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ICCA 2014. Gap Filling in International Arbitration: An Unsettled Territory

Though of paramount importance in jurisprudence, no contract is perfect. Sometimes, at the time the parties negotiated and drafted the contract, they inadvertently failed to anticipate a particular issue that only arose years after execution. As a result, the parties are left with a glaring gap and, naturally, they cannot agree how it should be filled. And when courts and arbitrators ultimately are asked to resolve the parties’ dispute, the gap-filling dilemma presents exceedingly difficult questions and inconsistent results.

Gap filling was the subject of a panel at the ICCA 2014 Congress in Miami featuring Professors Alan Scott Rau (Austin), Cristiano Zanetti (Sao Paulo), and Charles [...]

ITA-ASIL Conference: Mass and Class Claims in Arbitration

In the wake of hotly contested domestic and international developments, speakers at the Annual ITA-ASIL Conference in Washington, DC on April 9 gave varied and sometimes conflicting perspectives on the use of mass and class claims in arbitration.

Mass Claims in Investment Arbitration – A Favorable View

In her keynote speech, Carolyn B. Lamm of White & Case LLP discussed her own experiences with mass claims and the future of large scale claims. Ms. Lamm is lead advocate for the claimants in the ICSID case Abaclat v. Argentine Republic. In a groundbreaking 2011 ruling, the Abaclat tribunal found that the jointly filed claims of 60,000 individual investors arising out of Argentina’s 2001 [...]

2014 ITA Arbitral Award Enforcement Survey

As part of the 26th Annual ITA Workshop taking place in Dallas on June 18-20, we have prepared a survey on the experiences of arbitration practitioners with enforceability of arbitral awards in the recent past. In some respects, this builds on excellent work done in the 2010 survey of Queen Mary College/PWC, although it seeks to go into greater detail on specific experiences within key enforcement jurisdictions.

Our hope is to maximize the value of the survey by soliciting responses from a broad range of personnel within the international arbitration community. In order to achieve the desired goal, we ask both (a) that you respond to the survey, which should take only a few minutes, and (b) [...]

Using Investment Arbitration to Enforce WTO Commitments

plainpackagingI would like to continue the theme of the emerging convergence of investment arbitration and international trade. In my previous posts (see here and here) I discussed the prospect of using trade remedies to enforce investment arbitration awards. Another key example of convergence addresses the emerging trend of relying on investment arbitration to enforce international trade rights. As discussed in my recent article, despite the assumption that international trade disputes must be resolved before the WTO DSB, the existence of broad umbrella clauses in BITs present a promising vehicle for enforcing investment commitments in trade agreements.

Of course, the scope of umbrella clauses is depe [...]

Would Reference to the Decisions of Investment Treaty Tribunals be of Assistance in the Interpretation of Political Risk Insurance Policies?

Readers of this blog are likely to be familiar with the existence of Bilateral Investment Treaties (“BITs”) and the wealth of arbitral awards made publicly available through the International Centre for the Settlement of Investment Disputes (“ICSID”). Given the publicity afforded to proceedings under BITs, or multilateral investment treaties such as NAFTA, one might be led to believe that recourse to investment treaty arbitration is the sole remedy for a seemingly wronged investor. This is incorrect. While it is true that recompense for a State’s breach of its treaty obligations on account of a failure to provide full protection and security to the investor, or for treatment that was not con [...]

ICCA 2014: Pleading and Proof of Fraud and Comparable Forms of Abuse

Chair: Klaus Reichert SC (London)
Main Speakers: Dr. Aloysius Llamzon (The Hague), Anthony Sinclair (London)
Commentators: Utku Cosar (Istanbul), Carolyn B. Lamm (Washington, DC)
Rapporteur: Elizabeth Karanja (Nairobi)

No one would seriously challenge the proposition that investor wrongdoing is a systemic threat to international investment arbitration. But what constitutes investor wrongdoing? What are the standards that govern pleading and proving issues of corruption, fraud, misrepresentation and similar serious allegations of misconduct? How are arbitral tribunals addressing these issues? The Precision Stream on ‘Pleading and Proof of Fraud and Comparable Forms of Abuse’ addressed the [...]

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