The rare admittance of nova by the Swiss Federal Supreme Court – Decisions of 14 March 2008 (4A_42/2008) and 8 April 2009 (4A_69/2009)
In the same arbitration proceedings, the Swiss Federal Supreme Court had to decide twice -albeit based on different grounds – whether facts discovered after the issue of an award (so called “nova”) may entail the amendment of the rendered award. In these decisions the Swiss Federal Supreme Court had the opportunity to restate its rigorous jurisprudence with regard to the admittance of nova.
In the case at hand, a Swiss company and a Taiwanese company entered into a consultancy agreement with regard to the conclusion of an agreement between the Swiss company and a third company. As the Swiss company subsequently refused to compensate the Taiwanese company for the consultancy servic [...]
The “Transnational Approach” of the ILA Recommendations on Res Judicata and Arbitration
I have been reading with interest the ILA’s Final Report and Recommendation on Res Judicata and Arbitration adopted at the 2006 Toronto conference. Recommendation 2 provides that:
The conclusive and preclusive effects of arbitral awards in further arbitral proceedings set forth below need not necessarily be governed by national law and may be governed by transnational rules applicable to international commercial arbitration.
I understand the motivation behind this recommendation, but am confused as to how it would be implemented. Because res judicata is viewed as procedural, its application depends on the lex fori, which means that one panel may adopt a civil law approach in one case and a [...]
Refusing the enforcement of awards – where discretion ‘may’ be exercised
- By Phillip Capper, White & Case LLP,
for White & Case
Given the fundamental nature of the exceptions to the recognition and enforcement under the New York Convention (the “Convention”) it should not be forgotten that their application is in fact discretionary: Article V.1 of the Convention states that “Recognition and enforcement of the award may be refused at the request of the party against whom it is invoked…”
In some jurisdictions the “may” has been interpreted as “shall” (e.g. Germany); however, in most jurisdictions, including England, the discretionary language is retained.
The exercise of this discretion was revisited by the English Court of Appeal in Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Governm [...]
Demystifying the Settlement of Disputes in China – Roundtable Discussion on CIETAC Practice
As arbitration continues its upward trajectory in the world of dispute resolution, eyes have remained fixed on legal developments in China. With the significant growth of international transactions involving Chinese parties, there has been an equally staggering rise in the number of disputes. In China, arbitration has quickly become an accepted method of resolving international commercial disputes.Appreciating the importance of China as an investment – and consequently an arbitration – destination, Freshfields Bruckhaus Deringer’s Cologne office recently hosted a conference on Chinese arbitration for German practitioners and members of the business community on 3 July 2009. Speaki [...]
Persistent Objector argument also at issue in NAFTA case
Following on from Patrick Dumberry’s post, I wanted to offer some information on another pending investor-state dispute where a version of the persistent objector argument has arisen.
There is an ongoing discussion in the Grand River Enterprises v. USA NAFTA arbitration, as to whether there is an “emerging” customary international law norm which requires States to “pro-actively consult” with “First Nations investors” (i.e. indigenous persons) before taking regulatory action that will substantially affect their interests.
In its counter-memorial in that case, the US Government has questioned whether there is such an emerging norm:
“Claimants allege that this “emergin [...]
Can a State claim the status of “persistent objector” in investor-State arbitration?
The question of the existence of legal protection for foreign investors under customary international law has always been controversial. States have indeed entered into BITs precisely because of the lack of development of relevant custom rules in the field of international investment law. It is nonetheless largely agreed today that some rules of customary law have emerged. For instance, one such rule is the obligation for the host State of an investment to provide foreign investors with the “minimum standard of treatment”. Another is that the host State cannot expropriate a foreign investor’s investment unless four conditions are met: the taking must be for a public purpose, as provided by l [...]
