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Reflections on HKIAC’s Revised Model Arbitration Clause and Its Impact on Chinese Practice

The Hong Kong International Arbitration Centre (“HKIAC”) has recently revised its Model Arbitration Clause to include a choice of law provision.

“Any dispute, controversy, difference or claim arising out of or relating to this contract, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted.

The law of this arbitration clause shall be … (Hon [...]

The Consolidation Arbitrator – An Arbitrator Too Far?

Whilst many institutional rules now contain provisions which expressly address the complex issue of consolidation, the recently revised rules of the International Centre for Dispute Resolution (the “ICDR”), the international arm of the American Arbitration Association (the “AAA”), are the first to have introduced the novel concept of the “consolidation arbitrator”. Under the ICDR Rules, rather than granting the power to consider and ultimately order consolidation to either the institution itself or a tribunal which has already been appointed in one of the existing arbitrations, a separate, specifically-appointed consolidation arbitrator is appointed for the task.

Whilst this innovation seeks [...]

Interpreting Investment Treaties

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 [...]

What Can We Infer from the Ascendi Case?

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 [...]

Admitting illegally obtained evidence in CAS proceedings – Swiss Federal Supreme Court Shows Match-Fixing the Red Card

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 [...]

Was the Bar Set Too High to Sustain RICO Jurisdiction? More on the Conproca vs. Pemex Case.

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 [...]

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