The Brazilian Superior Court of Justice (“STJ”) has issued, on 19 June 2013, a landmark decision addressing the principle of Kompetenz-Kompetenz (Resp. no. 1,278,852-MG Samarco Mineração S/A v Jerson Valadares da Cruz). The decision deals with the allocation of competence between arbitral tribunals and national courts to decide on the validity of an arbitration agreement. The STJ reasoned, for the first time, that court review on this issue is only permitted at two procedural stages: (i) in proceedings to set aside an arbitral award; or, (ii) in proceeding to resist the recognition and enforcement of an arbitral award.
Samarco Mineração S.A. (“Mineração”) entered into an agre [...]
Last year at about the same period, I reported on two major events that had been taking place in the world of Intra- and Extra-EU BITs, the Regulation establishing transitional arrangements for bilateral investments agreements between Member States and Third Countries, on the one hand, and the Electrabel decision, on the other. See blog of 17 December 2012.
The course of this year was marked by another event that ended up to be much ado about nothing, the order granted in the matter Slovakia v. Eureko by the German Federal Supreme Court according to which the proceedings before it were redundant. These proceedings, in which the Commission had intervened to support the position that the arb [...]
and Matthew Lam, Partner, Clyde & Co
As announced recently on this blog Chinese Court Decision Summaries on Arbitration, edited by WunschARB, were recently published by Kluwer Arbitration. The case summaries are a welcome addition to the Kluwer Arbitration database, particularly given the paucity of caselaw analysis currently available in this area, and the editors’ efforts for benefit of the wider arbitration community are much appreciated. WunschARB comment on some of the trends – both positive and negative – which are discernible from the cases on enforcement, notwithstanding that there is no system of binding precedent in PRC. In this blog, we explore further some of the trends app [...]
A judgment of the European Court of 17 October 2013 (C-184/12) honors gold plated provisions when considered mandatory. Member state courts are allowed to consider their national gold-plating (the practice of implementing rules tougher than the minimum required by the EU) as being of overriding mandatory character.
In 2005, Unamar, a Belgian commercial agent, and NMB, a Bulgarian principal, concluded a commercial agency agreement for the operation of NMB’s container liner shipping service. The agreement provided that it was to be governed by Bulgarian law and that any dispute relating to the agreement was to be determined by the arbitration chamber of the Chamber of Comm [...]
In a recent decision in the long-running Astro v. Lippo dispute,1 the Singapore Court of Appeal (the “Court“) grappled with the question of whether an unsuccessful party to an international arbitration award rendered in Singapore (a “domestic international award“) can choose to wait and invoke a passive remedy only in response to enforcement proceedings at the seat.
The judgment confirms Singapore’s commitment to the philosophy of “choice of remedies” contained in the UNICTRAL Model Law (the “Model Law“). Parties to international arbitrations seated in Singapore therefore have the option to choose whether to make an active challenge to an award or instead wait until the award is sought to be [...]
The “contribution of assets” requirement of the Salini test was often overlooked by commentators and tribunals, probably due to its “I-know-it-when-I-see-it” nature. The recent award in KT Asia Investment Group B.V. v Republic of Kazakhstan, however, demonstrates that a failure to meet the contribution requirement may put to rest a claim of an offshore company used to conceal the identity of its owner.
It is widely recognized that under Article 25 of the ICSID Convention an investment must involve a “contribution” of assets. As explained by Douglas (para. 273), the prior contribution of assets into the economy of the host state is a natural quid pro quo for the state to accord th [...]