Journal of International Arbitration, Volume 26, Number 5, 2009
SUMMARIES
Summary:
This article seeks to provide a comprehensive review of the international law on confidentiality in arbitration both in terms of theory and in practice (by examining national legislation and the rules of the various institutions). The essential point is that the problem is not in defining confidentiality but in defining the exceptions to the duty of confidentiality where such a duty is recognized. The argument is made that, in practice, it is difficult to come up with a comprehensive formula for, or list of, all the exceptions to the obligation of confidentiality. However, there is an examination of the most comprehensive and recent attempt to codify the exceptions to the duty of confidentiality in the New Zealand Arbitration Act 1996 (2007 Amendment). Nonetheless, even as the New Zealand Arbitration Act 1996 recognizes, no code can be fully comprehensive, and there must be room for an independent third party (either the tribunal or the curial court) to rule on permitted exceptions to the obligation of confidentiality.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009034
Pietro Ferrario, 'The Group of Companies Doctrine in International Commercial Arbitration: Is There any Reason for this Doctrine to Exist?' (2009) 26 Journal of International Arbitration pp. 647–673
Summary:
The group of companies doctrine aims to extend, under certain conditions, the arbitration agreement signed only by one or some of the companies of a group also to the non-signatory companies of the same group. One of the most interesting issues related to this doctrine is the relationship with the piercing or lifting the corporate veil doctrine. This article analyzes and compares the case law applying these two theories, in order to determine whether there is any difference between them in relation to their scope and the conditions required by courts and arbitration tribunals for their application. In particular, the article aims to determine, on the basis of the result of the above analysis, whether there is any reason for the group of companies doctrine to exist and, as consequence, whether it is possible to rely on it to extend the arbitration agreement to the non-signatory companies of a group.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009035
Rahim Moloo, 'Arbitrators Granting Antisuit Orders: When Should They and on What Authority?' (2009) 26 Journal of International Arbitration pp. 675–700
Summary:
Parallel proceedings are common even when an arbitral agreement mandates that all disputes be resolved in one forum. When a party to an arbitration agreement wishes to prevent the other from pursuing a parallel proceeding it may seek an antisuit remedy, either from the court at the seat of arbitration or from the arbitral tribunal. This article considers when and on what authority an arbitral tribunal should grant an antisuit order. This article argues that an exclusive arbitration agreement, requiring the parties to resolve their disputes through arbitration to the exclusion of any other forum, gives arbitrators the authority to grant an antisuit order to remedy a breach of the arbitration agreement itself. It is also argued that an award of damages covering the costs of the parallel litigation may be an appropriate supplementary remedy for the breach of an arbitration agreement, or an appropriate remedy for the breach of an antisuit order already granted.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009036
Ismail G. Esin, Steffen Hindelang, Stephan Wilske, 'Turkey: Soon to Face a Wave of International Investment Arbitrations?' (2009) 26 Journal of International Arbitration pp. 701–728
Summary:
This article describes the still relatively recent changes in Turkey’s attitude towards foreign direct investment (FDI), the wave of FDI inflows as well as Turkey’s commitment to international investment instruments as contained in bilateral investment treaties (BITs) and the Energy Charter Treaty (ECT). Further, this article identifies certain potential catalysts for investment claims against Turkey, describing perceived shortcomings in Turkey’s legislative and administrative system which might carry the potential to trigger such claims by foreign investors against Turkey. This article concludes that the national policy-makers in Turkey should carefully analyze legislative and administrative reform decisions in light of Turkey’s commitments contained in the international investment instruments to which Turkey has subscribed.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009037
Jorge E. Viñuales, Pierre-Yves Tschanz, 'Compensation for Non-expropriatory Breaches of International Investment Law—The Contribution of the Argentine Awards' (2009) 26 Journal of International Arbitration pp. 729–743
Summary:
The article explores the rules applicable to the determination of damages for breaches of investment protection standards other than expropriation in the light of recent awards rendered in disputes involving Argentina. The authors argue, in essence, that: (i) the standards of compensation and valuation techniques used for expropriation are not, as such, legally barred in cases of non-expropriatory breaches of international investment law; (ii) the criteria to determine whether or not to borrow the standards and techniques used in case of expropriation are of a factual nature, namely the type of asset or of damage which is at stake and the intensity of the interference with the economic position of the investor; (iii) the valuation techniques that may be deployed to assess specifically what is required by a given standard of compensation are not, as such, imposed by international investment law and, as result, a tribunal can decide whether or not to use the Discounted Cash Flow (DCF) method to assess the fair market value of a given asset.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009038
Yuliya Chernykh, 'Arbitrability of Corporate Disputes in Ukraine' (2009) 26 Journal of International Arbitration pp. 745–749
Summary:
Recently, with the introduction of the Law No. 1076- VI dated March 5, 2009, the issue of arbitrability of corporate disputes has once again become highly controversial in Ukraine, reminiscent of the discussions which took place in 2007–2008 following the Recommendations of the High Commercial Court of Ukraine of December 28, 2007. This time corporate disputes became non-arbitrable as a matter of law. This article briefly analyzes the true reasons behind the legislative amendments as well as their particular scope. Despite the broad definition of a corporate dispute, share purchase agreements are still not covered by it and are thus fully arbitrable.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009039