KluwerLawOnline.com - Arbitration International http://www.kluwerlawonline.com/toc.php?pubcode=arbi en-gb Tue, 18 Jun 2013 21:00:07 -0500 Tue, 18 Jun 2013 21:00:07 -0500 http://www.rssboard.org/rss-specification ‘Case Specific Mandates’ versus ‘Systemic Implications’: How Should Investment Tribunals Decide? – The Freshfields Arbitration Lecture http://www.kluwerlawonline.com/ARBI2013009 Arbitration International While law-makers must identify and take account of the systemic implications of alternative prescriptions, international investment arbitrators are only authorized to act as law-appliers. As such, they should confine themselves to their case-specific mandate and refrain from departing from it to take account of what arbitrators may conceive to be the "systemic implications" of their decision. But a case-specific mandate does not preclude respectful consideration of prior relevant decisions; rigorous analysis of the objects and purposes of the instruments in question, in accordance with international law's canon of interpretation; and disciplined supplementation when confronting a lacuna in the applicable law.

  • Content Type Journal Article
  • Part of Volume 29, Issue 2
  • Authors
    • W. Michael Reisman, Professor of International Law, Yale Law School.
  • Journal Arbitration International
  • Online ISSN 0957-0411
  • Print ISSN 0957-0411
]]> Fri, 10 May 2013 12:00:00 +0000 http://www.kluwerlawonline.com/ARBI2013009 Commercial Arbitration Before International Courts and Tribunals – Reviewing Abusive Conduct of Domestic Courts http://www.kluwerlawonline.com/ARBI2013010 Arbitration International
  • Content Type Journal Article
  • Part of Volume 29, Issue 2
  • Authors
    • Gabrielle Kaufmann-Kohler, Professor, University of Geneva School of Law.
  • Journal Arbitration International
  • Online ISSN 0957-0411
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    • ]]>     Fri, 10 May 2013 12:00:00 +0000 http://www.kluwerlawonline.com/ARBI2013010     Convention Violations and Investment Claims http://www.kluwerlawonline.com/ARBI2013011 Arbitration International
  • Content Type Journal Article
  • Part of Volume 29, Issue 2
  • Authors
    • William W. Park, Professor of Law, Boston University. President, London Court of International Arbitration.
  • Journal Arbitration International
  • Online ISSN 0957-0411
  • Print ISSN 0957-0411
    • ]]>     Fri, 10 May 2013 12:00:00 +0000 http://www.kluwerlawonline.com/ARBI2013011     Public International Law, Investment Treaties and Commercial Arbitration – An Emerging System of Complementarity? http://www.kluwerlawonline.com/ARBI2013012 Arbitration International The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards forms the foundation of the modern system of international commercial arbitration. However, it contains no dispute resolution procedure of its own that a wronged party might use to enforce its rights under an arbitration agreement or award. It is generally left to State parties, and particularly domestic courts, to interpret and apply the Convention's provisions competently and in good faith. This can give rise to politicisation and frustration for contractual parties in the pursuit of their international arbitration rights. A series of recent decisions - by investment arbitration tribunals and regional human rights courts - suggests that public international law has a substantial role to play in the protection of international commercial arbitration rights against interference by States and, in particular, their domestic courts. Those decisions demonstrate that international courts and tribunals are increasingly stepping in to ensure the recognition and enforcement of commercial arbitration rights. In doing so, those international courts and tribunals are resorting to principles and remedies that are well-established under public international law. This article analyses and compares a number of recent judgments and awards addressing the relationship between public international law and international commercial arbitration. It examines the approaches taken by some notable recent investment arbitration awards to the protection of commercial arbitration rights under investment treaties. The article also examines the expanding jurisprudence of the European Court of Human Rights in connection with the recognition and enforcement of commercial arbitration awards. The article concludes by observing that the recent jurisprudence demonstrates a growing symbiotic relationship between public international law and international commercial arbitration rights.

    • Content Type Journal Article
    • Part of Volume 29, Issue 2
    • Authors
      • Stephen Fietta, Partner, Volterra Fietta, London.
      • James Upcher, Associate, Volterra Fietta, London.
    • Journal Arbitration International
    • Online ISSN 0957-0411
    • Print ISSN 0957-0411
    ]]>     Fri, 10 May 2013 12:00:00 +0000 http://www.kluwerlawonline.com/ARBI2013012     EU Merger Control Commitments and Arbitration – Reti Televisive Italiane v. Sky Italia http://www.kluwerlawonline.com/ARBI2013013 Arbitration International The article analyses the first public award rendered on the basis of an arbitration agreement contained in merger control commitments to the European Commission. It addresses first the nature and general features of the arbitration of merger control commitments, concluding that it is an ordinary commercial arbitration, whose main peculiarity is that it is without privity, being available to all the beneficiaries of the commitments (the customers and competitors of the merged entity). It is not a form of "regulatory" arbitration, nor an instrument for the "monitoring" of merger control commitments and the Commission has no power to intervene in the procedure or to influence the decision. The article then discusses the RTI v. Sky Italia award's analysis on jurisdiction and on the merits. The Arbitral Tribunal's decision on the jurisdictional objection is particularly interesting because it clearly distinguishes the roles of the European Commission and of the arbitrators. While the former is competent for the public enforcement of the commitments, the function of the arbitrators is to settle the disputes between the merging entity and the beneficiaries of the commitments, which would otherwise fall under the jurisdiction of national courts. The award adopts a broad and constructive approach to the identification of the disputes that can be brought under this type of arbitration agreement. On the merits the award identifies the scope of the arbitrator's power to enforce the commitments, in particular in relation to the Commission's concerns in the decision clearing the merger, deciding that the arbitrators cannot modify the commitments. The article concludes that this first arbitration under merger control commitments confirms the effectiveness of the introduction of arbitration clauses in such commitments.

    • Content Type Journal Article
    • Part of Volume 29, Issue 2
    • Authors
      • Luca G. Radicati Di Brozolo, Professor at the Catholic University of Milan.
    • Journal Arbitration International
    • Online ISSN 0957-0411
    • Print ISSN 0957-0411
    ]]>     Fri, 10 May 2013 12:00:00 +0000 http://www.kluwerlawonline.com/ARBI2013013     The Scope of an Investment Treaty Dispute Resolution Clause – It is Not Just a Question of Interpretation http://www.kluwerlawonline.com/ARBI2013014 Arbitration International Investment treaties' provisions concerning the settlement of disputes between the foreign investor and the host contracting State may be drafted in different ways. In particular, they may cover a broad range of disputes: virtually all disputes concerning investments or only those arising from an alleged violation of the same treaty. In such a case, the contracting States' consent to arbitration may be given with regard to any substantive provision or be limited to some specific issues, usually those concerning expropriations or the payment of compensation following an act of expropriation. In the past, the Soviet Union followed such an approach. Today, even though States like the Russian Federation, other former Soviet Union countries and China have changed their attitude in that respect, arbitral tribunals may still be called upon to decide on their own jurisdiction on the basis of such 'narrow-looking' clauses. Obviously, foreign investors do not like dispute settlement provisions worded restrictively and they have made efforts to convince arbitral tribunals that their jurisdiction was not limited to the matters explicitly mentioned in the relevant dispute settlement provision, but extended to any alleged violation of the applicable treaty. Those arbitral tribunals which have been called upon to pronounce on the issue have not taken a consistent approach. Despite identical dispute settlement clauses, arbitral tribunals have reached different conclusions. In our opinion, the assessment of the scope of dispute settlement clauses within investment treaties is not just a question of treaty interpretation, as some tribunals maintain, but has also to do with policy considerations. In particular, the optional character of the host State's choice to submit to international adjudication must be taken into account. As a consequence, when assessing whether they have jurisdiction on the basis of such treaty clauses, arbitral tribunals are not allowed to expand their scope beyond the limits set out by the contracting States. Both an extensive interpretation of such clauses to include issues other than those expressly mentioned or the recourse to a broader dispute settlement provision through the MFN clause of the applicable treaty are unacceptable methods to settle the matter.

    • Content Type Journal Article
    • Part of Volume 29, Issue 2
    • Authors
      • Mara Valenti, Lecturer in International Law at the Università degli Studi di Milano, Italy.
    • Journal Arbitration International
    • Online ISSN 0957-0411
    • Print ISSN 0957-0411
    ]]>     Fri, 10 May 2013 12:00:00 +0000 http://www.kluwerlawonline.com/ARBI2013014     The Nonarbitrability of Corporate Disputes in Russia http://www.kluwerlawonline.com/ARBI2013015 Arbitration International In a recent case, Novolipetsk Metallurgical Company v. Maximov Russia's highest commercial court, the Supreme Arbitrazh Court, has ruled that corporate disputes are not arbitrable in Russia. This article examines the Court's decision on the arbitrability of corporate disputes and contrasts it with other decisions in Russia and elsewhere that have broadened the scope of arbitrability. The conclusion is that the Maximov decision by Russia's highest commercial court makes Russia less hospitable to international commercial arbitration and runs counter to other measures being taken in Russia to make it a center for international commercial arbitration.

    • Content Type Journal Article
    • Part of Volume 29, Issue 2
    • Authors
      • Peter J. Pettibone, Partner of the Moscow office of Hogan & Hartson.
    • Journal Arbitration International
    • Online ISSN 0957-0411
    • Print ISSN 0957-0411
    ]]>     Fri, 10 May 2013 12:00:00 +0000 http://www.kluwerlawonline.com/ARBI2013015     The White Industries Australia Limited – India BIT Award –A Critical Assessment http://www.kluwerlawonline.com/ARBI2013016 Arbitration International In recent times, the White Industries - India Award (BIT Award) has created quite a stir. In short, it holds India liable for damages for judicial delays of over nine years in enforcing an ICC Award between White Industries Australia Ltd. (White) and an Indian Government company, Coal India. The delay in enforcement by the Indian courts was held to deprive the Australian investor of 'effective means of asserting claims and enforcing rights' - an obligation contained in the Kuwait-India BIT, which the Tribunal held the Australian investor could take advantage of, relying on the most favoured nation (MFN) clause in the bilateral investment treaty between Australia and India.

    The BIT Award has far reaching implications. At one level, it is an indictment of the Indian judicial system (as one not affording 'effective means of asserting claims and enforcing rights'). At another, it opens the doors to disappointed foreign litigants to seek similar relief and make court delays and other judicial shortcomings actionable per se. The Award throws up jurisprudential issues of the role, responsibility and independence of national courts and brings into focus the future of BITs and BIT arbitrations.

    • Content Type Journal Article
    • Part of Volume 29, Issue 2
    • Authors
      • Sumeet Kachwaha, Sumeet is a partner in the New Delhi.
    • Journal Arbitration International
    • Online ISSN 0957-0411
    • Print ISSN 0957-0411
    ]]>     Fri, 10 May 2013 12:00:00 +0000 http://www.kluwerlawonline.com/ARBI2013016     International Cotton Arbitration http://www.kluwerlawonline.com/ARBI2013017 Arbitration International This article looks at the arbitration of cotton disputes, concentrating on the Liverpool - based International Cotton Association. Three topics are considered:

    (1) A short history of the cotton trade in Liverpool. During the American Civil War, Liverpool cotton merchants acted for the Confederate Government, financing the supply of arms in return for cotton. The building of ships like CSS Alabama led to a dispute between the American and British governments, ultimately settled in the Alabama Claims Commission.

    (2) The Rulebook of the International Cotton Association Ltd. (the ICA) - in particular the provisions relating to arbitration. The Rules contain an internal appeals structure. The Rules restrict the right of lawyers to participate in the arbitral process. The ICA operates worldwide. In 2011, the ICA received 242 requests for technical arbitrations: five times the usual yearly average. In the first half of 2012, 135 requests for arbitration were received.

    (3) Two cases involving the challenge to ICA arbitration awards: one decided in the High Court in London, the other a decision of the Suzhou Intermediate Court, Jiangsu Province, China. The China case is interesting: the Suzhou Court looks at the ICA Arbitration Rules, the English Arbitration Act and the New York Convention - and approves the award made in Liverpool.

    • Content Type Journal Article
    • Part of Volume 29, Issue 2
    • Authors
      • Anthony Connerty, Barrister in practice at Chambers in the Temple, London.
    • Journal Arbitration International
    • Online ISSN 0957-0411
    • Print ISSN 0957-0411
    ]]>     Fri, 10 May 2013 12:00:00 +0000 http://www.kluwerlawonline.com/ARBI2013017     Book Review http://www.kluwerlawonline.com/ARBI2013018 Arbitration International
  • Content Type Journal Article
  • Part of Volume 29, Issue 2
  • Authors
    • Anthony Sinclair, Partner, Quinn Emmanuel Urquhart & Sullivan LLP, London.
    • Mark Robertson, Senior Associate, Wotton Kearney, Sydney, Barrister.
  • Journal Arbitration International
  • Online ISSN 0957-0411
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    • ]]>     Fri, 10 May 2013 12:00:00 +0000 http://www.kluwerlawonline.com/ARBI2013018     Book Note http://www.kluwerlawonline.com/ARBI2013019 Arbitration International
  • Content Type Journal Article
  • Part of Volume 29, Issue 2
  • Authors
    • Stuart Isaacs
  • Journal Arbitration International
  • Online ISSN 0957-0411
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    • ]]>     Fri, 10 May 2013 12:00:00 +0000 http://www.kluwerlawonline.com/ARBI2013019