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Treaty Claims by Dual Nationals: A New Frontier?

For natural persons, possession of the nationality of the host state is an absolute bar to becoming a party to ICSID proceedings against that state. Article 25 of the ICSID Convention delimits the scope of arbitral jurisdiction to investment disputes between a ‘Contracting State’ and a ‘national of another Contracting State’, defined as ‘any natural person who had the nationality of a Contracting State other than the State party to the dispute’ on the relevant dates, that is, the date of consent to arbitration and the date of registration of the request.

Some bilateral investments treaties incorporate a similar rule. For instance, the Canada-Venezuela BIT expressly excludes dual [...]

Has Brazil Fully Embraced the Provisions of the New York Convention of 1958? Is it an Arbitration-Friendly Jurisdiction?

In 1996, when the Brazilian Arbitration Act (“BAA”) came into force, the New York Convention (“NYC”) was still facing considerable resistance from the Brazilian Executive and Legislative branches. At that time, there were few indications that the NYC would be ratified in the near future. This is why the draftsmen of the bill (a bill which eventually became the BAA) decided to include in its text the main provisions of the NYC. By doing so, Brazil adopted the main framework of the NYC without actually becoming a Member State. Whilst this strategy was originally intended merely to circumvent the lack of political will to ratify and internalise the NYC; the practical, unintended effect has [...]

It’s Asia, Stupid! The Race Between the EU and the US for Concluding Free Trade Agreements in Asia

While the focus of the debate concerning free trade and investment agreements in Europe has been almost exclusively on the transatlantic deals with the US (TTIP) and Canada (CETA), there is far more going on in Asia with potentially much more at stake.

Indeed, nothing less than a very competitive race is going on between the EU and the US to conclude as quickly as possible free trade agreements (FTAs) with investment protection and ISDS chapters with Asian countries.

The US has just announced (on 5 October) that the negotiations for the Trans Pacific Partnership (TTP) agreement have been successfully concluded.

Clearly, one of the driving forces for the US to conclude the deal as soon as pos [...]

The Challenge of Sanctions for Arbitral Participants

Financial, trade and political sanctions have long been used by states as a tool of foreign policy. This is no less true today, where high profile sanctions regimes have been imposed against Iran, Myanmar, Sudan, North Korea, and Zimbabwe amongst many others. See, for example, the lists of sanctions maintained by the EU (see here), USA (see here) and Canada (see here). Such sanctions of course indirectly affect those outside the target jurisdictions in question, as any overseas company attempting to do business in such a country knows only too well.

But with the imposition and tightening of sanctions imposed against certain Russian individuals, organisations and industries by countries inclu [...]

Lifting of Iran Sanctions: A Time for Cautious Optimism? Background to the Iran Sanctions Legislation

In international arbitration, the effect of international sanctions regulations usually arises at two key stages. First, at the commencement of arbitration, where arbitral institutions, arbitrators and counsel involved in the proceedings must consider if they are potentially in breach of such regulations. Secondly, at the enforcement stage, if an award is challenged under the New York Convention 1958, on public policy grounds.

A consideration of Iran-related sanctions is timely, given the recently launched Joint Comprehensive Plan of Action (JCPOA) on 15 July 2015 announcing the gradual lifting of nuclear-related international sanctions in exchange for the dismantling of Iran’s nuclear wea [...]

The Evolution of Unilateral Arbitration Clauses in Russia

The issue of a unilateral (optional, alternative, hybrid) arbitration clause is highly controversial in commercial arbitration. The approach to these clauses varies from jurisdiction to jurisdiction. In 2012, the Supreme Arbitration Court of Russia (a state court), in Russian Telephone Company v. Sony Ericsson, declared a unilateral arbitration clause invalid. The decision attracted attention of arbitration participants both in Russia and abroad.

In 2014, the Supreme Arbitration Court of Russia was abolished. The judicial matters which were under its authority were transferred to the Supreme Court of Russia. In 2015, a case regarding a unilateral arbitration clause was considered by the Cham [...]

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