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All about action - Vantage Asia

Google International ADR News - Tue, 2018-09-11 01:23

Vantage Asia

All about action
Vantage Asia
Respondents to the same 2018 International Arbitration Survey also placed the Singapore International Arbitration Centre (SIAC) as the third-most-preferred arbitration institution globally, ahead of the Hong Kong International Arbitration Centre ...

Legalizing Peace Is Far from Simple - Scoop.co.nz

Google International ADR News - Mon, 2018-09-10 18:00

Legalizing Peace Is Far from Simple
Scoop.co.nz
As the U.S. government simultaneously threatens the International Criminal Court for even acting as if it might prosecute the United States for crimes in Afghanistan (a topic “investigated” for years now, while the ICC has yet to actually prosecute any ...

The roadmap ahead - securities lending times

Google International ADR News - Mon, 2018-09-10 10:40

securities lending times

The roadmap ahead
securities lending times
... clauses favoring either alternative dispute resolution or the breadth of specialist courts that are beginning to crop up in challenger centers as well as documenting operational fallbacks along with whether jurisdiction should be exclusive or non ...

Cox & Palmer partner Keith named fellow of Litigation Counsel of America - The Lawyer's Daily

Google International ADR News - Mon, 2018-09-10 09:44

The Lawyer's Daily

Cox & Palmer partner Keith named fellow of Litigation Counsel of America
The Lawyer's Daily
During his litigation career, he has represented a wide variety of clients including large Canadian and international financial institutions, shareholders and the provincial Crown. His practice covers administrative law, construction law, alternative ...

Indigenous practices can bolster ADR - Law Times

Google International ADR News - Mon, 2018-09-10 08:15

Law Times

Indigenous practices can bolster ADR
Law Times
Alternative dispute resolution can be used to keep cases involving Indigenous communities from reaching the courts, says Alicia Kuin, a mediator with YorkStreet Dispute Resolution Group Inc. in Toronto, who has mediated several disputes involving ...

ILNU's ADR Workshop On International Arbitration [15th-17th Sept] - Live Law

Google International ADR News - Mon, 2018-09-10 03:31

Live Law

ILNU's ADR Workshop On International Arbitration [15th-17th Sept]
Live Law
Centre for Alternative Dispute Resolution, Institute of Law Nirma University (ILNU), will hold an ADR workshop on 'International Arbitration (Commercial and Investment) and Contemporary Issues' from September 15 to 17 through its Smart Class. The ...

Building Political Common Ground

ADR Prof Blog - Sun, 2018-09-09 21:23
Probably like many readers of this blog, I have been very uncomfortable with our highly polarized politics lately.  I have written about my conflicted feelings about how to deal with these issues, including this article, How Can We Build Common Ground Between Bubbles? Clearly, it is counterproductive to try to build common ground with people … Continue reading Building Political Common Ground →

Interim Measures by Chilean Courts in Aid of Foreign Arbitration

Kluwer Arbitration Blog - Sun, 2018-09-09 17:13

Orlando Palominos and Catharina Müller

Throughout the years, Chilean courts and legislation have fostered a pro-arbitration and a pro-enforcement environment, favoring arbitration and recognizing the benefits that are generally attached to it. In such regard, the Civil Procedure Code, the Code on the Organization of Tribunals, the New York Convention on the Recognition and Enforcement of Arbitral Awards and Law No. 19,971 on International Commercial Arbitration (also known as “LACI”), encompass a clear commitment towards arbitration, particularly in connection with the finality of arbitral awards and the enforcement of foreign awards.

However, in light of recent judgments, this pro-arbitration bias seems to suffer when it comes to the request of interim measures, before national courts, in aid of foreign arbitrations. Indeed, some Chilean courts have refused to grant them in aid of an international arbitration seated in a country other than Chile and involving parties not domiciled in Chile. Is such approach consistent with Chilean law? It does not seem so.

I. Interim Measures by Chilean Courts: A Confusing Signal

Following the UNCITRAL Model Law on international arbitration, LACI meant a major improvement and modernization of Chilean legislation in this regard. As per interim measures, Article 9 LACI provides that “It shall not be deemed incompatible with the arbitration agreement for a party to request, before arbitration proceedings or during their process, from a court an interim measure nor for a court to grant such a measure.”

The provision does not distinguish on the seat of the arbitration nor the nationality or domicile of the parties thus, apparently, providing for full assistance from national courts on the issuance of interim measures, be it before or after the commencement of the arbitration. Is that so?

In GCZ Ingenieros S.A.C y Otra v. Latin America Power Perú S.A.C y Otras, a civil court of Santiago casts doubts on such a straight interpretation and rejected a request for interim relief in aid of a foreign arbitration. To do so, the court argued that Chilean law did not allow such a resolution because the arbitration proceeding was seated in another country and that the respondent parties were not domiciled in Chile. To support its reasoning, the court referred to Articles 1 and 107 et seq. of the Chilean Code on Organization of Tribunals and Articles 279 et seq. of the Chilean Civil Procedure Code that, purportedly, would provide for a territorial scope of Chilean law on arbitration.

However, such arguments and provisions are not convincing and pose a contradiction with the wording of Article 9 LACI, its legislative history and its purpose.

First, since the wording of Article 9 does not distinguish between arbitrations based in Chile or abroad, the interpreter or the court cannot make such a distinction in order to restrict the scope of the rule. Moreover, Article 1.2 LACI recognizes that Article 9 LACI is applicable if the seat of the arbitration is located outside the Chilean territory.1)BLACKABY, Nigel/PARTASIDES QC, Constantine/REDFERN, Alan/HUNTER, Martin (2015): Redfern and Hunter on International Arbitration, Student Version (Oxford, Oxford University Press, Sixth Edition), p. 429, para. 7.24. jQuery("#footnote_plugin_tooltip_7640_1").tooltip({ tip: "#footnote_plugin_tooltip_text_7640_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Therefore, article 9 LACI is a clear exception to the principle of territoriality.

Furthermore, LACI was enacted to fill a legal vacuum and provide a special and autonomous set of rules, procedurally and substantially, for the international commercial arbitration.2) Message of the President of the Republic of Chile in History of the Law No. 19,971, Library of the National Congress, 2004, p. 7. jQuery("#footnote_plugin_tooltip_7640_2").tooltip({ tip: "#footnote_plugin_tooltip_text_7640_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Therefore, it is improper to resort to general rules (such as the Civil Procedure Code and the Code on Organization of Tribunals) to reject interim measures in aid of foreign arbitral proceedings. Such rules remain applicable to local arbitration proceedings due to the dualistic nature of the Chilean arbitration system: on the one hand, domestic arbitration governed by general rules and, on the other hand, international commercial arbitration governed by LACI.

This approach is consistent with the adoption of the UNCITRAL Model Law and its aim at creating legal certainty, avoid the risk of the local law and to follow the general international consensus in this field. In this regard, the commentary and explanatory note by UNCITRAL on this Model Law confirms that interim measures by local courts do not depend on the place of arbitration.

Moreover, the judgement may present an additional risk if read along with certain decisions of Chilean courts in connection with interim measures granted abroad. In particular, the criterion of Chilean higher courts, as shown in Western Technology Servis Internacional Inc. v. Caucho Industriales S.A., is to reject the exequatur of interim measures granted abroad regarding assets located in Chile. Such approach, and the uniform decisions of Chilean courts in connection with the exclusive application of Chilean law over assets located in Chile, may leave claimants without proper legal protection and, on the other hand, may convey a message to defendants that Chile offers a sort of “safe haven” regarding the request and enforcement of interim measures. This would be an even bigger issue before the constitution of the arbitral tribunal or in the case of measures affecting a third party.

Another civil court also rejected an interim relief request in Hyundai Engineering & Construction v. Construtora OAS S.A. but on the basis of a very limited reasoning: “the seat in which the request was filed”. Fortunately, the judgment was overruled by the Court of Appeals of Santiago but it did not provide reasons to reach such decision.

II. Foreign Decisions May Shed Some Lights on the Subject

The issue is not new and it has already been addressed by foreign courts that, in general, have favored interim measures in aid of foreign arbitration proceedings under certain circumstances.

In such regard, although the United States’ Federal Arbitration Act does not contain a specific provision on the subject matter, the mere fact that the arbitration is seated abroad was not considered a determinative argument for rejecting an interim measure in its aid by a New York court. Indeed, in Sojitz Corp. v. Prithvi Info. Solutions Ltd., and based on Section 7502(c) of the Civil Practice Law and Rules (as amended on 2005), the court affirmed a decision that granted an interim measure on the basis that the arbitration award would otherwise be rendered ineffectual and that the account seized was a debt owed by a New York domiciliary.

Quite similar to the United States is the situation in the United Kingdom. In such regard, Section 44 (5) of the United Kingdom’s Arbitration Act authorizes interim relief by national courts if the arbitral tribunal is not able to grant them effectively. Pursuant to Section 2 (3), in the case of a foreign arbitration, the national court is allowed to reject interim measures provided that approving them is “inappropriate” considering the foreign seat. Accordingly, local courts have ruled that there must be some kind of connection to the territory of the UK, thus rejecting cases in which there was only a tenuous link to the UK (Econet Wireless Services Ltd v. Vee Networks Ltd [2006] EWHC 1568 (Comm); Company 1 v. Company 2 [2017] EWHC 2319 (QB)).

III. Promoting an International Approach from Chilean Courts towards Interim Measures

As detailed above, the denial of court-ordered interim measures in aid of a foreign arbitration by some Chilean courts, based on the location of the arbitration seat and the defendants’ domicile is inconsistent with the wording, legislative history and purpose of Article 9 LACI. Moreover, such an approach is counterintuitive considering the UNCITRAL Model Law and the international consensus and decisions on the subject.

Accordingly, Chilean courts should develop a proper balance between the autonomy of the arbitral tribunal, the supportive interference of national courts and the need to foster the effectiveness of the arbitral award.

An approach based on the existence of a sufficient connection with Chile would be consistent with LACI, the international consensus and the Chilean court’s cautiousness. Bearing that in mind, and considering that in the Chilean case mentioned above the operation of the respondents which the claimants aimed to inhibit took place in Chile and that a substantial part of the respondents’ obligations was connected with companies whose shares and assets were situated in Chile, it would have been possible to conclude the existence of “sufficient connection”, thus granting the requested

References   [ + ]

1. ↑ BLACKABY, Nigel/PARTASIDES QC, Constantine/REDFERN, Alan/HUNTER, Martin (2015): Redfern and Hunter on International Arbitration, Student Version (Oxford, Oxford University Press, Sixth Edition), p. 429, para. 7.24. 2. ↑ Message of the President of the Republic of Chile in History of the Law No. 19,971, Library of the National Congress, 2004, p. 7. 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
by Andrea Menaker
€ 240


The post Interim Measures by Chilean Courts in Aid of Foreign Arbitration appeared first on Kluwer Arbitration Blog.

First Lusophones’ Arbitration Meeting: Note and Invitation Translating Cultures and Promoting Arbitration

Kluwer Arbitration Blog - Sun, 2018-09-09 02:02

Eduardo Silva da Silva, Yves Derains and Ana Gerdau de Borja Mercereau

Fernando Pessoa and Machado de Assis.  What do these names have in common other than the fact that they are celebrated Portuguese-speaking writers?  Far away situated because of geography, history, and culture, these two writers have left an important legacy that has brought closer different cultures through their literary work.  In addition to being writers, Pessoa and Machado have also worked as translators.  And, in the translation of a poem, they have met at last.  The poem translated by them is the Portuguese version of a well-known text by Edgar Allan Poe, an American writer, originally published in 1845, entitled The Raven.1) The poem The Raven is one of the most well-known works of Edgar Allan Poe.  The English text has its own musicality and uses many figures of speech, which make translation a real challenge.  The translations of the Brazilian writer Machado and of the Portuguese writer Pessoa have been examined by the Brazilian writer Carlos Heitor Cony, “As traduções de o Corvo”, Jornal Folha de São Paulo, Editoria de Opinião (20 April 1997). jQuery("#footnote_plugin_tooltip_8428_1").tooltip({ tip: "#footnote_plugin_tooltip_text_8428_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

This literary encounter of Pessoa and Machado perhaps could illustrate or translate the First Lusophones’ Arbitration Meeting that took place during the Paris Arbitration Week (PAW) in April 2018.

The Portuguese-speaking world, whether it is Portuguese, Brazilian, Angolan or Mozambican, has been inspired by the Roman-Germanic legal tradition.2) See DAVID, René. Os grandes sistemas do Direito contemporâneos (Martins Fontes 2002). jQuery("#footnote_plugin_tooltip_8428_2").tooltip({ tip: "#footnote_plugin_tooltip_text_8428_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });  This legal tradition – as rightly puts Professor Miguel Reale – has courageously travelled across the seas.3) REALE, Miguel. Fontes e modelos do Direito (Saraiva 1994). jQuery("#footnote_plugin_tooltip_8428_3").tooltip({ tip: "#footnote_plugin_tooltip_text_8428_3", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });  As far as arbitration is concerned, the relations between Portuguese-speaking countries relate to economic realities.  Despite the different realities of these countries, they shared the same need for arbitration as a means to strengthen their internal market and to engage in foreseeable international commercial transactions.  If in contemporary Portugal international arbitration has also grown in light of the European tradition, in Brazil arbitration was needed as a better-suited solution for commercial disputes.  In turn, Mozambique and Angola as African commercial hubs with an important oil & gas sector have also used international arbitration as a tool to translate different legal systems.

In light of the above perspective, Mr. Yves Derains, who has become fluent in Portuguese on his own merits, opened the First Lusophones’ Arbitration Meeting welcoming the Portuguese-speaking guests at his Paris-based firm on the occasion of the enriching activities promoted by the International Chamber of Commerce (ICC) and by other entities supporting the PAW.  In his opening speech, Mr. Derains presented the three topics for discussion at the meeting to incite the encounter and the debate among participants, including exchanges between the different countries then represented.

The first panel discussed the topic “Institutional Initiatives Aiming at Increasing Publicity and Transparency in Arbitration”, animated by the moderator Mr. Fernando Mantilla-Serrano, Partner of Latham & Watkins, Paris.  Ms. Ana Serra e Moura, Deputy Secretary-General of the ICC International Arbitration Court, presented the topic, with comments by Mr. Felipe Moraes, Secretary-General of Câmara de Mediação e Arbitragem Empresarial do Brasil (CAMARB).  Their presentations considered (a) publicity and transparency in relation to players (constitution of the arbitral tribunal and disclosure obligations of arbitrators), (b) publicity in relation to the proceedings (in relation to amici curiae and to the reasons of the arbitral institution’s decisions), and (c) publicity of awards, including their publication and later enforcement proceedings.

Among other matters, Ms. Ana Serra e Moura from the ICC reported its experience in proceedings with Brazilian, Portuguese and African parties, relevant statistics, and the progress made towards greater transparency with the adoption of measures set forth in the Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration, available on the ICC website.

In turn, Mr. Felipe Moraes from the CAMARB reported on its increasing experience with State entities and on its efforts to promote greater transparency.  He mentioned recent updates in Brazilian law on publicity in arbitration involving State entities, and the experience of CAMARB in this respect.   He also talked about the new CAMARB Arbitration Rules (2017) with provisions on publicity and transparency in cases involving State entities, distinguishing between public and private law State entities.  Articles 12.2 and 12.5 of these Rules state that the CAMARB Secretariat will publish on its website information about CAMARB arbitrations concerning State entities of public law, including the date of the request for arbitration, the names of the parties, and the award.  Pursuant to Article 12.3, the CAMARB will not provide additional information about these arbitrations to third parties, information which may otherwise be provided by the parties themselves according to the law.  Further, Article 12.4 provides that the arbitration hearing will not be opened to the public, unless the parties agree otherwise.

Moreover, Mr. Felipe Moraes mentioned the new legal provisions on transparency in arbitrations involving corporate and capital markets issues, such as the 2017 amendment to Instruction No. 358 of the Brazilian Securities and Exchange Commission (Commissão de Valores Mobiliários or “CVM”) requiring publicly traded companies’ disclosure of the institution of arbitration proceedings that may affect a company’s economic and financial situation.  Finally, he commented on CVM’s recent decisions in this regard.

The second panel discussed the topic “Arbitration with the State and State Entities in Brazil and in Portugal”.  The moderator Dr. Ana Gerdau de Borja Mercereau presented the speakers Mr. Renato Stephan Grion, Partner of the law firm Pinheiro Neto Advogados from São Paulo, and Mr. Filipe Vaz Pinto, Partner of MLGTS from Lisbon.  The arbitration experience with the State and State entities in Portugal and in Brazil is challenging with new developments shared by the speakers and the participants.

Among other matters, Mr. Filipe Vaz Pinto discussed the Portuguese reform of 2018, in light of the adoption of Decree-Law No. 111-B/2017, which, among other provisions, introduced changes to Article 476 of the Code of Public Contracts (on alternative dispute resolution).  The changes came about at a time when the Judiciary in Portugal is facing increasing difficulties to deal effectively with the case load brought before State Administrative Courts, while at the same time arbitration involving State entities is facing growing public criticism, even if sometimes based on wrong perceptions, not actual facts.  This is perhaps what justifies the unease feeling that this reform “gave with one hand what it took away with the other”: while the new rules purport to expand the use of arbitration in disputes involving the State or State entities, including disputes concerning public tenders, they also establish a non-waivable right of appeal in respect of all disputes with an amount exceeding € 500,000.  It remains to be seen how these rules will play out in practice and be perceived by investors.

In turn, Mr. Renato Stephan Grion discussed Brazilian initiatives like the new provisions on arbitration with State entities under the Brazilian Arbitration Law (Law 9,307/1996, Article 1, § 1, and Article 2, § 3, modified by Law No. 13,129/2015), the Federal Decree 8,465/2015 (on port sector arbitration), and the Decree of the State of Rio de Janeiro 46,245/2018  (on arbitration with State entities of the State of Rio de Janeiro).  He also referred to the survey “Arbitration in Regulated Infrastructure Sectors” published in 2017 by the FGV/CERI and The Word Bank, which shows that several Brazilian agencies such as ANP (National Petroleum Agency or Agência Nacional do Petróleo), ANTT (National Land Transport Agency or Agência Nacional dos Transportes Terrestres), ANAC (National Civil Aviation Agency or Agência Nacional de Aviação Civil) and ANATEL (National Telecommunications Agency or Agência Nacional de Telecomunicações) have concluded arbitration agreements.  In relation to the ANP, Mr. Renato Grion referred to Proceedings No. 139,519/RJ (Conflito de Competência), in which the Superior Court of Justice (Superior Tribunal de Justiça or “STJ”), in 2017, referred the ANP to ICC arbitration proceedings instituted by the mixed capital company Petrobras based on an arbitration clause under an oil & gas concession contract concluded with the ANP.  Later, he discussed the implications of the new publicity provision under Article 2, § 3, of Law 9,307/1996, noting that several Brazilian institutions have adjusted their arbitration rules in light of this.

Finally, the third panel considered the topic “Arbitration in the Oil & Gas Sector in Angola and Mozambique”, moderated by Prof. Dr. Eduardo Silva da Silva, Partner of S&R Dispute Resolution Office, from Brazil.  The speakers were Ms. Sofia Martins, Partner of the law firm Miranda Advogados, from Lisbon, and Ms. Filipa Cansado Carvalho, of Counsel of the law firm PLMJ, also from Lisbon.  They discussed the legal and regulatory framework of the oil & gas sector in these countries, the type of disputes and ways to tackle political, economic and social questions related to arbitration in Angola and Mozambique.

Ms. Sofia Martins described in detail the structure of oil & gas operations in both Angola and Mozambique, focusing in particular on the structure of Production Sharing  Agreements, on the standard dispute resolution provisions as well as on mandatory arbitration-related provisions in the laws of both countries.

In turn, Ms. Filipa Cansado Carvalho highlighted some difficulties that might arise within or in connection with arbitration proceedings seated in Angola or Mozambique and shared some war stories. Among other issues, Ms. Cansado Carvalho explained why it is fundamental to involve Portuguese-speaking lawyers at the negotiation stage as well as when a dispute arises.  She also spoke of recent legislation enacted in Angola seeking to prevent non-members of the Angolan Bar Association to act in arbitrations seated in Angola, describing how this has been applied in practice so far and comparing this to the current situation in Mozambique.  Ms. Cansado Carvalho concluded on a positive note stating that, although arbitration and, in particular, oil & gas arbitration involving Angola or Mozambique is not without challenges, with knowledge of what these difficulties are and of how these jurisdictions work it is generally possible to manage them.

The debate about the above-mentioned topics has been enriching and promoted the interaction between the Portuguese-speaking practitioners.  Among the participants were Ms. Ana Paula Montans (Arbitrator, London), Dr. Clávio Valença (Partner, Valença Galíndez, São Paulo), Dr. Daniel de Andrade Levy (Of Counsel, Enyo Law, London), Prof. Dr. Diego Fernández Arroyo (Sciences Po, Paris), Dr. Gustavo Scheffer da Silveira (Counsel, ICC, São Paulo), Prof. Dr. Judith Martins-Costa (Partner, Judith Martins-Costa Advogados, Porto Alegre), Ms. Luiza Saldanha Pena Costa (Associate, Betto Seraglini, Paris), Prof. Dr. Mariana França Gouveia (Partner, PLMJ/Universidade Nova de Lisboa, Lisbon), Dr. Matthieu de Boisséson (Arbitrator, Matthieu de Boisséson, London and Hong Kong), Mr. Miguel de Almada (Partner, MLGTS, Lisbon), Prof. Dr. Nadia de Araujo (Partner, Nadia de Araujo Advogados/PUC-Rio, Rio de Janeiro), Mr. Ricardo Ranzolin (Partner, Silveiro Advogados, Porto Alegre), and Ms. Sofia Ribeiro Mendes (Arbitrator, Lisbon).

As arbitration practitioners and Portuguese speakers, we practice arbitration according to the tones and nuances of our cultures.  Like Fernando Pessoa and Machado de Assis, we live in our own political, economic and social environment.  Acknowledging that arbitration could be designated “lusophone” depends on an increasing effort towards contributing, interacting and understanding: this is our role as “translators” of different legal cultures in arbitration.

We met, in this first edition, in Paris, the city of lights, a place of meaningful encounters.  Just like Pessoa and Machado, we too have become translators.  We have reciprocally translated our own particularities and multiple potentialities.  And this experience like the literary encounter of Pessoa and Machado can inspire and produce new lusophone perspectives in arbitration.  Portugal as an international destination and Brazil as a developing country clearly present opportunities and potentialities. Angola and Mozambique although needing economic and legal infrastructure present important resources for the international trade.  These countries present a whole world to explore and to translate.  May Camões’ language, which brought together in a poem Machado and Pessoa, be used as a tool for this task.  In 2019, we shall continue this fruitful exercise in the Second Edition of the Lusophones’ Arbitration Meeting.

References   [ + ]

1. ↑ The poem The Raven is one of the most well-known works of Edgar Allan Poe.  The English text has its own musicality and uses many figures of speech, which make translation a real challenge.  The translations of the Brazilian writer Machado and of the Portuguese writer Pessoa have been examined by the Brazilian writer Carlos Heitor Cony, “As traduções de o Corvo”, Jornal Folha de São Paulo, Editoria de Opinião (20 April 1997). 2. ↑ See DAVID, René. Os grandes sistemas do Direito contemporâneos (Martins Fontes 2002). 3. ↑ REALE, Miguel. Fontes e modelos do Direito (Saraiva 1994). 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
by Andrea Menaker
€ 240


The post First Lusophones’ Arbitration Meeting: Note and Invitation Translating Cultures and Promoting Arbitration appeared first on Kluwer Arbitration Blog.

Amaka Orakwue: One Woman, Many Dreams - THISDAY Newspapers

Google International ADR News - Sat, 2018-09-08 22:18

THISDAY Newspapers

Amaka Orakwue: One Woman, Many Dreams
THISDAY Newspapers
As a corporate person, she equally belongs to many reputable associations like the Nigerian Bar Association, Association of Professional and Mediators (Alternative Dispute Resolution), Federation International de Abogadas (FIDA), International ...

ICADR holds seminar on 'Judicial Reforms and ADR for Business Sustainability' in Hyderabd - United News of India

Google International ADR News - Sat, 2018-09-08 10:11

ICADR holds seminar on 'Judicial Reforms and ADR for Business Sustainability' in Hyderabd
United News of India
Hyderabad, Sep 8 (UNI) The International Centre for Alternative Dispute Resolution (ICADR), Regional Centre Hydeabad in association with Confederation of Indian Industry (Cll) conducted a Seminar on "Judicial Reforms and Alternative Dispute Resolution ...

ICADR holds seminar on 'Judicial Reforms and ADR for Business Sustainability' in Hyderabd - United News of India

Google International ADR News - Sat, 2018-09-08 10:11

ICADR holds seminar on 'Judicial Reforms and ADR for Business Sustainability' in Hyderabd
United News of India
Hyderabad, Sep 8 (UNI) The International Centre for Alternative Dispute Resolution (ICADR), Regional Centre Hydeabad in association with Confederation of Indian Industry (Cll) conducted a Seminar on "Judicial Reforms and Alternative Dispute Resolution ...

Cleansing the (Un)clean: The Ongoing Saga of the Clean Hands Doctrine

Kluwer Arbitration Blog - Sat, 2018-09-08 05:00

William Kirtley and Thomas Davis

The arbitral tribunal in Glencore Finance (Bermuda) Limited v. Bolivia has recently hinted at its intent to address an old question: What is the doctrine of “clean hands” in investment arbitration?

On 31 January 2018, an arbitral tribunal composed of Professor Ricardo Ramírez Hernández, Professor John Gotanda and Professor Philippe Sands issued a Procedural Order No. 2 on the issue of bifurcation. While the order itself is uncontroversial, the tribunal notes that the standard and scope of clean hands will have to be examined thoroughly. Therefore, the tribunal will have an opportunity to clarify a problem that has frustrated former tribunals and led to divergent decisions.

Bolivia had objected to Glencore’s claims, arguing that the privatization of the assets underlying the investment in question had been illegal under Bolivian law, the acquisition of mining and leasing assets were contrary to the Bolivian Constitution and the circumstances surrounding the privatization of the assets were contrary to transparency and good faith. Based on this, Bolivia claimed that under the “clean hands” principle, the foreign investor could not present claims tainted by illegality which the foreign investor was aware of when it received the assets in question. The Claimant maintained that the investment was made lawfully through a public tender process.

In its Order, which rejected bifurcation, the tribunal referenced Churchill Mining to agree that the clean hands doctrine had found “expression” internationally, but that its “status and exact contours” remain uncertain (para. 46). The tribunal acknowledged its doubts that a “mere assertion of unlawful conduct” would raise the objection above the required threshold (para. 47), but indicated that it would not only have to accept the clean hands principle, but also to lay out its contours. The tribunal also indicated that it would need to look at the merits to address this objection.

There remains significant disagreement about the status of the clean hands doctrine under international law.

Proponents argue that the doctrine exists as a general principle, pointing to international tribunals and a significant number of national legal decisions (e.g., P. Dumberry, “State of Confusion: The Doctrine of “Clean Hands” In Investment Arbitration after the Yukos Award“, 17 Journal of World Investments and Trade (2016), pp. 229-259). Past tribunals have relied on similar good faith principles, international public policy and the duty to honor local laws (e.g., Inceysa Vallisoletana, S.L. v. Republic of El Salvador, ICSID Case No. ARB/03/26, Award (2 August 2006), para. 244 (‘[N]o legal system based on rational grounds allows the party that committed a chain of clearly illegal acts to benefit from them.’). According to Dumberry, the legality requirement is itself a manifestation of the clean hands doctrine.

However, to become a general principle of law, a principle must have “a certain level of recognition and consensus” (Yukos Universal Limited (Isle of Man) v. The Russian Federation, UNCITRAL, PCA Case No. AA 227, Final Award (18 July 2014), para. 1359.). The ILC Articles on State Responsibility and Diplomatic Protection do not contain any reference to the doctrine of unclean hands. As the Yukos tribunal noted – which itself included a member who had previously dissented in an ICJ case based on a finding of unclean hands (para. 1361) – there is not a single majority decision by an international tribunal which has applied the clean hands doctrine to an investor-State dispute to conclude that it operated as a bar to claims as a principle of international law (para. 1362).

In Fraport II, for instance, the principle did not operate to exclude the investor’s claim, since the relevant treaty contained a legality requirement clause (para. 328). In another case, Al-Warraq v. Indonesia, the tribunal’s finding that claimant’s conduct fell within the scope of the application of the clean hands doctrine and therefore could not benefit from the protection afforded by the OIC Agreement was made, but in obiter dictum (para. 647). Given the lack of relevant case law, it is difficult to determine the doctrine’s status, let alone the standard to be applied.

A 2013 case provides a potential solution. The tribunal in Niko Resources v. Bangladesh (“Niko”) addressed clean hands separately from contentions of bad faith and international public policy (para. 476). It also sidestepped determining the status of unclean hands as a general principle of law by focusing on its content. It found that, at the principle’s core, some form of reciprocity was required, i.e., a nexus between the relief forming the objection and past actions which may be characterized as unclean hands (para. 483). In doing so, it relied on three elements referenced by Judge Hudson’s opinion in Guyana v. Suriname (para. 481):

  1. the breach must concern a continuing violation;
  2. the remedy sought must be ‘protection against the continuance of that violation in the future’, not damages for past violations and
  3. there must be a relationship of reciprocity between the obligations considered

In Niko, as the violation was not continuing, the remedy did not concern protection against a past violation and there was no relationship between the relief being sought and the acts in the past characterized as involving unclean hands, the respondents’ objection based on acts of corruption were dismissed (paras. 483, 485).

The tribunal in Glencore might apply this narrow standard, which would avoid the contentious task of outlining the standard and scope of unclean hands as a general principle of law, while addressing genuine concerns of illegality. This would also allow the tribunal to avoid making a distinction between admissibility and jurisdiction, should Bolivia fail to corroborate its objection.

While some treaties expressly cover only those investments that are made in accordance with host State law, the question of whether there is a general principle of international law which requires “clean hands” is unsettled, at best. In the authors’ opinion, the most that can be said is that rather than forcing the parties to guess at the appropriate standard to apply in cases where the clean hands doctrine is invoked, it is important for the arbitrators in Glencore to provide the parties guidance as early as possible, so that the parties can adapt themselves to those standards, strengthening due process while minimizing tilting at windmills.

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The post Cleansing the (Un)clean: The Ongoing Saga of the Clean Hands Doctrine appeared first on Kluwer Arbitration Blog.

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