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Astro v Lippo in Hong Kong: Award Enforced Despite Singapore Court of Appeal’s Finding that the Tribunal Lacked Jurisdiction

It is well known that the Singapore Court of Appeal refused enforcement of Awards in favour of Astro in 2013 (discussed here), on the grounds that the tribunal lacked jurisdiction over the claimants. The same Awards have now been enforced against First Media, a Lippo company, in Hong Kong (Astro Nusantara International B.V. v PT First Media TBK HCCT 45/2010).

Mimmie Chan J had commented at an interlocutory stage of the Hong Kong proceedings that “it will indeed be remarkable if, despite the Singapore Court of Appeal judgment on the invalidity of arbitration awards, Astro will still be able to enforce a judgment here based on the same arbitration awards that were made without jurisdiction.”

W [...]

Singapore Court Reviews Investment Arbitral Tribunal’s Decision On Jurisdiction: What Standard Should Apply As to Evidence?

and Paul Tan, Jawad Ahmad and Victor Steinmetz, Rajah & Tann Singapore LLP

In what marks the first time where a Singapore court reviews an investment arbitral tribunal’s jurisdiction, the High Court held in Government of the Lao People’s Democratic Republic v Sanum Investments Ltd [2015] SGHC 15 that, contrary to the tribunal’s findings, the Agreement between the Government of the Lao People’s Democratic Republic (“Laos”) and the Government of the People’s Republic of China (“PRC”) Concerning the Encouragement and Reciprocal Protection of Investment dated 31 January 1993 (the “Treaty”) did not apply to the Macau Special Administrative Region of China (“Macau”), wher [...]

Case Note – Guaracachi America Inc & Rurelec Plc vs Bolivia: Multiple bites at the cherry but only half the benefit

An arbitral award (PCA Case No. 2011-17, 31 January 2014) arising out of the nationalisation of an electricity generation business in Bolivia has provided useful guidance on: (1) the ability of multiple investor claimants to bring joint claims against a state under separate BITs in a single proceeding; and (2) the time at which a state is entitled to invoke a denial of benefits clause to deny an investor the benefits of an investment treaty.

Background

The Claimants, Guaracachi (a USA company) and Rurelec (a UK company) commenced a claim against Bolivia under the USA-Bolivia and the UK-Bolivia BITs arising out of the nationalisation in 2010 of Guaracachi’s 50.001% shareholding in Empresa Ele [...]

Damages as a Sanction for Commencing Court Proceedings in Breach of an Arbitration Agreement

Arbitration proceedings sometimes spawn a host of parallel court proceedings.  It is not unheard for parties to seek to instrumentalise courts, sometimes with the complicity of the courts themselves, to escape the jurisdiction of an arbitral tribunal.  Such conduct may, however, expose parties to liability for breach of the arbitration agreement, as was confirmed by a recent decision of the Swiss Supreme Court (4A_232/2013 of 30 September 2013).

In many cases, parties referring a dispute which is covered by an arbitration agreement to a state court do it for tactical reasons, with the hope of obtaining a more favourable decision from the courts in their home jurisdiction than from a neutra [...]

The invocation of “denial of benefits clauses”: when and how?

By Carmen Núñez-Lagos and Javier García Olmedo

In an award rendered on 31 January 2014, an arbitral tribunal constituted under the UNCITRAL Rules declined jurisdiction over the claims brought by one of two claimants against the Plurinational State of Bolivia on the basis of the application of a denial of benefits clause in the US-Bolivia BIT.1

The two claimants were Rurelec Plc, a company constituted under the laws of England & Wales, and its affiliate Guaracachi América Inc. (GAI), a company incorporated in the United States. The dispute concerned the alleged violation by Bolivia of certain provisions of the US-Bolivia BIT and the UK-Bolivia BIT (the BIT).

Among the various jurisdictio [...]

Kompetenz-Kompetenz in Brazil: alive and kicking

The Brazilian Superior Court of Justice (“STJ”) has issued, on 19 June 2013, a landmark decision addressing the principle of Kompetenz-Kompetenz (Resp. no. 1,278,852-MG Samarco Mineração S/A v Jerson Valadares da Cruz). The decision deals with the allocation of competence between arbitral tribunals and national courts to decide on the validity of an arbitration agreement. The STJ reasoned, for the first time, that court review on this issue is only permitted at two procedural stages: (i) in proceedings to set aside an arbitral award; or, (ii) in proceeding to resist the recognition and enforcement of an arbitral award.

Facts

Samarco Mineração S.A. (“Mineração”) entered into an agre [...]

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