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Use of Arbitration Agreement to Silence Omarosa

ADR Prof Blog - Tue, 2018-08-14 15:36
Omarosa Manigault Newman, a former Trump White House aide, just published a tell-all book and the Trump campaign filed an arbitration action alleging that she broke a 2016 confidentiality agreement. According to this Washington Post article, “Initially, [White House Counsel Donald] McGahn told Trump he would not draft or give aides the [non-disclosure agreements] because … Continue reading Use of Arbitration Agreement to Silence Omarosa →

Digital Business in Sweden - Lexology

Google International ADR News - Tue, 2018-08-14 11:57

Digital Business in Sweden
Lexology
International data transfers. What rules and restrictions apply to the cross-border transfer of personal data collected in the course of digital business? Personal data transfers within the European Economic Area can be made without restrictions ...

Singapore: Arb-Med-Arb: Connecting The Dots Between Arbitration And Mediation - Mondaq News Alerts

Google International ADR News - Tue, 2018-08-14 09:48

Singapore: Arb-Med-Arb: Connecting The Dots Between Arbitration And Mediation
Mondaq News Alerts
The Singapore International Arbitration Centre (“SIAC”) and the Singapore International Mediation Centre (“SIMC”) have formalised their very own SIAC-SIMC Arb-Med-Arb Protocol (“AMA Protocol”) to handle disputes in accordance with an “Arb-Med-Arb ...

and more »

Arbitration in Italy - Lexology

Google International ADR News - Tue, 2018-08-14 05:36

Arbitration in Italy
Lexology
A comprehensive reform of arbitration law, and alternative dispute resolution (ADR) legislation in general, is currently being considered. An ad hoc ..... With reference to the seat of arbitration, no specific requirements apply in case of ...

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Spotlight on Ethiopia as it Annuls a Euro 20 million Arbitral Award

Kluwer Arbitration Blog - Tue, 2018-08-14 04:53

Sadaff Habib (Assistant Editor for Africa)

Five years after filing the Permanent Court of Arbitration (PCA) Case No. 2013-32 under the European Development Fund Arbitration Rules (EDF Rules), the claimant, Consta JV (an Italian contractor), would have hoped for a successful award against the CDE (a joint enterprise between the Ethiopian and Djibouti government) that would be upheld by the local court.

All such hopes were crushed when, on 24 May 2018, the Supreme Court of the Federal Democratic Republic of Ethiopia (Court) (i) ruled that it has jurisdiction to review an arbitral award issued under the EDF Rules, (ii) found fundamental errors in law in the arbitral award and (iii) set aside the arbitral award.

The dispute involved a breach of contract claim arising out of a repair works contract financed by the EDF relating to rehabilitation works being performed on the Ethiopia-Djibouti Railway. The dispute was brought before a tripartite tribunal and the award issued by the majority. Co-arbitrator, Professor James Thup Gathii dissented.

Several issues arise from the Court’s decision:

  1. Did the Court have jurisdiction and authority to decide on the nullification of an arbitral award issued under the EDF Rules?
  1. Did the Tribunal err on a point of law?
  1. What is the impact of the Court’s decision on arbitration in Ethiopia and on EDF cases?

 Did the Court have jurisdiction and authority to decide on the nullification of an arbitral award issued under the EDF Rules?

The EDF is an intergovernmental fund outside the EU budget with most of its resources being managed by the European Commission. Countries that receive EDF funding include parts of Africa, the Caribbean etc., and are signatories to the Cotonou Agreement. In 1990, the Council of Ministers of the African, Carribean and Pacific Group of States (ACP States) and the European Economic Community approved a new set of rules for the settlement of disputes arising out of construction, supply and service contracts funded by the EDF. The EDF covers disputes between the private sector executing the contract and authorities of the ACP States.

The EDF Rules

The EDF Rules provide that the law applicable to the substance of the dispute and the lex arbitriare those of the State unless otherwise agreed by the Parties. Furthermore, an award rendered under the EDF Rules is final and binding and parties are required to carry out the award without delay. There is a requirement for an award to be recognised and enforced under the EDF Rules and enforcement of the award is regulated by the law relating to the enforcement of judgments which is in force in the State in whose territory the enforcement is to be carried out.

The seat of the PCA arbitration was Addis Ababa and the governing law of the arbitration was Ethiopian law. The Court had jurisdiction to enforce and recognise the award.

The Court’s rationale

The Court determined that the EDF Rules give arbitral awards rendered under such rules the status of a final court judgment of the ACP States. This is not incorrect. The Court appears to have taken into cognisance Article 33.3 of the EDF Rules which require each ACP State to recognise an award under the EDF Rules as binding and ensure it is enforced in its territory as if it were a final judgment of one of its own courts or tribunals. The Court goes further to reason thatbecause the Ethiopian Constitution grants the Court of Cassation the jurisdiction to review final court judgments of all Ethiopian courts for fundamental errors of Ethiopian law, the Court has jurisdiction to review this EDF award as it is analogous to an Ethiopian court judgment under the EDF Rules.

Notably, Ethiopia developed most of its current codes on private law in the last century. Its arbitration law can be found in its Civil Code and Civil Procedure Code. It is generally perceived that Ethiopia’s arbitration law applies to domestic arbitration as opposed to international arbitration.

It is unsurprising that the Court adopted the above approach in finding jurisdiction for itself to decide on whether the law had been applied correctly to the EDF award which in the Court’s eyes under the EDF Rules is akin to an Ethiopian court judgment.

Did the Tribunal err on a point of law?

The CDE challenged the award on the basis that the majority of the Tribunal had seriously erred in deciding on a point of law in their decision.

The Court annulled the award on a number of substantive grounds. Most importantly, it stated that the Tribunal disregarded evidence of fraudulent bidding by the claimant. Interestingly, it is on this point that Professor James Thup Gathi issued his dissenting award.

The Ethiopian Civil Code provides that a contract may be invalidated based on fraud if the other party would not have entered into the contract had it known of the deception.  Without going into detail of the dissenting award and the arbitration case, Professor Gathi relies on this provision and dissents in that he views that CDE would not have entered into the contract if it had known that the joint venture partner in Consta JV, GCF who was to provide technical expertise on railway projects, reduced its share in the JV and its responsibility as a JV partner was significantly and considerably reduced such that it disavowed the responsibility for design. Objectively, this would understandably be an issue for any client in CDE’s position particularly where it is relying on the JV partner’s skills in a project.

The Court reasoned that under the Ethiopian Civil Code, a contract entered based on fraud is invalidated and as such Consta JV’s breach of contract claim cannot be sustained. The Court found that the majority of the Tribunal omitted to address this. The Court went on to say that the only remedy to the parties in such a situation is that they are restored to the position they were in before the contract and they may seek such recourse through a subsequent arbitration. Interestingly, the Court appears to uphold the principle of separability of the arbitration agreement and does not invalidate it.

On the face of it, the Court’s reasoning appears legally sound. However, there is concern that the Court opening up the award could potentially attract more challenges counterintuitive to the arbitration process. Would a better approach have been for the Court to revert the award back to the Tribunal for the Tribunal to re-determine on the issue?

What is the impact of the Court’s decision on arbitration in Ethiopia and EDF cases?

Undoubtedly, the Court’s decision is seen as one of the first of such decisions issued by the highest court of the ACP countries. It is anticipated this will be a ground-breaking precedent that may well affect future EDF cases particularly in Ethiopia.

As of date, Ethiopia is not a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.  This, together with the Court’s decision, may cause private sector companies to reconsider and proceed cautiously in choosing arbitration as a mode of dispute resolution where Ethiopia is the seat of arbitration.

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
€ 240


The post Spotlight on Ethiopia as it Annuls a Euro 20 million Arbitral Award appeared first on Kluwer Arbitration Blog.

UK: Guide To Resolving Disputes In Scotland - Mondaq News Alerts

Google International ADR News - Tue, 2018-08-14 04:23

UK: Guide To Resolving Disputes In Scotland
Mondaq News Alerts
... information and guidance about the main methods of resolving disputes in Scotland, including commentary on fees and funding, court proceedings, interim remedies, final remedies, evidence, cross-border litigation and alternative dispute resolution ...

Singapore: Whistful Thinking: Singapore High Court Stays Proceedings In Favour Of Multi-Tier Arbitration Agreement - Mondaq News Alerts

Google International ADR News - Tue, 2018-08-14 03:52

Singapore: Whistful Thinking: Singapore High Court Stays Proceedings In Favour Of Multi-Tier Arbitration Agreement
Mondaq News Alerts
Under the Arbitration Act, the Court has a discretion whether or not to grant a stay in favour of arbitration (unlike the International Arbitration Act, where such a stay is mandatory). The Court highlighted two policy considerations in exercising its ...

Jenny Vatrenko (Heyi Blockchain Advisory, Boies Schiller Flexner) Joins Oath Protocol's Founding Team - newsBTC

Google International ADR News - Tue, 2018-08-14 03:02

newsBTC

Jenny Vatrenko (Heyi Blockchain Advisory, Boies Schiller Flexner) Joins Oath Protocol's Founding Team
newsBTC
Her experience encompasses all stages of litigation, from inception to trial, across state and federal courts as well as alternative dispute resolution programs. She has also spent one year at the District Attorney's office in Brooklyn, NY, where she ...

Low oil prices continue to squeeze liquidity in 2017, report finds ... - Construction Week Online

Google International ADR News - Mon, 2018-08-13 06:04

Construction Week Online

Low oil prices continue to squeeze liquidity in 2017, report finds ...
Construction Week Online
The report from design and consultancy firm Arcadis found the average value of disputes in the Middle East hit $91m in 2017, a 65% jump on the year prior.

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Legal notes: Local award winners, Aug. 13, 2018 - Las Vegas Sun

Google International ADR News - Mon, 2018-08-13 04:01

Legal notes: Local award winners, Aug. 13, 2018
Las Vegas Sun
George Anthony Smith — construction litigation, alternative dispute resolution, international. • Kate Spinelli — personal injury-general, construction litigation (Rising Star). • Gary Toman — business litigation, health care, banking. • Y. Kevin ...

SOAS Arbitration in Africa Survey Report 2018

Kluwer Arbitration Blog - Mon, 2018-08-13 03:24

Emilia Onyema

Diversity in arbitration is currently topical, and this drove our engagement with it in relation to race (particularly African) in this survey. Related to this, is the entrenched perceptions against African arbitration practitioners which has negatively impacted on their participation in international arbitration (including Africa-connected disputes). The primary perception is that African arbitration practitioners are not skilled enough to be appointed as arbitrators in international arbitration references. This negative perception has never been supported with hard facts or scientific analysis but relied on “anecdotal evidence”. Our survey aims to fill this gap and provide empirical data to support or disprove this perception.

The survey which was distributed in the Arabic, English and French languages, attracted 191 respondents from 19 African and 12 non-African countries. Not surprisingly, 90.6% of the respondents are lawyers and have acted in various capacities in arbitration: as arbitrator, counsel, tribunal secretary, academic, consultant and legal adviser. The reporting period for the survey was from 2012-2017.

Over this period, 82.2% of the respondents did not sit as arbitrator in any international arbitration reference in contrast to 58% who did not sit as arbitrator in domestic arbitration. As it relates to acting as counsel (or co-counsel) in international references, only 40.8% of the respondents acted in this capacity; while only 2% acted as tribunal secretary in international arbitration. This data supports the claim that African practitioners are under-represented in international arbitration. The top three reasons the respondents gave for their under-representation are: (1) poor perception of African arbitration practitioners (by their foreign colleagues) as lacking in expertise and experience; (2) bias by appointors in favour of foreign counsel and arbitrator; and (3) Africans not appointing fellow Africans as arbitrators. I will examine each of these reasons:

  1. Lack of expertise and experience in arbitration:

This perception is partially disproved because the finding from the survey is that experience is not uniform across the continent. 81.7% of respondents have acquired specialist training in arbitration and the vast majority (72%) were trained by the Chartered Institute of Arbitrators (CIArb). And more importantly, over the reporting period, 41.1% of the respondents sat as arbitrator in at least one domestic arbitration case (this is against 17.8% of respondents who sat as arbitrator in at least one international case).

The acquisition of experience by African arbitration practitioners will increase with the growth of domestic arbitration. 85.3% of the respondents believe domestic arbitration will grow in their jurisdiction. This is important as it assures an increasing pool of arbitration practitioners on the continent of good workflow in which they can participate. However, a surprising finding from the survey is the limited pool of arbitrators sitting in the domestic space in African countries. 10% of the respondents had acted in 11 or more cases over the reporting period against the majority of 58% who did not sit as arbitrator in any dispute. This also raises concerns of diversity of the local pool from which arbitrators are selected or appointed.

  1. Bias by appointors in favour of foreign counsel and arbitrator:

From the findings of the survey, this bias remains a perception although 40.2% of the respondents had acted as counsel or co-counsel in international arbitration over the reporting period. This view is because we do not know the exact number of arbitration references that were Africa-connected during the reporting period. However, we believe this finding is useful for international firms instructed in Africa-connected disputes. Further, this finding may also explain the strong opposition to the opening up of the legal services market in some African countries (notably, Nigeria).

  1. Africans appointing fellow Africans:

This reason for the under representation of Africans in international arbitration references is one the respondents felt was within the control of Africans themselves (either as advisor, in-house counsel, arbitration centre, appointing authority, or government official). We also note the fact that ‘Africans appointing Africans’ has almost become a mantra but there is a caveat. The appointment must be of qualified and skilled practitioners, with an eye on diversity in appointment. It is massively important that African parties (and their advisors) appreciate their role in this rebalancing exercise and seriously consider skilled African arbitration practitioners in their appointment process. The other agencies that can make an impact on this issue of diversity are appointing authorities and arbitration centres and institutions. In informal discussions with heads of arbitration centres and lawyers, they generally accept the need for diversity and confirm they make an effort to include qualified and skilled Africans in their nomination lists but the parties choose not to appoint them. It will therefore, be useful if such appointing agencies include such data in their published statistics. The data should state the number of people falling within the under-represented groups (gender, race, age, etc) they nominated and how many were actually appointed. This data will provide the evidence we need to help us understand where the gap lies with diversity in appointment.

For the African arbitration practitioners, the top three changes they need to make to ensure their fair participation in international arbitration (particularly in Africa-connected disputes) are: continuing professional development, increase in visibility in arbitration circles, and appointing fellow skilled Africans as arbitrator, counsel and tribunal secretary.

Our survey report therefore confirms that, there are skilled African arbitration practitioners who sit as arbitrators and act as counsel and tribunal secretary in not only domestic but also international disputes. Obviously fewer Africans participate in the international arena than in the domestic arena. Our survey did not capture the percentage that act in these capacities in intra-Africa disputes. However, with the growth of intra-Africa trade, increase in the number of African companies that transact business across African borders, the growth in the number of African transnational corporations or investment companies, and the increase in intra-Africa trade and services envisaged with the signing of the African Continental Free Trade Agreement (and further negotiations), it can only be envisaged that intra-African disputes will also increase. Such disputes will need skilled African arbitration practitioners to service them as arbitrators, tribunal secretary, counsel, and arbitration centres or institutions.

As already mentioned, 81.7% of the respondents are trained in the law and practice of arbitration with 72% of these trained by CIArb. The next phase of development, particularly in domestic arbitration, is the diversity in appointments as arbitrator to include women and young practitioners. Inclusion cannot be over emphasised and must be actively pursued by all African arbitration practitioners. This in particular can be driven by arbitration centres and institutions in Africa.

The SOAS Arbitration in Africa survey is an important addition to the growing body of surveys in arbitration led by the Queen Mary International Arbitration surveys. Our survey which shall be conducted biennially shall continue to focus primarily on arbitration practitioners with interest in Africa. Our vision is to provide original data on arbitration in Africa to enrich the global arbitration discourse.

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
€ 240


The post SOAS Arbitration in Africa Survey Report 2018 appeared first on Kluwer Arbitration Blog.

Conference on Alternative Dispute Resolution and Senior Citizen Issues held at Sri Sri University - Odisha Diary

Google International ADR News - Sun, 2018-08-12 21:37

Odisha Diary

Conference on Alternative Dispute Resolution and Senior Citizen Issues held at Sri Sri University
Odisha Diary
Cuttack: The closing day that was set to conclude the successful and fruitful three-day Conference on 'Alternative Dispute Resolution' took place on from 10th to 12th August, 2018 in the premises of Sri Sri University. ... Sri Sri University in ...

Conciliation & arbitration (Part II) - The News International

Google International ADR News - Sun, 2018-08-12 19:14

The News International

Conciliation & arbitration (Part II)
The News International
PROBLEMS AND PITFALLS. In order to bring about a movement towards the alternative dispute resolution procedures set out in this article, awareness programs may have to be organized in various parts of Pakistan. This can be done through seminars, ...

Lok Sabha passes Bill to encourage institutional arbitration (Lead) - News Heads

Google International ADR News - Sun, 2018-08-12 06:21

News Heads

Lok Sabha passes Bill to encourage institutional arbitration (Lead)
News Heads
New Delhi : The Lok Sabha on Friday passed a bill that seeks to encourage institutional arbitration for settlement of disputes and make India a centre of robust Alternative Dispute Resolution (ADR) mechanism. Replying to debate on the Bill, Law ...

Lok Sabha takes up bill to encourage institutional arbitration - News Heads

Google International ADR News - Sun, 2018-08-12 05:52

News Heads

Lok Sabha takes up bill to encourage institutional arbitration
News Heads
New Delhi : The Lok Sabha on Friday took up for discussion a bill that seeks to encourage institutional arbitration for settlement of disputes and make India a centre of robust Alternative Dispute Resolution (ADR) mechanism. The Arbitration and ...

Controlling Chaos in Parallel Proceedings: A Report from the 30th Annual ITA Workshop

Kluwer Arbitration Blog - Sun, 2018-08-12 02:59

David Attanasio

ITA

The 30th Annual ITA Workshop on Multiple Proceedings, Multiple Parties, and International Arbitration: What a Tangled Web We Weave, took place in Dallas, Texas on 20-22 June 2018.  Co-chairing were Erica Stein (Dechert), Jean-Christophe Honlet (Dentons), and Frédéric G. Sourgens (Washburn University).  The workshop, a lead event of the ITA, was dedicated to an in-depth exploration of the increasing procedural complexity in contemporary international dispute resolution.

The keynote speech from Prof. Emmanuel Gaillard (Shearman & Sterling, Institut d’études politiques de Paris) identified the major problem for the workshop: how to control the potential chaos resulting from a system where multiple proceedings regularly arise from the same matter.  This blog post will describe several (of many) important contributions from the ITA Workshop, focusing on two principal threads: how arbitrators may coordinate multiple proceedings arising from the same facts and how domestic courts may coordinate multiple set aside and enforcement proceedings arising from the same award.

  1. How to Coordinate Multiple Arbitral Proceedings

One of, if not the, preeminent issues of the workshop was how to coordinate multiple proceedings brought by related entities concerning the same basic facts.   This issue frequently arises in commercial and investment arbitration, when disputes arising from the same or related facts are submitted to multiple fora.

Prof. Hanno Wehland (Lenz & Staehelin) captured the basic problem of multiple proceedings as it pertains to investment arbitration: international investment agreements often extend protection to both direct and indirect investors, so multiple entities in a single corporate structure are often protected investors (and potential claimants) for the same investment.  Such circumstances arose in, among others, the well-known Lauder v. Czech Republic and CME v. Czech Republic cases and the recent Orascom TMT v. Algeria and Orascom Telecom v. Algeria cases.  And, in addition to multiple entities qualifying as investors, one or more may also be parties to contracts concerning the investment, and eligible to bring arbitration on that basis as well.

This potential for multiple claims by related companies concerning the same facts creates serious risks of double recovery and of repeat litigation.  The workshop focused extensively on whether and how arbitral tribunals can coordinate or manage these risks.

The Traditional Doctrine of Res Judicata

Perhaps the most traditional response to the problem is to analyze it through the lens of res judicata (or related doctrines).  Prof. Chiara Giorgetti (University of Richmond) observed that the application of res judicata has the potential to avoid repetition and strengthen the rule of law in the face of repeat proceedings.

However, against the background of multiple arbitrations under different instruments, a tribunal may have to answer a number of difficult questions when invoking the doctrine of res judicata.

What is the governing law for res judicata?  It could be the law of the first arbitration’s seat, that of the second, the national law of one or the other of the parties, or transnational principles.  Prof. Gaillard proposed that transnational principles are most appropriately applied, even if they are not fully developed.  However, Prof. Pierre Mayer emphasized the lack of any transnational consensus on res judicata, as common law and civil law have divergent principles.

What is the scope of res judicata?  The workshop participants evinced agreement that res judicata indeed applies among strictly identical claims (per the traditional triple identity test).  However, beyond that, there were divergent views on the appropriate scope for res judicata.

Prof. Gaillard noted, without endorsement, that the Apotex Holding v. USA tribunal considered that issue estoppel had sufficient recognition to be a genuinely transnational principle.  This would give binding effect not only to an award’s dispositive but also to the legal and factual reasoning supporting that dispositive.  Prof. Giorgetti went a step further and endorsed the broad Apotex approach as better calibrated to the objectives of avoiding repetition and coordinating multiple arbitral proceedings.

By contrast, Prof. Mayer took a more skeptical view.  While he accepted that the dispositive part of an award is binding on subsequent tribunals, he proposed that the nature of arbitration warrants against granting any binding effect to an award’s reasoning in a subsequent arbitration.  The cornerstone of arbitration, in his view, is the parties’ ability to appoint at least one member of the arbitral tribunal, so those tribunals should not abdicate their power of judgment on the dispute entrusted to them.

A Turn toward Abuse of Process?

A more recent response to repeat proceedings is to analyze them for abuse of process, following the model of Orascom TMTProf. Gaillard, who acted as respondent’s counsel in that arbitration, recommended this approach in his keynote speech.  He emphasized that the Orascom TMT decision shows that tribunals can look at the effects on the arbitral system as a whole and not solely on their particular dispute in isolation.

The Orascom TMT tribunal (Gabrielle Kaufmann-Kohler presiding) found the submitted claims inadmissible on the grounds of an abuse of process.  Three similarly-framed disputes, all concerning the same state actions, had been brought at multiple levels of a single corporate chain.  Under the facts of the dispute, the tribunal reasoned that the claimant could not claim for the same harm as in the other arbitrations and, indeed, committed an abuse of right because it sought “to impugn the same host state measures and claims for the same harm at various levels of the chain in reliance on several investment treaties concluded by the host state.”

Ricky Diwan QC (Essex Court Chambers) predicted that the Orascom TMT award will increase future scrutiny of the Lauder and CME approach to the issue of multiple proceedings.   The well-known Lauder and CME disputes concerned the same underlying factual allegations but were brought by different entities in the same corporate chain under distinct investment treaties.  Both the Lauder and the CME tribunals rejected the relevance of the parallel arbitration on the grounds that they concerned formally different parties bringing different causes of action (i.e., under different investment treaties).  In doing so, both tribunals specifically rejected any relevance of the fact that the two claims were for the same injury and both concluded that there was no abuse of process.

Although Orascom TMT identifies a new solution to the problem of multiple proceedings, Mr. Diwan identified multiple open questions that tribunals will have to resolve when following that example.

  • First, at what moment does it become abusive to bring parallel disputes? Is it at the time when both claims are initiated or when both tribunals find that they have jurisdiction?  If, possibly only one tribunal has jurisdiction, then the parallel proceedings might seek to ensure nothing more than that the dispute may find a competent forum.
  • Second, to what degree must two entities be related for parallel disputes to become abusive? Diwan observed that, in Eskosol v. Italy, both an 80% shareholder and the subsidiary company commenced proceedings against Italy.  The Eskosol tribunal concluded that the interests of the shareholder and the company were not fully aligned, so the parallel proceedings were not abusive.

Identifying the Investor through its Active Investment

Instead of coordinating multiple potential proceedings by related entities through procedural approaches like res judicata or abuse of process, it may be possible to select the proper claimant on substantive grounds.  One approach sometimes adopted in investment arbitration is to identify the proper claimant as the legal entity in a corporate structure with an active investment role.

As Prof. Ursula Kriebaum (University of Vienna) observed, several tribunals have picked out the proper claimant in a multilevel company structure on such grounds.  She noted that, among others, Standard Chartered Bank v. Tanzania, Caratube v. Kazakhstan, and KT Asia v. Kazakhstan had followed such an approach.   Standard Chartered Bank, for example, stated that, to benefit from the investment treaty’s arbitration provision, “a claimant must demonstrate that the investment was made at the claimant’s direction, that the claimant funded the investment or that the claimant controlled the investment in an active and direct manner.”

Prof. Kriebaum critiqued this approach to the problem of multiple investors.  She observed that an active investment requirement would deny protection to an investment if it is ever transferred, as the recipient company would not have made an active investment in the host state.

However, it is unclear whether Prof. Kriebaum intended to apply this critique to all the elements of an active investment requirement.   Standard Chartered Bank proposed several alternative ways to have an active investment.  If active investment requires making the investment at the claimant’s direction, then perhaps the purchase of an investment would not suffice.  But, if active investment requires only that the relevant entity actively and directly control the investment, it is less obvious that the failure to make the initial investment would be disqualifying.

Assisting Arbitrators with Treaty Provisions

Treaty provisions, both present and future, may also assist arbitrators in coordinating repeat proceedings by precluding such proceedings.  Jean Kalicki proposed that a new generation of treaties would be advisable to provide further assistance with the problem of consolidating proceedings.

However, as Prof. Gaillard noted, we have already seen four generations of treaty provisions designed to address the problem. The first generation established a fork in the road clause, where the choice of one forum precludes the submission of the same dispute to any other forum.  The second generation, exemplified by NAFTA, required both the foreign investor and any local operating company to waive the right to submit the same dispute elsewhere.  The third generation added a prohibition on parallel claims by the local operating company as well as by both direct and indirect shareholders.

The fourth, current, generation has sought to require waiver from entities both below and above the level of the investor in the corporate chain.  The objective is to preclude comprehensively parallel claims.  However, in Prof. Gaillard’s view, it is unclear how an investor could force its shareholders to waive potential claims, given that the investor does not have control over its shareholders.  He did not address whether the decision to waive could be left to shareholder discretion discretion (as opposed to being placed under investor control); the shareholders could, potentially, voluntarily elect to waive if they wish the arbitration to proceed.

  1. How to Coordinate Multiple Centers of Control

After an award is rendered, the struggle to enforce that award is often fought across multiple court proceedings in multiple jurisdictions.  These courts can potentially arrive at inconsistent results, or at least results that are in tension with one another.  Thus, a number of participants focused on whether and when a court should defer to a prior court judgment on an award from a different jurisdiction.  The central issue is which courts should exercise control over arbitral awards.  As Mr. Diwan observed, courts could opt for sole control in the place of enforcement, shared control between the place of enforcement and the place of the seat, or sole control in the place of the seat.

Deference to Enforcement Judgments

Prof. Gaillard described a new trend of courts deferring to prior enforcement judgments, rather than making an independent evaluation of the award.  He drew attention to examples from the U.S. and the U.K. where courts considering set aside or enforcement suits have deferred to foreign enforcement judgments.  (Yasmine Lahlou (Chaffetz Lindsey) later suggested that these cases are not representative in the U.S.)

It was Prof. Gaillard’s view that this trend of deference to enforcement judgments is a recipe for chaos.  He considers that it is contrary to the fundamental assumptions of the New York Convention.  This treaty contemplated that each court would independently consider the award and reach its decision, regardless of the views of neighboring courts.

Mr. Diwan agreed that it is a mistake for courts to defer to foreign enforcement judgments.  He asked why, for example, an English court should defer to an Austrian court judgment that applies an incorrect analysis under the New York Convention?  He suggested that this is to apply English private law principles concerning foreign judgments to a subject for which they are not suited.  Ms. Lahlou echoed this sentiment that there is no good reason to apply general legal principles concerning foreign judgments to ancillary enforcement judgments.

Deference to Set Aside Judgments

Mr. Diwan raised the further question of whether enforcing courts should defer to judgments from the courts of the seat on set aside actions.  He observed that the English courts have adopted a policy of deference on the basis of private law principles, where that judgment is given effect unless it violates principles of honesty, natural justice, or public policy.  This approach, in Mr. Diwan’s view, is contrary to the New York Convention’s basic policy that sole control of the award rests at the place of enforcement.

As Ms. Lahlou noted, U.S. courts similarly will not enforce awards set aside at the seat except in extraordinary circumstances.

This attempt to create a new system of coordination, as Mr. Diwan argued, could lead to chaos.  The courts of a single state cannot sensibly attempt to create a system of coordination on a unilateral basis and it is problematic to seek a new consensus among the many member states of the New York Convention.  The legal principles underlying the English approach, most notably that of issue estoppel are not accepted in civil law countries; so the French courts, for example, will not follow the same approach as the English courts.

Prof. Gaillard added that the English approach recreates the very requirement of double exequatur for award enforcement that the New York Convention was designed to eliminate.  He considered that control over the award has to remain with the enforcement courts.  Thus, he believes that the exercise of control over the award elsewhere should be suppressed for the sake of order.

In response, Prof. Mayer took the view that the judgment of the set aside court should indeed have effect.  If the award is set aside, then a second arbitration proceeding will often produce a second award.  By failing to give effect to the judgment setting aside the first award, a court may well recognize that award and refuse to recognize the second award.  But the state of the seat and practically all other states would consider the second award to be the only valid award.

  1. Conclusion

The ITA Workshop did not provide definitive answers to the questions of how to coordinate the complex proceedings that emerge in modern arbitral practice.  But it identified out the chief issues that confront arbitrators and practitioners and provided key direction for the further evolution of the system.

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
€ 240


The post Controlling Chaos in Parallel Proceedings: A Report from the 30th Annual ITA Workshop appeared first on Kluwer Arbitration Blog.

Gearing For Another Reform In Arbitration: A Tester Or Change-Maker? - Live Law

Google International ADR News - Sat, 2018-08-11 08:24

Live Law

Gearing For Another Reform In Arbitration: A Tester Or Change-Maker?
Live Law
Today, the agenda of increasing foreign direct investment through liberalisation of existing norms and regulated sanctions is taking precedence and many remedial measures, including that in the space of international arbitration are being implemented ...

Lok Sabha passes Arbitration and Conciliation Bill (Amendment) 2018 - Jagran Josh

Google International ADR News - Sat, 2018-08-11 04:23

Jagran Josh

Lok Sabha passes Arbitration and Conciliation Bill (Amendment) 2018
Jagran Josh
The bill is part of the government's efforts to encourage institutional arbitration for settlement of commercial disputes and make India a centre of robust Alternative Dispute Resolution Mechanism. The amendments will facilitate achieving the goal of ...
LS passes arbitration bill, govt says it's a 'momentous' legislationBusiness Standard

all 32 news articles »

Another One BIT the Dust: Is the Netherlands’ Termination of Intra-EU Treaties the Latest Symptom of a Backlash Against Investor-State Arbitration?

Kluwer Arbitration Blog - Sat, 2018-08-11 03:29

Marie Davoise and Markus Burgstaller

On 6 March 2018, the Court of Justice of the European Union (“CJEU“) issued its long-awaited decision in the Achmea case (C-284/16) between the Slovak Republic and Dutch insurer Achmea BV.

In Achmea, the CJEU found investor-state dispute settlement provisions in investment treaties concluded between EU Member States (“intra-EU BITs“) to be incompatible with EU law.

The judgment will fundamentally change the landscape for arbitration in Europe, and it has been argued that as a logical consequence, EU Member States now have an obligation to amend or terminate their BITs under EU law.

The Netherlands: We Will Terminate Intra-EU BITs Through a New Multilateral Treaty

Indeed, it did not take long for the Dutch government to announce its intention to terminate all intra-EU BITs to which the Netherlands is a party. On 26 April 2018, the Dutch Minister for Foreign Trade and Development Cooperation stated that, following the Achmea judgment, the Netherlands saw “no other option” than to terminate its bilateral investment treaty with the Slovak Republic.

Minister Sigrid Kaag set out the government’s view in a letter addressed to the Chairperson of the Dutch House of Representatives. Acknowledging the impact of the Achmea judgment, the letter confirms the Dutch government’s intention to terminate its investment agreement with the Slovak Republic.

Besides the Netherlands-Slovak Republic BIT, the government will also seek to terminate the other 11 investment agreements concluded between the Netherlands and other EU Member States (Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania and Slovenia). This, the letter explains, will be done by negotiating a single multilateral treaty for reasons of “clarity, speed and efficiency”.

Interestingly, the Dutch government’s decision to terminate intra-EU BITs does not apply to the Caribbean Netherlands (i.e. the islands of Bonaire, St Eustatius and Saba). Although they are “special municipalities” and considered to be “public bodies” under Dutch law, they are overseas territories of the European Union, a special status under which EU law does not automatically apply. As a result, according to the government, it is up to these municipalities to decide whether or not they want to terminate intra-EU BITs.

The letter addresses another hot topic: the application of Achmea to the Energy Charter Treaty (“ECT“). Signed in 1994, the ECT has generated more investor-state claims between the EU Member States than any other treaty. The Achmea judgment generated a lot of discussion on whether or not a similar argument could be made to render intra-EU claims brought under the ECT illegal under EU law.

On this, the European Commission has made it very clear where it stands: in its view, the ECT does not apply to investors from other Member States initiating disputes against another Member State (see, for example, paragraph 163 of decision SA.4038 in November 2017). Without going that far, the Dutch government nevertheless acknowledges that Achmea “is also relevant” to the dispute settlement mechanism contained in the ECT.

The Writing Is on the Wall for Remaining Intra-EU BITs

There are over 190 intra-EU BITs. Many of these were agreed in the 1990s, before the EU enlargements of 2004, 2007 and 2013. They were mainly struck between existing members of the EU and those who would become the “EU 13”.

According to the European Commission, those agreements’ raison d’être was to provide reassurance to investors who wanted to invest in the future “EU 13”, by strengthening investment protection (e.g., through compensation for expropriation and arbitration procedures for the settlement of investment disputes).

Situated mostly in Central and Eastern Europe, those countries later joined the EU. This opened up a debate on the validity of intra-EU investment treaties. The European Commission took an increasingly active role in challenging intra-EU investment agreements, through amicus curiae interventions, suspension injunctions and initiation of infringement proceedings.

In 2012, Ireland ended all its intra-EU BITs, followed by Italy in 2013.

In 2015, the European Commission formally requested Austria, the Netherlands, Romania, the Slovak Republic and Sweden to end the intra-EU BITs between them, by sending letters of formal notice, i.e. the first stage of the general EU infringement procedure in article 258 of the TFEU.

In 2016, Denmark reportedly reached out to its EU counterparts to suggest mutual termination of intra-EU BITs. The same year, Austria, Finland, France, Germany and the Netherlands also proposed an EU-wide agreement to replace existing intra-EU BITs.

In 2017, Romania formally terminated all of its intra-EU BITs. The same year, Poland initiated the termination of its BIT with Portugal, the first of 23 similar agreements which Poland said it would terminate.

BIT by BIT, EU Member States are inexorably moving towards the termination of all intra-EU investment treaties. The European Commission’s determination to challenge those agreements, and its strong push towards a Multilateral Investment Court, were but one nail in the coffin of intra-EU BITs. In the wake of Achmea, it could be that the Member States consider that they have “no other option” but to end all intra-EU BITs.

The ‘Big Crunch’ of Investor-State Arbitration?

Taking a step back, we see that the Achmea judgment, and the Netherlands’ decision to terminate intra-EU treaties, should have been unsurprising to arbitration practitioners.

Over the last twenty years, investment treaty-based arbitration has grown exponentially (see Figure 1 below).


FIGURE 1 – International investment arbitration cases registered by year (1987–2016). PITAD, PluriCourts Investment Treaty Arbitration Database (PITAD) as of 1 January 2017; 831 cases in total through 1 January 2017. Source

But after investment treaty-based arbitration’s ‘big bang’ is there a ‘big crunch’ to come? It is now commonplace for commentators to note that investment treaty arbitration has suffered an accelerating backlash in the last few years.  In that sense, Achmea is only the latest manifestation of that phenomenon, and the Netherlands’ decision a natural consequence of this evolution.

What are the causes of this backlash against investment arbitration? Although many explanations have been offered (from the panels’ rigid views of contracts to the growing number of cases brought –and won- by investors against sovereign states), two in particular merit singling out. They not only reflect past sentiment about investment arbitration, but also offer a glimpse into the future of investment arbitration as a whole. These two reasons are the pushback against globalisation and the increasing importance of regionalism.

Backlash Against Globalisation and Corresponding Rise in Nationalism

Commentators have frequently mentioned that the US 2016 presidential elections and the Brexit vote were both built on the rejection of globalisation and expressed a wish, on the part of the American and British people, to re-centre policies around nationalism and domestic sovereignty.

President Trump’s proposal to renegotiate NAFTA has led to speculation as to what (if any) investor-state dispute settlement mechanism will be included in the renegotiated treaty.

In Europe, the Comprehensive Economic and Trade Agreement (CETA) and Transatlantic Trade and Investment Partnership (TTIP) were perceived by the general public as imposing North American rule(s). This translated into a rejection of investor-state dispute mechanisms as ‘secret courts’. The Brexit vote was another symptom of this desire to ‘take back control’.

Another sign of the nationalist wave sweeping the globe is the resurgence of resource nationalism – in the Americas, in Africa, in Asia. Will Europe be the next continent to experience increased nationalism in investment protection?

Focus on Regional Mechanisms, Including in Europe

Over the last decade, many states around the world overhauled their investment protection system and terminated some, and sometimes all, of the BITs they were party to.

In 2012, South Africa terminated its BIT with Belgium-Luxembourg and issued cancellation notices for its BITs with Germany and Switzerland.

In 2014, the Indonesian Government indicated that it would terminate all of its 67 bilateral investment treaties.

In 2016, India served notices to 57 countries including the UK, Germany, France and Sweden seeking termination of BITs whose initial duration has either expired or will expire soon.

In 2017, Ecuador terminated all 16 of its remaining BITs, having previously ended treaties in 2008 and 2010.

A global pattern starts to emerge, with various states terminating BITs and relying on regional multilateral frameworks instead.

For example, Indonesia explicitly embraced regionalism in its approach to foreign investment, relying on the ASEAN Comprehensive Investment Agreement (which provides BIT protections, including investor-state dispute settlement provisions).

Similarly, in 2017 MERCOSUR signed a Protocol on Investment Cooperation and Facilitation, which coordinated the regional bloc’s approach to investment disputes and most notably excluded investor-state arbitration.

Regional instruments are being increasingly used to grant investment protection, and regional organisations are a force to be reckoned with on the international investment legal scene.

This is, of course, particularly poignant in Europe. As noted above, the European Commission has been a vocal opponent of intra-EU treaties. It recently received the green light to negotiate, on behalf of the European Union, a convention establishing a multilateral court for the settlement of investment disputes (the “MIC”). The MIC would be Europe’s permanent body to settle investment disputes, eventually replacing the bilateral investment court systems included in EU trade and investment agreements.

Much has been written about Achmea and its consequences. However, it is crucial for practitioners and academics to also look at the judgment through a global and cross-disciplinary lens.

In particular, the investment arbitration community would be well-advised to actively engage with regional organisations and to take heed of the growing discontent against investor-state dispute mechanisms.

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The post Another One BIT the Dust: Is the Netherlands’ Termination of Intra-EU Treaties the Latest Symptom of a Backlash Against Investor-State Arbitration? appeared first on Kluwer Arbitration Blog.

Lok Sabha OKs bill to help make India hub for domestic, global arbitration - Times of India

Google International ADR News - Fri, 2018-08-10 18:29

Lok Sabha OKs bill to help make India hub for domestic, global arbitration
Times of India
Calling The Arbitration and Conciliation (Amendment) Bill 2018 “a “momentous and important legislation”, law minister Ravi Shankar Prasad said, “We want India to become a hub of domestic and international arbitration. So there is a need for robust ...

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