One of the recurrent controversial issues in the investment arbitration practice relates to the application of the general rule of treaty interpretation of the Vienna Convention on the Law of Treaties in the interpretation of the provisions of the ICSID Convention and of investment treaties in general.
Thomas Wälde in one of his last writings pointed out that “[t]ribunals often do not practise what they preach; reference to the Vienna Rules is now mandatory, but such reference does not mean the Rules are taken and applied seriously” and “it is difficult to find a tribunal which formally and properly applied the Vienna Rules step by step” (Interpreting Investment Treaties: Experience [...]
By José Miguel Júdice and Luís Castilho, PLMJ – Sociedade de Advogados
Three years after the entry into force of the Portuguese Tax Arbitration Regime, the European Court of Justice (“the Court”) has, in the Ascendi Case (Case 377/13), finally issued a groundbreaking decision regarding the long standing question of whether the Tax Arbitral Court (the “CAAD”) is a true “jurisdictional body” for the purposes of the preliminary ruling mechanism.
Despite being directly established in the preamble of the Portuguese Tax Arbitration Regime that the Tax Arbitration Court could present preliminary rulings before the ECJ – within the context of an arbitral tax proceedings – the rea [...]
By Georg von Segesser / Elisabeth Leimbacher / Katherine Bell, Schellenberg Wittmer Ltd.
In two almost identical German language decisions dated 27 March 2014 (Decisions 4A_362/2013 and 4A_448/2013) the Swiss Federal Supreme Court (“Supreme Court”) considered that the reliance on an illegally obtained video recording in a CAS award does not violate public policy (these decisions are also summarized in the related ITA Arbitration Reports).
This post takes a closer look at the assessment of admissibility of illegally obtained evidence in sport arbitration. Such an assessment is generally undertaken by balancing the interest in finding the truth against the legal interests which were harmed wh [...]
In a recent decision, the United States Court of Appeals for the Second Circuit considered Pemex’s allegations insufficient to sustain RICO jurisdiction in the Conproca vs. Pemex case. This prompts out a number of interrogations:
Was the bar set too high for Pemex to sustain RICO Jurisdiction?
Was the underlying reason of the Court’s decision to uphold the award? Is this an example of the US courts’ pro-arbitration policy? Does this kind of decisions encourage the parties to look for enforcement of awards before the US courts? Does it trigger forum shopping for the enforcement of awards? Pemex is a Mexican public entity dealing with the oil and gas industry. Conproca is a Mexican [...]
Was the underlying reason of the Court’s decision to uphold the award?
Is this an example of the US courts’ pro-arbitration policy?
Does this kind of decisions encourage the parties to look for enforcement of awards before the US courts?
Does it trigger forum shopping for the enforcement of awards?
Pemex is a Mexican public entity dealing with the oil and gas industry. Conproca is a Mexican [...]
By Lorraine M. Brennan, Esq 1
The views expressed in this article are those of the author alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or the author’s institution.
The international arbitration community sat up and took notice when a recent decision issued by Judge Alvin K. Hellerstein from the Southern District of New York in the Pemex 2 case ordered that an arbitration award that had been set aside by the Mexican courts could be enforced in the United States. The case was particularly noteworthy because there is only one other reported case in the United States—Chromalloy 3 from 1996—which ordered the same result, albeit for different leg [...]
Over the next two weeks, two surveys will be gathering input from dispute resolution professionals on the challenge of enforcing settlement agreements across borders.
The surveys are intended to provide empirical data to aid the decision making process for the proposed UNCITRAL convention on the international enforcement of settlements reached in mediation.