bluuebunny/crossref_metadata_2025 huggingface dataset:
ECJ Judgment in Hamamatsu Case: An Abrupt End to Interaction Between Transfer Pricing and Customs Valuation?
Authors: Schippers Martijn L. , Friedhoff Michiel
Published: March 2022

The impact of intercompany transfer pricing (adjustments) on the customs value of goods is increasingly attracting attention, particularly since the remarkable judgment of the EU Court of Justice in the Hamamatsu case. The authors discuss the interaction between transfer pricing and customs valuation in a general sense, with specific consideration of the impact of the Hamamatsu judgment. They subsequently propose new statutory or other guidance for aligning the setting of transfer prices and customs values more closely, based inter alia on a comparative law study of the position in the United States and Canada
Withholding Taxes Within the Internal Market After Sofina: Chronicle of a Death Foretold?
Authors: Willems Ward
Published: March 2022

On 22 November 2018 the European Court of Justice (‘CJEU’) ruled in Case C-575/17 on the French rules for taxing dividends distributed to companies in deficit. Dividends distributed to non-residents are subject to withholding tax, while distributions to resident beneficiaries are exempt from withholding tax (‘WHT’) but subject to corporate income tax (‘CIT’) instead. While non-resident companies are subject to immediate taxation, resident companies could benefit from a cash-flow advantage when they remain in deficit, or even a permanent exemption when they liquidate before becoming profitable (in absence of a positive CIT base). The former violates the freedom of capital according to the Court. The importance of the present judgment can hardly be underestimated, as it may severely complicate the further application of existing WHT regimes in the many Member States applying such rules. The judgment is furthermore remarkable for several reasons which will be discussed in the present article. Perhaps the most striking element of the judgment concerns the comparability analysis, where the existence of a foreign deficit was taken into account to influence the tax treatment of a non-resident in the source state (thereby departing from the principle of territoriality).
Danish Dynamite: The 26 February 2019 CJEU Judgments in the Danish Beneficial Ownership Cases
Authors: Gommers Sam
Published: March 2022

On 26 February 2019 the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) delivered two groundbreaking judgments in the field of tax abuse. These judgments are known as the Danish beneficial ownership cases and relate to withholding tax exemptions provided for by the Interest and Royalty Directive (joined cases C-115/15, C-118/16, C-119/16 and 299/16) and the Parent-Subsidiary Directive (joined cases C-116/16 and C-117/16). They contain numerous interesting statements, notably the confirmation for the first time that the direct tax Directives are controlled by the general principle of EU law according to which EU law cannot be relied upon for abusive purposes (the ‘abuse of rights principle’). Furthermore, the CJEU also interprets the much debated concept of ‘beneficial ownership’ (‘BO’) for the first time. In this contribution, the authors will analyse the judgments of the CJEU as regards the abuse of rights principle and the BO concept.
Does the European Union Primary Law Require Member States to Make Corresponding Adjustments?
Authors: Soom Annika
Published: March 2022

Although for the time being the directive on tax dispute resolution mechanisms in the European Union has been transposed to the national legislation of majority of Member States and there is an effective solution for transfer pricing disputes, the taxpayers may need a faster solution for double taxation arising from transfer pricing adjustments.

As the double tax burden undermines the internal market, this article analyses whether the European Union primary law could provide taxpayers with a solution. The potential requirement to make a corresponding downward adjustment is analysed in the light of freedom of establishment; moreover, considering the Belgium excess profit scheme, it is also examined whether State aid rules might require a corresponding upward adjustment.

Transfer pricing, corresponding adjustment, Belgium excess profit, Article 9, upward adjustment, downward adjustment, profit shifting, double taxation, European Union primary law, OECD
The European Union’s List of Non-Cooperative Jurisdictions for Tax Purposes
Authors: Koutsouva Alexandra
Published: March 2022

In December 2017, the European Union published for the first time a list of non-cooperative jurisdictions for tax purposes aiming at creating a dynamic tool in the battle against tax avoidance, whilst promoting worldwide tax good governance. This article aims to examine the efficiency of this blacklist through analysing the process followed for its compilation and the particular objectives that the EU wanted to achieve through this initiative. The main focus will be on categorizing the blacklisted countries and on finding the rationale behind each jurisdiction’s inclusion. However, after analysing the cases of the jurisdictions that are included in the list, questions will be raised over the efficiency and adequacy of the EU blacklist as a tool against tax evasion and avoidance. The fact that the creation of the blacklist can be characterized as a political process driven by specific interests and subject to the states’ power imbalances tarnishes its effectiveness and covers its positive externalities.

Tax havens, EU blacklist, BEPS, Tax transparency, Preferential Tax Regimes, data leaks, defensive measures, information exchange, fair taxation, golden visas
An Accounting and Financial Note about the Economic Substance Test
Authors: Martins António
Published: March 2022

abusive tax planning, anti abuse rule, economic substance, accounting and financial statements
A New (Circular) Economy: A New Special Arrangement for Second-Hand Goods!
Authors: Merkx Madeleine
Published: March 2022

The EU’s ambition is to achieve a fully circular economy by 2050. The aim of a circular economy is to generate as little waste as possible. A circular organization of the production and distribution chain does not fit well within the European VAT system, which takes the linear production and distribution chain as its starting point. A special VAT regime, the special arrangement for secondhand goods, is necessary to deal with the return of products from the consumer sphere to the productive sphere. Since within a circular economy goods return more often from the consumer sphere to the productive sphere, the special arrangement for secondhand goods is likely to become more important. In this article the author addresses the special arrangement for second-hand goods both in a domestic and an international situation. The author addresses issues within the current arrangement and discusses solutions to improve the special arrangement to make it a better fit for the circular economy.

second-hand goods, circular economy, special arrangement, accumulation, movable property, distance sales, intra-Community acquisition, taxable dealer, profit margin, one Stop Shop
Financial Transaction Tax in Europe
Authors: Rodríguez Gabriela Lagos
Published: March 2022

Over the last two decades, the European Union (EU) and various European States have proposed or created several taxes aimed at increasing the overall tax burden to which the financial sector is currently subject. The interest in new taxable events and the need to regulate financial markets’ functioning are two powerful reasons that support the application of this type of tax.

This article details both the European Commission’s Proposals for Directives on Financial Transaction Tax, and the related taxes currently in force in Europe. Evidence shows that the goal of harmonized taxation in this area is far from being achieved and that national decisions are based on two different models: a tax on the registration of certain transactions and a tax on financial transactions levied on the financial intermediaries involved in such transactions.

This article focuses on the comparative experience of European States in the adoption of this type of tax. This review will highlight the differences and similarities between different national taxes, and ultimately the possibilities of the EU’s Financial Transaction Tax Proposal becoming effective.

Transaction Tax, Stamp Duty, European Commission’s Proposals, Harmonization, Financial Transactions, High, frequency Operations, Taxation Trends
Non-harmonized Implementation of a GloBE Minimum Tax: How EU Member States Could Proceed
Authors: Englisch Joachim
Published: March 2022

Since July 2021, more than 130 member countries of the G20/OECD Inclusive Framework (IF) have committed themselves to pursuing a ‘common approach’ on an international effective minimum tax regime. This political agreement implies that member countries who wish to implement such a tax regime have to streamline its design by modelling it after the so-called Global Anti-Base Erosion Proposal (‘GloBE’) that the IF has developed as ‘Pillar 2’ of its work program on tax challenges arising from the digitalization of the economy. This article explores how individual EU Member States could implement this agreement in conformity with EU fundamental freedoms also absent – or ahead of – harmonizing EU legislation to this effect. It is demonstrated that design alternatives to the often proposed extension of the carve-out for ‘substance-based’ activities exist and should be pursued. In particular, EU Member States could extend the minimum top-up tax approach to domestic entities of in-scope multinational enterprises (MNEs). Alternatively, they could also convert GloBE into a form of unitary minimum taxation.

minimum taxation, GloBE, Pillar 2, fundamental freedoms, de facto discrimination
The Design of Covid-19 Recovery Contributions: Taxes or Social Security Contributions?
Authors: Peeters Bruno
Published: March 2022

To cover the large financial spending caused by the Covid-19 pandemic, countries worldwide are forced to take substantial fiscal actions. This contribution takes a closer look at the extent to which EU law has an influence (restrictive or otherwise) on the freedom of Member States to opt for (additional) taxes and/or social contributions as a means to finance the (additional) deficits in their social security system. First, a brief numerical overview will be given of the various sources of financing and expenditures of social security in the European Union (II). Subsequently, the question will be addressed to which extent the concept of social security contributions under European Union law interferes with the national definition of taxes (III). The most relevant rulings of the European Court of Justice (CJEU) in this respect will be discussed (IV) followed by a number of final considerations (V).

Covid-19 Recovery Contributions, Concept of tax, Social Security Contribution, Wealth Tax, Tax on (Real) Estate, Financing of Social Security, Regulation (EC) No 883/2004, Double Tax Convention, National (Tax) Sovereignty, Annual Tax on Securities Accounts
Article 6 ATAD and ‘Non-genuineness’ of Arrangements
Authors: Iaia Roberto
Published: March 2022

Article 6 Anti-Tax Avoidance Directive (ATAD) provides a General anti-abuse rule (GAAR), applicable to all taxpayers subject to corporate tax in one ormore EUMember States.TheGAAR refers to ‘non-genuine’ arrangements.However, it is unclear whether ‘non-genuineness’ describes real and/or simulated arrangements. The article aims to analyse this issue, in light of a literal, multilingual approach and through a teleological and historical-systematic interpretation of the provision.

ATAD, Corporate tax, GAAR, Tax avoidance, Simulation Test, Reporting, BEPS, Union concepts, quasi-Union concepts, autonomy of Member States, Interpretation of Directives, EU Guidance
The (Absence of) Member State Autonomy in the Interpretation of DAC6: A Call for EU Guidance
Authors: Weber Dennis , Steenbergen Jorn
Published: March 2022

DAC6 concerns the spontaneous exchange of information on potentially aggressive tax arrangements. With the implementation of DAC6 into the national laws of the Member States comes a lot of uncertainty, along with diverging interpretations among Member States. In this article, the authors analyze the autonomy of Member States in the definition and interpretation of the concepts used in DAC6. The authors also analyze the relevant sources of the interpretation of DAC6, such as the relevant BEPS reports. The authors argue that DAC6 lays down a uniform framework for the spontaneous exchange of information of potentially aggressive tax arrangements. Member States do not have a margin of discretion regarding the interpretation of the concepts that are essential to the uniform framework. Other concepts may leave a margin of discretion for the Member States, such as several concepts used in the Hallmarks. In their margin of discretion, the Member States must ensure the full effectiveness of Union law. On the basis of that, the concepts must be defined (and interpreted) in line with the object and purpose of the Directive. Member States should use BEPS Action 12 as a source of interpretation and illustration insofar DAC6 is based on this report.

DAC6, Directive 2018/822, Main Benefit Test, Reporting, BEPS, Union concepts, quasi-Union concepts, autonomy of Member States, Interpretation of Directives, EU Guidance.
A Threat to Arbitral Integrity
Authors: Asouzu Amazu A.
Published: March 2022

“. . . there does not seem to be any need to upset the well-established principle that an arbitral award can be subject to an action for setting aside in the country of origin and that setting aside in the country of origin constitutes a ground for refusal of enforcement abroad.”

Albert Jan van den Berg
Commencement of Arbitral Proceedings and Unsigned Requests for Arbitration – A Counsel’s Harsh Awakening?
Authors: Wilske Stephan , Gack Christine
Published: March 2022

The valid commencement of arbitral proceedings has significant legal consequences, not least of which is the prevention of a claim from becoming time-barred. Indeed, it would be any counsel’s worst nightmare to find out that arbitral proceedings were not validly initiated by a request for arbitration failing to fulfil the prescribed requirements. However, these requirements are not always clearly stipulated in arbitration rules or national arbitration laws. These instruments provide surprisingly little guidance even on such a basic issue as whether a request for arbitration needs to be signed. Based on a recent case, this article discusses whether arbitral proceedings can validly be commenced by an unsigned request for arbitration. Drawing conclusions from national laws and practice, the authors establish that, in principle, for there to be valid commencement of arbitral proceedings, a request for arbitration has to be signed.
TMC Terminal Multimodal De Coroa Grande Spe S.A. v. Ministro da Ciencia e Tecnologia
Authors: Valença Filho Clávio
Published: March 2022

In this case, the Brazilian Supreme Court stressed a clear distinction between primary public interest and administrative interest, also known as secondary public interest. It stated that issues of a secondary public interest are arbitrable. It also recognized the possibility for a state judge’s intervention on urgent matters falling within the scope of an arbitration clause.
The New Austrian Arbitration Act
Authors: Reiner Andreas
Published: March 2022

Austria has adopted a new Arbitration Act. This article gives an overview of the key provisions, including those relating to the limitation of court intervention, liberalization of the form requirements for arbitration agreements and for powers of attorney, broadening of arbitrability, interim measures, court assistance, applicable law, and the correction, explanation, amendment, setting-aside, and enforcement of awards.
The PRC Arbitration Law: Problems and Prospects for Amendment
Authors: Thorp Peter
Published: March 2022

International arbitration remains by far the most favoured means of resolving China-related commercial disputes between foreign investors and their Chinese counterparts. Most foreign investors prefer arbitration outside of China, partly out of lack of confidence in the fairness and competence of arbitration practice in China. One of the aims of China’s first Arbitration Law of 1994 was to address those concerns by establishing a more uniform and transparent system for arbitration in China. It was hoped that this would also promote the wider use of arbitration as a means of resolving commercial disputes between Chinese domestic parties. The 1994 Law was very general in nature, however, with many key areas unaddressed. The Law as it stands is increasingly unable to meet the demands of parties for an arbitration system capable of resolving complex commercial disputes in a fair and professional manner. This article looks at some of the important issues that urgently need attention in any reform of the Arbitration Law, and assesses the chances of the necessary reforms being enacted any time in the near future.
The People’s Courts and Arbitration A Snapshot of Recent Judicial Attitudes on Arbitrability and Enforcement
Authors: Yeoh Friven
Published: March 2022

The legislative regime in mainland China is often said to be pro-arbitration. Yet, the People’s Courts retain significant jurisdiction to make rulings with regard to the arbitration process as well as the resulting arbitral award. This article examines a number of recent Chinese court decisions and considers how well the proarbitration rhetoric has played out in reality. The authors observe that certain aspects of the People’s Courts’ recent rulings are already in conformity with international norms, such as the arbitrability of tortious claims in China and its adherence to the doctrine of separability of the arbitration clause. Nevertheless, other aspects of the system remain troubling for foreign parties. These aspects include the Supreme People’s Court’s restrictive approach to intervention by or joinder of parties who are not signatories to the arbitration agreement, uncertainty over the “public policy” and “social and public interest” exceptions to enforcement of arbitral awards and the status of awards issued by foreign arbitration institutions in China.
Arbitration in Greater China: Hong Kong, Macau and Taiwan
Authors: Niu Jill , Sanger Kathryn , Segorbe Beatriz
Published: March 2022

Arbitration has come to play an increasingly important role in Asia, particularly in the People’s Republic of China. In that context, this article discusses the role that arbitration plays in Greater China, namely Hong Kong, Macau and Taiwan. Experienced practitioners from Hong Kong, Macau and Taiwan have each provided a practical introduction to arbitration in their own jurisdiction, detailing the legal system underpinning the arbitration regime, particular features of arbitration, the relevant arbitral institutions and enforcement of arbitration awards in that jurisdiction, including PRC awards. The section on Hong Kong also explains the special relationship that Hong Kong enjoys with Mainland China and how that impacts on the resolution of PRC-related disputes through arbitration.
Antitrust/Competition Arbitration in EU versus U.S. Law
Authors: Zekos Georgios I.
Published: March 2022

The European Union and the United States have generally converged toward consumer welfare-based antitrustenforcement. In the United States, arbitration has been used extensively to resolve antitrust claims. In the European Union, only national courts, and not ad hoc arbitral tribunals, can refer questions to the European Court of Justice to obtain an interpretation or assessment of the validity of EU law provisions. Where national arbitration laws do not have manifest disregard of law as a reason for reviewing an award, courts cannot review the merits of awards for violation of EU competition law. The need for the recognition of an independent and alternative system to litigation, such as arbitration, is important both for the direct implementation of Article 81 of the EC Treaty in accordance with the scope of the Commission White Paper and to share the load of cases concerning competition disputes.
New Keys to Arbitration in Latin-America
Authors: Mason Paul Eric
Published: March 2022

It is commonly accepted that, until recently, arbitration in Latin America was frozen in time in the nineteenth century. However, in the 1990s, arbitration developed relatively quickly, tracking the rise of privatization, investment deregulation and globalization in the region. Since then, arbitration has taken on a variety of forms, the most prominent being commercial arbitration involving businesses, investor-state arbitrations, and trading bloc-based arbitration. This article analyzes the first two of these, and is divided into sections, each describing a key development of arbitration in Latin America. The ten key sections are analyzed in the following order: (1) relationship of arbitration to political and economic change in the region; (2) acceptance of arbitration in Latin American state contracts; (3) investment treaty arbitration; (4) growing use and promotion of arbitration by international funding agencies; (5) application of international treaties supporting arbitration; (6) domestic legal support for arbitration in Latin America; (7) development of institutional arbitration versus ad hoc arbitration; (8) industry and activity-specific arbitration; (9) multi-tier dispute resolution mechanisms; (10) the profession in Latin America.
Denunciation of the Washington Convention and Non-Contractual Investment Arbitration: “Manufacturing Consent” to ICSID Arbitration?
Authors: Fouret Julien
Published: March 2022

The possibility of denouncing the ICSID Convention has recently sparked doctrinal controversies. The scope of such a denunciation and the consequences relating to it were central in these debates. Starting with the analysis of the mechanism precisely set out in the Convention, this article, focusing only on the implication for non-contractual arbitration, aims at clearly establishing the meaning of consent to ICSID arbitration, one of the conditions preventing the denunciation of the Convention from having a full effect. The question thus becomes whether BITs and national laws could be considered as unilateral consent to arbitration, as understood by the drafters of the Convention. Applying concrete and correct treaty interpretation rules will enable us to establish an accurate understanding of the relevant provisions of the Convention, without depriving them of their proper meaning.
The Most-Favored-Nation Clause in International Investment: Agreements A Tool for Treaty Shopping?
Authors: Faya Rodriguez Alejandro
Published: March 2022

Until recent years, the most favored nation clause (“MFNC”) in international investment agreements appeared to be a harmless rule, and for some time it had not been the subject of any serious discussion. We have now a number of awards which have raised difficult questions concerning the right application of the standard. It seems there is doubt and a lack of consensus. This article goes back to the very basic nature of the MFNC and reviews the relevant jurisprudence arising from investment treaty arbitration, as a requisite step before arriving at the proposed conclusion: the MFNC was designed and should function as a means to reduce distortions in a host country that adversely affect investors, but solely with respect to competitive conditions, and not as a treaty shopping tool that, in the context of particular claims, overrides or modifies the scope of specific negotiated arrangements related to non-competitive conditions.
Enforcement Regimes and Grounds for Foreign Judgments and Awards in Russia
Authors: Tapola Diana
Published: March 2022

This article introduces the current enforcement regimes for foreign judgments and awards in Russia and enforcement mechanisms based on international treaties and national legislation. A substantial part of the article is dedicated to enforcement issues in the absence of an international treaty.
The DIAC Rules and the New U.A.E. Arbitration Law
Authors: van Son Emma , Al Tamimi Essam
Published: March 2022

Dubai’s burgeoning international arbitration regime has undergone some recent changes and developments which will undoubtedly help foster confidence in the region and attract increasing foreign investment and trade. This article examines some of the recent initiatives, including the government’s ratification of the New York Convention in November 2006, the proposed new United Arab Emirates (U.A.E.) arbitration law, and the implementation of the new Dubai International Arbitration Centre Arbitration Rules to replace those which it inherited from the Dubai Chamber of Commerce and Industry upon its formation in 2003.
ICC Arbitration in the Arab World
Authors: Houerbi Sami , Hammoud Lara
Published: March 2022

International arbitration is a dispute resolution procedure that involves parties and arbitrators from legal traditions all over the world. This article analyses the position of Arab countries in international arbitration on the basis of International Chamber of Commerce (ICC) statistics. In particular, the article focuses on the involvement of Arab parties and arbitrators in ICC arbitrations, the location of seats of arbitration in Arab countries, and the choice of substantive rules of law in cases involving Arab parties.
Enforcement of Foreign Arbitral Awards in Maghreb Countries
Authors: Ouerfelli Ahmed
Published: March 2022

Maghreb laws have progressed from a phase of hostility toward both arbitration and foreign arbitral awards, to a more moderate position. However, current Maghreb laws and rules on enforcement of foreign awards are not harmonized. Differences in the level of influence from international trends, especially the UNCITRAL Model Law, help explain the divergence. Efforts towards harmonization of regional law and the imminent ratification of the New York Convention by countries that have failed to do so until now promises a better future for arbitration in the Maghreb region.
Towards a Reflexive Sociology of the Arbitration Field in the Arab World
Authors: Sayed Abdulhay
Published: March 2022

This article attempts to sketch the various meanings of the “development of arbitration,” as represented by Arab practitioners within the so–called “field” of arbitration. The ways in which the new generation of Arab practitioners engage in the self-analysis of their positions within the field of arbitration and their role in the local and international context is particularly explored.
EC Competition Law and International Arbitration in the Light of EC Regulation 1/2003—Conceptual Conflicts, Common Ground, and Corresponding Legal Issues
Authors: Dempegiotis Sotiris I.
Published: March 2022

The arbitration–competition interplay, its legal framework, and its future prospects are examined in the light of the modernized EC competition law and its private enforcement scheme. The aim of the present study is threefold: first, to highlight the interaction between these two legal fields; secondly, to underline the most problematic scenarios arising out of the application of EC competition rules by arbitrators; and finally, to argue that under certain circumstances arbitral tribunals and national courts could constitute complementary riders of the EC competition law private enforcement tandem. The discussion is conducted in the light of EC Regulation 1/2003, the Modernization Regulation, which significantly changed the EC competition law enforcement landscape and tacitly, albeit arguably, invited arbitration to the private enforcement of EC competition rules. Overall, a fresh and insightful contribution is attempted which takes into account the peculiarities of each legal order without ever losing touch with both current legal practice and business reality.
Challenges to International Arbitral Awards The French Approach
Authors: Kovacs Robert B.
Published: March 2022

A dissatisfied party to an international arbitral process or decision may challenge such matters in the domestic courts of the country where the arbitration was held (the seat of arbitration) or where the award will be enforced.The approach taken by different countries to these challenges varies considerably. This article examines the approach taken under French law and procedure to challenges to international arbitral awards. This article considers the sources of French international arbitration law, when and how arbitral awards can be challenged under French law, and the grounds for challenges of arbitral awards under French law.
Pathological Arbitration Clauses and Indian Courts
Authors: Jain Alok
Published: March 2022

Pathological arbitration clauses have often been focal points of disputes between contracting parties. When tribunals or courts are required to interpret them, diverse views often arise. This article looks at various instances of pathological arbitration clauses and the various canons of interpretation used by Indian courts to resolve such pathologies. The author highlights the need for interpreting such clauses on the same footing as ordinary contractual terms, as arbitration is no longer an exception to the jurisdiction of courts but a parallel and welcome means of dispute resolution.
State Responsibility and Investment Arbitration
Authors: Hobér Kaj
Published: March 2022

Investment arbitration by definition concerns activities by the Host State and/or its organs. This automatically raises questions of State responsibility. The article focuses on one central aspect of State responsibility,viz., rules of attribution. These rules attempt to answer the question of what conduct is to be attributed to the State. The article discusses the relevant provisions in this respect of the ILA Articles On State Responsibility.
The Need for Speed in International Arbitration:Supplementary Rules for Expedited Proceedings of the German Institution of Arbitration (DIS)
Authors: Berger Klaus Peter
Published: March 2022

On April 25, 2008, the German Institution of Arbitration (DIS) presented the new Supplementary Rules for Expedited Proceedings. The new Rules allow parties and arbitrators to conduct an arbitration within six months (sole arbitrator) or nine months (three–member tribunal). To achieve this goal, the time limits provided for in the DIS Arbitration Rules 1998 for the nomination of arbitrators are shortened, four–week deadlines for the submission of briefs are fixed in the Supplementary Rules and the common interest of the parties in the expedition of the arbitration becomes a guiding maxim for the exercise of the tribunal’s procedural discretion.Also, the arbitral tribunal is expected to establish at the outset of the proceedings a procedural timetable and to identify to the parties at an early stage of the proceedings the issues that it regards as relevant and material to the outcome of the case.
Enforcing Foreign Arbitral Awards in the United States: The Non–Arbitrable Subject Matter Defense
Authors: Cohen Smutny Abby , Pham Hansel T.
Published: March 2022

The New York Convention has had a considerable impact on attitudes toward international arbitration in the United States. This is particularly true with respect to the non–arbitrable subject matter defense, which provides that certain types of disputes are inappropriate for arbitration and are subject to the exclusive jurisdiction of the courts. Prior to 1970, U.S. courts’ skepticism about arbitration often was manifested by a reluctance to stay litigation in favor of an arbitration agreement in a wide range of disputes, including federal securities law and antitrust. With the United States’ accession to the New York Convention, U.S. courts increasingly began to accept arbitration as a means for resolving disputes and have continued to limit the scope of the non–arbitrable subject matter defense in cases seeking to resist enforcement of a foreign arbitral award.
Application of Article V of the New York Convention A Central Asian Perspective
Authors: Sur Gorsha , Rubins Noah
Published: March 2022

International arbitration is a dynamically expanding concept in the five former U.S.S.R. republics of Central Asia. Positive changes reflect a rapidly growing volume of international commerce in that part of the world. However, international arbitration practice in Central Asia is not homogeneous. Only Kazakhstan, Uzbekistan, and Kyrgyzstan have so far acceded to the New York Convention, and among them only Kazakhstan has adopted legislation regulating international arbitration. In Turkmenistan and Tajikistan arbitration laws remain under consideration. This article analyzes the process of enforcement of foreign arbitral awards in those Central Asian republics that recognize the Convention. It familiarizes the reader with relevant legislation and focuses on interpretation and application of three important exceptions to enforcement under Article V of the Convention: procedural due process, arbitrability, and public policy.
Sourcing Unlimited, Inc. v. Asimco Int’l, Inc.: Appellate Jurisdiction and Equitable Estoppel
Authors: Kirby Jennifer
Published: March 2022

In Sourcing Unlimited, Inc. v. Asimco Int’l, Inc., the United States Court of Appeals for the First Circuit reverses a district court decision denying defendants’ motion to compel arbitration. In doing so, the court addresses two key issues. First, the court analyzes, as a matter of first impression, whether it has jurisdiction to hear an interlocutory appeal from an order denying a motion to compel arbitration of an international commercial dispute, where the appeal is brought by a party that did not sign the agreement containing the arbitration clause. Second, the court addresses the circumstances under which it is appropriate to compel arbitration based on principles of equitable estoppel. The court’s analysis brings into focus what United States courts appear to be doing when they compel arbitration on this basis.
European Law and Investment Treaties
Authors: Burgstaller Markus
Published: March 2022

The interrelation between European law and investment treaties is becoming ever more important. Recently,international arbitral tribunals had to consider questions such as the validity of bilateral investment treaties (BITs) concluded or in force between EU Member States and the applicability of EC law in investment disputes. An Advocate General (AG) at the European Court of Justice (ECJ) opined that some of Austria’s and Sweden’s BITs would violate EC law. In the course of the most recent enlargement processes of the EU, the Commission demanded adjustments to BITs of the now new Member States. In addition, the Commission’s Minimum Platform on Investment (MPoI) encroaches upon Member States’ competence to conclude and amend their BITs. Both the Communities and the Member States are parties to the Energy Charter Treaty (ECT). Under this treaty, third state nationals may bring claims against both the Communities and the Member States, but whereas EU nationals are barred from bringing claims against the Communities, they may still bring claims against other Member States. While the fate of the Treaty of Lisbon is still unclear, its entry into force would have fundamental consequences for international investment law.
Setting Aside Foreign–Related Arbitral Awards under Chinese Law A Study in Perspective of Judicial Practice
Authors: Fei Lanfang
Published: March 2022

This article reviews nineteen cases concerning the setting aside of foreign–related arbitral awards in China. Apart from presenting statistical information, the author focuses on how the courts interpret regulations in cases. The main finding is that the Supreme People’s Court (SPC) tends to apply the regulations with a pro–arbitration attitude, which can be supported by its restrictive interpretation of prescribed grounds, preference for remission and broad use of setting aside awards only partially. In addition, the study also reveals a series of practical problems caused by an inconsistent arbitration legal system. The author recommends that the Arbitration Law (AL) of China should not only prescribe the grounds for setting aside foreign-related awards directly but also clearly specify the definition of foreign–related arbitral award.
New Dog, Old Tricks: Solving a Conflict of Laws Problem in CISG Arbitrations
Authors: Hayward Benjamin
Published: March 2022

Parties to international sale of goods transactions often exercise their rights to choose a governing law and refer disputes to arbitration. Where their choice is incomplete, as is the case where the Contracts for the International Sale of Goods (CISG) is chosen, complex conflict of laws problems can arise, including disputes over the governing limitation period. While such disputes are traditionally resolved using conflict of laws methodologies, this article argues a superior solution can be achieved through procedural law. Through a simple discretion, arbitral tribunals may apply the limitation period from either the International Institute for the Unification of Private Law (UNIDROIT) Principles 2004 or the UN Limitation Period Convention. Such an approach makes determination of the governing limitation period a simpler process, allowing parties to focus their attention on what they are really concerned with—the merits.
The Necessity for Discovery of Evidence in the Fact-Finding Process of International Tribunals
Authors: Marossi Ali Z.
Published: March 2022

One of the key aspects of national and international arbitrations is the manner in which evidence is gathered and presented to the arbitral tribunal or panel. The collaboration of parties in these matters can shape the outcome of almost every dispute. However, the approach of international courts and tribunals such as the Iran-United States Claims Tribunal (IUSCT) toward the concept of presenting and producing evidence is subject to many issues, for example, the rules of evidence, applicable law, the arbitrators’ legal background, the inherent power of courts and tribunals and the principle of fair trial. Truly, no aspect of international arbitration has caused as much friction as the issue of discovery. The scope of discovery available to parties varies, and is often a delicate issue in international disputes as parties from different legal backgrounds frequently have very different expectations as to how the evidence-gathering process should be conducted.

In brief, this article does not promote the notion that liberal discovery is a fundamental right, rather it focuses on developing a model that treats cost effectiveness as a fundamental issue which should be examined when drafting procedural rules.
Comments on the Paris Court of Appeal Decision in SNF v. International Chamber of Commerce
Authors: Kiffer Laurence
Published: March 2022

With the purpose of protecting the users of International Chamber of Commerce (ICC) arbitration services, the Paris Court of Appeal found that the exclusion of liability clause provided under Article 34 of the ICC Rules is null and void under French law as it authorizes the arbitral institution not to perform its main contractual obligation to organize and administer the arbitration proceedings. Thus, the ICC may be found liable under French law for breaches of its obligations under its contractual relationship with the parties to the arbitration proceedings. However the reinforcement of the control exercised over the proper performance of the arbitral institution’s obligation is balanced by the fact that for the institution’s liability to be effective, there is an evidentiary issue which may be difficult for the parties to establish.
The Group of Companies Doctrine in International Commercial Arbitration: Is There any Reason for this Doctrine to Exist?
Authors: Ferrario Pietro
Published: March 2022

The group of companies doctrine aims to extend, under certain conditions, the arbitration agreement signed only by one or some of the companies of a group also to the non-signatory companies of the same group. One of the most interesting issues related to this doctrine is the relationship with the piercing or lifting the corporate veil doctrine. This article analyzes and compares the case law applying these two theories, in order to determine whether there is any difference between them in relation to their scope and the conditions required by courts and arbitration tribunals for their application. In particular, the article aims to determine, on the basis of the result of the above analysis, whether there is any reason for the group of companies doctrine to exist and, as consequence, whether it is possible to rely on it to extend the arbitration agreement to the non-signatory companies of a group.
Privilege in International Arbitration: Is It Time to Recognize the Consensus?
Authors: Tevendale Craig , Cartwright-Finch Ula
Published: March 2022

Privilege remains a persistent problem for parties, counsel, and arbitrators in international arbitration. It presents a challenge to which there can be no single, perfect solution in complex arbitral proceedings where the law and practice of several jurisdictions may be relevant to the selection of appropriate rules of privilege. It is, however, possible to identify a growing consensus from a close study of international arbitral practice and the considerable scholarship in this area. This article examines the key approaches which arbitral tribunals may take to resolve the issue of privilege in international arbitration, drawing upon the existing guidance of institutional and procedural rules, national laws and the theoretical bases for privilege in all legal systems. Based on this analysis and the consensus which emerges, this article tenders a definitive revision of existing procedural rules which would provide the certainty, without unnecessary prescription, that this complex area of arbitral procedure demands.
The Kaplan Lecture 2009 – When is an Arbitration Agreement Waived?
Authors: Pryles Michael
Published: March 2022

Article II(3) of the New York Convention requires a court to enforce an arbitration agreement unless it is “null and void, inoperative or incapable of being performed.” It is widely accepted that a party can waive its right to arbitrate a dispute and that this constitutes an instance where the arbitration agreement becomes “inoperative.” What is more difficult to discern is what conduct by a party will amount to a waiver of its right to arbitrate. This article examines the rich body of case law that has developed in Australia on waiver. It also surveys certain preliminary questions and more generally the exceptions to enforcement of an arbitration agreement contained in the New York Convention.
Challenge to Arbitrators: Where a Counsel and an Arbitrator Share the Same Office—The Italian Perspective
Authors: Ferrario Pietro
Published: March 2022

Arbitrators have the duty to be and remain impartial and independent of the parties. Impartiality requires that an arbitrator neither favors one party nor is predisposed as to the question in dispute. Independence requires that there should be no actual or past dependent relationship with the parties that may, or at least may appear to, affect the arbitrator’s freedom of judgment. However, it is not just the linking of arbitrators to any of the parties that can undermine their impartiality and independence, but also a link to one of the parties’ counsels. In particular, this article deals, from the Italian perspective, with the issue of whether a counsel and an arbitrator who share the same office may be appointed for the same arbitration proceeding without disregarding the duty of impartiality and independence of the arbitrator.
Proper Notification: A Crucial Element of Arbitral Proceedings
Authors: Dahlberg Hans , Öhrström Marie
Published: March 2022

Everyone experienced in international arbitration knows how important it is to ensure that the respondent is properly notified of the arbitration. No mistakes can be afforded at this crucial stage of the proceedings. Should the notification fail, the arbitral award cannot, and should not, be enforced. If the notification is inadequate, and the respondent fails to take part in the arbitral proceedings (so-called ex parte proceedings), there will unquestionably be difficulties in enforcing the arbitral award if the respondent chooses not to comply with it.

It is very rarely that Swedish courts deny recognition and enforcement of foreign arbitral awards. However, in a recent case from the Swedish Supreme Court, enforcement of an award was denied in Sweden due to lack of proper notification. The case clearly illustrates how critical and important proper notification is in cross-border disputes. Moreover, the case raises questions about the arbitral institutions’ responsibility and practices in this regard.
Arbitrating Overseas Oil and Gas Disputes: Breaches of Contract Versus Breaches of Treaty
Authors: Blyschak Paul Michael
Published: March 2022

Although a contractual agreement typically forms the foundation of an overseas oil and gas project, it is important for energy firms to understand that international investment law has developed specifically to provide foreign investors with rights which extend beyond such instruments. An oil and gas contract may define the basic nature of an energy firm’s participation in an overseas project, but where an international investment treaty is available the firm will enjoy rights additional to the individual terms of the contract. Therefore, where an overseas oil and gas dispute arises, it is crucial for the energy firms involved to clearly understand the full scope of their rights and protections. This includes full appreciation of the different circumstances in which a breach of contract claim can be brought before an international investment tribunal, as well as the different circumstances in which such a claim may be problematic. This also includes full appreciation of the different circumstances in which it may be advisable to abandon breach of contract claims altogether in favor of entirely different causes of action available under an investment treaty. Breach of contract claims can be brought under investment treaties which include either a broad dispute resolution clause (DRC) or an umbrella clause. However, two significant impediments to the availability of these provisions mar their potential utility to oil and gas firms. First, the existence of a forum selection clause in the operative contract can function to prohibit the investor from arbitrating a claim that the contract has been breached if the forum before which the claim is pursued is different from that stipulated. Second, an investment tribunal may refuse jurisdiction to hear a breach of contract claim where a state-owned company or state agency is the counterparty to the contract rather than the state itself.
Dallah: The Supreme Courts Positively Pro-Arbitration No to Enforcement
Authors: Khanna Devika
Published: March 2022

The recent case of Dallah has led some to fear that arbitration's pro-enforcement era has come to an abrupt end before the U.K. Supreme Court in its very first arbitration-related case, and that the impeccable record of the New York Convention has somehow been tarnished as a result. However, the present article welcomes the decision as a good example of the English courts lending increased legitimacy and credibility to the arbitral process, by refusing to enforce an award for arguably all the right reasons.