Journal of International Arbitration, Volume 26, Number 1, 2009
SUMMARIES
Anna Turinov, '“Investment” and “Investor” in Energy Charter Treaty Arbitration: Uncertain Jurisdiction' (2009) 26 Journal of International Arbitration pp. 1-23
Summary:
Establishing investor status is a precondition for substantive protections, and a key jurisdictional issue in arbitration, of investor–state disputes under the Energy Charter Treaty (ECT). This article argues that the differences in the ways the term “investment” is interpreted in arbitration under the ICSID Convention and in international commercial arbitration are to a large extent preserved in arbitration under the Energy Charter Treaty. In ICSID arbitration, which preserves many elements of state sovereignty, tribunals have set a higher threshold for “investment.” In international commercial arbitration, on the other hand, the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) has interpreted the term more broadly, thus capturing more investor activities in the energy sector of the host states. Moreover, both types of arbitral procedure available under the Energy Charter Treaty continue to have their respective advantages and disadvantages. However, given the changing role of states in the global energy sector, this traditional divide may become less clear.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009001
Summary:
Establishing investor status is a precondition for substantive protections, and a key jurisdictional issue in arbitration, of investor–state disputes under the Energy Charter Treaty (ECT). This article argues that the differences in the ways the term “investment” is interpreted in arbitration under the ICSID Convention and in international commercial arbitration are to a large extent preserved in arbitration under the Energy Charter Treaty. In ICSID arbitration, which preserves many elements of state sovereignty, tribunals have set a higher threshold for “investment.” In international commercial arbitration, on the other hand, the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) has interpreted the term more broadly, thus capturing more investor activities in the energy sector of the host states. Moreover, both types of arbitral procedure available under the Energy Charter Treaty continue to have their respective advantages and disadvantages. However, given the changing role of states in the global energy sector, this traditional divide may become less clear.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009001
Kate Miles, Luke Nottage, '“Back to the Future” for Investor–State Arbitrations: Revising Rules in Australia and Japan to Meet Public Interests' (2009) 26 Journal of International Arbitration pp. 25-58
Summary:
The more things change, the more some stay the same. This article first highlights renewed concerns about delays and, especially, costs in international commercial arbitration (ICA). Many now urge quite radical solutions to make ICA more efficient, including allowing parties to authorize arbitrators to facilitate settlement (Arb–Med). At the same time, there are growing calls for more transparency, non–party participation, and other rule changes to promote the legitimacy of the burgeoning field of investor–state arbitration (ISA). Such reforms are justified by the greater variety of public interests involved in ISA, despite some possible losses in efficiency. We should resist a tendency simply to extend the solutions devised or proposed for ICA, particularly in the form of Rules of arbitral institutions, to contemporary ISA.However, some reforms incorporating proper safeguards may also be advisable in both fields, such as Arb–Med processes, or arbitrator remuneration providing better incentives to streamline proceedings. Many reforms can be implemented by institutions devising tailored ISA Rules, to be added as options for investors in bilateral or regional investment treaties or Free Trade Agreements (FTAs). Our article therefore proposes a variety of improvements. These are based on comparisons of the main Rules adopted for ISA (ICSID and the UNCITRAL Rules), the arbitration Rules of institutions like the Australian Centre for International Commercial Arbitration (ACICA) and the Japan Commercial Arbitration Association ( JCAA), and some of the provisions already found in Australia’s FTAs or governing trade disputes under the World Trade Organization (WTO) system. Hopefully, these improvements will enable ISA to keep developing through bilateral initiatives such as the proposed Australia–Japan FTA, emerging regional initiatives, and ultimately a new multilateral framework for investment. Although reforms are currently needed to bolster the legitimacy of ISA, longer–term reforms may instead re–emphasize efficiency, rather like ICA has done after decades spent achieving global acceptance.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009002
Summary:
The more things change, the more some stay the same. This article first highlights renewed concerns about delays and, especially, costs in international commercial arbitration (ICA). Many now urge quite radical solutions to make ICA more efficient, including allowing parties to authorize arbitrators to facilitate settlement (Arb–Med). At the same time, there are growing calls for more transparency, non–party participation, and other rule changes to promote the legitimacy of the burgeoning field of investor–state arbitration (ISA). Such reforms are justified by the greater variety of public interests involved in ISA, despite some possible losses in efficiency. We should resist a tendency simply to extend the solutions devised or proposed for ICA, particularly in the form of Rules of arbitral institutions, to contemporary ISA.However, some reforms incorporating proper safeguards may also be advisable in both fields, such as Arb–Med processes, or arbitrator remuneration providing better incentives to streamline proceedings. Many reforms can be implemented by institutions devising tailored ISA Rules, to be added as options for investors in bilateral or regional investment treaties or Free Trade Agreements (FTAs). Our article therefore proposes a variety of improvements. These are based on comparisons of the main Rules adopted for ISA (ICSID and the UNCITRAL Rules), the arbitration Rules of institutions like the Australian Centre for International Commercial Arbitration (ACICA) and the Japan Commercial Arbitration Association ( JCAA), and some of the provisions already found in Australia’s FTAs or governing trade disputes under the World Trade Organization (WTO) system. Hopefully, these improvements will enable ISA to keep developing through bilateral initiatives such as the proposed Australia–Japan FTA, emerging regional initiatives, and ultimately a new multilateral framework for investment. Although reforms are currently needed to bolster the legitimacy of ISA, longer–term reforms may instead re–emphasize efficiency, rather like ICA has done after decades spent achieving global acceptance.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009002
Frédéric Bachand, 'Overcoming Immunity–Based Objections to the Recognition and Enforcement in Canada of Investor–State Awards' (2009) 26 Journal of International Arbitration pp. 59-87
Summary:
Canada’s State Immunity Act is problematic in that it does not clearly prevent foreign states from raising pleas of jurisdictional immunity to defeat applications seeking the recognition and enforcement of arbitral awards made against them. Worst, the Act can even be interpreted as allowing foreign states to raise such pleas to avoid obligations arising out of international awards. In this respect, Canadian law is clearly out of step with the law in force in jurisdictions that can truly be said to be wholehearted supporters of the international arbitration system, where such pleas are, quite rightly, unambiguously forbidden. While ideally the problem would be addressed through a legislative amendment, this article contends that it can be addressed through a dynamic and contextual interpretation of the Act’s provisions relating to the waiver exception.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009003
Summary:
Canada’s State Immunity Act is problematic in that it does not clearly prevent foreign states from raising pleas of jurisdictional immunity to defeat applications seeking the recognition and enforcement of arbitral awards made against them. Worst, the Act can even be interpreted as allowing foreign states to raise such pleas to avoid obligations arising out of international awards. In this respect, Canadian law is clearly out of step with the law in force in jurisdictions that can truly be said to be wholehearted supporters of the international arbitration system, where such pleas are, quite rightly, unambiguously forbidden. While ideally the problem would be addressed through a legislative amendment, this article contends that it can be addressed through a dynamic and contextual interpretation of the Act’s provisions relating to the waiver exception.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009003
Jacob Rosoff, 'Hybrid Efficiency in Arbitration: Waiving Potential Conflicts for Dual Role Arbitrators in Med–Arb and Arb–Med Proceedings' (2009) 26 Journal of International Arbitration pp. 89-100
Summary:
Having the same person act as both arbitrator and mediator to resolve a dispute may be an effective means of dispute resolution but is not without pitfalls for the unwary. There are many inherent problems with this combination that, if left unresolved, can jeopardize the arbitration proceedings or the enforceability of any resulting arbitration award. This article examines the conduct that may give rise to a successful challenge of a dual role arbitrator for his/her conduct during the arbitration or mediation proceedings and how such a challenge may be avoided. Specifically, this article demonstrates how parties can explicitly or implicitly waive their rights to challenge the dual role arbitrator in this regard.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009004
Summary:
Having the same person act as both arbitrator and mediator to resolve a dispute may be an effective means of dispute resolution but is not without pitfalls for the unwary. There are many inherent problems with this combination that, if left unresolved, can jeopardize the arbitration proceedings or the enforceability of any resulting arbitration award. This article examines the conduct that may give rise to a successful challenge of a dual role arbitrator for his/her conduct during the arbitration or mediation proceedings and how such a challenge may be avoided. Specifically, this article demonstrates how parties can explicitly or implicitly waive their rights to challenge the dual role arbitrator in this regard.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009004
Locknie Hsu, 'Public Policy Considerations in International Arbitration: Costs and Other Issues A View from Singapore' (2009) 26 Journal of International Arbitration pp. 101-131
Summary:
International arbitration awards are generally difficult to undo these days, given the legislative and judicial trend in many countries to take a restrictive approach towards review and appeals from such awards. However, where a costs award is made and there may be serious questions as to how those costs were arrived at by an arbitrator, an argument may be made that enforcement of such an award raises public policy concerns. This article examines two recent Singapore cases discussing the public policy ground under Singapore’s International Arbitration Act, one of which relates directly to an award on costs. It explores whether a too restrictive approach to this ground might prove counter–productive to the overall objective of promoting arbitration as a method of dispute resolution.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009005
Summary:
International arbitration awards are generally difficult to undo these days, given the legislative and judicial trend in many countries to take a restrictive approach towards review and appeals from such awards. However, where a costs award is made and there may be serious questions as to how those costs were arrived at by an arbitrator, an argument may be made that enforcement of such an award raises public policy concerns. This article examines two recent Singapore cases discussing the public policy ground under Singapore’s International Arbitration Act, one of which relates directly to an award on costs. It explores whether a too restrictive approach to this ground might prove counter–productive to the overall objective of promoting arbitration as a method of dispute resolution.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009005
Sidharth Sharma, 'Public Policy Under the Indian Arbitration Act In Defence of the Indian Supreme Court’s Judgment in ONGC v. Saw Pipes' (2009) 26 Journal of International Arbitration pp. 133-147
Summary:
The “public policy” ground for setting aside an arbitral award has been the subject of considerable debate in the realm of arbitration law. The Indian Supreme Court in the case of ONGC v. Saw Pipes, while giving an expanded meaning to “public policy,” held that a “patently illegal arbitral award” is against public policy and hence could be set aside by courts on that ground. The judgment was widely seen as erroneous by legal commentators and practitioners alike. This article, however, attempts to present a counter–view and argues that the Indian Supreme Court’s judgment in Saw Pipes, contrary to the views of many, has in fact laid down a correct and sound legal principle giving the doctrine of public policy its full amplitude.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009006
Summary:
The “public policy” ground for setting aside an arbitral award has been the subject of considerable debate in the realm of arbitration law. The Indian Supreme Court in the case of ONGC v. Saw Pipes, while giving an expanded meaning to “public policy,” held that a “patently illegal arbitral award” is against public policy and hence could be set aside by courts on that ground. The judgment was widely seen as erroneous by legal commentators and practitioners alike. This article, however, attempts to present a counter–view and argues that the Indian Supreme Court’s judgment in Saw Pipes, contrary to the views of many, has in fact laid down a correct and sound legal principle giving the doctrine of public policy its full amplitude.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009006
Jennifer Kirby, 'Sourcing Unlimited, Inc. v. Asimco Int’l, Inc.: Appellate Jurisdiction and Equitable Estoppel' (2009) 26 Journal of International Arbitration pp. 149-158
Summary:
In Sourcing Unlimited, Inc. v. Asimco Int’l, Inc., the United States Court of Appeals for the First Circuit reverses a district court decision denying defendants’ motion to compel arbitration. In doing so, the court addresses two key issues. First, the court analyzes, as a matter of first impression, whether it has jurisdiction to hear an interlocutory appeal from an order denying a motion to compel arbitration of an international commercial dispute, where the appeal is brought by a party that did not sign the agreement containing the arbitration clause. Second, the court addresses the circumstances under which it is appropriate to compel arbitration based on principles of equitable estoppel. The court’s analysis brings into focus what United States courts appear to be doing when they compel arbitration on this basis.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009007
Summary:
In Sourcing Unlimited, Inc. v. Asimco Int’l, Inc., the United States Court of Appeals for the First Circuit reverses a district court decision denying defendants’ motion to compel arbitration. In doing so, the court addresses two key issues. First, the court analyzes, as a matter of first impression, whether it has jurisdiction to hear an interlocutory appeal from an order denying a motion to compel arbitration of an international commercial dispute, where the appeal is brought by a party that did not sign the agreement containing the arbitration clause. Second, the court addresses the circumstances under which it is appropriate to compel arbitration based on principles of equitable estoppel. The court’s analysis brings into focus what United States courts appear to be doing when they compel arbitration on this basis.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009007
Alexander Orakhelashvili, 'Principles of Treaty Interpretation in the NAFTA Arbitral Award on Canadian Cattlemen' (2009) 26 Journal of International Arbitration pp. 159-173
Summary:
The NAFTA arbitral award on Canadian Cattlemen is specific in having its entire reasoning based on principles of treaty interpretation. Attempting to clarify the notion of “investment” under the NAFTA Agreement, this award carefully examines every principle of interpretation recognized under the Vienna Convention on the Law of Treaties that is applicable to the case. This article analyses the tribunal’s use of the methods of interpretation such as plain and ordinary meaning, object and purpose, context, subsequent practice and of supplementary means of interpretation. In terms of supplementary methods of interpretation, the tribunal’s reference to previous arbitral awards as supplementary means of treaty interpretation is evaluated, especially against the background of the lack of precedential force of international arbitral awards.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009008
Summary:
The NAFTA arbitral award on Canadian Cattlemen is specific in having its entire reasoning based on principles of treaty interpretation. Attempting to clarify the notion of “investment” under the NAFTA Agreement, this award carefully examines every principle of interpretation recognized under the Vienna Convention on the Law of Treaties that is applicable to the case. This article analyses the tribunal’s use of the methods of interpretation such as plain and ordinary meaning, object and purpose, context, subsequent practice and of supplementary means of interpretation. In terms of supplementary methods of interpretation, the tribunal’s reference to previous arbitral awards as supplementary means of treaty interpretation is evaluated, especially against the background of the lack of precedential force of international arbitral awards.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009008