Misconduct & jurisdiction: Some cases from the history stacks
In a recent post , Andrew Newcombe queried whether investor misconduct should be dealt with by arbitrators not as a jurisdictional issue, but rather at the merits, damages or costs phase.
His post was published as I was wading through 100’s of pages of old international claims commission awards (for reasons too obscure to get into here).
It may be of some interest to readers of this blog to note that there are several interesting claims arbitrated by the US-Mexico General Claims Commission in the mid-1920s which discuss whether alleged misconduct of an alien should vitiate the Commission’s jurisdiction to hear claims for breach of international law.
The Macedonio J. Garcia ca [...]
Perenco v. Ecuador: Was there a valid arbitrator challenge under the ICSID Convention?
By Federico Campolieti* and Nicholas Lawn**
Introduction
In a recent decision related to the ICSID case Perenco Ecuador Limited v. The Republic of Ecuador [1], the Secretary-General of the Permanent Court of Arbitration at The Hague (“PCA”) has upheld a challenge against a leading arbitrator, Judge Charles N. Brower, on the basis that from the point of view of “a reasonable third person having knowledge of the relevant facts”, the comments made by the arbitrator in a published interview constituted circumstances giving rise to justifiable doubts as to the arbitrator’s impartiality or independence [2].
The PCA accepted jurisdiction to decide upon the challenge made by Ecuador, base [...]
Existence and Validity of an Arbitration Agreement: The French Supreme Court Confirms that the Validity of an Arbitration Agreement Depends Primarily on the Common Intent of the Parties
On 8 July 2009, the French Supreme Court rendered a decision confirming its position that the existence and the validity of an arbitration agreement should be determined primarily in light of the common intent of the parties (Société d’études et représentations navales et industrielles (SOERNI) et autres vs. Société Air Sea Broker limited (ASB), July 8, 2009, Case no. 08-16025).
The case concerned a transportation agreement entered into by SOERNI and ASB for the transport by ASB of a motorboat from Libreville to Pointe Noire. The agreement between the parties did not contain any arbitration clause. However the parties also entered into a hold harmless letter, which made reference to a [...]
Investor misconduct and investment treaty arbitration: mapping the terrain
The treatment of investor misconduct in investment treaty arbitration raises a series of complex issues. Allegations of investor misconduct (such as fraud, illegality and corruption) can arise in the context of the making of an investment, during its operation, or in the investment treaty claim making process. How should a tribunal address investor misconduct if it is proven? When does investor misconduct deprive a tribunal of jurisdiction? What powers do investment treaty tribunals have to decline investor claims based on principles such as abuse of rights, abuse of process or international public policy? If a tribunal declines an investment the substantive benefits of the inves [...]
Swiss Federal Supreme Court sets aside CAS award for lack of a valid arbitration agreement
In a recent decision dated 6 November 2009 (4A_358/2009), the Swiss Federal Supreme Court set aside an award by the Court of Arbitration for Sport (CAS) in Lausanne. The Supreme Court held that although its practice regarding the validity of arbitration agreements was generally liberal, in the present case the mere fact that the appellant had signed an entry form for a specific ice hockey tournament did not prove sufficient to constitute a valid arbitration agreement for disputes outside the scope of such tournament.
A. was a member of the German national Ice Hockey team and had represented Germany at a number of World Championships, as well as the 2006 Olympic Games in Turin. In March 2008, [...]
Creeping Codification of the New Lex Mercatoria: The TransLex Principles at www.trans-lex.org
One of the major problems related to the doctrine of the New Lex Mercatoria (NLM) is to determine its contents. The UNIDROIT Principles of International Commercial Contracts, of which a third edition will perhaps be finalized this year, have used the Restatement technique of the American Law Institute as a means to “codify” transnational contract law. International arbitral tribunals have used the Principles over the past fifteen years to fill gaps in international uniform law instruments like the CISG, to interpret domestic law in a transnational context, to make their awards more persuasive from a comparative perspective or because the parties had agreed to have “general principles of law, [...]
