A Right Without a Remedy? The Recent US Decision to Not Enforce the Shell/Exxon Award

By Travis A. Gonyou, Associate at Honigman LLP

On September 4, 2019, a subsidiary of the Shell Oil Company, Esso, attempted to enforce a $1.799 billion arbitral award in the U.S. District Court for the Southern District of New York after it had been annulled in the courts of Nigeria (Esso Opinion). In the arbitration proceedings, the tribunal had found that Nigeria’s state oil company, Nigerian National Petroleum Corporation (“NNPC”), had breached its oil production contract with Esso and awarded Esso the amount of the lost production. When Esso attempted to enforce the award in Nigeria, the Nigerian courts declined to enforce the award. Although the Nigerian courts recognized the tribunal’s finding that the NNPC had breached its oil production contract, it nevertheless found the calculation of damages to be a non-arbitrable issue, and therefore, unenforceable.

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India, Brazil Ink Novel Investment Treaty – Is Dispute Prevention the Way Forward?

By Ishaan Madaan, LLM in International Arbitration, University of Miami School of Law

On 25 January 2020, India and Brazil signed an Investment Cooperation and Facilitation Treaty, in the presence of the Brazilian president Jair Messias Bolsonaro. Arguably the most prominent of the 3 BITs that India has signed since adopting the model BIT in December 2015. The new treaty articulates several provisions (briefly discussed below) in departure from the model version. The two nations also committed to step-up cooperation in the field of oil and natural gas, cybersecurity, science and technology, health and traditional medicine, etc. This comes in the backdrop of India opening up its market to allow 100% FDI in Coal and Lignite mining as well as in some digital media sectors. India also offered for a 100% acquisition its debt-ridden national carrier Air India at the World Economic Forum at Davos earlier this January.

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Young female practitioners breaking into the world of international arbitration

By Anna Rivetti, LL.B. Hankuk University of Foreign Studies, South Korea, and Diana Santana, LL.M. Queen Mary Law School, U.K.

Late last year, Herbert Smith Freehills Seoul and Kim & Chang held a “Women in Arbitration” Networking-Dinner and panel discussion as part of the Seoul ADR Festival 2019. The dinner aimed to provide an opportunity for female professionals in the Korean arbitration community to network with their industry peers and work to advance their position in arbitration. This article provides the perspectives of the authors based on the panel discussions.

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Highlights from the 2019 Rules of the Milan Chamber of Arbitration

By Gustavo Minervini, LL.M., Ph.D. 

On 1 March 2019 the Milan Chamber of Arbitration issued its amended Arbitration Rules (the “2019 Rules’”) with the aim of improving “the efficiency and the rapidity of arbitral proceedings [while] ensuring the necessary guarantees.”  This objective follows the current international trend.  Indeed, in the last decade, several arbitral institutions have revised their rules in order to guarantee that arbitrations are conducted in an expeditious and cost-effective manner, without sacrificing fairness and reliability.  

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The Role of Precedent in ISDS: Can Decisional Law Contribute to the Creation of Customary Norms?

By Rebecca Meyer

ISDS is a fragmented field, consisting of a few thousand bilateral investment treaties (“BITs”) and treaties with investment chapters – such as the Energy Charter Treaty (“ECT”) or the North American Free Trade Agreement (“NAFTA”).  These instruments that regulate foreign investment are often similar but are not the same.  Yet, even where different bilateral relationships are governed by technically distinct obligations, there is often a level of consistency among ISDS decisions.  This coherence results from the precedent-like reliance on earlier ISDS decisions.

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