Journal of International Arbitration, Volume 26, Number 6, 2009

 

SUMMARIES


Andrea Carska-Sheppard, 'Issues Relevant to the Termination of Bilateral Investment Treaties' (2009) 26 Journal of International Arbitration pp. 755–771

Summary:
Unlike the umbrella clauses contained in bilateral investment treaties (BITs), the termination clauses and issues relevant to the termination of BITs have not sparked the same level of legal interest. BITs occupy an area in the legal system at the intersection of sensitive political and legal issues and, as such, the process of termination of BITs is not void of its complexities. This article discusses some of the issues of termination of BITs by first setting up a brief background on the termination of treaties. It then focuses on BITs and their termination effectuated pursuant to the provisions of the treaty, before turning to supposed premature termination of BITs. The discussion on damages resulting from improper termination is integrated into the debate on the benefits of renegotiation over termination. New econometric studies are more conclusive on the impact of BITs on economic growth in the host states. In this politically sensitive area, when combined with the complex political and legal considerations, the ideal of the survival of the relationship after a termination seems to be the preferred choice.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009041


Régis Bismuth, 'Anatomy of the Law and Practice of Interim Protective Measures in International Investment Arbitration' (2009) 26 Journal of International Arbitration pp. 773–821

Summary:
This article provides an overall analysis of the law and practice of interim protection in international investment arbitration, covering the most commonly used arbitral frameworks (International Center for Settlement of Investment Disputes (ICSID) Convention, and the Arbitration Rules of the ICSID Additional Facility, United Nations Commission on International Trade Law (UNCITRAL), Stockholm Chamber of Commerce (SCC), International Chamber of Commerce (ICC) and London Court of International Arbitration (LCIA)). It analyzes the legal status of interim protective measures and more specifically their legal basis, their binding force, and the procedural aspects of their adoption, highlighting significant dissimilarities between ICSID Convention and other arbitral mechanisms when it comes to the role of domestic courts in this process. The article also looks into the substantive aspects of interim protection, a field where the differences between these frameworks tend to become less pronounced. Despite wording differences in arbitration rules, we are witnessing an important convergence of the practice of tribunals and a common reliance by arbitrators on the jurisprudence of international courts and tribunals.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009042


Ula Cartwright-Finch, Craig Tevendale, 'Privilege in International Arbitration: Is It Time to Recognize the Consensus?' (2009) 26 Journal of International Arbitration pp. 823–839

Summary:
Privilege remains a persistent problem for parties, counsel, and arbitrators in international arbitration. It presents a challenge to which there can be no single, perfect solution in complex arbitral proceedings where the law and practice of several jurisdictions may be relevant to the selection of appropriate rules of privilege. It is, however, possible to identify a growing consensus from a close study of international arbitral practice and the considerable scholarship in this area. This article examines the key approaches which arbitral tribunals may take to resolve the issue of privilege in international arbitration, drawing upon the existing guidance of institutional and procedural rules, national laws and the theoretical bases for privilege in all legal systems. Based on this analysis and the consensus which emerges, this article tenders a definitive revision of existing procedural rules which would provide the certainty, without unnecessary prescription, that this complex area of arbitral procedure demands.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009043


Alastair Henderson, 'Enforcement of Arbitral Awards in Indochina—Law, Practice, and Alternatives' (2009) 26 Journal of International Arbitration pp. 841–857

Summary:
This article surveys the enforcement of arbitration awards in five Southeast Asian nations: Vietnam, Laos, Cambodia, Thailand, and Myanmar. Each has large and urgent needs for foreign investment but each presents a legal system with a less than spotless record for effective and transparent investment protection. The article reviews current laws and the extent to which practice follows the law. In light of the conclusion that law and practice are often not aligned across the region, it concludes with a short discussion of the implications and possible alternatives for those affected.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009044


Nicholas Pengelley, 'Waiver of Sovereign Immunity from Execution: Arbitration is Not Enough' (2009) 26 Journal of International Arbitration pp. 859–872

Summary:
A continuing controversy in international commercial arbitration concerns the right of a private party to an arbitration to execute an award against a recalcitrant state party, despite the advent of the doctrine of restricted immunity, which seemingly applies only to waiver of jurisdiction, not execution. The problematic issue is the extent to which, if at all, a state that has waived sovereign immunity from jurisdiction has also waived immunity from execution—in effect from enforcement of an arbitral award by attachment of its sovereign assets. In a sign that the old order may be changing, some courts have been willing to hold that consent by a state to arbitration implies waiver of immunity from execution as well as from jurisdiction. The issue was recently tackled by the Hong Kong Court of First Instance, in FG Hemisphere Associates L.L.C. v. Democratic Republic of Congo. Reyes, J. looked at what might constitute waiver of sovereign immunity, particularly with respect to immunity from execution in the context of enforcement of an arbitral award against a state, finding that participation in an arbitration, including agreement to arbitral rules requiring satisfaction of an award, was not sufficient to constitute waiver of immunity from execution in itself. Taking that decision as a useful starting place, this article discusses the issue of waiver of sovereign immunity from execution with respect to arbitral awards.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009045


Sigvard Jarvin, 'Swedish Court Decisions on Arbitration, 1999 to 2008' (2009) 26 Journal of International Arbitration pp. 873–889

Summary:
During the ten years that followed the enactment of the Arbitration Act 1999, the Swedish Supreme Court and courts of appeal have rendered a number of decisions in arbitration-related matters. This article comments on selected cases of particular interest to the international practitioner, including, inter alia, the Swedish doctrine of assertion, the law applicable to an agreement to arbitrate, arbitrability of competition law issues, review of arbitrators’ fees, confidentiality, reasons in arbitral awards and the jurisdiction of Swedish courts in international matters.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009046


Jacob Grierson, 'Comment on West Tankers Inc. v. RAS Riunione Adriatica di Sicurta S.p.A. (The Front Comor)' (2009) 26 Journal of International Arbitration pp. 891–901

Summary:
In West Tankers Inc. v. RAS Riunione Adriatica di Sicurta S.p.A. (The Front Comor), the European Court of Justice (ECJ) held that it is inconsistent with Council Regulation 44/2001 (EC) for a court of an EU Member State to issue an antisuit injunction forbidding a lawsuit to proceed in another Member State, even if the antisuit injunction is issued in support of an arbitration agreement. This comment summarizes the ECJ’s judgment, which has given rise to considerable criticism, as well as the U.K. House of Lords’ earlier judgment, which had advocated the opposite conclusion. It also considers some of the consequences of the ECJ’s judgment, including in particular the risk that judgments rendered in disregard of arbitration agreements will have to be enforced, and proposes a possible solution to this problem.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009047


Jacob Grierson, Dr. Mireille Taok, 'Comment on Dallah v. Pakistan: Refusal of Enforcement of an ICC Arbitration Award against a Non-Signatory' (2009) 26 Journal of International Arbitration pp. 903–907

Summary:
In Dallah v. Pakistan, the English Court of Appeal confirmed the High Court’s refusal to enforce against Pakistan an award rendered against it by an ICC tribunal in Paris, on the basis that Pakistan was not a party to the underlying arbitration agreement. Fuller comment on the case and the issues raised by it is included in the authors’ comments on the High Court judgment in a previous issue of this journal. The present note restricts itself to summarizing the findings of the Court of Appeal, which are similar to those of the High Court (although one of the Court of Appeal judgments contains a much more extensive discussion of the residuary discretion to enforce under the New York Convention), and to commenting on the Court of Appeal’s intriguing obiter dicta concerning the Hilmarton/Chromalloy controversy.
Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009048