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UN Resolution:US bullying didn't deter Sri Lanka - The Island.lk

Google International ADR News - Sun, 2017-12-24 13:39

UN Resolution:US bullying didn't deter Sri Lanka
The Island.lk
It was reported explaining further that the vote in favour of the resolution was "on the basis of Sri Lanka's long held traditional and principled position, which is in keeping with the international understanding that Jerusalem is a final-status issue ...

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Mosten and Scully’s New Book on Unbundled Legal Services

ADR Prof Blog - Sun, 2017-12-24 07:02
I have known Forrest (Woody) Mosten for quite a while.  He co-authored several articles on collaborative law with me, putting him at risk of tarnishing his stellar reputation.  We also co-authored an article, Family Lawyering:  Past, Present, and Future.  Much more significantly, Woody is known as the “father of unbundling” (as well as being a … Continue reading Mosten and Scully’s New Book on Unbundled Legal Services →

Journal of International Arbitration

Kluwer Arbitration Blog - Sat, 2017-12-23 16:03

Maxi Scherer

Issue 34/6

ARTICLES SECTION

Mauro Rubino Sammartano, A Second (Quasi-Perfect?) Storm Also in Arbitration?
Abstract: Many users of international arbitration, particularly in-house counsel, have repeatedly expressed concern about the lack of adequate information on arbitrators, resulting in arbitrator selection based on a vague and general reputation often informed by word of mouth or anecdotal information. Arbitral institutions and arbitration circles cannot remain indifferent to this need. A first step to deal with this issue is the disclosure by arbitrators of the information contained in the arbitrator’s pledge launched by the European Court of Arbitration; another step is the issuance of an official acknowledgement as a ‘certified arbitrator’ by arbitral institutions, and eventually the requirement that certified arbitrators abide by a universal code of ethics.

Michael Polkinghorne & Benjamin Ainsley Gill, Due Process Paranoia: Need We Be Cruel To Be Kind?
Abstract: Due process paranoia is one of arbitration’s ‘hot topics’, but does it merit the heat? This article takes a view of the sources of and supposed justifications for due process paranoia in those (fortunately rare) cases where parties or counsel try to rig the arbitral process. It looks at who might be to blame for the reluctance of arbitrators to take measures to combat such activity, and considers some of the solutions that have been proposed to help deal with it. Overall, the authors suggest that all arbitration stakeholders are to a certain extent to blame, although arbitrators perhaps have the most work to do. It is therefore fortunate that they have the wide support of domestic judges and the arbitral institutions, as well as a substantial toolbox at their disposal with which to combat recalcitrant or bad faith parties.

Hanno Wehland, Blue Bank International v Venezuela: When Are Trust Assets Protected Under International Investment Agreements?
Abstract: The award rendered by a tribunal in proceedings conducted under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) between Blue Bank International and Venezuela in April this year is the first public decision addressing in detail the question of whether trustees can be considered protected investors with regard to trust assets under International Investment Agreements. This article analyses the findings of the Blue Bank tribunal with a view to more generally identifying requirements for the protection of trust assets under investment treaties. Based on a review of the relevant treaty provisions and the jurisprudence of arbitral tribunals it concludes that, in the absence of beneficial ownership, trustees will typically not be protected. By contrast, trust assets can be protected either where a treaty admits trusts themselves as investors or where the rights of beneficiaries are specific enough to amount to beneficial ownership.

Luke Nottage & James Morrison, Accessing and Assessing Australia’s International Arbitration Act
Abstract: This review identifies many positive trends in international commercial arbitration law and practice in Australia, especially over the last decade. Yet much work remains to be done, in light of some ongoing uncertainties in the statutory regime and associated case law, and comparatively few international arbitration case filings. The biggest challenge is for law reformers in relation to more controversial issues such as the arbitrability of various types of disputes, mandatory laws impacting on forum selection and choice of laws, the precise contours of the competence-competence principle, and confidentiality of arbitration-related court proceedings. Hopefully, a new phase of comprehensive legislative reform will be conducted through more open and structured public consultation than the three piecemeal amendments since 2015.

Lucian Ilie & Amy Seow, International Arbitration and EU Competition Law Complement Rather than Contradict One Another
Abstract: The relationship between international arbitration and EU competition law is of practical importance because of the increasing number of cases in which arbitrators are called on to apply competition rules. This article addresses both the theoretical and practical aspects of arbitrating competition law disputes, to give an overall picture of the relationship between international arbitration and competition law.
This article shows that the two are not in conflict. Rather, they complement each other, and arbitration can be a method of resolving competition law disputes. This article considers the arbitrability of competition law disputes (section 2); the powers and duties of arbitrators in applying competition law (section 3); the relationship between arbitrators and public enforcers of competition law (section 4); and the scrutiny of awards in which competition law issues are implicated, under both the New York Convention and the International Centre for Settlement of Investment Disputes (ICSID) Convention (section 5).

BOOK REVIEW
Prof Dr Gerhard Wagner, Jake Lowther & Anastasios P. Andrianesis, Orsolya Toth, The Lex Mercatoria in Theory and Practice (Oxford University Press, 2017; ISBN 978-0-199-68572-1)


Readers would be interested in the End of Year Sale of Wolters Kluwer. Until 31 December 2017, the titles from our extensive Arbitration collection have a 20% discount. Use discount code SRECCADCFM.

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


The post Journal of International Arbitration appeared first on Kluwer Arbitration Blog.

DR Faculty Seminar in Israel – I Don’t Recognize My Country Any More

ADR Prof Blog - Sat, 2017-12-23 14:15
This guest post comes from one of the blogs founders, Nancy Welsh (Texas A&M). Dr. Moshe Ma’oz is Professor Emeritus of Islamic and Middle Eastern Studies at the Hebrew University of Jerusalem and was Director of the University’s Harry S. Truman Research Institute for the Advancement of Peace.  His presentation explored the complexity of Israel’s … Continue reading DR Faculty Seminar in Israel – I Don’t Recognize My Country Any More →

Awareness on alternative dispute resolution very poor in Telugu ... - NYOOOZ

Google International ADR News - Sat, 2017-12-23 13:09

Awareness on alternative dispute resolution very poor in Telugu ...
NYOOOZ
Speaking on the occasion, he said ADR methods needs to be adopted by both investigating, and prosecution officers in dispute resolution. ADR methods are popular in many advanced countries, and they have to be adopted here, said Sawang. Any case can be ...

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Awareness on alternative dispute resolution very poor in Telugu states - Times of India

Google International ADR News - Sat, 2017-12-23 12:41

Awareness on alternative dispute resolution very poor in Telugu states
Times of India
Vijayawada: About 80% pending cases can be resolved through alternative dispute resolution methods, said JLN Murthy, in-charge and secretary of The International Centre for Alternative Dispute Resolution's (ADR) regional centre, on Saturday. Speaking ...

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Nigeria's First Agritech Start-up Firm Secures $1m Seed Funding - THISDAY Newspapers

Google International ADR News - Fri, 2017-12-22 22:15

THISDAY Newspapers

Nigeria's First Agritech Start-up Firm Secures $1m Seed Funding
THISDAY Newspapers
Nigeria's first and leading digital agritech start-up company, Farmcrowdy, said it had secured $1 million seed funding from a range of international and local investors. A release by the company said the investors included Cox Enterprises, Techstars ...

The Duty of Disclosure and Conflicts of Interest of TPF in Arbitration

Kluwer Arbitration Blog - Fri, 2017-12-22 21:40

Napoleão Casado Filho

Arbitration, especially in its international perspective, has experienced such a tremendous growth in the past few decades that it has now become a victim of its own success. Current debates are centered on the prohibitive costs, the difficulty in finding high-level arbitrators and conflicts of interests often exclusive to relatively diminished groups, demonstrating that themes once considered to be “hot topics”, such as the separability of the arbitration agreement and competence-competence, are now slightly relegated to the past.

One of such controversial circumstances is the recent interest that arbitration has piqued in investors, who have suddenly found the frequently elevated costs of arbitral proceedings and the millionaire awards thereof to be an investment opportunity. It is the so-called Third-Party Funding, a phenomenon that was born in Australia, spread throughout Common Law jurisdictions and is today commonplace in countries that had never once imagined it, such as France, Brazil and Peru.

Wherein there is money, therein interests lie. It should come as no surprise that a desire for regulation has likewise surged. As soon as the topic gained relevance in 2014, the ICCA (International Council for Commercial Arbitration), alongside the prestigious Queen Mary University of London, created a joint Task Force to study the theme and propose best practices. For that, experts from all corners of the world were assembled. After three long years, an initial Draft was made available for public and professional scrutiny in September 2017.

The initiative warrants praise. Firstly, for assembling many relevant figures to debate a theme that, indeed, deserves attention from the international arbitration community.

Secondly, because the Task Force seems genuinely interested in listening to the market and its practitioners, as before publishing the Final Report, it made a preliminary iteration available for public debate. The debate has been intense and last month we had the opportunity to join it in the II Oxford Symposium on Comparative International Commercial Arbitration. The core of the dispute was an a apparent regulatory appetite from the members of the Task Force.

This regulatory appetite must, in our view, be slightly halted, lest we experience increases both in the duration of proceedings and in the costs of funding methods such as Third-Party Funding. If I may elaborate.

One of the Task Force’s pressing wishes is to render a general duty to disclose the existence of a third-party funder in any and all arbitral proceedings. On Chapter 4 of the Report, entitled “Disclosure and Conflicts of Interest”, the Task Force suggests two options:

[ALTERNATIVE A]: 1. A party should, on its own initiative, disclose the existence of a third-party funding arrangement and the identity of the funder to the arbitrators and an arbitral institution or appointing authority (if any), either as part of its first appearance or submission, or as soon as practicable after funding is provided or an arrangement to provide funding for the arbitration is entered into.

[ALTERNATIVE B]: 1. Arbitrators and arbitral institutions have the authority to, during the selection and appointment process, expressly request that the parties disclose whether they are receiving support from a third-party funder and, if so, the identity of the funder

The qualm seems to be centered on whether arbitrators should be given the power to order the disclosure of an investment or if it falls entirely upon a Party’s own will. And yet, under both scenarios, a general and unrestricted duty of disclosure is established, even if an investor has no relation at all with the arbitrators. The ostensible consensus within the arbitral community that “it falls upon the arbitrator to analyze whether or not a conflict of interest exists” is adopted as a premise. In fact, this consensus is enshrined in the Report itself, when it says: “there is a general agreement that disclosure of the identity of a funder is necessary for an arbitrator to undertake analysis of potential conflict of interests”. (pg. 78 ICCA-QMUL Report).

Generally, I am cautious of consensus and unanimities. I’ve had the opportunity of defending, when analyzing the Third-Party Funding phenomenon on a purely academic level, that it would be desirable to have some limits on the duty of disclosure [1]. In that opportunity, I had already defended that a breach of this duty should not amount to a presumed nullity of the arbitral award rendered in proceedings that had been funded, as it should instead be a burden of the party challenging the validity of the award to prove, for example, an effective conflict of interest between the investor and any of the arbitrators or experts.

However, practical experience denotes that even my once-defended extension of the duty of disclosure must be relativized. What we have observed on case-by-case analyses wherein disclosure does in fact occur is the outbreak of extremely complex and unnecessary procedural challenges. Effective due diligence on the investor is thus initiated, entailing devastating effects on arbitral practice itself.

The establishment of a general duty of disclosure, regardless of potential conflicts of interest with the investor, seems to be misguided, as it overlooks the economic consequences of such a duty and fails to foresee the practical effects thereof.

Investment funds have increased their investments in arbitral proceedings. In addition to individual investments, portfolio investments comprising all cases of a given law firm are ever more common, even amongst some of the largest global firms. This is the solution that the arbitral system has found to provide further access to a means of dispute resolution that would otherwise not concern itself with such access.

In creating such a general duty, the cost of compliance will fatally upsurge, forcing parties to disclose, under ALL circumstances and at the very first moment, information that may have been disclosed anyway in a near future, that is, upon enforcing an award that has possibly favored the funded Party.

Another practical consequence will be an increment of notorious “guerrilla tactics”, also highly debated and faced by modern arbitration. After all, Respondents are usually the ones to employ these delaying tactics. With the establishment of such an overarching duty, these Parties will be awarded with yet another reason to seek information on the investor, trying to pierce multiple levels of the corporate veil until finding the very individuals backing the investment, as to maximize their procrastinating maneuvers. The result will inevitably be a greater delay in the conclusion of arbitral proceedings.

With longer proceedings and higher expenses for the investor to fulfill a duty of disclosure, an increase in the costs of such investment is certain, as these are upscale from the outset, often reaching ten times the value of the original investment. It is market price. And the market follows a rather clear logic: increase the risks and the costs, and prices shall follow.

Another nefarious consequence of a general duty of third-party investment disclosure is that, in breaching this duty, the Party and the investor are presumed to be tainted by some irregularity, which may make life easier for a losing Respondent seeking to annul the arbitral award.

Therefore, it must be pondered: would it not be the case of rethinking this ostensible consensus that it falls upon the arbitrator to effect a preliminary analysis on whether a conflict of interest exists?

In the context of Third-Party Funding, the Party interested in an enforceable award, not subject to challenges, is precisely the investor. He is fully capable of ascertaining if an arbitrator, in the case that may be invested, has any relation to the Fund itself, its members and relevant parties. This relation may, in fact, render the investment prima facie unfeasible. If any relation exists, it would then seem that a duty of disclosure should be placed upon the Arbitral Tribunal, so that it may analyze the effects of this relation on its independence and impartiality.

Should the funded Party remain silent and the other Party come to know of some ulterior motive behind the funding (for instance, if the funder and an arbitrator are relatives), the consequences are obvious: any award issued in this proceeding would be null and void, for being rendered by one who could not be an arbitrator (art. 32(II) Brazilian Arbitration Act), which would also probably warrant grounds for non-recognition of the award in other jurisdictions, as per art. 5(1)(d) New York Convention.

However, in the absence of any such relation between investor and arbitrators, what would be the reason for disclosure? It seems to be a relevant obstacle that promotes no real protection or safeguard for any of the parties concerned.

It would thus seem that the Task Force should halt its regulatory ambitions and instead adopt a path similar to that of Brazil’s leading Arbitral Institution: the CAM-CCBC. Last year, the Center issued a Recommendation on the disclosure of Third-Party Funding, a mere recommendation that is not encompassed by the institution’s Procedural Rules. Something that does not oblige ALL Parties (and currently their lawyers) to indistinctly disclose their financial strategies; and yet, should it remain unfulfilled when ulterior motives in fact existed, it shall bolster any ostensible wrongfulness that may amount to the nullity of the arbitral award.

To regulate a market is always a complex task, with potentially terrible consequences. Almost 100 years ago, Lord Keynes stated that “[c]ontemporary experience of trade restrictions in post-war Europe offers manifold examples of ill-conceived impediments on freedom which, designed to improve the favorable balance, had in fact a contrary tendency.” May this attempt to regulate a market still in its infancy, that has promoted access to the arbitral system, not be faced with a similar fate.

[1] In this sense, see CASADO FILHO, Napoleão. Acesso à Justiça e Arbitragem: o novo Paradigma do Third Party Funding, São Paulo: Editora Saraiva, 2017 – pg. 211.

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
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The post The Duty of Disclosure and Conflicts of Interest of TPF in Arbitration appeared first on Kluwer Arbitration Blog.

OHADA's 17 African States Adopt the Uniform Act on Mediation - JD Supra (press release)

Google International ADR News - Fri, 2017-12-22 19:06

OHADA's 17 African States Adopt the Uniform Act on Mediation
JD Supra (press release)
The Organization for the Harmonization of Business Law in Africa ("OHADA") is an international organization based in Yaoundé, Cameroun. It is made up of 17 states from mostly Central and Western Africa with a total population of about 200 million ...

New Year’s Greeting

ADR Prof Blog - Fri, 2017-12-22 11:26
I’m looking at a new year’s card printed by my friend, Steve Harris, proprietor of Hands Press in Berkeley, that really expresses the values of our community.  Let us hope that these values will be increasingly honored in the coming year. Happy New Year Wishing You a New Year Filled With Old-Fashioned Values: kindness modesty … Continue reading New Year’s Greeting →

Legal expert Dr Kariuki Muigua appointed to NEMA Tribunal - Capital FM Kenya

Google International ADR News - Fri, 2017-12-22 08:21

Capital FM Kenya

Legal expert Dr Kariuki Muigua appointed to NEMA Tribunal
Capital FM Kenya
Advocates, a firm that specialises in environmental and commercial law litigation and Alternative Dispute Resolution, Dr Muigua is an accomplished Mediator and a Chartered Arbitrator, with widespread training and experience in both international and ...

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Dr. Muigua appointed to serve on National Environmental Tribunal - Kenya Broadcasting Corporation

Google International ADR News - Fri, 2017-12-22 07:29

Kenya Broadcasting Corporation

Dr. Muigua appointed to serve on National Environmental Tribunal
Kenya Broadcasting Corporation
Advocates, a firm that specialises in environmental and commercial law litigation and Alternative Dispute Resolution, Dr Muigua is an accomplished Mediator and a Chartered Arbitrator, with widespread training and experience in both international and ...

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BUSINESS IN BRIEF 22/12 - VietNamNet Bridge

Google International ADR News - Fri, 2017-12-22 04:31

VietNamNet Bridge

BUSINESS IN BRIEF 22/12
VietNamNet Bridge
At a time when the country is accelerating its integration into the global economy, Vietnam wants to ensure consistency between its legislative and regulatory framework and international regulations on commercial dispute resolution. The result of ...

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How to Enforce an ICSID Award in Spain: The Legal Framework, the Competent Authority, and the Procedure

Kluwer Arbitration Blog - Fri, 2017-12-22 02:48

Danilo Ruggero Di Bella

A court of a Contracting State shall recognize an ICSID award as binding and enforce pecuniary obligations per that award within its territory as if it were a final judgment of the court in that State. The enforcement creditor is not required to obtain a declaration of enforceability (viz. the exequatur). At the same time, the interested party cannot file an appeal or seek annulment of the award outside of the ICSID self-contained mechanism.

Following the principle of lex fori regit processum, the governing law is the relevant procedural law of the State where the enforcement of an ICSID award is sought. Thus, the enforcement procedure varies from country to country.

Thus far, Spanish courts enforced only one ICSID Award.1)Victor Pey Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2 jQuery("#footnote_plugin_tooltip_4103_1").tooltip({ tip: "#footnote_plugin_tooltip_text_4103_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); The enforcement procedure was carried out in 2013 under the former framework. This post addresses the enforcement of an ICSID Award in Spain under the new, reformed, legal framework that encompasses the Civil Procedure Law (LEC) and the Spanish Arbitration Act (SAA).

The Current Legal Framework

Articles 3 LEC and 523 LEC, regarding the territorial scope of the procedural law2) Article 3 LEC. Territorial scope of civil procedural rules. With the sole exceptions which may be stipulated in international treaties and conventions, civil procedure taking place in Spain shall only be regulated by Spanish procedural rules. jQuery("#footnote_plugin_tooltip_4103_2").tooltip({ tip: "#footnote_plugin_tooltip_text_4103_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); and foreign enforcement titles3)Article 523 LEC. Enforceability in Spain. Law applicable to the procedure. 1. For the definitive judgements and other enforcement titles that entail enforcement in Spain, the provisions in the International Treaties and the legal provisions on international judicial co-operation shall apply. 2. In any case, the enforcement of foreign judgements and enforcement titles shall be carried out in Spain in accordance with the provisions herein, unless otherwise provided in the International Treaties in force in Spain jQuery("#footnote_plugin_tooltip_4103_3").tooltip({ tip: "#footnote_plugin_tooltip_text_4103_3", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });, permit the Spanish procedural rules to be adjusted to international treaties and conventions (if necessary). Thus, the ICSID Convention supplements the LEC and SAA insofar as it relates to the enforcement of an ICSID award. As a result, the Spain’s national framework is adjusted to the peculiarities of an ICSID award that has no seat, does not require any exequatur, and is the outcome of an International Organization’s autonomous legal system.

Under this framework, the enforcement creditor should file an enforcement action with the competent court or other designated authority. Such a motion for enforcement should be accompanied by a copy of the award certified by the ICSID Secretary-General.

The Competent Authority

Spain recently, and rightfully so, designated the First Instance Court as the competent authority for recognition and enforcement of awards rendered under the auspices of the ICSID.
Such choice is in line with Article 54(1) ICSID Convention as it implicitly equates ICSID awards with the national arbitral awards (instead of foreign awards rendered outside Spain per Article 46(1) SAA).

The national awards are, in turn, equated with the final judgments of the national courts: they do not require the exequatur as opposed to other types of foreign arbitral awards. Specifically, the First Instance Court enforces national arbitral awards (Article 8(4) SAA), while the Civil and Criminal Chamber of the High Court of Justice of the Region decides on the prior recognition of foreign arbitral awards (Article 8(6) SAA). In terms of territorial jurisdiction, the competent chamber will generally be the one where the enforcement debtor has his place of business or residence.
The procedural nuance of the two provisions reflects the particularity of an ICSID exequatur-free award: the interested party does not have to apply for the prior recognition before the competent Civil and Criminal Chamber of the High Court of Justice.

The First Instance Court where the national award was rendered is competent for the enforcement of an ICSID award (Article 8(4) SAA, in conjunction with Article 545(2) LEC). However, an ICSID award is essentially not a national award, nor it has a seat – being the product of a “delocalized” system. As a result, the place where the ICSID award was rendered is irrelevant for the purpose of its enforcement. The competent First Instance Court, therefore, is the one in the place where the enforcement is sought.

The Enforcement Procedure

A party seeking to enforce its ICSID award in Spain should file the enforcement action accompanied by a certified copy of the award to the First Instance Court in the place of the debtor’s assets. The seized court will automatically consider the certified copy as a valid enforcement title (Article 517 LEC).

Once the enforcement creditor files his/her enforcement action, the judge will dispatch the general order of enforcement for the sum claimed. If the enforcement creditor so requests, the amount corresponding to the new maturities of principal and interests will extend the order of enforcement (Article 578 LEC). In case the sum claimed is in a foreign currency, the judge will order enforcement to obtain both the principal and interests in that foreign currency (Article 577(1) LEC). The order will also include the procedural delay interests, as the costs and expenses of the enforcement proceedings. The judge provisionally estimates the procedural delay interests pending the enforcement (Article 576 LEC).

On the same day, or on the working day following the day of the issuance of the enforcement order, the Court Clerk will issue a decree implementing the order of enforcement (Article 551(3) LEC). The implementing order contains the specific enforcement measures, including inter alia:

  • the attachment of the enforcement debtor’s assets as detected by the enforcement creditor,
  • the further identification of debtor’s assets as detected by the Court, and
  • the request addressed to the enforcement debtor to indicate, within ten days, sufficient assets and rights to cover the amount of the outstanding enforcement, subject to a penalty for serious disobedience to the judicial authority.

The Court directly localizes the debtor’s assets through its own mechanism. This mechanism is combined with the limited and exhaustive grounds for objecting the enforcement (Articles 556 and 559 LEC). In doing so, the Court lays down the basis for an effective enforcement procedure.

State Immunity Issues

Needless to say, the possibility of punishing a losing State for serious disobedience would spark quite interesting scenarios. The enforcement debtor could commit an offense in the event it fails to cooperate with the authority in charge of the enforcement by delaying, hindering or failing to provide the Court Clerk with a list of its assets necessary for the recovery of the sum claimed and the relevant interests (Article 258 of the Spanish Criminal Code).

At the enforcement stage, the losing State may invoke immunity exceptions to shield its assets. Article 55 of the ICSID Convention establishes that “nothing in Article 54 shall not be interpreted as derogating from the laws in force in any Contracting State relating to immunity of that State or of any foreign State from execution.” Nevertheless, on this point, Spanish national law seems to root for the enforcement creditor by providing him/her with a strong weapon enshrined in Article 2(2) SAA:

“In international arbitration, when one of the parties is a State or a State-controlled company, organization or enterprise, that party may not invoke prerogatives of its own law to circumvent obligations stemming from the arbitration agreement.”

The cited provision can be construed as a compulsory immunity waiver, barring a State from relying on its immunity, since it may not invoke the prerogatives of its own law. Undoubtedly, among those prerogatives, is State’s immunity before a foreign court. Moreover, since the pecuniary obligations resulting from an ICSID award are inherent to the obligations stemming from the arbitration agreement, this mandatory immunity waiver before the First Instance Court may cover the assistance provided by a Spanish judge to the arbitration both in the pre-award as well as post-award phase. Such assistance encompasses the court’s support for taking evidence, adopting interim measures, and enforcing such awards. Arguably, it is not coincidental that Article 8 SAA enlists, one after the other, all these judicial ancillary functions as if there was no difference in terms of immunity hurdles. In doing so, Article 8 SAA seems to be overturning the approach that no waiver of immunity could be extended to enforcement measures.

The Organic Law on Privileges and Immunities of Foreign States in its Article 16(1)(d) further backs up this interpretation: a foreign State that consented to an arbitration with a national of another State shall not assert immunity before a Spanish court in proceedings concerning “the recognition of the effects of the foreign award.”

Conclusion

Although just one ICSID Award has been enforced in Spain thus far, clearly, this jurisdiction is bound to become an “awards enforcing destination” thanks to this friendly-arbitration platform consisting of a legal framework fully complying with the ICSID Convention’s requirements under Article 54(1)-(2), an effective enforcement procedure and confined state immunity exceptions.

References   [ + ]

1. ↑ Victor Pey Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2 2. ↑ Article 3 LEC. Territorial scope of civil procedural rules. With the sole exceptions which may be stipulated in international treaties and conventions, civil procedure taking place in Spain shall only be regulated by Spanish procedural rules. 3. ↑ Article 523 LEC. Enforceability in Spain. Law applicable to the procedure. 1. For the definitive judgements and other enforcement titles that entail enforcement in Spain, the provisions in the International Treaties and the legal provisions on international judicial co-operation shall apply. 2. In any case, the enforcement of foreign judgements and enforcement titles shall be carried out in Spain in accordance with the provisions herein, unless otherwise provided in the International Treaties in force in Spain function footnote_expand_reference_container() { jQuery("#footnote_references_container").show(); jQuery("#footnote_reference_container_collapse_button").text("-"); } function footnote_collapse_reference_container() { jQuery("#footnote_references_container").hide(); jQuery("#footnote_reference_container_collapse_button").text("+"); } function footnote_expand_collapse_reference_container() { if (jQuery("#footnote_references_container").is(":hidden")) { footnote_expand_reference_container(); } else { footnote_collapse_reference_container(); } } function footnote_moveToAnchor(p_str_TargetID) { footnote_expand_reference_container(); var l_obj_Target = jQuery("#" + p_str_TargetID); if(l_obj_Target.length) { jQuery('html, body').animate({ scrollTop: l_obj_Target.offset().top - window.innerHeight/2 }, 1000); } }More from our authors: International Arbitration and the Rule of Law
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The post How to Enforce an ICSID Award in Spain: The Legal Framework, the Competent Authority, and the Procedure appeared first on Kluwer Arbitration Blog.

DR Faculty Seminar in Israel–Identity & Education

ADR Prof Blog - Thu, 2017-12-21 18:21
We’ve been back for a few days from Israel and today I woke up thinking about how the next generation of kids in the Israeli-Palestinian conflict could ever be reconciled.  We heard repeatedly how this conflict is identity based and how children on each side no longer have any exposure to the “other.” Observers of … Continue reading DR Faculty Seminar in Israel–Identity & Education →

Jenner & Block Elects 13 New Partners for 2018 - Markets Insider

Google International ADR News - Thu, 2017-12-21 13:10

Jenner & Block Elects 13 New Partners for 2018
Markets Insider
Ms. Letourneau has represented clients as plaintiffs and defendants in every phase of litigation before state and federal courts, as well as in alternative dispute resolution and arbitral tribunals throughout the country. She has won a number of ...

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Jenner & Block Elects 13 New Partners for 2018 - PR Newswire - PR Newswire (press release)

Google International ADR News - Thu, 2017-12-21 13:01

Jenner & Block Elects 13 New Partners for 2018 - PR Newswire
PR Newswire (press release)
CHICAGO, Dec. 21, 2017 /PRNewswire/ -- Jenner & Block has elected 13 lawyers across offices to the partnership, effective January 1, 2018. The group of eight women and five men come from across offices and practice areas, bringing to the partnership ...

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Robert Gordon University: A veritable force in global legal education - Study International

Google International ADR News - Thu, 2017-12-21 11:10

Robert Gordon University: A veritable force in global legal education
Study International
Set amid the buzz of Aberdeen – the oil and gas capital of Europe and a hub in Northeast Scotland – the Law School at Robert Gordon University (RGU) offers a comprehensive range of accredited and professionally-recognised law degrees at the ...

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Robert Gordon University: A veritable force in global legal education - Study International News

Google International ADR News - Thu, 2017-12-21 11:10

Study International News

Robert Gordon University: A veritable force in global legal education
Study International News
Set amid the buzz of Aberdeen – the oil and gas capital of Europe and a hub in Northeast Scotland – the Law School at Robert Gordon University (RGU) offers a comprehensive range of accredited and professionally-recognised law degrees at the ...

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Billion-Dollar Technology Dispute Resolved with 'Gig Judiciary' - Law.com

Google International ADR News - Thu, 2017-12-21 10:56

Law.com

Billion-Dollar Technology Dispute Resolved with 'Gig Judiciary'
Law.com
FedArb, a Silicon Valley-based alternative dispute resolution firm, was recently involved in helping bring to resolution a $1 billion-plus cathode ray tubes antitrust tech dispute that expanded to over 50 parties and United States international ...

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