIAW than in Hollywood, with a discussion on recent international dispute developments and trends in the film and entertainment industry. The panel featured…
In her blog post on 27 February 2022, Kiran Nasir Gore expressed measured optimism regarding the international arbitration (IA) community’s collective progress towards greater diversity especially over the last few years. She highlighted various recent initiatives and developments including Racial Equality for Arbitration Lawyers (REAL), the Rising Arbitrators Initiative (RAI) and the appointment of first…
Modern society is amazed by empirical analysis, and the legal world is no exception. Indicators, rankings, and reports have been widely used to compare the independence and efficiency of legal systems with very different cultural and historical backgrounds. They are often regularly published and updated by think tanks and international organizations, both governmental and non-governmental….
A topic that has been hugely debated in the arbitration world is whether non-payment of the advance on arbitration costs constitutes waiver of the arbitration clause. The answer to this debate does not only differ from one jurisdiction to another but may differ in the same jurisdiction. This blog post examines how the courts in…
The permissive language of Article V(1)(e) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) continues to tease parties challenging recognition and enforcement of arbitral awards with the prospects of success. That is the case for Nigeria in its latest efforts to fend off the confirmation of a…
