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Enforcement of Treaty Awards against Russia in Asia: A Safe Haven for Russian Assets?

In recent years, Russia has become a frequent respondent in investment treaty matters. This is a new development. There are currently at least ten treaty claims pending against Russia, with a number of other disputes threatened. At the same time, Russia is trying to protect its assets against a large-scale enforcement campaign in Europe and the US.

On 6 August 2015, in response to these developments, the government of the Russian Federation introduced a draft law ‘On Jurisdictional Immunity of Foreign States and Foreign Sovereign Assets in the Russian Federation’ in the State Duma. Under the draft law, Russian courts would be entitled, based “on a reciprocity principle”, to exercise [...]

Treaty Shopping by Dual Nationals Through the Use of Interposed Corporate Entities

Treaty shopping, also called corporate (re-)structuring, is most often associated with legal persons, in particular mailbox companies. Much discussed in this respect is the practice of “round-tripping” where the investor-claimant is foreign-incorporated, but majority-controlled by natural or legal persons of host State nationality (see e.g. Tokios Tokeles v Ukraine, ICSID Case No. ARB/02/18, Decision on Jurisdiction, 29 April 2004). In these cases, arbitral tribunals have virtually uniformly rejected Respondents´ pleas to “pierce the corporate veil” and look for the “real” (upstream) investor in the absence of a corresponding, treaty-based requirement, thus adopting a strictly f [...]

The LCIA’s New Guidance Notes – An (uneasy) Exercise in Relative Normativity

Background

At the end of June 2015, the London Court of International Arbitration issued three new guidance notes to accompany its 2014 arbitration rules. The guidance notes, entitled: “Notes for Parties”, “Notes for Arbitrators”, and “Notes on Emergency Procedures” are available on the institution’s website.

In issuing the guidance notes, the LCIA has followed in the footsteps of its subsidiary – LCIA India – which  issued its “Notes for Arbitrators” to supplement its own arbitration rules published in 2010.  In addition, other institutions such as SIAC, HKIAC and the ICC have also published similar guidance notes as early as 2006.  For example, SIAC has  issued “Pr [...]

What’s Next? – Practical Ponderings on Arbitrators and Overturned Jurisdictional Awards

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 law firm.

There are a number of questions that influence how arbitration treats cases in which an award is challenged successfully. A court overturns an award declining jurisdiction, but what’s next? The easy answer, and certainly the practical one is for the arbitrator to resume the case and render an award on the merits.

When trying to justify why this should be so, the easy answer becomes more complicated. To clarify the justification of this seemingly obvious answer, the following thoughts and conclusions prompted this [...]

DIFC Court of First Instance supports enforcement of foreign ICC award against a non-DIFC award debtor

By Order of 11 May 2015 (unpublished) in Case No. ARB 005/2014 – A v. B, Justice Sir David Steel of the Dubai International Financial Centre (DIFC) Court of First Instance dismissed an application made by an award debtor to set aside an order granted by the DIFC Court on 8 January 2015 (unpublished) for the recognition and enforcement of an International Chamber of Commerce (ICC) arbitration award issued in Paris, France, on 6 May 2014 (the “Enforcement Order”), with reasons to follow. In the terms of the application (see Application Notice ARB-005-2014/1, dated 28 January 2015, unpublished), the award debtor sought either the setting aside of the Enforcement Order or an adjournment of [...]

International Energy Charter as a milestone for global energy co-operation in the 21st century

In May this year some seventy-five states and institutions adopted (of which sixty-five signed) the International Energy Charter (IEC) in The Hague ministerial conference to herald a new age of global energy co-operation. The Charter is a political declaration by states and it modernises its predecessor the European Energy Charter (1991) – the foundation of the Energy Charter Treaty which established a legally binding energy governance framework. It has to be recognised that the adoption of the IEC is the first major political achievement since the Treaty itself was signed in 1994. The new Charter is an indication of the maturity and self-confidence of the Process after 25 years of its ex [...]

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