International Arbitration and French Insolvency Proceedings: French Supreme Court Reiterates Importance of Public Policy
On May 6, 2009, the French Supreme Court rendered a decision relating to the consequences of insolvency proceedings commenced in France against a party to pending international arbitration proceedings (Jean X. v. International Company For Commercial Exchanges (Income), May 6, 2009, Case no. 08-10281).
A French company had signed three contracts for the sale of crystallized sugar with an Egyptian company. Pursuant to the contracts, the parties were to refer any disputes thereunder to arbitration. The Egyptian company initiated arbitration proceedings on October 5, 2001 to settle a dispute in connection with the performance of the contracts. On May 20, 2003, while arbitration proceedings were [...]
The Relationship Between Enforcing Judgments and Denial of Justice Claims?
My colleague Trey Childress has a nice summary of the recent decision by a federal court in Florida in Osorio v. Dole Food Company to refuse to enforce a $97 million Nicaraguan judgment. Here’s the key excerpt of the decision:
“the evidence before the Court is that the judgment in this case did not arise out of proceedings that comported with the international concept of due process. It arose out of proceedings that the Nicaraguan trial court did not have jurisdiction to conduct. During those proceedings, the court applied a law that unfairly discriminates against a handful of foreign defendants with extraordinary procedures and presumptions found nowhere else in Nicaraguan law. Both t [...]
Federal Tribunal Revises Award Influenced by Fraud
Summary
In a decision of 6 October 2009 (4A.596/2008), the Swiss Federal Tribunal granted revision of a final international arbitral award that was influenced by fraud. This is the first time since the entry into force of the Federal Statute on the Federal Tribunal in 2007, and only the second time since the entry into force of the Private International Law Act in 1989, that the Swiss Federal Tribunal has revised an international arbitral award. It is also the first revision based on the criminal offense prong of Art.123 FSFT. The particular facts of this case place it near the end of the spectrum, which suggests it has not lowered the bar on revision claims under Art.123 FSFT.
Fa [...]
Another misapplication of MFN? Tza Yap Shum v. The Republic of Peru
The Decision on Jurisdiction and Competence (19 June 2009) in Tza Yap Shum v. The Republic of Peru (ICSID Case No. ARB/07/6) is noteworthy as the first publicly available decision involving a claim by a Chinese investor under a Chinese investment treaty. The claim is a tangible reminder of the fact that Chinese investors are increasingly a significant source of foreign direct investment. This economic reality explains why Chinese investment treaty practice has shifted to protect Chinese outward direct investment (See Gallagher and Shan, Chinese Investment Treaties, Oxford 2009). This brief comment focuses on one aspect of the Tza Yap Shum decision–the interpretation of the MFN treatment prov [...]
The “difference without a distinction” strikes again in Glamis Gold: notes on the persisting confusion of preliminary objections to “admissibility” with objections to “jurisdiction” in investment disputes
In one of the most recent NAFTA awards, Glamis Gold v. United States, the United States (“US”) raised objections to the tribunal’s “subject matter jurisdiction” against Glamis’ claims of expropriation under NAFTA Chapter 11. The US argued that the Canadian mining company’s claims based on recently passed California legislation were not “ripe” because the legislative measures had yet to be applied specifically to Glamis. In the US’ view, under NAFTA Article 1117(1) and customary international law, for a claim to be “ripe,” a claimant must assert that it has actually “incurred loss or damage” from the alleged breach. This requirement, deemed by the US a prerequis [...]
A decision based on a written submission of a third party does not violate the right to be heard if the parties to the proceedings had enough time to comment on it
In a decision of 23 June 2009 (4A_62/2009), the Swiss Federal Supreme Court held that the right to be heard is not violated where an arbitral tribunal bases its decision on a written submission of a third party and the parties to the proceedings had enough time to comment on such written submission.By letter of 7 July 2008, the national football association of country F (the “Respondent”), a member of the Fédération Internationale de Football Association (“FIFA”), informed the German National Football Association that it had selected a player (the “Football Player”), to participate in the Olympic Games in Peking in August 2008 (the “Olympic Games”). At that time, the Football Player was en [...]
