Who’s A Respondent In Light of Art. 207 of the Lisbon Treaty?
Art. 207 of the Lisbon Treaty defines the new common commercial policy of the European Union, and states that it shall furthermore relate also to “foreign direct investments”. This provision has the appeal of an outright earthquake, given that the field of foreign investment, and in particular investment treaties, has always been the exclusive realm of the member states (at least in theory, the legal reality was different, though: the EU has concluded mixed free trade agreements with third states not only comprising matters of commercial policy, but also of investments). It has accordingly drawn the comments and critique of numerous scholars. Yet, to my mind it seems that this provision [...]
Dispute Resolution in Abu Dhabi (Part IV): Is Conciliation Before Arbitration the Answer?
It was a deliberate decision of the Abu Dhabi Commercial Conciliation and Arbitration Centre (ADCCAC) to include both the term and procedures for “conciliation” in their rules.
Representatives of ADCCAC regularly comment to the effect that they see it as one function of a dispute resolution body to offer to the disputants a pre – arbitration solution, via a speeder and less formal set of procedures. Consistently with that theme, ADCCA has in it’s rules a detailed set of provisions that relate to the concilation of a dispute – before arbitration. Below, in summary, are some features of ADCCAC’s approach, certain of which are quite distinctive.
First, like all ADR provisions, th [...]
Amicus Curiae Interventions: The Tail That Wags the Transparency Dog
I spent yesterday at a Georgetown Law School conference on transparency and international arbitration. Ostensibly focused on arbitration writ large, the event tended to zero in on investor-state arbitration (and investment treaty arbitration more specifically).
While various arguments were aired for and against transparency, I was struck (anew) by the extent to which the transparency debate focuses on the rights of third-parties to intervene as so-called amicus curiae in investment treaty arbitrations.
These third-party interventions are front and centre in the minds of transparency proponents and opponents alike.
Advocates for such interventions like to stress how third-party interventions [...]
Dispute Resolution in Abu Dhabi (Part 3) – A Lot Now Rides on Success of the DAB System
The most commonly used form of construction contract in the Gulf is the FIDIC form. Although the FIDIC forms, for project procurement and consultantcy services, progressed slowly over the years, culminating in the burst of colours in the suite of contracts issued in 1999, some parts of the Middle East still use the 1987 (Red Book) version. Indeed, most government contracts in Oman are based on the 1981 version of the Red Book, updated marginally in clause 67.
In Abu Dhabi, some years ago, a decision was made by the government here to prepare, under license from FIDIC, two bespoked forms of the contract – build only, and design and build. Those forms were issued in 2007 accompanied by t [...]
Ten Ways to Avoid the Americanization of International Arbitration
The ABA Journal has an interesting article on the Americanization of international arbitration. There’s nothing particularly new to our readers in this article. It’s a theme that my friend and colleague Tom Stipanowich has written about extensively. I’ve written a bit about the subject as well. But the fact that the story is being told in the largest legal publication in the United States is significant. The focus of the story is on transplanting American practices to the international arbitration arena, almost at the request of American counsel or arbitrators. Here’s a few choice quotes:
“If arbitration is to commit suicide, it will do so of its own choosing, because the parties have c [...]
Russia: Impartiality Test for Arbitrators
In 2007, the Russian Supreme Arbitrazh (State Commercial) Court in OAO NK Rosneft v. Yukos Capital S.a.r.l ruled that arbitrators must disclose their connection to the legal counsel of the other party at the time of their appointment. The facts of the case suggested that one of the arbitrators spoke at a conference organized and sponsored by the law firm representing Yukos Capital S.a.r.l. in the arbitral proceedings.
Russian law stipulates that an arbitrator must disclose any circumstances which may give rise to justifiable doubts as to his impartiality or independence. Based on such disclosure, a party to the arbitration may decide whether to challenge the arbitrator. The arbitrator’s f [...]
