by: Dimitrij Euler, MLaw, PhD Candidate, University of Basle, Switzerland.
Obtaining an award is only half way through; the final step – i.e. to enforce the award or verdict – will be the cherry on the cake. Immunity of states and state entities challenges councils for claimant after investor-state arbitration. Successful claimants against Argentina are facing difficulties to enforce their debts adjudicated in awards and verdicts. In very creative attempts, lawyers enforce debts against boats, airport facilities and assets of international organisations. Numerous international organisations have their seat in Switzerland and enjoy extensive immunities. A limitation of the immunity would set an unfortunate precedent for Switzerland.
Continue reading Switzerland’s Department of Foreign Affairs endorsed Federal Supreme Court decision (BGE 136 III 379) not to lift Bank of International Settlement’s (BIS) immunity due to an attempt of NML Capital to freeze $300m (£186m) on Argentina’s bank accounts.
In an attempt to attract foreign investment and build investor confidence, Saudi Arabia is planning to lobby the UK government to set up a confidential arbitration court in London that would hear commercial disputes relating to the Middle Eastern Kingdom. The Saudi Government is aiming to attract former members of the UK judiciary and other leading figures in the legal industry to sit on the putative arbitration panel. Saudi Arabia hopes that the establishment of this specialist arbitration court, in addition to the country’s extensive reform of its domestic arbitration system, will lead to a flood of foreign investment into the country and boom in international trade.
The Saudis’ intentions raise several questions, including, amongst others, whether the establishment of such a court is necessary and why existing institutions cannot be used instead. What do you think?
By Wamiq Chowdhury
This essay was written as a response to two prompts provided for the Miami/Young ICCA Scholarship Competition. The two prompts were: “Recent developments in ICSID arbitration – time to think about alternatives?” and “How Do We Design for Legitimacy?”
The International Centre for the Settlement of Investment Disputes (ICSID) is experiencing growing pains. As recourse to ICSID arbitration in order to resolve foreign investment disputes becomes more common, ICSID jurisprudence is beginning to raise concerns on a number of fronts about the legitimacy of the system, and whether it will remain a viable method of settling investment disputes in the long term. This paper begins by exploring ICSID’s design, why legitimacy matters to ICSID, and what it means to say that ICSID’s legitimacy is in doubt. It then examines a number of different developments that are presenting challenges to ICSID’s legitimacy: inadequately reasoned awards, inconsistencies in awards and annulment decisions, and potentially problematic interpretive practices of ICSID tribunals with regards to essential security clauses, umbrella clauses, and treaty shopping. After assessing the challenges posed by these developments, the paper urges caution in determining the extent to which ICSID’s legitimacy has been affected by said developments. It argues that the challenges may seem greater at present than they in fact are. It also proposes some less far-reaching solutions for enhancing ICSID’s legitimacy than are being discussed in the investment arbitration community at present.
Continue reading Recent Developments in ICSID Arbitration: Too Early to Jump Ship
This case note is limited to an attempt to answer the question whether the case Ciments Français v. Sibirskij Cement might be “[a] Russian Putrabali?”
Continue reading Ciments Français – a Russian Putrabali? by Michael Wietzorek
By Shalini Soopramanien
“And therefore, as when there is a controversy in an account, the parties must by their own accord, set up for right Reason, the Reason of some Arbitrator…to whose sentence they will both stand, or their controversy must either come to blowes, or be undecided, for want of a right Reason constituted by Nature; so is it also in all debates of what kind soever.”
– Thomas Hobbes
Continue reading Gauging the Tension Between Finality and Fairness in Arbitration: An Assessment of the Scope and Limits of “Correction” and “Interpretation” of Final Awards