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 [...] read more »
Archive for January, 2010
Misconduct & jurisdiction: Some cases from the history stacks
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 [...] read more »
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 [...] read more »
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 [...] read more »
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 [...] read more »
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 [...] read more »
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