Journal of International Arbitration, Volume 26, Number 2, 2009

 
SUMMARIES
 
Markus Burgstaller, 'European Law and Investment Treaties' (2009) 26 Journal of International Arbitration pp. 181-216

Summary:
The interrelation between European law and investment treaties is becoming ever more important. Recently,international arbitral tribunals had to consider questions such as the validity of bilateral investment treaties (BITs) concluded or in force between EU Member States and the applicability of EC law in investment disputes. An Advocate General (AG) at the European Court of Justice (ECJ) opined that some of Austria’s and Sweden’s BITs would violate EC law. In the course of the most recent enlargement processes of the EU, the Commission demanded adjustments to BITs of the now new Member States. In addition, the Commission’s Minimum Platform on Investment (MPoI) encroaches upon Member States’ competence to conclude and amend their BITs. Both the Communities and the Member States are parties to the Energy Charter Treaty (ECT). Under this treaty, third state nationals may bring claims against both the Communities and the Member States, but whereas EU nationals are barred from bringing claims against the Communities, they may still bring claims against other Member States. While the fate of the Treaty of Lisbon is still unclear, its entry into force would have fundamental consequences for international investment law.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009010
 
 
Prabhash Ranjan, 'Definition of Investment in Bilateral Investment Treaties of South Asian Countries and Regulatory Discretion' (2009) 26 Journal of International Arbitration pp. 217-235

Summary:
Due to the growing number of investor–state arbitrations and increasing number of bilateral investment treaties (BITs) being signed, it has become important to understand the implications of BITs for host countries. In this light, this article analyses the broad asset based definition of investment in the BITs signed by four South Asian countries, namely Bangladesh, Pakistan, India, and Sri Lanka. This analysis also assumes importance because these four countries, together, had signed 155 BITs at the end of 2007. Since the definition of investment is an important component of the investment treaties, this article attempts to understand the implications of a broad asset based definition of investment on the regulatory discretion of these four countries. In this context,this article also discusses the jurisprudence on the definition of investment that has emerged in the International Centre for Settlement of Investment Disputes (ICSID) cases and other international arbitration forums and its relationship with the broad asset based definition of investment which is found in most BITs.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009011
 
 
Lanfang Fei, 'Setting Aside Foreign–Related Arbitral Awards under Chinese Law A Study in Perspective of Judicial Practice' (2009) 26 Journal of International Arbitration pp. 237-248

Summary:
This article reviews nineteen cases concerning the setting aside of foreign–related arbitral awards in China. Apart from presenting statistical information, the author focuses on how the courts interpret regulations in cases. The main finding is that the Supreme People’s Court (SPC) tends to apply the regulations with a pro–arbitration attitude, which can be supported by its restrictive interpretation of prescribed grounds, preference for remission and broad use of setting aside awards only partially. In addition, the study also reveals a series of practical problems caused by an inconsistent arbitration legal system. The author recommends that the Arbitration Law (AL) of China should not only prescribe the grounds for setting aside foreign-related awards directly but also clearly specify the definition of foreign–related arbitral award.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009012
 
 
Dr. Günther J. Horvath, 'What Weight Should be given to the Annulment of an Award under the Lex Arbitri?The Austrian and German Perspectives' (2009) 26 Journal of International Arbitration pp. 249-266

Summary:
Over the past two decades various national courts have repeatedly been asked to enforce arbitral awards that have previously been set aside in their country of origin. However, even today judgments in case law and opinions among arbitration practitioners continue to differ remarkably on the question of the (il)legitimacy of enforcement orders for such awards. As was demonstrated in the article by Christopher Koch, French courts have manifested their readiness to enforce annulled awards in principle, whereas others, like the U.S. courts, have shifted from an enforcement–friendly attitude to a rather more reluctant approach. The following article explores the constraints that confine enforcing courts’ discretion on enforcement and discusses the approaches taken by Austrian and German courts.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009013
 
 
Christopher Koch, 'The Enforcement of Awards Annulled in their Place of Origin The French and U.S. Experience' (2009) 26 Journal of International Arbitration pp. 267-292

Summary:
This article examines to what extent awards which have been annulled in their country of origin can be enforced in France and the United States. In the 1990s the Hilmarton case in France and the Chromalloy decision in the United States seemed to indicate that French and U.S. case law was moving in a similar direction. In both cases the courts enforced awards that had been set aside in their place of origin, not pursuant to the New York Convention, but on the basis of the more favourable provisions of domestic arbitration law. However, since then, the French and U.S. courts have taken diametrically opposed views. While the French courts continue to ignore foreign annulment decisions altogether, and will enforce an international arbitration award regardless of what the home jurisdiction finds as to its validity, U.S. courts have increasingly refused to enforce awards which were set aside at the place of arbitration. U.S. courts will disregard a foreign annulment decision only if it fundamentally violates U.S. public policy. This article argues in favour of a middle approach. By giving the word “may” in the phrase “Recognition and enforcement of the award may be refused” in Article V of the New York Convention greater weight, enforcement courts can examine the validity of a foreign annulment decision in the light of internationally recognized annulment reasons and not from the perspective of domestic rules pertaining to the recognition of foreign judicial decisions. This should strengthen the international efficacy of commercial arbitral awards within the framework of the New York Convention and not on the basis of domestic arbitration law.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009014
 
 
Beatrice Castellane, 'Arbitration in Employment Relationships in France' (2009) 26 Journal of International Arbitration pp. 293-299

Summary:
French labour law mainly protects the needs of the employees and consequently takes precedence over private agreements. Bearing this in mind, arbitration is rarely used in labour disputes in France and whenever it is used, it is essentially restricted to disputes arising out of collective agreements between national or local unions of employers and national or local unions of employees.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009015
 
 
Yuliya S. Chernykh, 'International Commercial Arbitration in Ukraine: Details Do Matter' (2009) 26 Journal of International Arbitration pp. 301-306

Summary:
Being a UNCITRAL Model Law country and a signatory to the New York Convention, Ukraine has a regime generally favourable to international commercial arbitration. However, some peculiarities outside of the original scope of the UNCITRAL Model Law and the New York Convention do exist in Ukraine, which may surprise foreign practitioners. The present article briefly discusses those special features of international commercial arbitration in Ukraine relating to arbitrability, evidentiary practice, recognition and enforcement of awards.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009016