International arbitration

Arbitration, ECT Modernisation, International arbitration, Investment Arbitration, Reform

(Concepción Global, PLLC, Universidad Complutense de Madrid) and / /1 Comment

In the absence of a uniform standard of compensation under the Energy Charter Treaty (“ECT”), tribunals have been tasked with filling the gap and have done so by exercising an important margin of appreciation for the assessment of damages. Such wide discretion has resulted in divergent approaches in assessing damages. Since the first ECT decision,…

ECT Modernisation, Energy Charter Treaty, Fair and Equitable Treatment, International arbitration, Investment Arbitration

(Durham Law School) and (Magnusson Minds)/ /Leave a comment

The investment protection mechanism in the Energy Charter Treaty (ECT) is meant to, among other things, promote, attract, and protect foreign investments in the member states’ energy sectors. In 2018, the Energy Charter Conference announced its list of approved topics for the modernization of the ECT. The list included several substantive investment protection provisions. This…

Arbitration, Arbitration Institutions and Rules, ECT Modernisation, International arbitration, Investment Arbitration, ISDS, ISDS Reform, Reform

(Australian National University) and / /Leave a comment

The Energy Charter Treaty (‘ECT’) opened for signature in 1994, entered into force in 1998, and now boasts some 50 member States. The ECT has since given rise to some 130 investor-State arbitrations, making it “the most frequently invoked international investment agreement”. This high use, coupled with a perception that the ECT is frequently invoked…

ADR, Arbitration Proceedings, Data Protection, GDPR, IBA, ICCA, International arbitration, Videoconferencing

, (RF Arbitration)/ /2 Comments

Previous posts have already covered various aspects of data protection in international arbitration proceedings and also in view of cybersecurity. Meanwhile, new and crucial data protection aspects have arisen with regards to video conferencing. The ICCA / IBA’s Joint Task Force on Data Protection (“Joint Task Force”) in International Arbitration Proceedings has joined forces to…

Document Production, Efficiency, International arbitration

(De Brauw Blackstone Westbroek N.V.)/ /Leave a comment

Document production is widely regarded as one of the most time-consuming and costly elements of international arbitration.1)The 2018 International Arbitration Survey: The Evolution of International Arbitration by the School of International Arbitration at Queen Mary University of London and White & Case lists “cost” as arbitration’s worst feature, followed by “lack of effective sanctions during…

Africa, Arbitration, COVID-19, Diversity, International arbitration, Social networks, Webinar, Willem C. Vis Moot, Workshop

, / /Leave a comment

“When written in Chinese, the word ‘crisis’ is composed of two characters. One represents danger and the other represents opportunity.” (John F. Kennedy, Former US President). The current Covid-19 pandemic has wreaked havoc globally impacting people in grievous ways. The resultant containment measures by governments have severely limited or otherwise rendered physical interactions impossible. As…

Arbitration, Arbitration Proceedings, Crimea, International arbitration, Investment Arbitration

(Lindeborg Counsellors at Law)/ /Leave a comment

The Crimea crisis has received attention by UNCLOS and investment tribunals, as well as by the Swiss Federal Tribunal in appeals and annulment proceedings. However, their analyses have been limited to jurisdiction. The implicated issue was whether the (bilateral) investment treaties (BIT) of the occupying, and a fortiori annexing, State could be applied extraterritorially. These…

Annual Report, Brazil, Diversity, English Law, Governing Law, International arbitration, LCIA Arbitration

(PLMJ Law Firm) and (Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates)/ /Leave a comment

On 19 May 2020 the London Court of International Arbitration (hereinafter the LCIA or the Court) issued its annual casework report for 2019. This paper aims to present and analyse the numbers revealed in the report. The focus will be on the development of international arbitration in terms of market, diversity and inclusion, and applicable…

Arbitration, Arbitration Proceedings, Australia, International arbitration, Investment Arbitration, United States, USMCA

(University of Wollongong)/ /1 Comment

The investor-state dispute settlement (ISDS) arrangements provided in Chapter 14 of the United States-Mexico-Canada Agreement (USMCA) are a radical shift from those that have been in force for the past 25 years under Chapter 11 of the North American Free Trade Agreement (NAFTA). As explored in Wednesday’s post, Canada has effectively opted-out of ISDS under…

Canada, International agreement, International arbitration, Investment agreements, Investment Arbitration, Investment protection, Investment Treaties, Mexico, NAFTA, United States, USMCA

(Law Offices of Kiran N Gore PLLC; The George Washington University Law School) and (Australian National University)/ /Leave a comment

On July 1, 2020, the United States – Mexico – Canada Agreement (USMCA) will enter into force. Although the media widely refers to the treaty by its American name, USMCA, it also carries two other names: Canada has adopted it as the Canada – United States – Mexico Agreement (CUSMA), while Mexico has settled on…

Arbitration, Arbitration Proceedings, Human Rights, ICSID Amendments, International arbitration, Investment Arbitration, Reform, Working Group III

(Georgetown Law) and (Columbia Law School)/ /Leave a comment

Reforms Are Afoot Calls for investor-State dispute settlement (“ISDS”) reform have catalyzed efforts to evolve the regime. Concurrently, the ISDS system continues to wrestle with tensions between an investment regime primarily oriented towards protecting investor rights, and the human rights normative architecture for protection of individual rights and associated State obligations for protection of such rights. ISDS…

ADR, ADR Clauses, International arbitration, Technology

(Consortium Legal)/ /Leave a comment

Not all technology is born equal. In 1739, the French inventor and artist Jacques de Vaucanson unveiled a head-scratching automaton that fascinated contemporaries for more than a century. It was a ‘digesting duck’, which had the apparent ability to eat kernels and actually digest them. The invention was a trick, of course, and it was…

Arbitration, Arbitration Proceedings, Corruption, International arbitration, Investment Arbitration

, , (Vinson & Elkins LLP)/ /Leave a comment
Young ITA

Recent years have seen an uptick in the expansion and enforcement of anti-corruption laws worldwide. In 2017, China amended its Anti-Unfair Competition Law, broadening the scope of bribe recipients covered by the law, and increasing penalties. In 2019, Italy widened its anti-bribery law, No. 3/2019, increasing penalties for both individuals and companies found guilty of…

Appointment of arbitrators, Arbitrator Intelligence, Arbitrators, COVID-19, International arbitration

(Arbitrator Intelligence)/ /7 Comments
Arbitrator Intelligence

Long before the now-popular phrase “pale, male, and stale,” leading arbitrators were instead often referred to as a “club,” a “cartel,” or even a “monopoly.” Those references were meant metaphorically, even jokingly. The irony is that they turn out to hold important truths that are promiscuously intertwined with the pale-male-stale moniker. To understand both, we…

Arbitration, Arbitration Institutions and Rules, Arbitration Proceedings, COVID-19, Institutional Rules, International arbitration, International Commercial Arbitration, SIAC, Virtual hearings

(SIAC)/ /1 Comment

Background There is much public discourse on the impact of the ongoing pandemic on international arbitrations. Commentators and scholars have provided perspectives on how to navigate and find safe harbours in the uncharted waters of COVID-19. In the “new normal” of wide-ranging travel advisories and restrictions, there is an emerging consensus to better integrate the…

Advance on Costs, Arbitration Institutions and Rules, International arbitration

(Arias SLP) and (Herbert Smith Freehills LLP)/ /Leave a comment
Herbert Smith Freehills

It is not uncommon to encounter international arbitration cases in which one party, usually the respondent, refuses to pay the advance on costs set by the institution. This may occur when that party objects to the jurisdiction of the arbitral tribunal or there is a risk that the advance will not be recovered after the…

COVID-19, International arbitration, Remote hearings

(WilmerHale & Queen Mary University of London)/ /1 Comment

Remote hearings are nothing new, but the COVID-19 crisis has forced international arbitration out of its comfort zone. Parties, counsel, and arbitrators must adapt to the new reality of conducting proceedings in the face of travel restrictions and social distancing measures. One particularly thorny question is whether and to what extent planned physical hearings that…

Arbitration Proceedings, International arbitration, Virtual hearings

(Carmigiani Pérez)/ /Leave a comment

During a vivid “virtual” presentation delivered by the well-known arbitrator, professor and practitioner, Gary Born, the topic of virtual hearings was addressed. Another well-known international arbitrator, Elena Gutierrez García and the President of the AMCHAM-Peru Arbitration Center, José Daniel Amado, moderated the discussion. At the outset, Mr. Born clarified that virtual hearings are not a…

Appeal, Finality, International arbitration, Surveys

(Bryan Cave Leighton Paisner LLP)/ /Leave a comment
Bryan Cave Leighton Paisner LLP

Last week BCLP released the results of its annual International Arbitration survey on the topic of appeals against a tribunal’s decision on the merits. Respondents to the survey comprised arbitrators, corporate counsel, external lawyers, litigation funders, academics and those working at arbitral institutions. Procedures for court challenge of an award on the basis of procedural…

Arbitration Agreement, Choice of Law, English courts, Express choice, International arbitration, Law governing the arbitration agreement, Proper law of arbitration agreement

(Mihaela Maravela Law Office)/ /Leave a comment

In the recent ruling of 29 April 2020, the England and Wales Court of Appeal, departing from Sulamérica, has held the seat of arbitration as an implied choice of the law of the arbitration agreement in cases where parties expressly chose the law applicable to the main contract and the seat of arbitration under a…

Association Agreement, European Union, International arbitration, Protectionism, Ukraine

(Vasil Kisil and Partners)/ /Leave a comment

On 28 January 2020, the arbitration panel has been formed in the dispute between the EU and Ukraine regarding Ukraine’s export prohibition of unprocessed timber. Notably, this is the first dispute between the EU and Ukraine under the Association Agreement (“EU-Ukraine AA”), and here, the EU invokes the dispute settlement mechanism provided by the free-trade…

Corruption, Document Production, France, French Supreme Court, Independence and Impartiality, International arbitration, Jurisdiction of the arbitral tribunal, Paris Court of Appeal, Set aside an arbitral award, State Immunity

(Terrien Avocat)/ /Leave a comment

Although some might have considered 2019 a bit “lackluster”,1)Th. Clay, Panorama – Arbitrage et modes alternatifs de règlement des litiges: novembre 2018-décembre 2019, Dalloz, 26 December 2019. a number of noteworthy decisions by the Paris Court of Appeal and French Supreme Court have come to refine on the now well-established French case law on international…

Enforcement, International arbitration, United States Courts

(Binder & Schwartz LLP)/ /Leave a comment
Young ICCA

On September 4, 2019, Esso, a subsidiary of the Exxon Mobil Corporation, and Shell Nigeria, a subsidiary of the Shell Oil Company (collectively “Esso”), attempted to enforce a $1.799 billion arbitral award in the U.S. District Court for the Southern District of New York after it had been annulled in the courts of Nigeria (Esso Opinion)….

Achmea, CJEU, International arbitration, Intra-EU BITs, ISDS, Supreme Court of Sweden

(SCC Arbitration Institute)/ /1 Comment

Readers of the Kluwer Arbitration Blog will be very familiar with the drama surrounding the European Union’s (EU) pushback against intra-EU investor-state dispute settlement (ISDS) as contained in intra-EU bilateral investment treaties (BITs) and in particular the “clap of thunder” Achmea (C-284/16) judgment (on this blog see, e.g. here). According to the Court of Justice…