by Vivek Kapoor (Stephenson Harwood)
The Court of Justice of the European Union (“CJEU”) is not an ordinary court but a political court, which means that it is strongly influenced in making its decisions by the political beliefs of the European Commission. The 6 March 2018 judgment of the CJEU’s Grand Chamber in Slovak Republic v. Achmea BV is a reminder; with a preordained weltanschauung and political outcome, the CJEU then proceeded to forge the jurisprudential basis.
Continue reading Slovak Republic v. Achmea: When politics came out to play
By Michel Nassar (Saas Avocats)
On 9 September 2017, Lebanon passed Law No. 48 “Regulating Public Private Partnerships” (“PPP Law”) ahead of the CEDRE Conference (acronym in French for “Economic Conference for Development, through Reforms and with the Businesses”) held in Paris on 6 April 2018. This conference brought USD 11 billion of funding for Lebanon’s infrastructure which is in a critical state.
This most awaited law is based on a draft prepared in 2010 by the Lebanese High Council for Privatization and Public Private Partnership (“PPP”). The law was finally enacted just in time for the CEDRE Conference. As PPP is the preferred vehicle for foreign investments, the new law paves the way for a more prevalent choice for arbitration as dispute resolution mechanism.
Continue reading Arbitration under the Lebanese Public Private Partnership Law
by Carmine A. Pascuzzo S. (ADM & Asociados, Caracas)
This post focuses on two decisions issued by the Venezuelan Supreme Court of Justice in the Corporación LSR case. The decisions constitute an unexpected change in the approach of the Supreme Court towards arbitration, deviating from its latest and vastly commented case law regarding commercial arbitration matters.
The dispute in Corporación LSR arose out of an option contract that contained a pathological arbitration clause, in that the clause referred all future disputes to arbitration under the rules of a non-existing arbitration institution: the Conciliation and Arbitration Centre of the Chamber of Commerce, Industry and Agriculture of the Bolivarian Republic of Venezuela.
Continue reading A one-two punch to the Kompetenz-Kompetenz principle in Venezuela
Augustin is an Associate at Lalive in Geneva. He joined Lalive in 2016. His main area of practice is international arbitration, including commercial and investment treaty arbitration in a wide array of business sectors including construction, oil & gas, mining, joint-venture, supply and distribution and foreign investments. He has acted as counsel in numerous international arbitral proceedings under the aegis of various institutions (ICC, LCIA, SCC, NAI, CCJA, ICSID) as well as ad hoc proceedings governed by a range of substantive and procedural laws, both common and civil law, such as French, Swiss, Swedish, English and international law.
Continue reading Tips from the top: Young ICCA interviews Augustin Barrier
by Abdul Mouneimne (Loyola University of Chicago Law Student)
Chapter 11: Where Investors Go to Complain
NAFTA renegotiations began last week and, with attention once again on this 23-year old trade deal, critics are taking the opportunity to voice their concerns. U.S. President Trump has himself propounded, and indeed campaigned on, an abundance of criticism directed at NAFTA. While no part of NAFTA has been safe from the critics, none has been criticized as much as the Investor State Dispute Settlement (“ISDS”) mechanism under Chapter 11.
Chapter 11 establishes a framework which provides investors from NAFTA countries with “a predictable, rules-based investment climate, as well as dispute settlement procedures which are designed to provide timely recourse to an impartial tribunal.” Section B of Chapter 11 establishes the ISDS mechanism which is intended to ensure that investors and NAFTA Parties receive equal treatment in accordance with the principle of international reciprocity and due process before an impartial tribunal.