Arb-med procedures and enforcement in Hong Kong: The crest of the waiver?
Last month’s judgment of the Hong Kong Court of Appeal (“CA“) in Gao Haiyan and Xie Heping v. Keeneye Holdings and another CACV 79/2011, is the latest in a long line of cases demonstrating the pro-enforcement approach of the Hong Kong courts. The decision makes clear that it is not the place of the Hong Kong courts to comment on the merits of an arbitral award. Rather, the courts’ role in enforcing arbitral awards should be as mechanistic as possible. This is consistent with existing caselaw on enforcement and reinforces the respect of the Hong Kong courts for the finality of arbitral awards.
The CA in Keeneye reversed the much-discussed decision of the Hong Kong Court of First Instance [...]
Investments in the deep freeze? Stabilization clauses in investment contracts
A few years ago, stabilization clauses in investment contracts became the subject of increased attention by human rights and development groups. A report on Stabilization Clauses and Human Rights, issued by the UN Secretary-General’s Special Representative for Business and Human Rights, John Ruggie, was the first comprehensive study to draw on a range of heretofore confidential transactions covering a range of investment projects around the world.
For contract negotiators, these clauses continue to pose some perplexing questions on the proper allocation of transaction’s risk between an investor and a host state. For the arbitration community, it’s worth considering how these clause [...]
Mass Claims and the distinction between jurisdiction and admissibility
In its 4 August 2011 Decision on Jurisdiction and Admissibility, the majority of the Tribunal in Abaclat and Others (Case formerly known as Giovanna a Beccara and Others) v. Argentine Republic affirmed that it had jurisdiction to hear the claims of over 60,000 Italian investors against Argentina arising out of Argentina’s default on various sovereign bonds. The Decision is historic in its holding that there is no impediment to mass claims under the ICSID Convention and Arbitration Rules and that ICSID tribunals have the power under ICSID Arbitration Rule 19 to adopt procedures to handle mass claims.
Although the Tribunal’s finding that it can hear mass claim has garnered the [...]
The Public Policy Exception – Is the Unruly Horse Being Tamed in the Most Unlikely of Places?
The public policy exception under Article V(2)(b) of the New York Convention is well recognised as the amorphous exception. To the extent it has been capable of definition, it has been found to embrace nebulous concepts such as a state’s most basic notions of morality and justice. No doubt it is for this reason that it was described by an English judge almost two centuries ago as an unruly horse which carries its rider to unpredictable destinations. While more established arbitration friendly jurisdictions have developed a restrictive approach to the public policy, elsewhere it has remained the refuge of last resort for the dissatisfied party to an arbitral award. This concern was succin [...]
Swiss Federal Tribunal rejects multiple standards of independence and impartiality among arbitrators
In a landmark decision dated 29 October 2010, published on 19 November 2010 (case 4A_234/2010), the Swiss Federal Tribunal dismissed a motion to set aside a Court of Arbitration for Sport (“CAS”) award based on the alleged impartiality of one of the co-arbitrators. The Court firstly clarified that the independence and impartiality expected from any arbitrator were the same, irrespective of his position within the arbitral panel. Furthermore, it stated that there was no justification to apply a more stringent standard of independence and impartiality to CAS arbitrators.
Background
By decision of 11 May 2009, the famous Spanish cyclist Alejandro Valverde was given a two-year doping ban by the [...]
A Brief Comment on the “Public Statement on the International Investment Regime”
On 31 August 2010, a group of over 35 academics (not including the current author), published a Public Statement on the International Investment Regime (Statement). The preamble to the three-page Statement outlines why the Statement has been issued:
We have a shared concern for the harm done to the public welfare by the international investment regime, as currently structured, especially its hampering of the ability of governments to act for their people in response to the concerns of human development and environmental sustainability.
The Statement highlights a number of concerns, including that investment treaties have been given unduly pro-investor interpretations; the award of damages [...]
