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Coyne College Honored by Better Business Bureau for 90 Year PartnershipCoyne College is one of four organizations ... - Markets Insider

Google International ADR News - Tue, 2018-03-20 09:45

Coyne College Honored by Better Business Bureau for 90 Year PartnershipCoyne College is one of four organizations ...
Markets Insider
CHICAGO, March 20, 2018 (GLOBE NEWSWIRE) -- Coyne College, a leader in career-focused education and training for HVAC and Refrigeration; Electrical Construction, Maintenance and Planning; Medical Assisting; Medical Billing and Coding; and Pharmacy ...

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Coyne College Honored by Better Business Bureau for 90 Year Partnership - GlobeNewswire (press release)

Google International ADR News - Tue, 2018-03-20 09:32

Coyne College Honored by Better Business Bureau for 90 Year Partnership
GlobeNewswire (press release)
CHICAGO, March 20, 2018 (GLOBE NEWSWIRE) -- Coyne College, a leader in career-focused education and training for HVAC and Refrigeration; Electrical Construction, Maintenance and Planning; Medical Assisting; Medical Billing and Coding; and Pharmacy ...

Coyne College Honored by Better Business Bureau for 90 Year Partnership - GlobeNewswire (press release)

Google International ADR News - Tue, 2018-03-20 09:32

Coyne College Honored by Better Business Bureau for 90 Year Partnership
GlobeNewswire (press release)
CHICAGO, March 20, 2018 (GLOBE NEWSWIRE) -- Coyne College, a leader in career-focused education and training for HVAC and Refrigeration; Electrical Construction, Maintenance and Planning; Medical Assisting; Medical Billing and Coding; and Pharmacy ...

and more »

Novenergia v. Kingdom of Spain, the ECT and the ECJ: Where to now for intra-EU ECT claims?

Kluwer Arbitration Blog - Tue, 2018-03-20 02:12

Richard Power

Clyde & Co.

There has been much comment about recent awards in Energy Charter Treaty (‘ECT’) arbitrations concerning investors’ claims against Spain and other EU states regarding renewable energy projects . The fortunes of investors and states have waxed and waned over the last few years, but overall it seemed that investors faced a considerable hurdle. In recent weeks, the rollercoaster ride has accelerated, with Novenergia v. Kingdom of Spain, SCC Case No. 063/2015, giving hope to investors, and EC Decision 2017/C 442 (‘the Decision’) and the European Court of Justice’s (‘ECJ’) decision in Case C-284/16 Slovak Republic v. Achmea BV apparently dashing those hopes.

Background

In the mid-2000s, many EU states encouraged foreign investors to undertake renewable power projects, particularly solar energy. Legislation offered incentives such as specified feed-in tariffs for lengthy periods and no limit on energy generation/distribution.

The global economic crash made such schemes became unbearably costly, and relevant legislation was repealed or amended. Those legislative changes undermined or even destroyed the profitability of investments predicated on the basis of the existing legislative frameworks. Consequently, many investors brought arbitration claims under the ECT, which protects foreign investments in the energy sector of signatory states from expropriation and unfair treatment.1)At the time of writing, for example, around 30 ECT claims against Spain are underway jQuery("#footnote_plugin_tooltip_9170_1").tooltip({ tip: "#footnote_plugin_tooltip_text_9170_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

Charanne, Eiser, Isolux and Blusun

In 2016 and 2017, four awards were made in respect of claims by investors from one EU state against another EU state: Charanne v. Spain2)Charanne B.V. and Construction Investments S.á.r.l v. Kingdom of Spain (SCC Case No. V 062/2012) jQuery("#footnote_plugin_tooltip_9170_2").tooltip({ tip: "#footnote_plugin_tooltip_text_9170_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });; Eiser v. Spain3)Eiser Infrastructure Limited and Energia Solar Luxembourg Sarl v. Kingdom of Spain (ICSID Case No.ARB/13/36) jQuery("#footnote_plugin_tooltip_9170_3").tooltip({ tip: "#footnote_plugin_tooltip_text_9170_3", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });; Isolux Netherlands, BV v. Kingdom of Spain4)Isolux Netherlands, BV v. Kingdom of Spain (SCC Case No. V 2013/153) jQuery("#footnote_plugin_tooltip_9170_4").tooltip({ tip: "#footnote_plugin_tooltip_text_9170_4", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); and Blusun v. Italy5)Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic (ICSID Case No. ARB/14/3) jQuery("#footnote_plugin_tooltip_9170_5").tooltip({ tip: "#footnote_plugin_tooltip_text_9170_5", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });. The awards displayed some consistency in that:

1. They rejected submissions by the respondents, and the European Commission (‘EC’) via amicus curiae briefs, that the tribunals lacked jurisdiction to hear ECT claims between an EU member state and an investor from another EU state.6)Similar arguments have been heard, and dismissed, in other cases, e.g. RREEF Infrastructure v. Kingdom of Spain (ICSID Case No. ARB/13/30) jQuery("#footnote_plugin_tooltip_9170_6").tooltip({ tip: "#footnote_plugin_tooltip_text_9170_6", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Broadly the arguments were that:

(a) As the EU itself is a signatory of the ECT and both parties are from the EU, Article 26(1) ECT was not fulfilled i.e. the claimant was not from an “Area” of “another Contracting Party”;
(b) The ECT impliedly included a disconnection clause, barring EU states from applying the ECT inter se; and
(c) EU law is an independent legal system taking precedence over other international law and domestic law, which provides an exclusive source of legal rights and remedies for intra-EU relations, including investor protection. The tribunal must apply EU law in reaching its decision. Therefore, the courts of the EU are the only appropriate jurisdiction to apply and enforce EU law.

The tribunals dismissed those arguments, holding that:
(i) individual EU states are also individual signatories to the ECT and the parties are of different nationalities;
(ii) the plain wording of the ECT did not allow for an implied disconnection clause; and
(iii) the claims are based on the provisions of the ECT, not EU law; the ECT expressly gives the tribunal exclusive jurisdiction; and there is no clash between ECT protections and EU law which would require a decision by the ECJ.

2. The tribunals accepted that fair and equitable treatment protections such as that in Article 10(1) ECT do not prevent a state from amending its regulatory regime, unless (i) it has given specific assurances to keep that regime in place for the lifetime of the investment (such as a contractual ‘stablisation clauses’); and/or (ii) such changes are disproportionate to the aim of the legislative changes, and fail to take due regard to investors’ legitimate expectations, formed before such reforms were mooted.

However, the awards also differed on some key issues:

3. The only award in favour of an investor was Eiser. This distinguished the 2010 amendments to Spain’s solar incentives regime7)The focus of the claim in Charanne. jQuery("#footnote_plugin_tooltip_9170_7").tooltip({ tip: "#footnote_plugin_tooltip_text_9170_7", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); from the more extensive 2013/14 reforms. The tribunal held that Article 10(1) ECT entitled the claimants to expect that Spain would not revise the regime upon which their investments were based to such a degree that all value in them was lost. Those legitimate expectations were based on the 2007 legislation and Spain’s further conduct in 2010-2011. The 2013/14 reforms amounted to a “total and unreasonable change” in violation of those legitimate expectations. The tribunal awarded the claimants damages of €128m.

4. When considering the circumstances in which a state may have breached Article 10(1) by modifying its regulatory framework, the Blusun tribunal rejected the tripartite criteria in Charanne (public interest, unreasonableness and disproportionality). The tribunal concluded that “in the absence of a specific commitment”, a state has no obligation to grant or maintain subsidies, but any modification should be done “in a manner which is not disproportionate to the aim of the legislative amendment, and should have due regard to the reasonable reliance interests of recipients who may have committed substantial resources on the basis of the earlier regime.”

The awards indicated the difficulties of establishing actionable legitimate expectations of stability in the absence of a stabilisation clause. Even the one result in favour of an investor, Eiser, is being challenged via annulment proceedings.8)Spain has applied for annulment for a failure to state reasons and a manifest excess of power, based upon the finding of a breach of Article 10(1) in circumstances where the tribunal held that Spain had a sovereign right to amend its legislation and had made no commitments as to a stable regulatory environment. Spain’s application also alleges that the claimant’s nominated arbitrator breached his obligation of independence and impartiality by failing to disclose a longstanding relationship with the claimants’ valuation experts. jQuery("#footnote_plugin_tooltip_9170_8").tooltip({ tip: "#footnote_plugin_tooltip_text_9170_8", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

Novenergia v. Kingdom of Spain

However, in February 2018, the tribunal in Novenergia v. Spain ordered Spain to pay €53 million to Novenergia, a Luxembourg fund which had invested in photovoltaic plants in Spain. The award was significant in that adopted a more expansive approach to investor claims than in the previous cases (including Eiser).

Novenergia’s claim related to the same 2013/14 reforms as in Eiser and Isolux. As in the previous awards, the tribunal confirmed that Article 10(1) ECT does not create an independent obligation to provide stable investment conditions. The key question is whether the investor has legitimate expectations of stability.

Contrary to Charanne, however, the tribunal held that such expectations “arise naturally from undertakings and assurances” given by the state. These do not need to be specific undertakings and/or contractual stabilisation clauses – state conduct or statements which objectively create such expectations (irrespective of whether the state intended to create them) are sufficient. Novenergia was entitled to form legitimate expectations as to the 2007 regime based on statements by officials to Spain’s Congress of Deputies, as well as Spain’s marketing documents which, the tribunal said, constituted “bait”.

As in Eiser, the tribunal held that Spain’s 2013/2014 reforms, which replaced the 2007 regime with a new regime guaranteeing only a ‘reasonable rate of return’, were a “radical and unexpected” departure from the 2007 regime. At the time of its investment decision, Novenergia had a legitimate expectation that the 2007 regime would remain relatively stable.

While Novenergia’s investments had not been destroyed by the 2013 reforms,9)In fact, they were still achieving a reasonable rate of return jQuery("#footnote_plugin_tooltip_9170_9").tooltip({ tip: "#footnote_plugin_tooltip_text_9170_9", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); going further than Esier, the tribunal held that it was sufficient that Novenergia could show “quantifiable prejudice” compared with its position when it initially made its investment. The tribunal found that the 2013/14 reforms had a “significant damaging economic effect” on Novenergia’s plants, decreasing revenues by 24% – 32%, and awarded damages accordingly.

Enter the EC

One might think that the tide has turned in favour of investors. However, two interventions from EU institutions seem to have swung the pendulum in the other direction:

(a) In Decision 2017/C 442, published on 10 November 2017, the EC attacked ECT claims brought by investors against Spain (and other EU states). Spain had established the 2007 regime, and reformed it, without obtaining prior approval from the EC. That constituted the granting of state aid without first notifying the EC, and under EU law investors cannot form legitimate expectations with regard to such schemes. The applicable law of the dispute must be EU law as each party was or was from an EU state; and since “the principle of fair and equitable treatment [in the ECT] cannot have a broader scope than the [EU] law notions of legal certainty and legitimate expectations in the context of a state aid scheme”, no investor could form legitimate expectations with regard to the Spanish 2007 regime and its reforms.

The Decision went on to criticise the concept of the ECT claims, stating that the EC considers that “any provision that provides for investor-State arbitration between two Member States is contrary to [European] Union law…Union law provides for a complete set of rules on investment protection…Member States are hence not competent to conclude bilateral or multilateral agreements between themselves”. The Decision concluded that “[f]or those reasons, ECT does not apply to investors from other Member States initiating disputes against another Member States”.

Finally, the Decision stated that if an arbitral tribunal awarded an investor compensation in respect of losses caused by Spain’s reform of the Special Regime, that would constitute state aid; and if Spain paid such an award, it would require EC approval. For good measure, the Decision stated that “this Decision is part of Union law, and as such also binding on Arbitration Tribunals, where they apply Union law. The exclusive forum for challenging its validity are [sic] the European Courts”.10)The Decision was considered in the Novenergia award and dismissed as irrelevant, since the tribunal held that they were not applying EU law, but rights arising under the ECT. jQuery("#footnote_plugin_tooltip_9170_10").tooltip({ tip: "#footnote_plugin_tooltip_text_9170_10", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

(b) In March 2018, the ECJ handed down its judgment in the Achmea case, holding that investor-state arbitration clauses in intra-EU BITs are not compatible with EU law. However, it is not clear whether this affects intra-EU ECT claims. The ratio decidendi appears to be that EU member states cannot derogate from the provisions of EU instruments, especially the Treaty on the Functioning of the EU, which provide for the primacy of EU law and the necessity for it to be tested in the courts of member states, by reference to the ECJ if necessary. However, in contrast to the Netherlands and Slovakia BIT which is the subject-matter of Achmea, the EU itself is a signatory to the ECT, and hence it can be argued that it has agreed to claims under the ECT being determined by the arbitration mechanism specified in the ECT. The EU clearly has the power to enter into arbitration agreements – c.f. the EU’s free trade agreements with third parties.

Nevertheless, the Decision and the Achmea judgment make it likely that any attempt to enforce an ECT award in an EU state will be resisted, e.g. under Article V(2) of the New York Convention (dispute not capable of settlement by arbitration/contrary to public policy). Investors may of course try to enforce outside the EU.

Where to now?

It remains to be seen if claimants will press ahead with their outstanding ECT claims against Spain and other EU states; or whether fresh claims will be commenced in another forum (and if so, what and where?). However, the Decision and Achmea may not necessarily be the death-knell for intra-EU ECT arbitrations that they might seem at first glance.

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References   [ + ]

1. ↑ At the time of writing, for example, around 30 ECT claims against Spain are underway 2. ↑ Charanne B.V. and Construction Investments S.á.r.l v. Kingdom of Spain (SCC Case No. V 062/2012) 3. ↑ Eiser Infrastructure Limited and Energia Solar Luxembourg Sarl v. Kingdom of Spain (ICSID Case No.ARB/13/36) 4. ↑ Isolux Netherlands, BV v. Kingdom of Spain (SCC Case No. V 2013/153) 5. ↑ Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic (ICSID Case No. ARB/14/3) 6. ↑ Similar arguments have been heard, and dismissed, in other cases, e.g. RREEF Infrastructure v. Kingdom of Spain (ICSID Case No. ARB/13/30) 7. ↑ The focus of the claim in Charanne. 8. ↑ Spain has applied for annulment for a failure to state reasons and a manifest excess of power, based upon the finding of a breach of Article 10(1) in circumstances where the tribunal held that Spain had a sovereign right to amend its legislation and had made no commitments as to a stable regulatory environment. Spain’s application also alleges that the claimant’s nominated arbitrator breached his obligation of independence and impartiality by failing to disclose a longstanding relationship with the claimants’ valuation experts. 9. ↑ In fact, they were still achieving a reasonable rate of return 10. ↑ The Decision was considered in the Novenergia award and dismissed as irrelevant, since the tribunal held that they were not applying EU law, but rights arising under the ECT. 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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2018 US News Rankings

ADR Prof Blog - Tue, 2018-03-20 00:08
Here they are, this year’s US News Rankings for dispute resolution programs.  Unlike the rankings for law schools, these are voted on by law school faculty – consider them reputational rankings.  Congratulations to all ! Rank School Name 1 Pepperdine University 2 Ohio State University (Moritz) 3 Harvard University 4 Mitchell Hamline School of Law 5 … Continue reading 2018 US News Rankings →

The Stone Soup Project Needs YOU!

ADR Prof Blog - Mon, 2018-03-19 20:44
      This post summarizes a status report on the Stone Soup Dispute Resolution Knowledge Project, describes possible next steps, and invites your input and participation.  I encourage you to consider how you might incorporate Stone Soup in your plans for next year.  In particular, this post describes choices you might make in using … Continue reading The Stone Soup Project Needs YOU! →

Tasks before new Industrial Court chief registrar - The Nation Newspaper

Google International ADR News - Mon, 2018-03-19 18:28

The Nation Newspaper

Tasks before new Industrial Court chief registrar
The Nation Newspaper
Daudu, a certified Mediator by the Henning Mediation Centre, Atlanta, Georgia, U.S.A, is a Fellow of the Weinstein International Fellowship in Alternative Dispute Resolution (ADR). He is a member of the Nigerian Bar Association (NBA), International Bar ...

Alternative Dispute Resolution - Law.com

Google International ADR News - Mon, 2018-03-19 12:44

Law.com

Alternative Dispute Resolution
Law.com
Alternative Dispute Resolution. In this week's Special Report: "Five Reasons to Include Arbitration Clauses in Business Contracts … and Five Reasons to Reconsider," "Mediating Highly Emotional Workplace Disputes," "'Nondomestic' Arbitrations: An ...

Farkas on Legal Education

ADR Prof Blog - Mon, 2018-03-19 10:56
Check out the contribution of Brian Farkas (Cardozo) over at Prawfsblawg, as part of their online symposium on the future of legal education. Brian calls for greater adoption of mediation and arbitration in doctrinal courses, to better prepare students for the realities of legal practice. It’s a terrific post.

Round table: Exit wounds - Law Gazette

Google International ADR News - Mon, 2018-03-19 07:45

Law Gazette

Round table: Exit wounds
Law Gazette
The discussion starts with the Law Society's head of international, Mickaël Laurens, reminding the group of the arrangements that underpin market access and professionals' rights. 'UK lawyers, or members, as individuals and law firms have benefited ...

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The Structural Implications of Belt-and-Road Arbitration: China’s Legal Gamble across Eurasia

Kluwer Arbitration Blog - Sun, 2018-03-18 21:00

Horia Ciurtin

The Belt-and-Road Initiative (“BRI“) is a grand vision about connectivity, infrastructure, trade and unimpeded foreign direct investment (“FDI“) flows. It is a path to China’s largest export market  – the European Union – which does not only propose to ‘transit’ Eurasia (and coastal East Africa), but to radically transform it. And, thus, mere construction and outpours of capital do not suffice for such an ambitious project. The scale and depth of the BRI require a substantial ‘investment’ in establishing a common normative nexus. For connectivity to actually exist as a functional feature of the project, it must also – on the long-term – take the shape of legal harmonization.

However, in this initial phase of the BRI, more modest objectives need to be achieved. And China has taken small – but firm steps – in this direction. Thus, while previously considered a problematic jurisdiction for arbitrating commercial disputes (and a difficult Respondent in investment litigation), China’s status has significantly improved in the last few years. As it envisions itself to rather be the source of investors and contractors along the Belt-and-Road (and not a destination for FDI), Beijing is seeking legal mechanisms to ensure the protection of Chinese companies’ interests abroad.

For this reason, China is well set on the course of strengthening CIETAC and also offering it – for the first time – a clear set of rules that will deal with investor-state disputes. However, if ADR as a whole is considered, it must be noted that China still favors mediation (usually state-to-state driven) as a manner of solving disputes, seeing arbitration as a measure of last resort. Nonetheless, it got involved in ensuring that this legal ultima ratio is circumscribed within a discernable pattern which is not so different from similar measures proposed by Western states. It might be a form of globalization with Chinese characteristics – as Beijing likes to portray it – but it does not diverge too much from the beaten track regarding international arbitration.

Returning to the BRI’s intrinsic (and necessary) relationship with arbitration, it must be ascertained that it is the only viable way to ensure a stable and predictable framework for solving disputes over such a large area, with dozens of different jurisdictions, legal cultures and diverging geoeconomic interests. Most of the states that will become part of the BRI are not consolidated democracies, lacking independent judiciaries and national courts that uphold the rule of law. And that might be a problem for Chinese investors which will – inevitably – face the risk of (creeping) expropriation or breaches of the FPS and FET standards. And thus, although arbitration might not be the preferred solution for China, it is the best answer to such systemic risks.

On the other hand, for companies along the Belt-and-Road that trade, construct and invest in the opposite direction, targeting the Chinese mainland as a destination for their goods and FDI, arbitration against China (and within China) still remains problematic. Especially on the enforcement side. The judiciary is sometimes less than collaborative and – although it might permit enforcement on a regular basis – it strongly takes into consideration matters of public policy and personal ties to the Party members involved. Most large Chinese private entities are linked with the Party nomenklatura one way or another, representing a matter that BRI investors need to carefully take into account.

In this sense, China might seek to improve some procedural aspects of arbitration within its territory, but it will stick to its ‘systemic’ approach of favoring state-owned entities and Party-linked companies, even by making enforcement against them extremely difficult. On the short term, it is unlikely that significant improvements will take place where there are high stakes involved. Especially if they are in any way linked to the political scene. However, what can be expected is a more predictable framework and improved procedures in the statutes. How they will work in practice, it is difficult to tell.

Thus, even the recent enactment of the CIETAC ‘investment arbitration rules’ seems to be – at this stage – more an exercise in wishful thinking and PR for the BRI. Its practical effects upon existing BITs from the third generation that offer ICSID rules or UNCITRAL rules as possibilities. But such new rules might – nonetheless – impact the manner in which the Belt-and-Road contracts and treaties will be further modelled. If ‘legal traditions’ and ‘customs’ are taken into consideration when developing the arbitration framework, that will give a high margin of appreciation to the arbitrators that will be called to rule upon those disputes. Of course, if China has sufficient leverage on one country, it can renegotiate the existing BIT and introduce a mandatory reference to its new rules, but it is unlikely that many states will switch ICSID or UNCITRAL rules for CIETAC. Or choose an arbitral seat anywhere in Chinese mainland territory.

And that is why the Belt-and-Road is dependent upon a ‘string’ of regional arbitral venues that fulfil all the impartiality and quality requirements for every party involved. More precisely, in East and Southeast Asia, Hong Kong proves to be an excellent choice for the seat’s jurisdiction when arbitrating with Chinese entities. Its legal system comes from a long Anglo-Saxon tradition of upholding the rule of law and an independent judiciary. The quality of the arbitral institutions is extremely high (see the HKIAC, ICC-HK), as well as of local arbitrators. The enforcement is quite swift (compared to mainland China) and it is within the bounds of what a Western-based investor would expect. In addition, for this region, the Singapore International Arbitration Centre is also a good choice, benefitting from the same qualities as Hong Kong and – even more – a total disconnection with Chinese authorities.

On the other hand, in Central Asia, the Middle East, the Balkans or Eastern Europe, the offer is quite scarce. The projected arbitral venue in Astana is still just in blueprint phase, while Moscow and Teheran do not have a consistent track record in large commercial arbitration (and no experience in investment disputes). That could, perhaps, leave Istanbul on-route and – for the BRI end-point – one could consider the Vienna International Arbitral Centre. Otherwise, almost all other parties will consider using Hong Kong, Singapore or a traditional Western-based institution.

For these reasons, China must seriously invest in developing a network of sister-institutions along the entire BRI, each having a regional focus. Unitary rules could be adopted, drafted along the UNCITRAL ones, but with additional provisions that allow the BRI specifics to emerge. CIETAC ones might work just fine for Chinese companies that wish to settle a dispute against foreign entities or sovereigns, but they could prove insufficient and inadequate for a litigation going the other way round. And that is where such regional centers – ‘decoupled’ from China’s state apparatus – need to emerge. As a measure to build confidence and to symbolically reveal all other parties that Beijing is accepting to be bound by clear and transparent rules, well beyond its jurisdiction.

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
by Andrea Menaker
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The post The Structural Implications of Belt-and-Road Arbitration: China’s Legal Gamble across Eurasia appeared first on Kluwer Arbitration Blog.

ABA Conference Sessions You Might Enjoy

ADR Prof Blog - Sun, 2018-03-18 20:39
I love the ABA Section of Dispute Resolution annual conferences. They always put on a wide array of wonderful sessions and it’s a great time to connect with friends, old and new. As in the past, I am listing some sessions that particularly intrigue me.  This reflects my idiosyncratic tastes and it would be a … Continue reading ABA Conference Sessions You Might Enjoy →

Philippine Arbitration Center opens in Iloilo | SunStar - Sun.Star

Google International ADR News - Sun, 2018-03-18 04:35

Sun.Star

Philippine Arbitration Center opens in Iloilo | SunStar
Sun.Star
"So we have an arbitration center of an international caliber diri sa (here in) San Agustin," said Pueblo. A client can choose their own lawyer who can handle their cases based on the expertise. For example, if the problem is concerned with hospital ...

Tips from the Top: Young ICCA interviews Augustin Barrier, Lalive

Kluwer Arbitration Blog - Sun, 2018-03-18 02:18

Young ICCA

Young ICCA

1. What drew you to the world of International Arbitration?

I never had an epiphany regarding International Arbitration. I was drawn to it one small touch at a time, during internships. It started with discussing the field with fellow interns. I was from time to time asked to assist briefly on arbitration cases during a more intense period where the team was not sufficient to deal with the existing workload. These experiences progressively resulted in a certain attraction to the field.

2. When did you start laying the groundwork for a career in International Arbitration? (e.g., was it while in law school, during a moot court, during your career or placed on a case within your firm)

I have been playing hide and seek with International Arbitration for a while. Although familiar with arbitration thanks to my studies, I was not particularly interested in the field, from an academic point of view. If I had to pick a specific time when I really started thinking about a career in International Arbitration, it would be a course, in which the professor assigned us on a specific case, which we would have to summarise for the class and eventually defend one of the parties’ position. I was randomly assigned to an ICC arbitration case. While reviewing the materials and getting familiar with the facts and the procedure for the presentation, I felt like this was the type of work I would gladly be doing.

3. What kind of groundwork did you do to set yourself up? (e.g., what steps did you take to enter the field?)

As my appetite for the field grew over time, I started applying for intern positions focusing on international dispute settlement, including international litigation and arbitration. I also attended many conferences available for young practitioners, in order to meet more experienced players and discuss their experience.

4. Describe a pivotal moment in your career in arbitration and how did that affect your career (e.g., an opportunity to work with a prominent arbitrator/on a pioneering case?)

I remember a case, which started as a regular construction case, in which we represented the claimant against a State party in relation to a medium-size housing project. The parties had already exchanged a significant amount of correspondence, which made their respective positions rather transparent. The case appeared straightforward. However, during the process of appointing the arbitral tribunal, the respondent suddenly decided to use all guerrilla tactics in the book in order to derail the arbitration. On the same day, the local representatives of our client were arrested and deported, the State called all the performance bonds, which triggered cascading calls of first demand bank guarantees in several countries, and initiated criminal proceedings for alleged fraud in no less than three jurisdictions and a commercial case before its own courts.

Our client was obviously shocked and asked us to react on all fronts as swiftly as possible. In the blink of an eye, the case had transitioned from a solid monolithic dispute to a myriad of smaller cases in multiple jurisdictions, which we had to supervise and keep coherent, while trying to expedite the appointment process in the main arbitration case. After several months of efforts, we managed to get a tribunal appointed as well as emergency measures that forced the other side to put a halt to the various proceedings it had initiated. The case then moved on peacefully as initially anticipated. This thrilling episode made me realise that, not only is predictability alien to International Arbitration, but also that, to fully support and defend a client, an arbitration practitioner must be ready to wear as many different hats as circumstances dictate, simply because no one else will.

5. If we look at arbitration as a battlefield, what are the three metaphorical weapons any lawyer needs, and why?

Always simultaneously having one eye for the overall battle plan and one for the details of the operations, as well as an intact intellectual curiosity. Regardless of seniority, it is necessary to know the overall strategy of the case, even when assigned tasks that seem small and limited in scope. To make even the simplest tasks meaningful, one needs to know where they fit in the grand scheme of things. Attention to detail is essential and can make a huge difference when it comes to winning very complex cases. Finally, curiosity is, in my view, what makes a good practitioner. Being willing and ready to enter a whole new field for each new case is key. It is tempting to seek assignments on lines of similar cases, in which one has gained expertise. However, getting acquainted with new sets of facts, substantive laws and industries is what makes International Arbitration truly challenging and unique.

6. Upon reflection, are there any decisions you made that you feel aspiring arbitration practitioners could learn from?

When I started working, I managed to share my time between arbitration and domestic litigation for almost three years. Although I ended up focusing on International Arbitration, I do not regret having made this initial decision and the experience gained as a result. One may sometimes get the impression that International Arbitration exists and may be studied and practiced in a vacuum. However, the fundamental principles, which guide arbitration proceedings are similar as those guiding domestic proceedings. The procedural tools that the parties are free to devise and agree on in international arbitration, which make the field so rich and diverse, frequently come from domestic litigation. Having practised commercial and criminal litigation on the side, an arbitration practitioner is bound to benefit from decades of procedural creativity and guidance developed in a specific legal system.

7. Is there any additional candid advice or insight that you can offer to assist those who are entering the field, deciding whether to enter the field, or already are in the field of International Arbitration?

Knowing from the beginning that you are attracted to International Arbitration is a considerable strength. Students can plan ahead and shape their academic curriculum in accordance with their goal. However, some can be tempted to cut corners and neglect an essential feature of what makes a good arbitration practitioner: actual legal skills. Having an in-depth knowledge of International Arbitration as a field is of course very important. However, it is necessary to have legal instincts that one can only develop on the basis of a thorough knowledge of a domestic legal system. Things like statute of limitations, mandatory rules, defective consent are not identical throughout legal systems, but often share similar features. The instincts and reflexes gained by studying your own legal system thus generally pay off, even when you are confronted with an applicable law that you have neither studied, nor practiced.

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The post Tips from the Top: Young ICCA interviews Augustin Barrier, Lalive appeared first on Kluwer Arbitration Blog.

India Shining in Arbitration? - India Legal (satire)

Google International ADR News - Sun, 2018-03-18 01:36

India Legal (satire)

India Shining in Arbitration?
India Legal (satire)
This Bill, according to a government press release, is part of the efforts to encourage institutional arbitration for settlement of disputes and make India a centre of robust Alternative Dispute Resolution mechanism. As per the press release, a high ...

Arbitration: Modi Government's forward march - India Legal - India Legal (satire)

Google International ADR News - Sat, 2018-03-17 05:37

India Legal (satire)

Arbitration: Modi Government's forward march - India Legal
India Legal (satire)
Prime Minister Narendra Modi's cabinet gave an enthusiastic nod to a vital piece of legislation that could help India move more swiftly in the direction of becoming an important international hub in legal arbitration.

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After Achmea: The Need for an EU Investment Protection Regulation

Kluwer Arbitration Blog - Sat, 2018-03-17 03:22

Nikos Lavranos

The Achmea judgment, passed on the 6th of March 2018, and addressed in the Kluwer blog posts available here and here, prompted us to think about what could be the way forward for an effective investment and investor protection within the EU.

Now that the CJEU decided that investment treaty arbitration based on intra-EU BITs is not compatible with EU law, the focus of attention must now shift towards the domestic courts of the Member States as the guardians of protecting the rights of European investors.

The question arises which legal instruments can be invoked by investors before domestic courts?

Obviously, domestic laws, including constitutional law. Since the domestic laws of the Member States differ, the level of protection will vary, thereby leading to a discriminatory treatment of investors and to varying degree of protection in the respective Member States.

In addition, investors may be able to rely on EU law, including the EU Charter of Fundamental Rights and the European Convention on Human Rights, as far as it is incorporated in domestic law or via reference by the CJEU jurisprudence.

Finally, as long as the existing intra-EU BITs are not terminated, investors should still be able to rely on the substantive protection standards contained in those BITs before domestic courts, since the BITs are part of the domestic legal order of the Member States. Accordingly, domestic courts have an extensive toolbox of instruments available enabling them to provide investors with the necessary legal protection.

However, the reality is that in many Member States the judicial system is slow, malfunctioning, corrupted and under political control or pressure. The 2017 EU justice scoreboard, which the European Commission publishes every year, illustrates the shortcomings in the judicial systems of the Member States. Hence, in reality, domestic courts currently are often not an effective alternative for European investors.

One way to improve the situation could be to draft and adopt an EU regulation on investment protection that would incorporate the substantive and procedural standards currently contained in the gold standard BITs, such as in particular the Dutch BITs.

Accordingly, this regulation would contain the Fair and Equal Treatment, Most-Favored-Nation, National Treatment standards as well as an (in)direct expropriation with full compensation provision and an umbrella clause. The procedural standards would include specified timelines for concluding the proceedings and guarantees for the impartiality and independence of domestic courts.

The main advantage of an EU regulation would be that it would be directly applicable in all Member States, without any implementing acts necessary, and would have a legal status that would be superior to all laws and even the constitutions of the Member States. In this way, the EU could with immediate effect create a harmonized system of investment and investor protection within the EU – at least on paper.

In addition, now that the European Commission has successfully concluded its crusade against investment treaty arbitration based on intra-EU BITs, it is particularly responsible for effectively and significantly improving the judicial systems, and more generally, the Rule of Law in the Member States. This would not only benefit foreign investors, but also domestic investors and all EU citizens generally. Indeed, this would be a positive contribution, which might help improve the rather poor image of the EU, which it has in broad sections of the EU population.

In sum, while the Achmea judgment certainly was not helpful from the perspective of the protection of fundamental rights and the Rule of Law, it does provide for the EU an opportunity to deliver something positive and thereby increase trust and legal certainty. This, in turn, may also boost the desperately needed foreign and domestic investments in the Member States, and thus create jobs.

It remains to be seen whether the European Commission will propose such a regulation on investment protection, or instead continue its rather destructive approach against the remaining investment treaties such as the ECT and the 1500 extra EU BITs of the Member States.

 

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The post After Achmea: The Need for an EU Investment Protection Regulation appeared first on Kluwer Arbitration Blog.

BOOKED for 17 March 2018: BREXIT – anti-suit injuctions

Kluwer Arbitration Blog - Sat, 2018-03-17 03:14

Patricia Živković (Associate Editor)

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Tales from the City

ADR Prof Blog - Fri, 2018-03-16 14:06
From New York, an interesting institutional approach to small-stakes dispute resolution: the Office of Administrative Trials and Hearings (OATH). According to the article, OATH was created in 1979 as an “independent alternative” to internal agency tribunals. Over the years, OATH has slowly gained jurisdiction over a wide variety of cases, many of which are community/neighborhood-level … Continue reading Tales from the City →

Alternative Dispute Resolution in Reinsurance - Lexology

Google International ADR News - Fri, 2018-03-16 11:00

Alternative Dispute Resolution in Reinsurance
Lexology
In view of the international character and specific nature of the reinsurance, some disputes may occur between the parties involved in a reinsurance contract. Such disputes may sometimes lead to litigation, which is, in most cases, time consuming ...

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