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Amendments to trade dispute bill proposed - DAWN.com

Google International ADR News - Mon, 2018-04-16 20:55

Amendments to trade dispute bill proposed
DAWN.com
Mr Bhatti said dispute resolution will help promote international trade in Pakistan by aligning trade governance with international best practices under the World Trade Organisation and United Nations Commission on International Trade Law (UNCITRAL ...

CPTPP: The Effect on Insurance and Arbitration - Lexology

Google International ADR News - Mon, 2018-04-16 14:00

CPTPP: The Effect on Insurance and Arbitration
Lexology
For the settlement of private international commercial disputes in the free trade regions covered by the CPTPP, parties are directed inasmuch as possible toward arbitration and other means of alternative dispute resolution. Moving forward, Canadian ...

and more »

Dispute resolution mechanism in upcoming PPP agreements in Argentina - Business News Americas

Google International ADR News - Mon, 2018-04-16 12:31

Business News Americas

Dispute resolution mechanism in upcoming PPP agreements in Argentina
Business News Americas
Juan Ignacio Ruiz ([email protected]) is a corporate, commercial lawyer, with a practice in international arbitration and alternative dispute resolution under international institutions as the ICC or AAA, or in domestic institutions as the Tribunal ...

and more »

Dispute resolution mechanism in upcoming PPP agreements in Argentina - Business News Americas

Google International ADR News - Mon, 2018-04-16 12:26

Business News Americas

Dispute resolution mechanism in upcoming PPP agreements in Argentina
Business News Americas
Juan Ignacio Ruiz ([email protected]) is a corporate, commercial lawyer, with a practice in international arbitration and alternative dispute resolution under international institutions as the ICC or AAA, or in domestic institutions as the Tribunal ...

and more »

Former GBA president, 3 others appointed to Supreme Court - GhanaWeb

Google International ADR News - Mon, 2018-04-16 12:10

GhanaWeb

Former GBA president, 3 others appointed to Supreme Court
GhanaWeb
He taught Commercial Law and General Principles of English and Ghanaian Law at the Accra Polytechnic between 1980 and 1994. He is a member of the Ghana Bar Association, American Bar Foundation, American Bar Association, Ghana Arbitration Centre ...

Frisbie on the World Mediation Congress at Loyola Chicago

ADR Prof Blog - Mon, 2018-04-16 11:52
And you thought basketball is what put Loyola-Chicago on the map.  TFOI Teresa Frisbie provides this first-hand report about the World Mediation Congress, which Loyola recently hosted. The 300+ mediators, judges, attorneys and students at the International Academy of Dispute Resolution World Mediation Congress and 17th annual international mediation tournament held in March at Loyola … Continue reading Frisbie on the World Mediation Congress at Loyola Chicago →

Sheppard Mullin Opens Dallas Office - Business Wire (press release)

Google International ADR News - Mon, 2018-04-16 09:00

Business Wire (press release)

Sheppard Mullin Opens Dallas Office
Business Wire (press release)
LOS ANGELES--(BUSINESS WIRE)--Sheppard, Mullin, Richter & Hampton LLP announced today the opening of an office in Dallas – the firm's eleventh in the United States and sixteenth worldwide. "The firm has experienced 27 consecutive years of revenue ...

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Belt and Road: Supporting the Resolution of Disputes

Kluwer Arbitration Blog - Mon, 2018-04-16 08:05

Mingchao Fan, Briana Young and Anita Phillips

On 5 March 2018, the ICC Court announced the establishment of a commission to address dispute resolution in relation to China’s Belt and Road Initiative. The commission will drive the development of ICC’s existing dispute resolution procedures and infrastructure to support Belt and Road disputes.

The Belt and Road

The Belt and Road is China’s ambitious infrastructure project spanning more than 70 countries, with an increasing number of non-Chinese investors, contractors and developers – including sovereign states – involved. The project aims to build connectivity and cooperation between China across the land-based Silk Road Economic Belt and the 21st Century Maritime Silk Road. It spans large parts of Asia, the Middle East, Africa and Europe.

A construction and infrastructure initiative on this scale will inevitably generate disputes. With an estimated US$900bn in projects planned or already underway, the project gives rise to a multitude of actual and potential commercial disputes to consider. In response to this, Alexis Mourre, President of the ICC Court, announced the establishment of the commission during the ICC Court’s working session last fall.

It is a competitive field, with numerous existing institutions vying for a share of the Belt and Road disputes market, and new courts and institutions being established specifically for the purpose. It seems clear that parties who adopt the right dispute resolution model in their contracts today will be in a better position to resolve disputes as and when they may arise.

Make-up of the Commission

Justin D’Agostino, Global Head of Disputes at Herbert Smith Freehills and Hong Kong’s alternate member of the ICC Court, has been appointed commission chair. Dr Mingchao Fan, ICC Director for North Asia, will act as secretary. Other commission members are drawn from a range of sectors, representing jurisdictions including the PRC, Hong Kong and Singapore. A broader advisory board, representing other countries along the Belt and Road, is being considered.

ICC recognises the importance of engaging key stakeholders within both corporates and governments all along the Belt and Road, to ensure that it is offering the best possible service to parties on all sides.

Although the ICC Belt and Road Commission’s main objective is to raise awareness of the ICC as a “go-to” institution for disputes arising out of China’s Belt and Road Initiative, the commission has additional relevant aims:

leveraging ICC’s unparalleled international coverage with secretariats and/or national committees in over 100 jurisdictions to attract Belt and Road disputes;
engaging with corporates, state-owned enterprises and governments across all Belt and Road territories; and
highlighting Belt and Road dispute resolution at a series of events throughout the region, with the aim of promoting ICC’s capabilities widely. Events are planned in locations as diverse as China, Paris, Kazakhstan, Kyrgyzstan, Nigeria, Southeast Asia, Japan and Hong Kong, with more to come.

In the Commission’s view, the combination of the ICC’s tried-and-tested, multi-process services, its unrivalled geographical footprint, and its established credibility and independence, place it in a strong position to resolve Belt and Road disputes.

Sector expertise

On average, construction and engineering disputes account for close to a quarter of all ICC arbitration cases, while the finance and insurance sector accounts for approximately 20%. As the world’s leading arbitral institution, ICC is adept at handling complex multiparty cases as well as high-value, complex multi-party and multi-contract disputes (approximately half of all cases filed involve three or more parties). The introduction in 2017 of an expedited procedure also enables lower-value cases to be handled with greater time- and cost-efficiency.

Mediation matters too

There is no ‘one-size-fits-all’ method of resolving Belt and Road disputes. But there is a concerted effort, led and supported by the Chinese government, to encourage mediation clauses in Belt and Road agreements, with provision for arbitration if mediation fails. ICC is a world-leading arbitration and mediation provider, with tried and tested mechanisms and a strong pool of arbitrators and mediators. It is therefore well placed to provide appropriate, effective dispute resolution services to parties all along the New Silk Road. ICC’s stated objective is to ensure that where disputes arise, they are resolved efficiently and with minimal damage to the parties’ commercial relationships.

To make sure you do not miss out on regular updates on the Kluwer Arbitration Blog, please subscribe here.

More from our authors: International Arbitration and the Rule of Law
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The post Belt and Road: Supporting the Resolution of Disputes appeared first on Kluwer Arbitration Blog.

SIDREC can now handle disputes relating to claims above RM250,000 - The Edge Markets MY

Google International ADR News - Mon, 2018-04-16 06:04

The Edge Markets MY

SIDREC can now handle disputes relating to claims above RM250,000
The Edge Markets MY
KUALA LUMPUR (April 16): The Securities Industry Dispute Resolution Centre (SIDREC) recently expanded its purview, allowing it to offer its services to investors and capital markets services providers with disputes relating to claims exceeding RM250 ...

and more »

SIDREC can now handle disputes relating to claims above RM250,000 - The Edge Markets MY

Google International ADR News - Mon, 2018-04-16 06:04

The Edge Markets MY

SIDREC can now handle disputes relating to claims above RM250,000
The Edge Markets MY
KUALA LUMPUR (April 16): The Securities Industry Dispute Resolution Centre (SIDREC) recently expanded its purview, allowing it to offer its services to investors and capital markets services providers with disputes relating to claims exceeding RM250 ...

and more »

Pierrick Le Goff (Alstom) : “Most of our proceedings concern large-scale project disputes" - Leaders League (press release)

Google International ADR News - Mon, 2018-04-16 04:05

Leaders League (press release)

Pierrick Le Goff (Alstom) : “Most of our proceedings concern large-scale project disputes"
Leaders League (press release)
After an extensive international career, Pierrick Le Goff now occupies the position previously held by the person who hired him a quarter of a century ago. Alstom Group general counsel since 2015, his projects include the upcoming merger between Alstom ...

and more »

Interview with Meg Kinnear, Secretary General of the International Centre for Settlement of Investment Disputes

Kluwer Arbitration Blog - Sat, 2018-04-14 23:41

Crina Baltag (Acting Editor)

In the midst of challenges to the very legitimacy of Investor-State Dispute Settlement (ISDS), the International Centre for Settlement of Investment Disputes (ICSID) celebrated its 50th anniversary and embarked on the fourth ICSID Rules amendment process in ICSID history. The previous amendment processes brought notable additions to the ICSID Rules, such as enhanced transparency in the arbitral process (including publication of at least excerpts of the ICSID awards), and the development of an amicus curiae provision (used in over forty ICSID cases since 2006).

Kluwer Arbitration Blog invited Meg Kinnear, the Secretary-General of ICSID, to discuss these proposed changes to the ICSID Rules, the first 50 years of existence of the Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID Convention) and of ICSID, as well as the challenges ISDS is currently facing.

1. Meg Kinnear, welcome to Kluwer Arbitration Blog. It is an honour to have you as our guest before the start of the ICCA Conference in Sydney. ICSID and the ICSID Convention celebrated the first 50 years with an impressive caseload, exceeding 650 cases registered under the ICSID Convention and Additional Facility Rules. How were the first 50 years?

Thank you for the opportunity. I am tremendously proud of the role that ICSID has played in the field of investment law over the last fifty years.1)See also Building International Investment Law: The First 50 Years of ICSID by Meg Kinnear, Geraldine Fischer, Jara Minguez Almeida, Luisa Fernanda Torres, Mairée Uran Bidegain (Wolters Kluwer/ICSID) jQuery("#footnote_plugin_tooltip_9360_1").tooltip({ tip: "#footnote_plugin_tooltip_text_9360_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Let me offer a few reflections. One is the ongoing relevance of ICSID’s original mandate. As you know, ICSID is housed in the World Bank where a core priority is mobilizing private finance for development. How to unlock finance by putting in place the right economic and policy drivers for investment—this is the conversation that surrounds us. Against this backdrop, the preamble to the ICSID Convention is remarkably prescient. Its emphasis on international cooperation, and the specific role that foreign investment plays in economic development, could well have been written today.

I also think that the drafters of the ICSID Convention, Regulations and Rules were admirably forward-thinking in the design of the institution. The notion of a self-contained regime that serves to depoliticize international investment disputes—these are qualities that have firmly established ICSID as the preeminent forum for investment dispute settlement. And it is because of this solid foundation that ICSID jurisprudence has made such a wide and deep imprint on international investment law over time.

Finally, it has been a personal privilege to witness the development of the ICSID secretariat. Today we are about 70 individuals from 35 countries, fluent in some 20 different languages, and amongst the most talented people I know.

2. Besides the case administration, the ICSID Secretariat is also involved in other activities, such as the appointing authority function of the Secretary General, training courses etc. How busy is the ICSID Secretariat?

The short answer is ‘very’. We have seen a growing demand for our capacity building services, particularly amongst first-time and developing country participants in ICSID cases. Our ICSID 101 training course, which offers member States a deep dive into ICSID arbitration practice, has been delivered in 40 countries so far. The process of amending the regulations and rules has also been time intensive. We have consulted widely, and will continue to do so over the next year. Our goal is to ensure that all interested stakeholders have an opportunity to provide input and respond to proposed amendments. And our website has also developed over the years into a tremendous research and learning tool, and we continue to build and refine it.

I am also pleased that ICSID has been named the registry in recent EU trade and investment treaties, and designated as the appointing authority in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. Both are a significant recognition of ICSID’s leading role in investment arbitration.

3. The current debate revolves around the legitimacy of ISDS, the proposal for a new multilateral investment court, accompanied by renegotiations of free trade agreements etc. How are all these reflected on ICSID?

Clearly international investment agreements have evolved significantly over the last couple decades. There is, however, a lag between innovations in treaties and ISDS case law. UNCTAD pointed out recently that virtually all ISDS cases to date have concerned treaties drafted before 2010. In other words, ICSID tribunals have not yet interpreted the latest generation of investment agreements.

In terms of discussions on ISDS specifically, such as a multilateral investment court, our philosophy is to contribute where we can and in ways that are appropriate. A key objective is ensuring that discussions are grounded in the facts. Given that the majority of investment disputes are settled at ICSID, we have a special responsibility to make information on ISDS trends, and on how the system operates in practice, available in ways that are useful and timely.

At the end of the day, policy decisions on the form of ISDS are for States to make. Our role is to administer these cases, and we strive to do that at the highest professional standard. This ultimately is the responsibility we have to our 153-member States and the investors which elect to bring cases to ICSID, and it doesn’t change even as ISDS evolves.

4. Is the amendment process of the ICSID Rules a response to this apparent ISDS crisis?

I would say firstly that the rhetoric of crisis, backlash, etc. does everyone a disservice in many ways. I value the fact that international investment law broadly, and dispute settlement specifically, is a dynamic field. I don’t agree with every policy or approach, but change that is brought about by a competitive exchange of ideas is ultimately a good thing. The real crisis would be if investment dispute settlement ossified and was incapable of change.

Second, my sense, and this comes from speaking daily with our clients, is that the ICSID rules are performing well. There is always room for improvement—which is why we initiated the amendment process—but we are starting from a solid foundation. You may recall that we made some important amendments to the rules in 2006, including strengthened disclosure requirements for arbitrators, expanded transparency provisions, and procedural rules designed to reduce the time and cost of proceedings. The amendment process today continues this tradition of carefully considered change based on a lot of hands-on experience, a solid empirical foundation, and broad consultation.

5. What is the current stage of the amendment process?

I would say that we are a good half-way to the finish line, but let me explain. In terms of scope, I should emphasize that we are focused on amendments to the ICSID Convention Regulations and Rules—but not the Convention itself. Changes to the Convention require endorsement from all member States, whereas changes to the rules can be amended with a two-thirds majority. We currently have 153 members, so that means at least 102 votes of support. Changes to the Convention are part of the overall vision, but do not fall within the scope of the current process.

In 2016 we made three requests to ICSID member States. One, that they suggest topics to be considered for amendment. Two, that they nominate a focal point: someone with knowledge and responsibility for the portfolio and who could contribute substantively and authoritatively on behalf of her government. Third, we undertook a survey of member States on compliance with awards of costs, at the request of Panama. Last year, we also reached out to the broader public for input. To date we have received over twenty written submissions from law firms, NGOs and individuals—all of which are published on our website.

In parallel, we established a rigorous internal process. Working groups of ICSID counsel were tasked with studying specific rules: their history, how they have been applied in practice, and the comments we received on them from States and the public. In a series of weekly meetings, these groups presented their findings and subjected them to often intense debate amongst their ICSID colleagues.

This process of external consultation and internal deliberation feeds into a working paper, to be released in August of this year, that suggests textual changes to the rules and regulations. We will meet with member States in late September to discuss the proposed amendments, and then embark on a round of meetings at a country and regional level, and with ISDS practitioners and the public, to gather further input.

At the end of 2018 we will take stock. I imagine that some amendments will be easily agreed, others will need further discussion, and others may need to be shelved for another day. Ultimately, a package of amendments will go to the ICSID Administrative Council for a vote.

6. What are the potential areas for amendment? Is the creation of an appellate body still a topic to be considered?

I am glad to discuss what we think will be proposed, but with the caveats that the working paper is not yet final, and, what it will offer are proposals for States and the public to consider and respond to.

That said, a cross-cutting priority is that the rules are simply worded and sequenced in a way that makes them more user friendly. We also want the rules to help reduce the time of ICSID proceedings. So, for example, the working paper recommends that claimants provide more information in their request for arbitration, such as background to the dispute and damages claimed. This would not influence whether a claim is registered, but it would expedite the subsequent proceedings. Also likely is a proposal to allow claimants to ask that their request for arbitration be used as the memorial, which again saves time and might be especially useful in less complex cases.

Once a case is registered, there are other ways in which the rules can quicken the pace of proceedings. For example, by imposing a general obligation on the parties and arbitrators to establish firm time goals for each step in the process. Also recommended is a presumption that all filing is electronic, which not only reduces the time and cost of proceedings, but makes them more environmentally friendly.

I expect that measures to cut down on the time and cost of proceedings—so long as they don’t jeopardize due process—are going to be widely welcomed. Other changes require a more delicate balancing of interests. Transparency and access to case-related documents is one of them. In our view one of most important aspects related to transparency is making decisions and awards public. This fosters consistency and coherence in ISDS caselaw, and public confidence in the system more generally. The working paper therefore proposes mandatory publication of awards (or extracts of awards), decisions and orders, while leaving the release of other case-related materials to the discretion of the parties or the obligations in the relevant treaty.

In answer to the last part of your question, no, the working paper will not propose an appeals facility specifically. Indeed, this was discussed as part of the 2006 amendment process, and ultimately did not muster sufficient support amongst member states. It continues to be discussed at UNCITRAL and UNCTAD, but my sense is that states have still not reached a consensus either way.

However, there are a couple aspects related to appointments to keep in mind. One is that an appeals facility, or other options concerning how or who to appoint, can likely be accommodated by the current rules. In fact, treaties are where—first and foremost—States decide on the primary appointment system. The ICSID rules address appointments in default of a party selection, and so the method selected by the parties is respected.

7. Do you consider that the Administrative Council could play a more active role and issue interpretative resolutions on controversial matters, such as the meaning of the term “investment”, the denunciation of the ICSID Convention, among other matters?

No, this would confuse the function of the Administrative Council. It is a governance, not a legal, body—and we are scrupulous about not mixing the governance function with the legal function of a tribunal. Keep in mind that the States which comprise the Administrative Council are the same States which are respondents or have citizens acting as claimants in cases. The ICSID Convention is careful not to politicize the role of the Administrative Council, mindful of the fact that it would hinder the Council’s ability to perform its governance function and hurt the legitimacy of ICSID cases.

8. Are there certain areas that are in real need of improvement, so that ICSID is able to move forward as successful as now?

The goal of ensuring the rules make ICSID proceedings more efficient in terms of time and money is really in everyone’s interest. That is a lens through which we have viewed all the ICSID rules, and where I am confident that we will see some meaningful improvements.

9. What is the position of the ICSID Secretariat in relation to the non-compliance with arbitral awards rendered under the ICSID Convention based on the allegation that compliance with such arbitral awards are inconsistent with EU law?

The ICSID secretariat needs to be impartial and that means not commenting on legal decisions. We are carefully watching the impact of the decision, and it is being raised by parties in a number of ICSID cases.

10. Third Party Funding is a hot topic in arbitration at this moment and ICSID arbitral tribunals have had the opportunity to express their position on this matter. Should we expect some important amendments of the ICSID Rules to reflect the latest developments on Third Party Funding in investment arbitration cases?

Prohibiting third-party funding is not something we plan to propose. There are a few conceptual and practical reasons behind that decision. First, simply defining third-party funding is difficult. Second, forms of third-party funding are legal in many states, and may be viewed as an access to justice—rather than a conflict of interest—issue. What we do propose is required disclosure by parties of third party funding and by arbitrators of a relationship with a funder to identify, and hopefully avoid, conflicts of interest.

11. The number of challenges of arbitrators sitting on the ICSID panels has increased in recent years, and this is something emphasized by the ICSID Secretariat itself. What are the suggested approaches to this matter envisaged in the new ICSID Rules?

We are working on the exact parameters, but I can say a few things. One suggestion is for a specific timeline for the filing of a proposal for disqualification of an arbitrator. This would replace the current requirement that it be done “promptly”, which is not as precise. Another is that a challenge should not automatically suspend the proceedings. Other proposals that we have received—such as modifying the system of having co-arbitrators decide a challenge unless they are especially divided—may be difficult without changes to the ICSID Convention. And changes to the Convention, as I mentioned, are not a part of this current process. However, I should point out that the Convention constraints do not apply to the Additional Facility rules, so here there will be greater scope for change. Moreover, changes made to the Additional Facility could serve as examples down the road for amendments to the Convention.

12. Is there a need for an ICSID Code of Conduct for Arbitrators and Conciliators?

That is a good question. Currently, the ICSID rules require a declaration that arbitrators meet the qualifications spelled out in the ICSID Convention and a continuing duty to disclose throughout the case. The amended rules could entail a more elaborate declaration. The IBA code of conduct, as well as recent investment treaties that feature more detailed codes of conduct, offer guidance in this area. At the same time, we understand that UNCITRAL is mandated to work on a code of ethics, and ideally that code is as close to universal as possible. We will work with UNCITRAL on the elaboration of a code.

13. What are the issues concerning the ICSID annulment procedure identified so far and which are likely to be addressed in the background paper to be published soon?

The working paper will touch on some technical issues related to annulment; for example, addressing cross application in cases where both parties to an arbitration seek the annulment of an award. But generally, the rules on annulment work well. The debate on annulment is primarily focused on the standard of review, and that is a policy question that falls outside the scope of the ICSID rules amendment. It is certainly a discussion worth having, and could provide an interesting alternative to a full appeals court. But it is not a part of ICSID’s rules amendment process.

14. We are in a boom-and-bust technological period where new tech can either aid ICSID’s operations or expose it to security breaches. There are examples of arbitral institutions being hacked and confidential information being dumped online. How has ICSID responded to these issues?

I am pleased to say that our security systems are first class and benefit from the expertise and technology that exists at the World Bank Group. A dedicated unit, the Office of Information Security, steers the World Bank Group’s cyber security risk management policies and procedures, including those at ICSID. This includes around-the clock security operations in Washington, D.C. and 186 country offices across the world. We have state-of-the-art firewalls, which have been key in preventing any information breach leading to reputational harm. Plus, all ICSID staff are required to take periodic trainings on information security and data protection.

15. Finally, what are you expecting in the next 50 years for ICSID and the ICSID Convention?

Good question! My crystal ball doesn’t extend quite that far in the future, but there are two things I would flag in the shorter term. One, as I mentioned we are not proposing amendments to the ICSID Convention itself. However, we do want to plant that seed now and encourage States and users of ICSID to consider changes that would be beneficial so that it will keep evolving to ensure that we meet our mandate.

Second, our clients will be happy to know that we are moving our Washington D.C. offices in 2019. The new building will have dedicated, state-of-the-art hearing rooms, which we are excited about. We will be sure to invite Kluwer to the house warming.

To make sure you do not miss out on regular updates on the Kluwer Arbitration Blog, please subscribe here.

References   [ + ]

1. ↑ See also Building International Investment Law: The First 50 Years of ICSID by Meg Kinnear, Geraldine Fischer, Jara Minguez Almeida, Luisa Fernanda Torres, Mairée Uran Bidegain (Wolters Kluwer/ICSID) function footnote_expand_reference_container() { jQuery("#footnote_references_container").show(); jQuery("#footnote_reference_container_collapse_button").text("-"); } function footnote_collapse_reference_container() { jQuery("#footnote_references_container").hide(); jQuery("#footnote_reference_container_collapse_button").text("+"); } function footnote_expand_collapse_reference_container() { if (jQuery("#footnote_references_container").is(":hidden")) { footnote_expand_reference_container(); } else { footnote_collapse_reference_container(); } } function footnote_moveToAnchor(p_str_TargetID) { footnote_expand_reference_container(); var l_obj_Target = jQuery("#" + p_str_TargetID); if(l_obj_Target.length) { jQuery('html, body').animate({ scrollTop: l_obj_Target.offset().top - window.innerHeight/2 }, 1000); } }More from our authors: International Arbitration and the Rule of Law
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CJEU Does Not Buy Wathelet’s Opinion in Achmea – What Is Left Unanswered?

Kluwer Arbitration Blog - Sat, 2018-04-14 03:00

Volodymyr Ponomarov

On March 6, 2018, the Court of Justice of the European Union (“CJEU”) in its 12-page judgment backed the Commission in its grid to finally scrap the intra-EU BITs and defied Advocate General’s attempt to preserve the system.

The purpose of this note is to concisely analyze this far-reaching judgment of the CJEU against the major precepts of the advisory opinion of Advocate General Wathelet (“AG”), previously discussed in several posts, and to determine what was, nonetheless, left unattended by the Court, and what may ensue in the aftermath.

General Observations

The CJEU held that the substantive provisions of the EU law preclude the ISDS mechanism of Article 8 of the Netherlands-Slovakia BIT and hence render any award stemming from the intra-EU BIT unenforceable in the Member States.

Key points worth noting before proceeding to the substance of the judgment:

  • The CJEU employed the reverse order of the questions discussed by the AG in his opinion, effectively bypassing the third and, arguably, the most important question on discrimination under Article 18 TFEU pushed by the EU Commission.
  • The CJEU conflated the first and the second questions and simultaneously considered whether the BIT in question conformed to Articles 267 and 344 TFEU.
  • The CJEU did not entertain the request from the Czech, Hungarian, and Polish governments to fend off the AG’s opinion on the matter.

The crux of the CJEU’s reasoning consisted in a fundamental premise that an international agreement, i.e. the Netherlands-Slovakia BIT, cannot affect the allocation of powers fixed by the EU law. The CJEU further underlined that the Member States are to ensure the uniform application of the EU law in their territories. And the only way to ensure such uniformity and consistency is through a common judicial system of the European Union consisting of the national courts, tribunals, and the CJEU.

Given that the CJEU effectively avoided addressing the third question on whether the Netherlands-Slovakia BIT discriminate against other Member States, this note will follow the pattern set out by the CJEU, in particular addressing three pivotal issues of the Court’s reasoning below.

I. Does the Achmea dispute concern the interpretation of the EU law?

In 2017, the AG opined that, although Article 8(6) of the Netherlands-Slovakia BIT subjects investment-state disputes to “the law in force of [the Netherlands or Slovakia]” and “other relevant Agreements between [them]” (i.e., the EU Treaties), the dispute does not implicate the interpretation and application of the EU law per se. According to the AG, the Achmea Tribunal was called upon to rule on the breaches of the BIT in question, and the latter’s provisions do not necessarily overlap with the EU law. For instance, the most-favored nation clause of Article 3(2), the umbrella clause of Article 3(5), the sunset clause of Article 13(3), and finally, the ISDS mechanism of Article 8 of the BIT have no equivalents in the EU law and the Treaties. Therefore, the Achmea Tribunal faced little risk of engrossing in the application and interpretation of the EU law, according to the AG.

In its recent judgment the CJEU decisively renounced the AG’s proposition by pointing out that, to consider the potential infringements of the Netherlands-Slovakia BIT, the Achmea Tribunal could not but apply the EU law, specifically the provisions on the freedom of establishment and free movement of capital. This finding led the CJEU to the question of whether the Achmea Tribunal had the power to apply the EU law in principle.

II. Can the Achmea Tribunal be considered “any court or tribunal” within the confinements of Article 267 TFEU and thus apply the EU law in the first place?

Given the CJEU’s position that Achmea Tribunal was essentially engaged in application and interpretation of the EU law, the question now lingers whether it had the right to do so. In other words, whether it constituted “[a] court or tribunal of a Member State” within the confinements of Article 267 TFEU.

The AG offered a number of criteria for the CJEU to determine that the Achmea Tribunal was indeed “[a] court or tribunal” under Article 267 TFEU and thus could legitimately apply the EU law. He surmised, in particular, that the Achmea Tribunal was “established by law” – the standard which was elaborated in Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C-377/13, EU:C:2014:1754), where arbitration of tax disputes was found sanctioned by a Portuguese law. In addition, the AG attempted to draw the analogy with the Benelux Court of Justice discussed in Parfums Christian Dior (C-337/95, EU:C:1997:517), recognizing that the latter, even though not a court or tribunal of a Member State, “should . . . be able to submit questions to [the CJEU], in the same way as court of any of those Member States.”

The CJEU dismissed the AG’s reasoning. First, it emphasized that tribunals arbitrating tax disputes in Portugal derive their power from the state’s constitution. On the contrary, the ISDS mechanism of Article 8 of the Netherlands-Slovakia BIT does not form “part of the judicial system” of the contracting states, but is rather of “a precisely exceptional nature”. Second, the Achmea Tribunal did not have “any . . . links with the judicial systems” of Slovakia and the Netherlands, as compared to the Benelux Court of Justice, whose principal task is to ensure cooperation and uniform application of law within the three Benelux states.

Consequently, the CJEU held that, as a matter of the EU law, the Achmea Tribunal cannot be considered “[a] court or tribunal of a Member State” and hence it was not authorized to apply and interpret the EU law in the first place. The CJEU never addressed other criteria advanced in the AG’s opinion, such as the permanent nature of the Achmea Tribunal, its compulsory jurisdiction, exclusion of aequo et bono in decision making, and the Tribunal’s impartiality.

III. Does a limited judicial review of arbitral awards in the context of investment arbitration constitute a remedy for “effective legal protection” as required by Article 19 TEU?

According to the AG, the awards rendered under the BITs are similar to arbitral awards of the commercial arbitration. As such, these awards cannot avoid judicial review and/or be enforced without the assistance of a Member State. Further, neither the Commission nor the Member States ever sought to debate the incompatibility of arbitral awards with the EU law in the context of commercial arbitration.

In the AG’s opinion, the CJEU judgments in Eco Swiss (C-126/97, EU:C:1999:269), Genentech (C-567/14, EU:C:2016:526), and Gazprom (C-536/13, EU:C:2015:316) involving set aside of arbitral awards of commercial arbitration prove that the Member States are able to safeguard the uniform application and interpretation of the EU law “whether in a competition matter or in other areas of [law]” (i.e., in international arbitration). In addition, the AG weighted in that domestic courts are well equipped with the mechanisms of Article V of the New York Convention to protect the European public policy in the context of both commercial and investment setting.

The CJEU once again resolutely disagreed with the AG. It noted that the award rendered by the Achmea Tribunal is final by its nature, which in turn leaves little room for the judicial review by German courts under Paragraph 1059(2) of the German Code of the Civil Procedure [Judgment para. 53].

The CJEU accentuated on the crucial discrepancy between the investment and commercial arbitrations, noting that the former “originate[s] in the freely expressed wishes of the [private] parties”. On the contrary, according to the CJEU, the BIT arbitration is conceived as an attempt of the Member States to remove from the jurisdiction of domestic courts and thus from the remedies for “effective legal protection” fixed by Article 19(1) TEU. In other words, the ISDS mechanism of Article 8 of the BIT falls foul with the states’ obligations arising from Article 19(1) TEU to provide sufficient remedies in the fields covered by the EU law.

What the CJEU did not say?

  • Whether the ISDS in the intra-EU BITs constitutes discrimination under Article 18 TFEU?

The CJEU left open a pivotal question of the alleged discriminatory nature of the BIT’s ISDS provision, strongly pushed by the Commission. The AG noted that the reciprocal nature of the rights and obligations of the parties is “a consequence inherent in the bilateral nature of the BITs” and hence does not amount to discrimination within the meaning of Article 18 TFEU.

  • Whether intra-EU BITs are similar to intra-EU treaties on the avoidance of double taxation (DTA)?

The AG stressed on the similarities between BITs and DTAs, namely that they are aimed at the same economic activities, which was not addressed by the CJEU.

  • What will happen to the ISDS mechanism of the Energy Charter Treaty in the wake of the CJEU’s decision, given that all Member States and the EU itself are the parties to the ECT?

The AG noted in his opinion earlier last year, that if any EU institution or any Member State had “the slightest suspicion” that the ISDS mechanism set forth in Article 26 of the ECT might be incompatible with the EU law, they would have sought an opinion from the CJEU. Nonetheless, it remains unclear what will happen to it, since the CJEU did not address the issue in the recent judgment.

____________________________

*Other recent posts on the Achmea judgment can be accessed here and here, as well as at the following link.

 

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The post CJEU Does Not Buy Wathelet’s Opinion in Achmea – What Is Left Unanswered? appeared first on Kluwer Arbitration Blog.

Greater understanding needed of what causes construction disputes - Construction Week Online

Google International ADR News - Sat, 2018-04-14 00:06

Construction Week Online

Greater understanding needed of what causes construction disputes
Construction Week Online
Offering his take on the issue of ADR, Longley tells Construction Week: “Awareness of alternative dispute resolution mechanisms in the Middle East is there and is growing. What is required is for the international legal fraternity that generally ...

News Centre: Judiciary urges out of court options to reduce backlog of court cases - The Standard

Google International ADR News - Fri, 2018-04-13 02:17

The Standard

News Centre: Judiciary urges out of court options to reduce backlog of court cases
The Standard
The Kenyan court system has over the years been burdened by numerous cases that sometimes span years before their conclusion. The judiciary alongside the Nairobi Center for International Arbitration are now pushing for the adoption of alternative ...

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Stronger freedom of expression - The Malta Independent - Malta Independent Online (blog)

Google International ADR News - Fri, 2018-04-13 01:26

Stronger freedom of expression - The Malta Independent
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The new Media and Defamation Bill is now at its final stages as it has reached unanimous approval at committee stage. This Bill is historic. It provides an unprecedented freedom to our country's journalists, media practitioners and citizen-journalists ...

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Kenya: DCJ Mwilu Urges Judges to Be Firm, Avoid Unnecessary Adjournments - AllAfrica.com

Google International ADR News - Fri, 2018-04-13 01:05

Kenya: DCJ Mwilu Urges Judges to Be Firm, Avoid Unnecessary Adjournments
AllAfrica.com
Nairobi — Deputy Chief Justice Philomena Mwilu has urged judges to be firm in the management of cases so as to expedite hearing and determination of legal disputes. According to Mwilu, courts could do away with frequent adjournments that have often ...

How to Disqualify and/or Remove Arbitrators Under Ethiopian Arbitration Law: Is Ethiopian Law on the Right Track?

Kluwer Arbitration Blog - Thu, 2018-04-12 21:12

Michael Teshome

If you are a counsel in an ongoing arbitration, you have two obligations: 1) navigate your ways through provisions of the applicable law so that you can litigate as a professional; 2) satisfy your client with your service and make sure that all his questions are answered properly.
Especially, if an arbitrator (whether or not chosen by you) is not discharging his or her duty on time, if you suspect there exists a relationship with the other party, does not understand the case properly, fails to communicate meetings which are crucial to the parties, delegate his or her duty to another person, you might wonder what to do in that regard before things get worse, or before an award is rendered.
It is impossible to think of arbitration without arbitrators. After all, parties choose arbitration to save time, maintain confidentiality and use the advantage of choosing their own arbitrators and seat. In other words, parties choose arbitration because they feel like they can be well represented and ultimately get a fair award. Had it not been for procedural flexibility and specificities, it would have been impossible to speak about arbitration.
Until a final award is given, arbitrators are expected to act independently and impartially. You expect them to act professionally to the best of their abilities as their conduct maintains the integrity of arbitration.
This short blog post attempts to discuss ways in which an arbitrator can be disqualified and removed in accordance with the Civil Code of Ethiopia. An award rendered by an arbitrator who is partial will not be enforced both under the New York Convention and Ethiopian arbitration law. In fact, article 351/d/i-iii/ of the Ethiopian Civil Procedure Code stipulate that it will be reviewed by appeal.
Disqualification of an Arbitrator: Article 3340 of the Civil Code and Its Vagueness?
Who can submit an application to disqualify an arbitrator? What are the grounds that must be considered? A party, whose interest is compromised, due to an arbitrator’s behavior, can submit an application to “disqualify” an arbitrator.
The application can be submitted either to the court having jurisdiction or to the arbitral tribunal. As a corollary, if the application to disqualify an arbitrator gains acceptance, he or she will be disqualified.
According to the 1960 Civil Code, an arbitrator can be disqualified based on these grounds:
• Age,
• Criminal conviction,
• Unsound mind,
• Illness,
• Absence, or
• Any other reason which bars him from discharging his or her duty within a reasonable time.
However, a party may seek disqualification of the arbitrator appointed by him “…only for a reason arising subsequently to such appointment, or for one of which he can show that he had knowledge only after the appointment”, according to article 3341 of the Civil Code.
The general rule that is used to disqualify an arbitrator is found under article 3340/2/ of the Civil Code: “…any circumstances casting doubt upon his impartiality or independence.” This rule corresponds with article 10 of the UNCITRAL model law which says: “an arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence or if he does not possess qualifications agreed to by the parties…”
Yet, the Ethiopian Civil Code fails to define this phrase: “any circumstance casting doubt upon his impartiality or independence.” This might leave much room for parties to submit an application to disqualify an arbitrator; and case law has a lot to show.
The procedure prescribed by the law to disqualify an arbitrator is:
– An application to disqualify an arbitrator should be made to the arbitration tribunal by a party before an award is rendered and as soon as the party knew of the grounds for disqualification;
– If the application is dismissed, then the party can lodge an appeal within 10 days.
Let us take cases as examples…
In a case between Harar Trading (claimant) and Gelateli Hanki Co. (respondent), which was ad-hoc arbitration, published on Arbitral Awards Volume 2, page 191, the respondent’s attorney submitted an application to the sole arbitrator asking for his disqualification citing the following reasons:
“…While the sole arbitrator was a judge at the Federal High Court, he abused me; I had submitted an application requesting disciplinary measures to be taken against him and an action was taken accordingly. Thus, it is difficult for me to believe that he will render an impartial award…”
In deciding on the application for removal, the sole arbitrator said that
“…Even though the respondent’s lawyer mentioned the file in which he claims that there was abuse, as I am not certain about the final decision, I cannot accept or refuse to be disqualified based on mere speculation… he may have approached my bench while I was a judge; He may have discontent as a result of my decision. Nonetheless, I believe that all of the judgments I gave were according to the law. Even if he claims that there was a disciplinary action, the action was not properly stipulated… further, we do not have intimate relationship, we do not know each other that much… therefore, claims he brought against me were unsubstantiated and have no legal basis.”
A party cannot simply apply to disqualify an arbitrator just because he is unhappy. The claim must be founded upon legally acceptable instances. If arbitration allows parties’ emotion to be involved, it will be difficult to maintain its autonomy and will make people consider it as a child’s play. But what does recent Ethiopian case law show?
The Federal Supreme Court Cassation Division Case Number 135094 (Volume 21) decided that “…as per article 3340/2/ of the Civil Code to disqualify an arbitrator it is not necessary to prove that a close connection between an arbitrator and a party. It is enough if there are any circumstances casting doubt upon his impartiality or independence… In the case at hand, the second respondent, which is apparently the arbitrator, was made a party to the suit by Federal First Instance Court; he continued to be joined as a respondent both at the Federal High Court and Cassation Decisions… this means he was litigating to be made an arbitrator… and this creates doubts on his impartiality…”
The Cassation basically stated that if the arbitrator argues against a party who requests him to be disqualified, he or she must be disqualified, because as per article 3340/2/ of the Civil Code such a scenario will give rise to circumstances casting doubt on the arbitrator’s impartiality. Is this the right way to go?
Removal of an Arbitrator under the Civil Code of Ethiopia
Disqualification of an arbitrator is a wider concept than removal. The Civil Code only gives one article to removal and seems to leave the rest under the umbrella of disqualification. It is unclear why the legislature chose to deal with removal and disqualification in this way. Even if we say their effect is the same, there lies no reason as to why the legislature needed to differentiate between disqualification and removal.
According to Article 3343, after accepting his or her appointment, if an arbitrator unduly delays the discharge of his duties the authority agreed upon by the parties, or in the absence of such agreement, the court, can remove him from his position.
A reasonable question would be what the difference between article is 3343 and 3340/1/. According to article 3340/1/, an arbitrator can be disqualified “… for any other reason unable to discharge his function properly or within a reasonable time.” Thus, one may ask the relevance of article 3343 which says that an arbitrator can be removed if he delays the discharge of his duties.
In fact, there is no difference between the two articles. In fact, the criterion in article 3340/1/ can be broadly interpreted to mean the condition laid down in article 3343.
Conclusion and Recommendation
The Ethiopian arbitration law needs to be amended when it comes to disqualification and removal of arbitrators – it can learn a lot from the IBA Guidelines on Conflict of Interests in International Arbitration. The grounds laid down under article 3340 and 3343 seem to be redundant, and no clear interpretation of the law in relation to article 3343 has been given by the Federal Supreme Court Cassation division.
Especially, the interpretation given by the Cassation bench is so wide that an arbitrator who argues against a party who brought a claim for his or her disqualification has to be disqualified. This has a lot of practical ramification.

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The post How to Disqualify and/or Remove Arbitrators Under Ethiopian Arbitration Law: Is Ethiopian Law on the Right Track? appeared first on Kluwer Arbitration Blog.

VM College students shines at a Global level - The Navhind Times

Google International ADR News - Thu, 2018-04-12 16:01

The Navhind Times

VM College students shines at a Global level
The Navhind Times
Three members of Alternative Dispute Resolution (ADR) board of the VM Salgaocar College of Law, Miramar – Balkrishna Vishwanath Thali, John James Samuel and Amrit Dutta participated in the 2018 INADR International Mediation Tournament and World ...

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