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Too Much Information or When Information Relating to Arbitration Obscures rather than Clarifies the Landscape

The following thoughts are written aware of the fact that a blog is personal and informational and not a substitute for an academic article. In this spirit the thoughts expressed here are, while fundamental in many respects, also preliminary and tentative in some others.

The quest for more transparency in international (commercial and investment) arbitration captures the attention of novices and veteran insiders and outsiders of this area of dispute resolution. In this respect also the calls for publication of arbitral awards is not entirely new (Julian Lew, Klaus-Peter Berger and Martin Hunter have written on the issue since the late 1970s). The debate about transparency does not automatic [...]

Consent in Multiparty Investment Arbitration – The Most Recent Installment

On November 17, 2014, the tribunal in Alemanni v. Argentine Republic issued its long-anticipated decision on jurisdiction and admissibility. Alemanni is the third in a series of large-scale arbitrations arising out of Argentina’s default on its sovereign debt, and the most recent decision bears some resemblance to the preliminary awards rendered in the other two matters (Abaclat v. Argentine Republic and Ambiente Ufficio v. Argentine Republic). However, Alemanni puts its own distinctive stamp on the question of mass and multiparty claims in the investment context.

The facts in Alemanni are substantially similar to those in Abaclat and Ambiente Ufficio and therefore need not be discus [...]

The Growth of Arbitrator Power to Control Counsel Conduct

There have been increasing calls over the past few years for an international code of conduct for counsel in international commercial arbitration, and for arbitrators to have more power to control counsel conduct. The growing concern is related to significant changes that have taken place in international arbitration practice. Arbitration is no longer controlled by an elite group of arbitrators whose judgment, neutrality and expertise were rarely questioned and who resolved disputes with a minimum of acrimony between the parties. Today, international commercial arbitration differs in significant ways from the days of the “Grand Old Men.” In the modern global arena, arbitrators are themse [...]

Making a Muddle of Moral Damages

Let’s get this straight: When awarded to persons, including foreign investors, moral damages are compensatory in nature. They are not discretionary. They are not symbolic. They are not exemplary. They are not punitive. Rather, as the commentary to the ILC Draft Articles 36 and 37 on State Responsibility notes, “[c]ompensable personal injury encompasses not only associated material losses . . . but also non-material damage . . . (sometimes, although not universally referred to as ‘moral damage’).” Put differently, “[m]aterial and moral damage resulting from an internationally wrongful act will normally be financially assessable and hence covered by the remedy of compensation.” A [...]

Favor Arbitrandum and the Supreme Court of Canada: More Red Flags

The pronouncements of the highest-ranking court are key indicators of a legal system’s stance vis-à-vis arbitration and other private means of dispute resolution. Over the past decade, the Supreme Court of Canada has dealt with arbitration in a number of cases, and it initially did so in a manner that revealed a very supportive attitude. Indeed, the earlier decisions—Desputeaux, 2003 SCC 21, GreCon, 2005 SCC 46, and Dell, 2007 SCC 34—adopted a resolutely pro-arbitration approach on such key issues as the reach of the doctrine of non-arbitrability, the impact of international arbitration agreements on the jurisdiction of domestic courts, and the legal effectiveness of arbitration claus [...]

Who Are the Protagonists in Investment Treaty Arbitration?

Procedural orders rarely become the subject of blog posts, much less the impetus for concerted action among states anxious to control the strategic space on which investment treaty arbitrations unfold. However, a series of orders in Detroit International Bridge Company v. Canada generated controversy when the tribunal steadfastly excluded representatives of the United States from attending hearings on jurisdiction. Viewed from one perspective, the incident reflects an element of farce. But it also provides a trenchant and timely reminder of continuing differences regarding the structure of investment treaty arbitration, and the roles assigned to disputing parties, tribunals, and non-disp [...]

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