The Unavoidability of Uncertainty: One Lesson from the Recent U.S. Court Ruling in Argentina v. BG Group
It has become fashionable in recent years, each time an ICSID annulment decision is released that takes issue with the procedures or reasoning of an ICSID tribunal, for commentators to bemoan the lack of certainty, predictability and finality that this reflects in the ICSID system for adjudicating investment treaty disputes between investors and host States. Some commentators urge a return to greater use of ad hoc UNCITRAL arbitration, or arbitration before institutions other than ICSID, to avoid the perceived vagaries of the ICSID annulment process. Yet commentators often forget that these alternatives carry their own risks of uncertainty, inherent in the national court review process tha [...]
Negotiation Clauses in BITs – Empty Words?
In the recent investment treaty case Alps Finance Trade AG v Slovak Republic, an UNCITRAL tribunal had to consider whether Alps had satisfied the obligation contained in Article 9 of the Switzerland-Slovakia BIT which requires that “consultations will take place” and that they “do not result in a solution within six months” before the matter can be referred to arbitration. Slovakia argued that this was a condition precedent to arbitration which had not been met by Alps and that Slovakia’s consent to arbitration was therefore missing and the Tribunal lacked jurisdiction to hear the case. Alps responded that it had actively attempted to consult with the Slovak Government but that the Slovak [...]
Does Noncompliance with Pre-arbitration Dispute Settlement Procedures Affect Awards Enforceability in Russia?
Dispute resolution clauses often provide for negotiations, conciliation or a similar procedure before arbitration. Both UNCITRAL Model Law on International Commercial Arbitration and the Russian law contain no provisions on the legal effect of the pre-arbitration procedure of dispute settlement. In particular, they are silent on whether its non-fulfillment precludes the arbitral tribunal’s competence. Accordingly, state courts have to determine whether and where a failure to comply with such procedure forms grounds for refusal to enforce an arbitral award.
Sometimes in cases on foreign or domestic arbitral awards’ enforcement, or on setting aside domestic awards, debtors argue that the ca [...]
