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Are a Bilateral Investment Treaty Arbitration and a Proceeding Before the European Court of Human Rights Compatible?

Although a bilateral investment treaty (“BIT”) arbitration and an application made before the European Court of Human Rights (“the Court”) could, at first glance, present opposite objectives, investors alleging a violation of their rights by a State may be inclined to make use of both remedies. As it will be elaborated below, the case law shows that a strict application of the triple identity test (i.e. same parties, same facts, same cause of action) by the arbitral tribunals and the Court generally entails the rejection of lis pendens or admissibility objections based on BITs’ “fork in the road” provisions or Article 35, §2, b) of the Convention, which provides that the Court [...]

More Than a Friend of the Court: The Evolving Role of the European Commission in Investor-State Arbitration

The controversial role of non-disputing parties has been the object of a significant amount of literature. While third party funding was a hot topic hitherto, the so-called amicus curia, and its evolving role, might be back in the spotlight. Since the first ICSID amicus case -the Bechtel case- until today, the rights, interests at stake and role of the amici have evolved.

Initially, NGOs and indigenous communities were the ones filing amicus briefs asserting impartiality in the outcome of the dispute and humanitarian concerns. However, the European Commission (EC) has recently readopted an active and ambitious role in investment arbitration, analyzing the relationship between intra-EU invest [...]

Amendments to the Internal Rules of the Brazilian Superior Tribunal of Justice on Recognition of Foreign Awards

In article 35 of the Brazilian Arbitration Law (“BAA”) it states that, in order to be enforced in Brazil, a foreign arbitral award (i.e., an award issued outside Brazil’s territory) must be recognized by the judiciary. This judicial recognition rests with the Superior Tribunal of Justice (Superior Tribunal de Justiça – “STJ”), which retains exclusive competence to analyse requests for recognition of foreign judgements and arbitral awards, pursuant to article 105, I, (i), of the Brazilian Constitution, as amended in 2004.

In line with its new role, in 2005 STJ issued Resolution 9/2005, setting out the procedure for cases involving recognition of foreign awards and the standards it wo [...]

“Investment Arbitration Is Now On Broadway, And The Critics Are Not Being Kind”

That was the assessment of Constantine Partasides QC, founding partner of Three Crowns, during his keynote address to the joint ITA-IEL conference. According to Mr. Partasides, there is a developing consensus among states that it is acceptable, and even virtuous, to challenge investor-state arbitration as an infringement on the rights of the public to pass laws through their democratically-elected representatives. Thus it has become de rigueur for a sovereign to challenge and obstruct the arbitral process, through challenges to the appointed arbitrators, jurisdictional objections, and post-award challenges to awards and their enforcement. Resistance to investor-state arbitration is increa [...]

The Most Recent Decision in the Pechstein Saga: Red Flag for Sports Arbitration?

and David Mamane and Hannah Boehm, Schellenberg Wittmer

With its interim judgment of 15 January 2015, the Higher Regional Court of Munich added a new chapter to the longstanding legal dispute between the German speed skater Claudia Pechstein and the International Skating Union (“ISU”) (see the previous report on this story). The full decision has not yet been published. So far, the court has only issued a press statement.

Shortly before the 2009 World Speed Skating Championships in Hamar, Ms Pechstein was tested positive in a doping control. Subsequently, the ISU banned her from all ISU competitions for two years. Based on the dispute resolution clause in the registration form for the champi [...]

Arbitrator Intelligence: The Pilot Project and Beyond

and Alex Wiker, Dickinson School of Law

On January 14, the Pilot Project for Arbitrator Intelligence—whose launch was first announced here on the Kluwer Blog—came to an official close. We could not be more pleased with the Pilot results, which we will share with readers below. But first, a bit of background about the methodology behind the Pilot.

The Pilot’s purpose was to jumpstart Arbitrator Intelligence. The larger aim of Arbitrator Intelligence—to promote transparency, fairness, and accountability in the selection of international arbitrators—is an enormous undertaking. So we had to start somewhere. We decided to begin by collecting arbitral awards. Specifically, for the Pilot [...]

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