bluuebunny/crossref_metadata_2025 huggingface dataset:
The Mediated Settlement Agreement  The Ecuadorian Experience
Authors: Vásconez Ximena Bustamante
Published: March 2022

There is no consent regarding the nature and effects that should be given to a Mediated Settlement Agreement (MSA) in the international level. Consequently, some jurisdictions conceive it merely as a contract with the correspondent enforcement procedure, whereas others seek to provide it with a stronger effect homologating the MSA with a judgment or even an arbitral award. In this diverse setting, the Ecuadorian experience presents an interesting case of analysis because it provides the MSA with the same effects of a final judgment and of res judicata establishing a summary enforcement procedure. Such disposition provides the MSA with an original nature that in a way combines both contracts and judgments. Therefore, the document containing the MSA has been defined as an authentic instrument product of an alternative mechanism for the administration of justice, which provides it with the effects of a final judgment and of res judicata, and that contains a typified or nominated convention which essential characteristics are determined by the Arbitration and Mediation Law.
Language, Truth, and Arbitral Accuracy
Authors: Ulmer Nicolas C.
Published: March 2022

The arbitral process is not the search for epistemological truth, but it is a search for a true and accurate resolution of controverted positions. Language is the necessary medium for the reaching this accuracy, but both practical and more profound language issues arise that inhibit the proper search for "truth" in international arbitration. These issues are frequently not perceived by counsel and arbitrators and the use, or misuse, of English as the arbitral Weltsprache has, often unwittingly, exacerbated this phenomenon. A deeper conception of the role and structure of language will lead both to better practice, and to greater accuracy, in the arbitral process.
Who is Afraid of Nottebohm?  Reconciling the ICSID Nationality Requirement for Natural Persons with Nottebohm s Effective Nationality Test
Authors: Marian Cornel
Published: March 2022

Just ten years after the International Court of Justice issued the Nottebohm decision, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) adopted a clear demarcation that only foreign investors may bring an investment claim against a state. While ICSID arbitral tribunals are left with the difficult task of interpreting the nationality laws of individual states, the same tribunals have not applied Nottebohm's "effective nationality" to review contentious facts where a genuine connection with a state is lacking. This article analyzes the troublesome relationship between Nottebohm's "effective nationality" and Article 25(2)(a) of the ICSID Convention. The article deduces that the current position is reconcilable with the Nottebohm decision: tribunals may undertake a limited inquiry into the genuine ties that the investor has with an ICSID contracting state but not into the investor's ties with the respondent state.
Judicial Review of Arbitral Awards in International Arbitration  A Case for an Efficient System of Judicial Review
Authors: Abedian Hossein
Published: March 2022

To strike a balance between the two important considerations of finality and fairness, a degree of judicial scrutiny of arbitral awards seems to be necessary. However, excessive judicial intervention and exercise of extraterritorial jurisdiction over arbitral process and actions for annulment of arbitral awards may undermine international arbitration as a viable and effective alternative dispute settlement mechanism. This article argues that an efficient and harmonized regime of judicial review which could exclusively be exercised by the competent courts at the seat of arbitration will streamline and expedite the enforcement process and thereby increase the efficiency and reliability of international arbitration. Increased international efforts aimed at harmonizing the law and practice with respect to the scope of judicial review and the exclusivity of jurisdiction of the courts of the seat will pave the way for such a harmonized regime of international arbitration which may, in turn, obviate any need for ignoring, through the much criticized practice of enforcement of annulled awards, a judicial decision lawfully rendered to set an arbitral award aside.
Recent Developments in Arbitration in Australia
Authors: Croft Clyde
Published: March 2022

Australia has recently modernized its international and domestic commercial arbitration law to reflect (with some amendments) the 2006 version of the UNCITRAL Model Law on International Commercial Arbitration. As well as legislative reform, Australia has taken practical steps such as providing new dispute resolution facilities and specialist court arbitration lists to enhance Australia as an arbitral seat. Recent judgments by Australian courts have been supportive of international arbitration and have indicated a willingness to apply the international jurisprudence relating to the Model Law and the New York Convention. These improvements have increased Australia's attractiveness as an arbitral seat.
Investment Protection of Sovereign Debt and Its Implications on the Future of Investment Law in the EU
Authors: Strik Daniella
Published: March 2022

Since late 2009, an EU sovereign debt crisis has been lingering. The ability of most of the so-called PIIGS States ( Portugal, Ireland, Italy, Greece and Spain) to fulfil their obligations under bonds issued to private investors is still unclear. In case Bilateral Investment Treaties (BITs) entered into by these States cover claims in connection with the default on or restructuring of such instruments, this could give rise to unequal positions of creditors, depending on their home State. Not only could this give rise to inequality between non-EU and EU investors, such different positions could also occur between investors in different countries of the EU and even of the Eurozone.

This Article reviews the scope (ratione materiae) of existing intra-EU BITs of the PIIGS States with respect to sovereign debt instruments and restructuring of sovereign debt. The author advocates in this Article a need to amend BITs of EU countries to unambiguously allow for lawful sovereign debt restructuring without compensation being due to investors and to consider the desired scope of a possible new EU investment protection instrument on this subject. Moreover, in view of the 'no bail-out clause' in the Treaty on the Functioning of the EU (TFEU), sovereign debt instruments issued by individual EU Member States should be excluded from the protection under Foreign Trade Agreements to be entered into by the EU and third countries.
Defining Investors: Who Is Eligible To Claim?
Authors: Romanetti Antoine
Published: March 2022

This article sets out the basic concepts of investors in investment arbitration and analyses a selected number of decisions of arbitral tribunals in light of some objections to jurisdiction which are frequently raised by respondent States. More specifically, the article deals with the thorny legal question of the extent to which a national of a host State can sue its own State before an international tribunal, such as the International Centre for Settlement of Investment Disputes (ICSID)Tribunal.

In particular, the article touches upon two recent cases in which the author was involved as co-counsel (in a team of several lawyers) for the States: a treaty-based case, Rompetrol v. Romania, on the issue of shell companies, and an unpublished contract-based case involving a West African State and a joint venture, on the issues of control and the interpretation of the term 'under foreign control' contained in Article 25(2)(b) of the ICSID Convention.
Burden of Proof Under the Denial-of-Benefits Clause of the Energy Charter Treaty: Actori Incumbit Onus Probandi?
Authors: Gadelshina Elvira R.
Published: March 2022

No less than thirty investor-state disputes have been brought to arbitration under the auspices of the Energy Charter Treaty (ECT) since its entry into force back in 1998. Over the years, ECT tribunals have confronted the host states' attempts to invoke the 'denial-of-benefits' clause of the Treaty on multiple occasions. Yet the issue of the burden of proof under Article 17(1) remains largely unsettled. In general, only two solutions to the burden of proof dilemma are conceivable: it is either the respondent state that is under an obligation to persuade a tribunal that the criteria for an exercise of the 'right to deny' are met in a given dispute, or it is the claimant who has a duty to prove the opposite. ECT case law is split along the same lines. In some cases, the tribunals seemed to have endorsed the host states' 'free rider' attitude by tolerating the invocation of the denial clause, without requiring the respondents to establish the assertions proposed. In other arbitrations, the tribunals adhered to the classic canons of the legal burden. This article seeks to explore the two approaches to the burden of proof under Article 17(1) ECT from the perspectives of international law and jurisprudence on the legal burden, taking account of the wording and spirit of the ECT.
Macau: A Seat for Sino-Lusophone Commercial Arbitration
Authors: Simões Fernando Dias
Published: March 2022

One of the most meaningful paths of China's economic and diplomatic 'charm offensive' is the promotion of high-level contacts with the Portuguese-speaking countries. China is well aware of the potentials which derive from the use of the Portuguese language as a means of strategic projection. Macau plays an unmatched role in the promotion of economic and trade cooperation between China and the 'Lusophone World'. In 2010, during the third Ministerial Conference of the 'Forum for Economic and Trade Cooperation between China and Portuguese-Speaking Countries', the Ministers agreed to analyse the comparative advantages of Macau in the knowledge of Chinese and Portuguese-speaking legal systems, promoting Macau as one of the venues for arbitration regarding eventual disputes concerning trade between Chinese and Portuguese-speaking entrepreneurs. In this article we discuss the comparative advantages and weaknesses of Macau as a seat for commercial arbitration between entrepreneurs from China and Portuguese-speaking countries. To assert itself as a reliable seat for international arbitration between two such different worlds, Macau needs to adopt a more proactive approach towards arbitration, inter alia by improving its statutory regime and enhancing its pool of experienced legal professionals and translators with the proper language skills and cultural awareness.
The Political Use of the Economic Development Criterion in Defining Investments in International Investment Arbitration
Authors: Monebhurrun Nitish
Published: March 2022

The economic development criterion has always been a controversial one in defining an investment in international investment law. Many tribunals use and support this criterion whilst others show more skepticism. In both cases, however, the arguments used by arbitral tribunals to accept or reject economic development are not always convincing, one of the reasons for this being that at no time do they explain what is meant or what they understand by development or by economic development. Under such a configuration, this article sketches that the use of this criterion is sometimes politically motivated. It nevertheless asserts that political considerations are often well-entrenched in the legal decision process and this does not necessarily imply a partial position on behalf of the tribunals.
Fitting a Square Peg into a Round Hole: Do Res Judicata Challenges in International Arbitration Constitute Jurisdictional or Admissibility Problems?
Authors: Walters Gretta L.
Published: March 2022

Parties in international arbitrations often raise res judicata challenges before arbitral tribunals and courts. But neither parties nor the tribunals or courts have been clear as to whether these challenges affect the admissibility of a claim or the tribunal's jurisdiction. A close analysis of arbitral awards and court decisions that address res judicata challenges reveals, however, that the question need not be as complicated as parties, tribunals, and courts have made it.
Extension of Petroleum Arbitration Agreements to Non-signatories in Egypt
Authors: Salah Fatma
Published: March 2022

Given the interconnected players in the oil and gas industry, the article examines the possibility of extending an arbitration agreement concluded between one company and a third party to bind its controlling parties. The article begins with an overview of the contractual structure of oil and gas projects in Egypt. It then moves on to analyse the legal nature of joint venture companies established for carrying out exploration and development operations. Finally, the article discusses the possibility of piercing the corporate veil of the company under Egyptian law.
The New Saudi Arbitration Law: Modernization to the Tune of Sharia
Authors: Leventhal Alexander G. , Harb Jean-Pierre
Published: March 2022

While anchored in the arbitral tradition of the Hanbali madhhab, the new Saudi arbitral law represents a modernization of the existing arbitral regime in the Kingdom by incorporating 'arbitration-friendly' principles of the United Nations Commission on International Trade Law (UNCITRAL) Model Law. While arbitrators and parties must respect the tenets of Shari'a in numerous areas of procedure and substance, the new law removes the supervisory role afforded to local courts under the previous 1983 Law and 1987 Executive Regulation. In addition, the new Law expressly provides for the separability of the arbitration clause and allows the parties to choose the applicable law, procedure, venue, arbitrators and other procedural questions. The new Law will encourage a more welcoming arbitration environment, one in which Saudi Arabia is a viable choice for litigants involved in irreconcilable disputes in the Kingdom.
The Pre-Hearing Checklist  A Technique for Enhancing Efficiency in International Arbitral Proceedings
Authors: Moser Michael J.
Published: March 2022

This brief note describes the use of the 'Pre-Hearing Checklist' as a means of promoting efficiency in the conduct of arbitrations and provides a sample instrument for adoption.
Voluntary Third-Party Intervention in International Arbitration for Construction Disputes: A Contextual Approach to Jurisdictional Issues
Authors: Mitchenson Jason , Kim Keechang
Published: March 2022

In arbitration, the ability to take part in proceedings is exclusively determined by evidence of the parties' 'consent' to arbitrate. However, this approach is unable to accommodate modern construction projects which have become increasingly complex and require the participation of multiple parties for their completion. Despite playing active roles in construction projects and having substantial legal and financial interests in the outcome of disputes, third parties may not take part in arbitral proceedings between two contracting parties who have consented to an arbitration agreement. This may result in an inequitable and commercially undesirable situation not only for third parties but often for one of the contracting parties who may require the third party's participation to assert certain claims or defences.

This article suggests that where multiple parties are involved in one construction project a contextual approach should be used to determine arbitral jurisdiction. Where a third party voluntarily submits to arbitral jurisdiction upon invitation of one of the contracting parties and where the intervention is to assist the inviting party's claims or defences, a contextual approach would provide a more effective means of resolving the disputed issue of third-party intervention without offending the principle of party autonomy or arbitration's consensual origins.
Colombia Enacts a New International Arbitration Law
Authors: Mantilla-Serrano Fernando
Published: March 2022

By enacting Law 1563 of 12 July 2012, Colombia has established an international commercial arbitration regime based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law. The deviations which the Colombian legislature has made from the UNCITRAL Model Law are the subject of the present article.
International Commercial Arbitration in Australia: Whats New and Whats Next?
Authors: Nottage Luke
Published: March 2022

This article argues that not much has changed since Australia amended in 2010 its International Arbitration Act, incorporating most of the 2006 revisions to the UNCITRAL Model Law as well as other reforms aimed at positioning Australia as a plausible arbitral venue in the Asia-Pacific region. There is no evidence yet of a broader 'cultural reform' that would make international arbitration speedier and more cost-effective - as urged by Australia's then Attorney-General when introducing the 2010 amendments. In fact, the article first outlines one ongoing cross-border dispute that has engendered at least five sets of proceedings, including a (thankfully unsuccessful) constitutional challenge to the Model Law regime. It then compares case disposition statistics for other Federal Court cases decided three years before and after the amendments, finding only minor differences.1 The article suggests a range of further revisions needed for the Act that emerge from the dispute including the constitutional challenge, as well as other topics for reform including measures to encourage a more internationalist interpretation of instruments such as the Model Law. Continuous improvement and continuous vigilance are needed for Australia to keep developing distinctive expertise in this complex and evolving field of law and practice.
International Commercial Arbitration in Asia and the Choice of Law Determination
Authors: K.S Harisankar
Published: March 2022

The article essentially deals with the choice of law process associated with three principal aspects of applicable laws in international commercial arbitration, namely, the law governing arbitration agreements, the law governing arbitral procedure and the law governing the substantive merits of the dispute. This research is of significance as these different aspects of arbitration (the agreement, the procedure and merits of the dispute) are commonly subjected to different laws. As a precursor, the introductory part of this article discusses the evolution and present position of international commercial arbitration in the region. The following chapter sets out the basic interaction between private international law and international commercial arbitration, as well as an overview of the choice of law process, which by and large is treated as the essential stage of a conflict of laws methodology. This section of the article gives a brief sketch of the conflict of laws system in ascertaining the applicable laws relating to the three elements of an international arbitration process, placing a focus on different approaches adopted by some of the more important arbitral-legal systems in Asia. As a disclaimer, the other two important questions of private international law, jurisdiction and enforcement of foreign awards, are not part of this discussion.
Sovereign Debt Restructuring under the Investor-State Dispute Regime
Authors: Jung Youngjin , Han Sangwook Daniel
Published: March 2022

With the global economy recovering from the financial crisis of 2008, this article explores a traditional policy option available for countries facing a serious economic crisis - sovereign debt restructuring (SDR) a scheme, which restructures the debts' original terms and conditions, for example, to reduce the amount of debts - and analyses how it would fare under the investor-state dispute (ISD) regime if foreign holders of sovereign bonds challenge the scheme in an ICSID proceeding. This article first examines how safeguards (such as collective action clauses) traditionally employed by countries against threats of holdout litigation by minority creditors aimed at SDR may not be applicable under the ISD regime, and further analyses whether ICSID would have jurisdiction over sovereign debts including the issue of scope of definition of investment in light of the decision by the Abaclat tribunal. This article then examines some of the substantive standards that may be raised as key issues during ICSID proceedings, including national treatment, most favored nation (MNF) and fair and equitable treatment standards. This article finally takes a look at one of the primary defences that would be available for a host state - state of necessity - and analyses and evaluates the three positions that seem to be co-existing under the current ISD regime.
Revision of the Dutch Arbitration Act: Making the Netherlands an Even Better Place for Arbitration
Authors: van Haersolte-Van Hof Jacomijn J.
Published: March 2022

When the Netherlands substantially revised and modernized its arbitration law in 1986 it was one of the first countries to do so, soon to be followed by many other major arbitration jurisdictions. Although the current law functions well, it is considered time for an update. In 1986, it was decided not to implement the UNCITRAL Model Law. In proposing the current revision, the law is brought in line more closely with some of the Model Law's provisions. In addition, several changes have been made to modernize the law and to increase the efficiency of the arbitral process. The amended law will enhance the attractiveness of the Netherlands as a seat for international arbitration.
What Steps Should Arbitrators Take to Limit the Cost of Arbitration?
Authors: Brown David W.
Published: March 2022

Arbitrators are increasingly playing a proactive role during the proceedings when it comes to identifying the issues to be resolved and appropriate evidence to be provided, with a view to limiting the time and cost involved. However, costs might be reduced further if arbitrators were to indicate at an early stage their likely attitude as regards costs that might be recovered, and arbitrators should not rule out discussions with the parties at an early stage as to how they might minimize their own fees and expenses.
Enforcement of Annulled Arbitral Awards: What Is and What Ought to Be?
Authors: Thadikkaran Manu
Published: March 2022

The rival approaches for enforcement of annulled arbitral awards have arisen from the differing interpretations of the New York Convention by the sovereign states. The internationalist approach which justifies the enforcement of annulled awards relies on the use of permissive 'may' in Articles V(1)(e) and VII of the Convention. On the other hand, the classic approach gives a mandatory effect to Article V(1)(e) of the New York Convention, thereby recognizing annulment as a ground for non-enforcement of an award. The ideal solution, however, would be to establish a balanced approach wherein annulled awards are not recognized in any jurisdiction as a general rule, while identifying the exceptional circumstances that would justify the enforcement of annulled awards. Moreover, this balanced approach can be efficiently put into practice through the formation of an international body formed under the New York Convention, which would have the sole authority to annul awards. The power of annulment, thus, would be transferred from national courts to a supranational body, thereby ensuring predictability and uniformity in the recognition and enforcement of international awards without posing a threat to the sovereignty of any state.
Arbitration in Vietnam
Authors: Vu Anh Duong , Nguyen Corinne
Published: March 2022

Vietnam has undertaken many efforts over the years to promote and strengthen the role of arbitration in the settlement of the parties' international commercial disputes. These include the role of arbitration centres in Vietnam and the adoption of a certain number of laws and resolutions on arbitration. This article examines the overall achievements of the objectives fixed by Vietnamese authorities to consolidate the practice of arbitration in the country and to meet the needs and the expectations of foreign firms operating in Vietnam.
The Use of Arbitration in Loan Agreements in International Project Finance: Opening Pandoras Box or an Unexpected Panacea?
Authors: Davies Maria
Published: March 2022

Litigation has been the preferred dispute resolution method in loan agreements in international project finance. However, it has proven inflexible, failing to account for the particularities of each project and the allocation of risks between lenders and borrowers. This article considers the use of arbitration as an alternative. Being a creature of consent and contract, it provides invaluable support where litigation would otherwise fail: first, where a currency risk exists, and second, in multiparty proceedings where the borrower's default is the direct result of the off-taker's failure to meet its obligations under the off-take agreement. Outside those situations, the use of unilateral dispute resolution provisions is recommended, allowing lenders to assess which dispute resolution method would be better-suited once a dispute has arisen. In this context, the article puts forward drafting recommendations, enabling the unilateral clause to withstand any potential challenges to its validity by borrowers. The article further addresses the objections raised against the suitability of international arbitration as a means to solve disputes under international loan agreements, such as its dependency on the cooperation of local courts. It also provides lenders with a useful toolkit to ease the enforcement of arbitral awards, such as the availability of political risk insurance and seeking compensation for the expropriation of arbitral awards.
Anti-suit Injunctions from Arbitral Tribunals in International Commercial Arbitration: A Necessary Evil?
Authors: Vishnevskaya Olga
Published: March 2022

Anti-suit injunctions are one of the most heavily criticized remedies that parties can have recourse to in situations of jurisdictional conflicts. Arbitral tribunals generally have power to order anti-suit injunctions, though there are different views on its nature and legal bases for granting. The appropriateness of this remedy is more questionable since it interferes with principles of international law and coordinative rules devised for handling parallel proceedings. Although anti-suit injunction is an offensive tool and should be avoided, nevertheless in the absence of viable alternatives it may be permitted under restrictive conditions. In order to ensure that anti-suit injunction is an adequate solution in a particular case, arbitral tribunals should consider a number of factors, including an apparent risk of conflicting decisions, abusive behaviour of the party, and the practical value of the injunction.
Analysis of the Decision Rendered by the U.S. Supreme Court in Re BG Group plc v. Republic of Argentina: Do All Roads Lead to Rome?
Authors: Mazzuoli Valerio de Oliveira
Published: March 2022

This article aims to analyze the decision rendered by the U.S. Supreme Court on March 5, 2014, in Re BG Group plc v. Republic of Argentina, whereby Argentina was ordered to pay the British company BG Group the amount of United States Dollar (USD) 185.3 million in damages as a result of Argentina's decision to impose a freeze on gas prices in 2002.This article discusses the merits of such a decision focusing, in particular, on the fact that basic norms concerning general international law, and more specifically, the law of treaties, have not been taken into account in reaching a decision on a matter involving an investment arbitration provided for in a bilateral investment treaty (BIT). Furthermore, it seems that extremely different legal institutions, such as international contracts (in the case at hand, an international arbitration agreement) and international treaties have been merged into one thing by asserting that they stand on an equal footing, while in fact they are diametrically opposed legal instruments.
The Convergence of Chinas Foreign and Domestic Investment Regimes and Chinas Investment Treaty Commitments
Authors: Lim Chin Leng , Chong Seung
Published: March 2022

The Ministry of Commerce of the People’s Republic of China has issued a Draft Foreign Investment Law that proposes to cause the convergence of the PRC’s foreign and domestic investment regimes. That convergence in its current form will result in existing rights of foreign investors being extinguished or compromised. We discuss the loss of such rights in the light of the types of investors’ remedies that are currently provided for under China’s Bilateral Investment Treaties. In doing so, we show how the issues raised by the newly proposed investment regime can be framed as claims under the various standards of PRC treaty protection and the particular complexities that arise for consideration. This article is an assessment of the propensity and prospect of future arbitration claims concerning a complex draft law that, whether legislated in its current or in an amended form, will have significant commercial and economic implications. This matter is probably the single most important issue today in China corporate practice and we believe it has a strong investment law and arbitration dimension that demands to be explored and explained.
Annulment of ICSID and Non-ICSID Investment Awards: Differences in the Extent of Review
Authors: Bondar Kateryna
Published: March 2022

Annulment of investment awards is a safeguard mechanism and a threat to the enforcement of awards. It is an interesting and important topic from the point of view of comparison between awards rendered under the Arbitration Rules of the International Centre for Settlement of Investment Disputes (ICSID) and non-ICSID investment awards. The purpose of this article is to analyse how the annulment of ICSID awards compares with the annulment of non-ICSID investment awards. In the author’s opinion, the choice between the two systems should be equally informed in terms of rules and applicable standard of review. The article discusses the key distinctive features of the two mechanisms, the practice of annulment, and the differences in the scope and standard of review by ICSID annulment committees and the national courts. It aims to analyse whether the extent of review is more expansive in one system compared to the other, as well as the reasons for the differences. While describing the evolution of the standard of review, closer attention is paid to the more recent annulment decisions.
Disclosure and Security for Costs or How to Address Imbalances Created by Third-Party Funding
Authors: Leleu Adrien , Darwazeh Nadia
Published: March 2022

The growth of third-party funding (TPF) in international arbitrations seems to have intensified recently, as suggested by the rise in the number of publicly-known cases involving funders.TPF is here to stay and it can play an important and commendable role in the arbitral process when it provides an impecunious party with access to justice. However, the flipside is that the addition of funders to the arbitral e quation also creates imbalances where there were none before. This article provides an innovative perspective into the issue of TPF, by analysing how funders have impacted the arbitral process. The arbitral community should be aware of these imbalances and seriously consider effective remedies to redress them, thereby safeguarding the integrity and efficiency of the arbitral process. Currently, there is virtually no regulation of TPF conduct in international arbitration, and funders have been left to define their own rules of conduct. In the absence of appropriate and consistent regulation, two remedies can already be implemented to address the imbalances created by TPF. First, a funded party should communicate upfront and transparently about TPF. Second, arbitral tribunals should be more amenable to granting security for costs, especially when an impecunious claimant is being funded and the respondent is faced with a serious risk of a hit-and-run arbitration.
Colombia: New Presidential Directive Seeks to Increase Governmental Oversight over Arbitration Agreements and the Arbitral Selection Process
Authors: Galindo-Romero Laura , Narancio Victoria
Published: March 2022

This note summarizes Colombia’s new 2015 Presidential Directive which seeks to increase governmental control over the use of arbitration agreements in state contracts, and the arbitral selection process in disputes arising out of these contracts. It also addresses certain potentially undesirable consequences that might arise from the presidential directive and proposes a number of practical steps that the Colombian government could take to ensure public officials continue to enter into arbitration agreements and thus reduce the potential anti-arbitration impact of the 2015 Presidential Directive.
Transparency in Investor State Arbitration
Authors: Kenny William
Published: March 2022

International trade and investment agreements have become the most recent battleground for the apparently conflicting views the arbitration community and civil society have on confidentiality and transparency. This article aims to clarify the debate and, exploring the concept of confidentiality in international commercial arbitration, explain the rationale for the increased transparency in Investor State Dispute Settlement (ISDS). It gives specific consideration to the rules of major institutions and their national legal environments while also considering the practical differences between investor state and commercial arbitration. In this light, the increasing trend for transparency in ISDS, codified by the 2013 UNCITRAL Transparency Rules, are argued not only to be acceptable but intelligent, considered changes which adroitly balance current public policy demands within the existing norms of commercial arbitration.
Greek Debt Restructuring and Investment Treaty Arbitration: Jurisdictional Stumbling Blocks for Bondholders
Authors: Mitsou Anna O.
Published: March 2022

The recent award of an International Center for the Settlement of Investment Disputes (ICSID) tribunal in Poštová banka a.s. and ISTROKAPITAL SE v. Hellenic Republic came as an unpleasant surprise for holders of Greek sovereign debt, who suffered losses because of the sovereign debt restructuring (SDR) that took place in February 2012, since it seems to be at odds with past case law on the matter. The tribunal found that it did not have jurisdiction to hear the dispute, inter alia, because the acquisition of Greek sovereign bonds by Poštová banka did not constitute an ‘investment’ under Article 1(1) of the Greece-Slovakia Bilateral Investment Treaty (BIT). At any rate, according to the tribunal, transactions over sovereign bonds on the secondary markets do not fall within the definition of ‘investment’ under Article 25 of the ICSID Convention.

In this article, the author questions the narrow interpretation of the definition of ‘investment’, as set forth in Article 1(1) of the Greece-Slovakia BIT, adopted by the tribunal. In declining jurisdiction, the tribunal looked through the provisions of Greek law so as to ascertain whether the claimants had rights protected under the BIT. The author advocates a different interpretation of the relevant provisions of Greek law in accordance with legal doctrine in Greece concerning the rights of investors over dematerialized government debt. The author also supports a wide meaning of the term ‘investment’ under Article 25 of the ICSID Convention, so that sovereign bonds are included in the definition.
The Second Look in European Union Competition Law: A Scandinavian Perspective
Authors: Torp Kristian , Sørensen Jakob B.
Published: March 2022

Under European Union (EU) law, arbitrators and national courts are obligated to apply, ex officio, EU competition law. Also according to EU law, any failure by an arbitral tribunal to apply such rules, or any erroneous interpretation or application hereof, constitute grounds for setting aside the subsequent award, if and when such measure is dictated by the Member State’s procedural rules. This article examines the relevant procedural rules in Denmark and Sweden based on two recent decisions by the national Supreme Courts. It concludes that under Scandinavian procedural law, courts will generally limit their inquiry to a superficial review of the premises of the award and will only reluctantly set aside an otherwise valid award based only on matters of merit. The main purpose of this article is to provide an up-to-date analysis of the position of the Scandinavian courts, thus helping to ‘map’ the European arbitration landscape. Even so, we have attempted to include and contribute to a few of the main discussions concerning the landscape in which the decisions were rendered in the introductory section. In the last section, we build on the reasoning of the two Supreme Courts in order to propose a framework for understanding the interplay between national and EU law, at least in the Scandinavian countries.
The Res Judicata Effects of Foreign Judgments in Post-Award Proceedings: To Bind or Not to Bind?
Authors: Hovaguimian Philippe
Published: March 2022

This comparative analysis explores the question of preclusive effects arising from arbitration related judgments, particularly when a foreign court has already ruled upon an issue relevant to the grounds for refusal under Article V of the 1958 New York Convention. It argues that arbitration-related judgments like exequatur or non-annulment decisions, along with the res judicata and estoppel effects arising from them, can be subject to recognition in other countries. The article thereby rejects some of the views contending that various legal obstacles stand in the way of such recognition, including its compatibility with the 1958 New York Convention. However, risks of forum shopping and undue imbalances in the parties’ rights ultimately support restricting this recognition to judgments rendered at the arbitral seat only. Such judgments should be able to preclude the re-litigation of identical issues in non-seat countries as a matter of res judicata and estoppel.
Arbitration in Latvia: A Cautionary Tale?
Authors: Kruminš Toms
Published: March 2022

This article endeavours to explore the thorny development of arbitration in Latvia. Having started off on the wrong foot in the 1990s, the arbitration environment in Latvia is still far from being perfect. Contrary to its neighbouring Baltic states, Latvia has continuously ignored the possibility of adopting the UNCITRAL Model Law and currently deals with the adverse consequences of an ill-functioning arbitration system, rather than provides for appealing and efficient arbitration environment. All the more, by introducing disproportionately strict qualification requirements for arbitrators and still not providing a mechanism for challenging arbitral awards, the recently adopted 2015 Law on Arbitration is a severe disregard of fundamental international arbitration principles and standards.
Third Party Funding in Singapore and Hong Kong: The Next Chapter
Authors: Bao Chiann
Published: March 2022

2017 marks an important juncture for the arbitral community in Hong Kong and Singapore as both jurisdictions are legislating to make third party funding available for international arbitration. The road to reform was by no means smooth, as the author describes through a review of the policy and prior case law in this area. The author goes on to describe the new legislation and anticipated legal framework for third party funding for arbitration in both jurisdictions. This article will compare the regulatory framework and substantive protections provided in Singapore and Hong Kong with their common law ancestor in England and Wales, across a number of areas where the availability of third party funding has generated concerns and controversy. Given the pace at which litigation funding is expanding, the author anticipates further development of the concept in Asia.
Like Oil and Water? Human Rights in Investment Arbitration in the Wake of Philip Morris v. Uruguay
Authors: Feria-Tinta Monica
Published: March 2022

Whether considered ‘wholly distinct, autonomous, or even antagonistic legal domains’, or seen as two sets of legal regimes belonging to the same legal system with ‘meaningful relationships between them’, the international law of investments and the law of human rights appear to have, in the practice of arbitration, an uneasy, tense, strained relationship.

For some commentators, public international law (of which human rights is a part) and international investment law would have ‘structural differences’, which have ‘led investment tribunals to grant precedence to the contractual rules that have been agreed upon by host states and investors’. For others, human rights are ‘a marginal issue in investment law’, ‘peripheral at best’, to fulfil ‘no more than an ancillary role in the settlement of investorstate disputes’.

This article looks into the fundamental relationship between human rights and investment law in the wake of the recent Philip Morris v. Uruguay and Urbaser v. Argentina cases. In doing so it addresses questions such as: Are human rights and investment arbitration animals of a different nature? Are human rights arbitrable within an investment claim?
Impecuniosity and Validity of Arbitration Agreements
Authors: Moyano Juan Pablo
Published: March 2022

As a private dispute resolution mechanism, arbitration depends on the availability of funds from the parties. However, not infrequently one side will be unable, or unwilling, to advance its share of the costs. Courts faced with such cases can either uphold the validity of the agreement or set aside the agreement and retain jurisdiction over the dispute. This article examines several legal theories courts have relied on when doing so. Initially, it will present the various positions by way of case examples, including that the agreement is rendered invalid due to public policy principles, denial of justice, contractual breaches or waiver. Afterwards, it will analyse various issues that arise from court practice, including conflicts regarding the applicable law, jurisdiction and the burden of proof. The article concludes with the author’s suggestions on how decisions over the potential invalidity of the agreement could be guided.
Burden of Proof and Adverse Inferences in International Arbitration: Proposal for an Inference Chart
Authors: Amaral Guilherme Rizzo
Published: March 2022

This article addresses two subjects that are relevant to the finding of facts in international arbitration, namely, the burden of proof and the power of the arbitral tribunal to draw adverse inferences. Regarding the burden of proof, it shows that despite the existence of a general rule stating that the party making the allegation carries the burden to prove it, there are other factors – such as the applicable law to the merits or to the procedure – that may play a role in defining it. In circumstances where the party carrying the burden of proof is not able to discharge it without evidence that the opposing party possesses, the tribunal has the power to order the opposing party to produce said evidence. Non-compliance with the tribunal’s order calls for the drawing of an adverse inference, which is not a reversal of the burden of proof nor a lowering of the standard of evidence, but rather the filling of the gap left by the missing (non-produced) evidence by a complex gap-filler. This article explains the elements within such gap-filler and presents an original methodology (a step-by-step approach) for the drawing of adverse inferences, represented in an Inference Chart.
Class Actions and Arbitration: Alternative Approaches Based on the (Ever Evolving) Dutch Experiences with Collective Redress
Authors: van Zelst Bas
Published: March 2022

This article first aims to contribute to an understanding of the Dutch regime for collective redress against the background of pending discussions on the possibility, desirability, and practicability of the settlement of mass claims by means of arbitration. Secondly, it assesses to what extent arbitration may play a part in the Dutch context.

The article proceeds in two sections. After the introduction, section 2 analyses the Dutch collective redress regime. It is concluded that Dutch law does not allow for class action arbitration. This, however, does not mean that arbitration cannot play a part under Dutch law in the context of collective redress. It is submitted in section 3 that Dutch law provides for two options. First, an arbitral tribunal may be engaged to assess whether a collective claim at law exists. This mechanism allows collective claim vehicles and (purported) wrongdoers to assess their position at law in the realm of a confidential arbitration. In this context arbitrators serve as facilitators to a collective settlement that is subsequently brought before the court in order to be declared binding. Secondly, disputes over rights of individual claimants under a settlement agreement that has been declared binding may be settled in arbitration.
The Full Recovery of Third-Party Funding Costs in Arbitration: To Be or Not to Be?
Authors: van Oeveren Hanneke , Kühn Wolfgang
Published: March 2022

The Essar v. Norscot decision rendered by the High Court of England and Wales in 2016 has opened the door, or at least a window, for the recovery of the full fees of third party funding arrangements in international commercial arbitration.

The recoverability of the success fees or premiums payable under a third-party funding (TPF) agreement as costs in arbitration can be criticized on three fundamental and overlapping bases. First, the distinction between funds actually advanced by the third-party funder and a premium is crucial. Secondly, the arbitrator’s discretion is defined and limited by law and should focus primarily on the allocation of costs rather than the definition of the recoverable costs. Finally, an award for the full recovery of third party funding fees should only be made on a clearly defined legal basis.

In addition, there are a number of policy considerations which point against the recoverability of the full costs of TPF.

The authors recommend modifications to institutional arbitration rules and national arbitration laws to clarify issues related to the recoverability of third party funding costs in arbitration. In the meantime, commercial parties may consider including more detailed contractual provisions to avoid any unforeseen or undesired liability for the costs of TPF.
Arbitrating Antitrust Damages Claims: Access to Arbitration
Authors: Sendetska Olga
Published: March 2022

In 2015, the Court of Justice of the European Union (CJEU, Court) delivered a judgment in CDC v. Akzo Nobel finding that broadly worded jurisdiction clauses do not extend to competition-related tortious damages claims. Even though the Court did not address arbitration clauses, a spill over into the area may take place. Both prior to and after the CJEU’s judgment Member States’ courts dealt with the issue of scope of broad arbitration clauses arriving at conflicting outcomes. The most recent decision was delivered in September 2017 by the Dortmund Regional Court. This article analyses the judgment in CDC v. Akzo Nobel, relevant national courts’ judgments, and how the resulting uncertainty may be mitigated.