Showing papers in "Arbitration International in 2015"

In defense of bilateral investment treaties

Abstract: Anglo-Iranian Oil Co, United Kingdom v Iran , Judgment, Jurisdiction, ICGJ 188 (ICJ 1952) Permanent sovereignty over natural resources, United Nations General Assembly Resolution 1803 (XVII) (1962)Charter of Economic Rights and Duties of States, United Nations General Assembly Resolution 3281 (XXIX) (1974)(ICSID) Convention on the Settlement of Investment Disputes between States and Nationals of other States (1965) The SS ‘Wimbledon’, United Kingdom and ors v Germany , Judgment (Merits), ICGJ 235 (PCIJ 1923) CME Czech Republic v Czech Republic , Partial award and separate opinion, IIC 61 (2001) Lauder v Czech Republic , Final Award, IIC 205 (2001) Maffezini v Spain , ICSID Case No. ARB/97/7, Decision on objections to jurisdiction, IIC 85 (2000) Plama Consortium Limited v Bulgaria , ICSID Case No. ARB/03/24, Decision on Jurisdiction, IIC 189 (2005) SGS Societe Generale de Surveillance SA v Pakistan , ICSID Case No. ARB/01/13, Decision on Objections to Jurisdiction, IIC 223 (2003) Salini Costruttori SpA and Italstrade SpA v Jordan , ICSID Case No. ARB/02/13, Decision on Jurisdiction, IIC 207 (2004)Energy Charter Treaty (Energy Charter Conference) (1994)

Has Abaclat v Argentina left the ICSID with a ‘mass’ive problem?

Abstract: This article seeks to analyse the impact of the award on jurisdiction in Abaclat v Argentine Republic . Specifically, the article discusses whether the tribunal’s decision to allow ‘mass arbitrations’ within the ICSID (International Centre for Settlement of Investment Disputes) framework withstands scrutiny. An attempt is made to define mass arbitrations as a form of multiparty arbitrations with two key features—the presence of a high number of claimants and issues that are ‘sufficiently similar’. On this foundation, the article first highlights that ‘mass arbitrations’, as understood in Abaclat , do not require claimants to obtain additional consent from a respondent state. This is because multiparty proceedings (of which ‘mass arbitrations’ are a form) are permitted under Article 25 of the ICSID Convention. The article then presents three possible challenges to admissibility—bifurcation of proceedings, appointment of experts, and collection of evidence—and argues that these are permitted in ICSID jurisprudence since they are procedural devices which a tribunal is qualified to adopt under Article 44 of the ICSID Convention. Finally, the article dismisses possible due process concerns that Abaclat -type ‘mass arbitrations’ could raise. The article concludes with a suggestion to adopt specific rules on ‘mass arbitrations’ in the form of Additional Facility Rules, given the growing examples of multiparty investment disputes. Abaclat and ors v Argentine Republic , ICSID Case No ARB/07/5, Decision on Jurisdiction and Admissibility, IIC 504 (2011) Ambiente Ufficio S.p.A. and ors v Argentine Republic , ICSID Case No ARB/08/9, Decision on Jurisdiction and Admissibility, IIC 576 (2013) Guaracachi America, Inc & Rurelec plc v Plurinational State of Bolivia , PCA Case No 2011–17, Award, IIC 628 (2014)(ICSID) Convention on the Settlement of Investment Disputes between States and Nationals of other States (1965), arts 25, 43, 44ICSID Rules of Procedure for Arbitration Proceedings (2006), Rules 19, 34UNCITRAL (United Nations Commission on International Trade Law) Arbitration Rules (2010), art 17

Commercial courts and international arbitration—competitors or partners?

Abstract: Drawing on the author's extensive personal experience as an international arbitrator, Senior Counsel in Singapore, and the non-resident Chief Justice of the Dubai International Financial Centre (DIFC) Courts, this article examines the relationship between commercial courts and international arbitration in two jurisdictions, Singapore and Dubai. The author discusses the impact that the newly established Singapore International Commercial Court (SICC) will most likely have upon the Singapore International Arbitration Centre (SIAC) to conclude that these two dispute resolution forums will most likely complement one another. The article then moves on to discuss a novel, mutually beneficial interaction between the courts and arbitral institutions through the new Practice Direction of the DIFC which seeks to ‘convert’ court judgments into arbitration awards, thereby allowing successful parties to enforce their court judgments through either arbitration or litigation. United Arab Emirates Civil Procedure Code, Federal Law No. 11 (1992)(Hague) Convention on Choice of Court Agreements (2005)GCC (Gulf Cooperation Council) Convention for the Execution of Judgments, Delegations and Judicial Notifications (1996)Riyadh Arab Agreement for Judicial Cooperation (1983)Singapore Rules of Court, Order 110 (2015)DIFC (Dubai International Financial Centre) Arbitration Law No. 1 (2008)(New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) Tjong Very Sumito v Antig Investments Pte Ltd [2009] 4 SLR(R) 732. Dalian Hualiang Enterprise Group Co Ltd v Louis Dreyfus Asia Pte Ltd [2005] 4 SLR 646. Halki Shipping Corporation v Sopex Oils Ltd [1998] 1 LLR 465. Hayter v Nelson Home Insurance Co [1990] 2 LLR 265. Ellerine Brothers (Pty) Ltd v Klinger [1982] 1 WLR 1375.

Sociology of international arbitration

Abstract: Since the first comprehensive work in sociology of international arbitration in 1996 by Dezalay and Garth, international arbitration has changed considerably. This article considers those changes, through the prism of sociology. Although the essential players (parties and arbitrators) remain the same, arbitration nowadays includes a host of new actors: the numerous service providers, including the ‘merchants of recognition’ that distribute legitimacy within the field of international arbitration; and the value providers who provide guidance as to the way international arbitration should develop and how arbitral social actors should behave. This article also describes the main rituals in international arbitration that structure the manner in which social actors are expected to behave, as well as the manner in which actors interact in the field of international arbitration. In particular, it shows how international arbitration, as a social field, has evolved from a solidaristic to a polarized model in which a variety of actors share different sets of values and beliefs. After drawing a distinction between functions and roles and its impact on the assessment of conflicts of interest, the author explores how norms are generated in a polarized field.

The emergency arbitrator: a full-fledged arbitrator rendering an enforceable decision?

Abstract: Emergency procedures are becoming increasingly popular in international arbitration Their effectiveness is however disputed, there being uncertainty as to both the proper status of the subject granting emergency relief—so called emergency arbitrator—and the enforceability of his decisions This contribution aims at shedding light on the above-mentioned issues To this end, it first describes the general procedural framework in which emergency procedures are carried out It then delves into the questions of what the proper status of an emergency arbitrator is and whether emergency decisions are capable of being enforced by state courts, suggesting that the emergency arbitrator is a full-fledged arbitrator rendering decisions that may enjoy (at least a certain degree of) enforceability Finally, it puts forward a proposal for an international instrument on recognition and enforcement of arbitral interim measures, including emergency decisions, which may enhance their effectiveness (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) Hong Kong Arbitration Ordinance (2013) Singapore International Arbitration Act (2012) ICC (International Chamber of Commerce) Arbitration Rules (2012) LCIA (London Court of International Arbitration) Arbitration Rules (2014) ICDR (International Centre for Dispute Resolution) Arbitration Rules (2009) SCC (Stockholm Chamber of Commerce) Arbitration Rules (2010) SIAC (Singapore International Arbitration Centre) Arbitration Rules (2013) HKIAC (Hong Kong International Arbitration Centre) Arbitration Rules (2013) NAI (Netherlands Arbitration Institute) Arbitration Rules (2010) Yahoo! v Microsoft , US District Court (SDNY) (2013) Total Fina Elf E&P Congo c Societe Nationale des Petroles du Congo et Republique du Congo , Cour d’appel de Paris (2003) Swiss Code of Private International Law (1987) English Arbitration Act (1996) Dutch Arbitration Act, Code of Civil Procedure, Book IV (1986) [ Wetboek van Burgerlijke Rechtsvordering ]

Private damages in EU competition law and arbitration: a changing landscape

Abstract: There are various obstacles within the EU Member States, which currently prevent, to a greater or lesser extent, the possibility to successfully obtain damages for harm caused by an infringement of the EU competition rules. On 26 November 2014, an EU Directive on antitrust damages actions was adopted. This sets out some minimum ground rules in order to level the playing field across the Member States with a view to making it easier to actually pursue such actions and claims successfully. On a broader level, the Directive has incorporated specific provisions to promote the effective use of consensual dispute resolution as an alternative route to enabling the victims of EU competition law infringements to obtain compensation. This paper discusses the provisions of the Directive, in terms of its potential impact on the use of arbitration to obtain private damages within the EU. It outlines and analyses the existing legislative framework in relation to the public and private enforcement of EU competition law within the EU, the possibility to arbitrate EU competition law infringements and arbitration of EU competition law in practice. It then outlines and discusses both the provisions of the Directive in relation to consensual dispute resolution and some of its most relevant and noteworthy other provisions, in particular with regard to their potential impact on the arbitration of cases involving EU competition law infringements. Finally, the paper concludes on the potential for arbitration in this area in the future and whether the Directive is likely to have much of an impact in this regard. Directive 2014/104/EU on antitrust damages actions (2014) Council Regulation (EC) 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (2004) Case 102/81 Nordsee v Reederei Mond , European Court of Justice (1982) Case C-88/91 Federconsorzi , European Court of Justice (1992) Cases C-430/93 and C-431/93 Van Schijndel and van Veen v Stichting Pensioenfonds voor Fysiotherapeuten , European Court of Justice (1995) Case C-126/97 Eco Swiss China Time Ltd v Benetton International NV , European Court of Justice (1999) Mitsubishi Motors Corporation v Soler Chrysler Plymouth Inc , US Supreme Court (1985)

ICSID provisional measures ‘in the round’

Abstract: Provisional measures are an increasingly important device in international arbitration, particularly where the stakes are high and the proceedings inevitably long. But, for the most part, the conditions that must be satisfied before they will be granted remain a matter for the parties to argue, and the tribunal to determine. This is especially so in the case of proceedings at the International Centre for Settlement of Investment Disputes (ICSID), where the relevant posited law is open textured and the tribunal’s discretion is broad. This makes the task of advising on, preparing and responding to provisional measures requests more difficult. Based on published decisions, this article seeks to provide a practical explanation of the five requirements that are most often applied by ICSID tribunals to decide requests for provisional measures. The conclusion reached is that, although urgency and necessity are probably the most important factors, few arbitrators follow a ‘checklist’ approach. Instead, most arbitrators evaluate all five of the main conditions ‘in the round’, meaning they assess the strengths and weaknesses of the request overall, guided by their own preferences and experiences. (ICSID) Convention on the Settlement of Investment Disputes between States and Nationals of other States (1965), art 47ICSID Rules of Procedure for Arbitration Proceedings (2006), Rule 39 Caratube International Oil Company LLP v Republic of Kazakhstan , ICSID Case No. ARB/08/12, Decision Regarding Claimant's Application for Provisional Measures (2009) Victor Pey Casado v Republic of Chile , ICSID Case No. ARB/98/2, Decision on Provisional Measures (2001) RSM Production Corporation v Saint Lucia , ICSID Case No. ARB/12/10, Decision on Saint Lucia's request for security costs, IIC 655 (2014) Tethyan Copper Company Pty Limited v Islamic Republic of Pakistan , ICSID Case No ARB/12/1, Decision on Claimant's Request for Provisional Measures (2012) Plama Consortium Ltd v Republic of Bulgaria , ICSID Case No. ARB/03/24, Order of the Tribunal on the Claimant's Request for Urgent Provisional Measures, IIC 190 (2005) Churchill Mining plc v Republic of Indonesia , ICSID Case No ARB/12/14, Procedural Order 3 (Provisional Measures) (2013) Perenco Ecuador Ltd v Republic of Ecuador & Empresa Estatal Petroleos del Ecuador , ICSID Case No. ARB/08/6, Decision on Request for Provisional Measures (2009) Bernhard von Pezold and ors v Zimbabwe , ICSID Case Nos. ARB/10/15, ARB/10/25, Directions concerning claimants' application for provisional measures, IIC 549 (2012) Quiborax SA and ors v Bolivia , ICSID Case No. ARB/06/2, Decision on Provisional Measures, IIC 422 (2010)

Umbrella clauses: a trend towards its elimination

Abstract: Since 2003, when the issue of its scope was discussed for the first time in SGS v Pakistan , the umbrella clause have been stressing parties, lawyers, and more importantly, arbitrators. Arguably one of the most controversial standards of protection in investment treaties, through the past decade many arbitral tribunals reached different conclusions concerning the interpretation of this clause. From questions of whether the umbrella clause can elevate a contractual breach into a treaty breach, to whether it can bind non signatories to the investment agreement (privity of contract issues), arbitral tribunals are yet to reach consensus on these matters, and such inconsistencies, sooner or later, have its consequences. States are beginning to leave umbrella clauses out of their treaties and model BITs, in an attempt to make sure that only international law principles are protected and not merely contractual obligations. This piece analyses the different decisions that are resulting in a trend towards an elimination of the umbrella clause as a standard of protection.

Human rights as a litigation tool in international arbitration: reflecting on the ECHR experience

Abstract: At times in which the United Nations, the European Union (EU), and the International Bar Association are focusing on the relationship between business and human rights, and courts are willing to assert jurisdiction over damage claims brought against multinational corporations by victims of alleged human rights violations, the old wisdom that international arbitration and human rights were two separate and unrelated dimensions of legal discourse and practice seems no longer tenable. Indeed, it is more and more clear that business relationships and related dispute resolution mechanisms may have, whether directly or indirectly, human rights implications. It is also more and more evident that breaches of human rights can be committed not only by Governments but also by State judiciaries and legislatures as well as by private parties such as those normally resorting to arbitration. Most remarkably, there is growing consensus that the law of human rights, whether stemming from international treaties, domestic constitutions, contractual undertakings, or self-regulation instruments, can impact on arbitration agreements, arbitral proceedings, and awards. And, in fact, arbitration may even become a preferred tool for the adjudication of human rights-related disputes. This is confirmed by the Rome 1950 Convention for the Protection of Human Rights and Fundamental Freedoms and by the ample case-law that the European Commission and the European Court of Human Rights have developed on arbitration. This case-law unequivocally shows that the Convention can be the source at once of rights and obligations for companies and other entities when carrying out business activities and settling the ensuing disputes, just as it can influence the behaviour of the courts of contracting States involved in arbitral matters and the content of the contracting States’ arbitration law. In particular, the fundamental rights to ‘access to justice’ and to a ‘fair trial’ enshrined in Article 6.1 of the Convention can play a role in the assessment of the validity of a variety of rules, covenants or measures, or in the solution of a multitude of ‘complex issues’, which may crop up in the practice of international arbitration. These include issues relating to mandatory arbitrations, arbitration agreements entered into by ‘weak parties’, advance waivers to the remedies available for setting an award aside, dismissals of counsel for safeguarding the integrity of the proceedings, decisions of arbitral institutions in connection with challenges of arbitrators or approval of awards, mechanisms for the constitution of arbitral tribunals in the context of multi-party arbitrations, procedural orders setting deadlines or deciding on the admission of evidence, the lack of reasoning in decisions of arbitral institutions or arbitral tribunals, the granting by arbitral tribunals of interim measures ex parte , situations arising from the inability of an impecunious party to fund the arbitral proceedings or to comply with security-for-costs orders, anti-suit injunctions. Furthermore, Article 1 of Protocol 1 to the Convention which protects the right of property can be invoked to secure the economic benefits of an award, as a reaction to a contracting State failing to cooperate in its speedy and effective enforcement. More in general, awards issued at the end of proceedings where the right of fair trial has been thwarted or which are on their merits at odds with any of the human rights proclaimed by the Convention may be held to conflict with the contracting States’ public policy. In that case, the failure by any competent court of a contracting State to annul them or to refuse their recognition/enforcement could be challenged by any interested party before the European Court. Human rights implications are even more important for arbitrations or arbitration-related court proceedings taking place within contracting States which happen to be also Member States of the EU (as is the case for many important ‘places of arbitration’), given the important role that the EU treaties grant to the Convention as a source of rules of ‘higher law’ and the forthcoming formal adherence of the EU to the Convention system. Then, arbitral tribunals, arbitration institutions, State courts acting as juges d’appui or requested to control or enforce arbitration agreements or awards, as well as parties involved in arbitral proceedings, are all well advised to carefully consider the human rights dimensions of international arbitration when taking decisions, defining litigation strategies, negotiating arbitration agreements. This becomes even more compelling if the arbitration is in any way related to a contracting State of the Convention, be it so because of its seat, the applicable law, the courts involved in the enforcement of the arbitration agreement or of the award. (European) Convention for the Protection of Human Rights and Fundamental Freedoms (1950), arts 6, 34First Protocol to the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (1952), art 1Consolidated Treaty on European Union (post-Lisbon) (2008), art 6Charter of Fundamental Rights of the European Union (2007), arts 52, 53

Is the balance getting better? An update on the issue of gender diversity in international arbitration

Abstract: Since the publication of ‘Getting a Better Balance on International Arbitration Tribunals’ in Arbitration International Volume 28 Issue 4 in 2012, there has been increasing focus in the arbitration community on the issue of improving diversity among counsel and arbitrators alike, particularly in relation to gender diversity. In this article, Lucy Greenwood and Mark Baker update and expand upon the research which underpinned their original article. They demonstrate that greater diversity has been shown to improve the quality of decision-making within corporations. Increasing diversity of arbitral decision-makers may result in enhanced quality of deliberations and awards. The authors consider that responsibility lies with arbitral institutions to track and information about the gender of party- and institution-appointed arbitrators in arbitrations they administer. However, ultimate responsibility for meaningful change lies with those making the appointments. They must acknowledge the value of diversity in its own right and as a factor influencing the quality of decision-making processes.

Jurisdiction and admissibility: are we any closer to a line in the sand?

Abstract: While the distinction between the concepts of jurisdiction and admissibility in investment arbitration did not appear particularly significant to the first tribunals faced with the question, a review of several recent awards reveals that in the past few years, certain investment tribunals have referred to and acknowledged the importance of the distinction. In this context, this article aims to analyse whether a consistent approach to the application of the distinction has been adopted, and discusses the practical implications that the distinction (and any inconsistencies in its application) may have. Urbaser SA and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v The Argentine Republic , ICSID Case No. ARB/07/26, Decision on Jurisdiction (2012) Antoine Goetz & Others and SA Affinage des Metaux v Republic of Burundi , ICSID Case No. ARB/01/2, Award (2012) Hochtief AG v The Argentine Republic , ICSID Case No. ARB/07/31, Decision on Jurisdiction (2011) Abaclat and Others v Argentine Republic , ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility (2011) SGS Societe Generale de Surveillance SA v The Republic of Paraguay , ICSID Case ARB/07/29, Decision on Jurisdiction (2010) SGS Societe Generale de Surveillance SA v Republic of the Philippines , ICSID Case No. ARB/02/6, Decision of the Tribunal on Objections to Jurisdiction (2004) Enron Corporation and Ponderosa Assets LP v Argentine Republic , ICSID Case No. ARB/01/3, Decision on Jurisdiction (2004) SGS Societe Generale de Surveillance SA v Islamic Republic of Pakistan , ICSID Case No. ARB/01/13, Decision of the Tribunal on Objections to Jurisdiction (2003) Methanex Corporation v United States of America , UNCITRAL, Partial Award (2002)

Charles Brower’s problem with 100 per cent—dissenting opinions by party-appointed arbitrators in investment arbitration

Abstract: This contribution is a replique to Charles Brower and Charles Rosenberg’s article ‘The Death of the Two-Headed Nightingale: Why the Paulsson-van den Berg Presumption that Party-Appointed Arbitrators are Untrustworthy is Wrongheaded’, which appeared in Arbitration International in 2013, to the extent that it discussed dissenting opinions (the ‘Nightingale Article’). The Nightingale Article is a reaction to a study published in 2009 in which it was reported that 100 per cent of the separate opinions issued in investment arbitrations by party-appointed arbitrators have been rendered by the arbitrator appointed by the losing party. In this replique , a number of the arguments advanced in the Nightingale Article are rebutted: ‘dissenting opinions are a significant feature of international dispute settlement’; ‘[t]his figure alone [22 per cent of the decisions and awards have a dissenting opinion by a party-appointed arbitrator] serves to minimize any concerns regarding dissenting opinions in investment arbitration’; ‘concerns about neutrality are unwarranted’; ‘offers a unique tool to produce a better award’; ‘the development of investment law’; and ‘the authority of the award’. It is concluded that none of them provide a satisfactory answer to the fact that 100 per cent of the separate opinions of party-appointed investment arbitrators have been issued by the arbitrator appointed by the party that has lost the case.

The treatment of tax as expropriation in International investor–state arbitration

Abstract: This is a pre-copy-editing, author-produced PDF of an article accepted for publication in Arbitration International following peer review. The definitive publisher-authenticated version Arbitration International, 2015, 0, 1–46 is available online at: http://dx.doi.org/10.1093/arbint/aiv030

Arbitrators, corruption, and the poetic experience: ‘When power corrupts, poetry cleanses’

Abstract: This article is the text of the Kaplan Lecture which Mr Fortier delivered in Hong Kong in November 2014. As the title indicates, Mr Fortier seeks to establish a link between corruption in arbitration and the writing of poetry. He starts from the premise that when arbitrators uncover a factual matrix tainted by corruption, they should heed the call of poetry. After a review of the multiple facets of the global condemnation of corruption which he contrasts with the shortcomings of enforcement mechanisms and the paucity of arbitral awards that deal expressly with corruption, Mr Fortier sees a role for arbitrators to palliate these shortcomings. This role, pleads Mr Fortier, requires the arbitrator to be as a poet and to balance harmoniously his duties, his loyalty to the parties, and his concerns for international good morals. World Duty Free Co Ltd v Kenya , ICSID Case No. ARB/00/7, Award, IIC 277 (2006) Niko Resources (Bangladesh) Ltd v People’s Republic of Bangladesh and ors , ICSID Case Nos. ARB/10/11, ARB/10/18, Decision on Jurisdiction, IIC 603 (2013)ICC Case No. 1110, Award 1963 Metal-Tech Ltd v Uzbekistan , ICSID Case No. ARB/10/3, Award (2013) EDF (Services) Ltd v Romania , ICSID Case No. ARB/05/13, Award (2009) Mohamed Bin Hammam v FIFA , CAS 2011/A/2625, Award (2012)

The jurisdiction of the arbitral tribunal in intra-EU investment treaty disputes after the decision in Electrabel v Hungary

Abstract: Energy Charter Treaty (1994) Treaty on the Functioning of the European Union (2008) Electrabel SA v The Republic of Hungary , ICSID Case No ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability (2012) Eastern Sugar BV v The Czech Republic , SCC Case No 088/2004, Partial Award (2007) Achmea BV v The Slovak Republic ( formerly Eureko BV v The Slovak Republic) , PCA Case No 2008 -13, Award on Jurisdiction, Arbitrability and Suspension (2010)

‘We Have Met The Enemy And He Is US!’ Is the industrialized North ‘Going South’ on investor–State arbitration?

Abstract: This article examines the recent trend among some states to denounce the ICSID Convention or terminate or critically review their bilateral investment promotion and protection treaties against the backdrop of the 1970s New International Economic Order (NIEO). After providing an overview of the original NIEO, an idea many considered defeated with the rise of bilateral and multilateral investment treaties, the authors explain why the international community should be concerned with the recent emergence of a ‘NEO-NIEO’, led in part by the original movement’s critics. Permanent sovereignty over natural resources, United Nations General Assembly Resolution 1803 (XVII) (1962) Declaration on the Establishment of a New International Economic Order, United Nations General Assembly Resolution 3201 (S-VI) (1974) Charter of Economic Rights and Duties of States, United Nations General Assembly Resolution 3281 (XXIX) (1974) US Model Bilateral Investment Treaty (2012)

The human right to water: defences to investment treaty violations

Abstract: At times, and for a variety of reasons, states will regulate the market in the furtherance of public-policy objectives—including to implement specific human rights obligations. Where investment agreements are in place, these kinds of measures may trigger an investor’s claim for breach by the state of its treaty obligations. Over the course of the last few decades, these hitherto distinct areas of international law protecting international investment on the one hand, and human rights on the other, have intersected with increasing regularity. Investment arbitration tribunals tasked with adjudicating a state’s conduct vis-a-vis its treaty obligations are now engaging in in-depth analyses of international human rights issues, including questions of applicability and substance. This article charts the development of the ‘right to water’ as a stand-alone human right in international legal jurisprudence and examines the future implications arising from key international policy developments. (ICSID) Convention on the Settlement of Investment Disputes between States and Nationals of other States (1965) Compania de Aguas del Aconquija SA and Vivendi Universal v Argentine Republic , ICSID Case No. ARB/97/3 Socieded General de Aguas de Barcelona S., Vivendi Universal SA v Argentine Republic , ICSID Case No. ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae IIC 229 (2005) SAUR International v Argentine Republic , ICSID Case No. ARB/04/4 PacRim v El Salvador , ICSID Case No. ARB/09/12, Decision on the Respondent’s Jurisdictional Objections, IIC 543 (2012) UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (2014) UN Guiding Principles on Business and Human Rights (2011)

Pathological arbitration clauses, good faith and the protection of legitimate expectations

Abstract: This article examines a recent case decided by the Portuguese courts that dealt with the issue of ‘pathological’ arbitration clauses, the legal mechanisms to construct such clauses, and the relevance of the principle of good faith in arbitration. In this respect, this article endeavours to frame those topics within the context of prior decisions that have been taken by the arbitral tribunal. It also addresses the question of whether the standards of good faith generally applicable to arbitrators are extendable to arbitral institutions when managing arbitration cases. In this context, this article also addresses the significance of institutional arbitration rules that set forth good faith as generally applicable to all participants in arbitration proceedings. Such is the case of the recent London Court of International Arbitration (LCIA) Rules. LCIA (London Court of International Arbitration) Arbitration Rules (2014)Portuguese Arbitration Act (2011) [ Lei no 63/2011 de 14 de Dezembro ]ACL (Arbitration Centre of the Portuguese Chamber of Commerce and Industry-Lisbon) Arbitration Rules (2008)Portuguese Civil Code (1966) [ Decreto-Lei no 47344/66, de 25 de Novembro (Codigo Civil) ]Portuguese Arbitration Act (1986) [ Lei no 31/86, de 29 de Agosto (Arbitragem voluntaria) ] “A” and “B” v “F” – Comercio de Automoveis, S.A. and ors , Case No. 659/13.9YRLSB-2, Lisbon Court of Appeal, Judgment (2013)

Arbitrability of intellectual property disputes: a comparative survey

Abstract: In recent years, arbitration has become increasingly popular as a dispute settlement mechanism in the field of intellectual property (IP). Traditionally, arbitration in this area was thought to be restricted to disputes arising from contracts for the licensing or the transmission of IP rights. But in some jurisdictions the issue of the validity of such rights has of late also been admitted as a proper subject-matter for arbitration. And certain legal systems have instituted mandatory arbitration proceedings aimed at a more expeditious disposition of IP disputes. This article aims at giving an overview of these developments, which will be considered here from a comparative standpoint. Belgian Patent Law (1984) [ Loi sur les brevet d'invention ] Civil Code of Quebec, Canada (1994) [ Code civil du Quebec ] Quebecois Act Respecting the Professional Status of Artists in the Visual Arts, Arts and Crafts and Literature, and their Contracts with Promoters (1988) [Loi sur le statut professionnel des artistes des arts visuels, des metiers d'art et de la litterature et sur leurs contrats avec les diffuseurs] French Intellectual Property Code (2011) [ Code de la propriete intellectuelle ] Portuguese Code of Industrial Property (1995) [Codigo da Propriedade Industrial] Portuguese Code on Copyright and Related Rights (1995) [ Codigo do Direito de Autor e dos Direitos Conexos ] South African Patents Act (1978) US Patent Act (1982)

Mandatory binding arbitration—: is this a pathway to a more efficient map?

Abstract: The Organisation for Economic Cooperation and Development (OECD) has recently been exploring ways to improve dispute resolution mechanisms in the realm of international tax, notably through the use of binding mandatory arbitration as part of the Mutual Agreement Procedure (MAP) Article in Double Tax Agreements. This article seeks to examine whether binding mandatory arbitration would provide an effective mechanism for resolving international tax disputes. It investigates policy concerns with mandatory arbitration, especially sovereignty issues, access to mandatory arbitration and its scope, as well as the interface between MAP arbitration and domestic remedies. The possibility of deferring time limits on arbitration, the appropriateness of the ‘last-best-offer’ or baseball arbitration approach versus the ‘independent opinion’ approach and contentious issues surrounding the appointment of arbitrators will be considered, along with recent developments in arbitration processes. ‘Arbitration of taxation disputes is attractive and effective, presenting significant advantages to businesses and governments… Arbitration always reaches a conclusion, provides for impartial determinations with proper taxpayer participation and applies law rather than expediency. The process is orderly, predictable and transparent.’[1][1] [1]: #fn-1

International arbitration and the lex arbitri

Abstract: The Transatlantic Trade and Investment Partnership (TTIP) between the EU and the US will be the most significant of the free trade agreements (FTAs) that the EU and its Member States is contemplating with third states. FTAs generally envisage arbitration as the preferred method for dispute resolution not only between the contracting parties but also between a contracting party and a private investor. Generally, a choice for arbitration entails application of a lex arbitri , which governs the arbitral procedure and provides safeguards ensuring the proper conduct of arbitration proceedings. While the existence and relevance of a lex arbitri is considered self-evident in relation to international commercial arbitration, there is not a similar understanding when it comes to inter-state arbitration or arbitration between states and private parties, i.e. mixed arbitration. This paper posits that inter-state arbitrations are generally subject to public international law, since the adjudicative and the prescriptive jurisdiction of host states are limited by general rules of customary international law. Further, this paper posits that mixed arbitrations, which are not governed by a stand-alone system (such as ICSID or arguably the Iran-U.S. C.T.), nowadays appear to be governed by national arbitration laws. Therefore, if the envisaged mixed arbitration system in the TTIP and other FTAs is to function as a stand-alone regime, independently from national arbitration laws and without interference from national courts, specific regulations in these treaties will be necessary. Draft Transatlantic Trade and Investment Partnership (TTIP) between the US and the EU Dutch Arbitration Act, Code of Civil Procedure, Book IV (1986) [ Wetboek van Burgerlijke Rechtsvordering ] UNCITRAL Model Law on International Commercial Arbitration, United Nations Commission on International Trade Law (1985, amended 2006) Dutch Bill Regarding the Applicability of Dutch Law to the Awards of the Tribunal Sitting in The Hague to Hear Claims Between Iran and the United States (1983) (ICSID) Convention on the Settlement of Investment Disputes between States and Nationals of other States (1965) Chagos Marine Protected Area Arbitration (Mauritius v UK), PCA, Reasoned Decision on Challenge, 30 November 2011 Occidental Exploration and Production Company v Republic of Ecuador , Court of Appeal of England and Wales (2005) Gould III, Ministry of Defence of Iran v Gould Incorporated (formerly Hoffman Export Corporation) and ors , US Court of Appeals (1989) British Petroleum Exploration Company (Libya) Limited v Libya , Award (1973) Saudi Arabia v Arabian American Oil Company (Aramco) , Award (1958)

Are anti-arbitration injunctions a malaise? An analysis in the context of Indian law

Abstract: Until recently, Indian courts have adjudicated upon their authority to issue anti-arbitration injunctions in the context of foreign-seated arbitrations in a haphazard manner, without examining the source or compatibility of this power with either the (Indian) Arbitration and Conciliation Act, 1996 or the Convention on Recognition and Enforcement of Foreign Awards, 1958. Deviating from this trend, two recent decisions of the Supreme Court of India, viz Chatterjee Petrochem and World Sport Group, have deliberated upon this issue and interestingly, they have followed an inconsistent approach. This has led to uncertainty over whether Indian courts may entertain a civil action seeking to restrain foreign arbitral proceedings. Accordingly, in this article, the authors analyse the existing position of law in this regard. They elucidate the early Indian approach towards anti-arbitration injunctions, the relevant provisions of the 1996 Act, and the comparative framework in which the current position should be examined. The authors conclude that the decision in World Sport Group is in consonance with the interpretation of the 1996 Act. Further, it reflects international best practice, according to which anti-arbitration injunctions may be awarded where the arbitration agreement is null and void or inoperative or incapable of being performed, and the foreign arbitral proceeding is vexatious and oppressive. International Convention: Convention on the Recognition and Enforcement of Arbitral Awards, 1958, 330 UNTS 38 (1959) [‘New York Convention’].Domestic Legislation: Arbitration and Conciliation Act, 1996 (August 16, 1996) (India)Judicial Decisions: Chatterjee Petrochem Co v Haldia Petrochemicals Ltd, 2013 (15) SCALE 45 (Indian Supreme Court)World Sport Group (Maurities) v MSM Satellite (Singapore), AIR 2014 SC 968 (Indian Supreme Court)

Nigeria’s appellate courts, arbitration and extra-legal jurisdiction—facts, problems, and solutions: a rejoinder

Abstract: In an article published in Volume 28, Number 1, pp 63–76 in the LCIA Arbitration International, Dr Ola O Olatawura contended that sections 34 and 57 of the Nigerian Arbitration and Conciliation Act, Cap A18 LFN 2004 limit litigation in arbitration matters to only first instance courts and that appellate courts lack the jurisdiction to entertain appeals from arbitration matters in Nigeria. This rejoinder re-examines the article written by Dr Olatawura and contends that the conclusions reached by him fail to take into account the fact that Nigeria has a written constitution, the constitution is supreme, judicial powers are vested in the courts established by the constitution, the jurisdiction vested in both the state and federal high courts (first instance courts) and the appellate system in Nigeria. The conclusion of this rejoinder is that both the Court of Appeal and the Supreme Court have jurisdiction to hear appeals from the first instance courts in arbitration matters in Nigeria and that the jurisdiction is not extra-legal.

Agora: International Commercial Arbitration (2nd edition) by Gary B. Born

Abstract: International Commercial Arbitration, 2nd edition: Volume I, International Arbitration Agreements , by Gary B. Born, Wolters Kluwer, 2014. Encyclopaedic is too modest a word to describe the second edition of Gary Born’s treatise. Volume I alone covers a remarkably broad swath of territory. Under the deceptively simple title International Arbitration Agreements , Volume I tackles the history of international arbitration, the legal framework within which it operates, the choice of law issues that arise in dealing with international arbitration agreements, the interpretation, effects, and enforcement of such agreements, and such specialized subjects as the separability doctrine, arbitrability, competence-competence, and the treatment of non-signatories. This is the book with which every researcher will begin, and with which many will finish. The geographic reach of the new edition is as impressive as the breadth of its substantive content. Under each of the topics he tackles, Born not only distils general rules from the jurisprudence, practice, and commentaries of the major international arbitration centres—principally England, France, Germany, Switzerland, Singapore, the USA, and countries that have adopted the UNCITRAL Model Law (‘Model Law’)—but also draws illustrations and contrasting examples from parts of the world that have historically seen less international arbitration and have thus developed less law on the subject. Born has the gift of knowing how to take his reader on a deep dive into successive topics of considerable complexity without losing sight of the general themes he uses to tie those topics together. He has the even rarer gift of being able to discern patterns and trends in large numbers of judicial decisions from multiple jurisdictions, while at the same time flagging subtle distinctions among them. … john.townsend{at}hugheshubbard.com

The enforcement of foreign arbitral awards in Australia against non-signatories to the arbitration agreement

Abstract: A party that obtains an award in an overseas-seated arbitration may seek enforcement by an Australian court under the International Arbitration Act 1974 (Cth). However, Australian case law is somewhat inconsistent in terms of judicial support for arbitration and there is a perception that Australian courts have inadequately fulfilled Australia’s obligations under the New York Convention by interpreting the arbitral law in an interventionist rather than supportive way. There is particular uncertainty surrounding the enforcement of foreign awards against non-signatories to the arbitration agreement. Much of this uncertainty stems from linguistic differences between the enforcement provisions of the International Arbitration Act and the equivalent provisions in other prominent jurisdictions. This article compares the recent practice of Australian courts regarding the enforcement of foreign arbitral awards against non-signatories to the arbitration agreement with the theoretical framework set out in the New York Convention and with the decisions of courts in England, Singapore and Hong Kong. It argues that amendments to the International Arbitration Act are required to bring Australia’s enforcement provisions into line with international practice and Australia’s obligations under the New York Convention. Australian International Arbitration Act (1974)English Arbitration Act (1996)Singapore International Arbitration Act (as amended in 2012)Hong Kong Arbitration Ordinance (2014)(New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), arts III, IV, V IMC Aviation Solutions Pty Ltd v Altain Khuder LLC , Victorian Court of Appeal (Australia) (2011) Dampskibsselskabet Norden A/S v Beach Building & Civil Group Pty Ltd , Federal Court of Australia (2012) Dardana Ltd v Yukos Oil Co , English Court of Appeal (2002) Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan , UK Supreme Court (2011) Aloe Vera of America Inc v Asianic Food (S) Pte Ltd and Another , High Court of Singapore (2006) Paklito Investment Ltd v Klockner East Asia Ltd , Supreme Court of Hong Kong (1993) Hebei Import & Export Corp v Polytek Engineering Co Ltd , Court of Final Appeal of the Hong Kong Special Administrative Region (1999)

The extent of arbitrators’ power to order class arbitration

Abstract: The United States (‘US’) Supreme Court’s decision in Stolt-Nielsen v AnimalFeeds (2010) shook up the American arbitration landscape. First, when justifying the annulment of the arbitral award, the Court’s ambiguous interpretation of section 10(a)(4) of the Federal Arbitration Act (‘FAA’) (under which courts may vacate an arbitral award where the arbitral panel exceeded its powers) raised doubts as to whether it departed from precedent by reviewing errors of law under this ground. Second, by narrowly approaching the power of arbitrators to order class proceedings, the Court indicated a new movement in the case law on class arbitration, fed by scepticism and hostility against this procedure. The Supreme Court’s unanimous decision in Oxford Health Plans LLC v Sutter (2013) clarified that an arbitrator’s erroneous interpretation of the parties' contract did not amount to an ‘excess of power’ under the FAA. However, the Supreme Court’s decision in Oxford Health raised new questions, and certainly did not restore the pro-class arbitration approach previously adopted in Green Tree v Bazzle (2003) . This article explores the concept of ‘excess of arbitral power’ so as to understand its purpose, content, and limits in light of recent decisions of the Supreme Court on class arbitration. Based on a thorough analysis of the case law and on a comparative law approach to the extent of arbitrators’ powers, it spells out where the limits of arbitrators’ power to order class arbitration are likely to stand in the US. US Federal Arbitration Act, Title 9 Arbitration (1925) Green Tree Financial Corp, Conseco Finance Corp v Bazzle and ors , US Supreme Court (2003) Stolt-Nielsen SA and ors v AnimalFeeds International Corporation , US Supreme Court (2010) AT&T Mobility v Concepcion , US Supreme Court (2011) American Express Co and ors v Italian Colors Restaurant and ors , US Supreme Court (2013) Oxford Health Plans LLC v Sutter , US Supreme Court (2013)

Taisei Corporation v A.M. Construction Co. (Pvt.) Ltd.—Decision of the Lahore High Court in light of the New York Convention

Abstract: The objective of promulgation of the New York Convention, 1958, was to ensure the recognition and enforcement of foreign arbitral awards in Member States. Contrary to the letter and spirit of that objective, certain provisions enshrined in the Convention have given room to national courts for un-harmonized interpretation, thereby causing undesirable delay in the enforcement of awards. Article V(1)(e) represents one such provision that has been subject to different treatments by the courts at distinct jurisdictions. A widely endorsed international interpretation seemingly exists parallel to a parochial one adopted by a few jurisdictions, including Pakistan. The decision given in the Taisei v A.M. Construction Co. by the Lahore High Court further consolidates the position of Pakistani courts in this regard. However, the matter is now pending adjudication before the Supreme Court of Pakistan. It remains to be seen whether the Apex Court will nullify the High Court’s ruling and proceed to deposit a new precedent in conformity with international arbitral practice. Pakistani Recognition and Enforcement of (Arbitration Agreements and Foreign Awards) Act (2011) Pakistani Arbitration Act (1940) (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) Taisei Corporation v AM Construction Co (Pvt.) Ltd , Lahore High Court (2012) Bharat Aluminium Co v Kaiser Aluminium Technical Service, Inc , Supreme Court of India (2012) Hitachi Ltd v Rupali Polyester and ors , Supreme Court of Pakistan (1998)

Arbitration in the United States under the Financial Industry Regulatory Authority

Abstract: Particularly in times of economic stress, purchasers of securities in the United States seek redress against brokers and their employers who may have violated the applicable investment and trading rules. An independent organization called the Financial Industry Regulatory Authority (FINRA) operates under the supervision of the Securities and Exchange Commission to take necessary disciplinary actions, as well as to oversee an arbitration system for the resolution of financial industry disputes. This article examines the working of that arbitration system, including the elements that FINRA has introduced, which differ from those usually employed in commercial arbitration. New York Stock Exchange Arbitration Rules (2003), Rule 600 Rodriguez de Quijas v Shearson/American Express , Inc, US Supreme Court (1989) Patrick Murray v Citigroup Global Markets, Inc , US Court of Appeals (6th Cir) (2013) FINRA (Financial Industry Regulatory Authority) Rules (2008), Rules 2010, 2111FINRA (Financial Industry Regulatory Authority) Code of Arbitration Procedure (Customer Code) (as amended 2014)FINRA (Financial Industry Regulatory Authority) Discovery Guide (2013)FINRA (Financial Industry Regulatory Authority) Document Production Lists (2013)