Breaking the Bond: Vulture Funds and Investment Arbitration

by Dimitri Euler
and Giuseppe Bianco

The recent decision on jurisdiction and admissibility in Abaclat and others v Argentina [i] has brought to the arbitration community’s attention the issue of sovereign defaults and restructurings. Several legal scholars have speculated about the potential consequences of its evolution.[ii] Moreover, the French government recently has filed an amicus brief in the proceedings NML v Argentina in New York.[iii]

This blog focuses on vulture funds, which are at the centre of international investment law. The blog also focuses on the potential defences available to the host state. In this regard, the blog elaborates on public policy in the context of International Centre for Settlement of Investment Disputes (“ICSID”) and non-ICSID proceedings. Lastly, the blog addresses the different procedural means of a host state in response to the claim of an investor.

 

Continue reading Breaking the Bond: Vulture Funds and Investment Arbitration

Seminar in Milan, 3 October: Tips for Conducting a Successful Arbitration

Together with CAM and with the support of ASLA, Young ICCA will host a free workshop on 3 October in Milan. The interactive workshop will focus on the subject “Tips for Conducting a Successful Arbitration”. English will be the working language of the event.

Speakers for the workshop include:

Stefano Azzali, CAM, Milan
Cecilia Carrara, Legance, Rome
Domenico Di Pietro, Freshfields, Milan
Hussein Haeri, Of Counsel, Eversheds, Paris
Eva Kalnina, Lévy Kaufmann-Kohler, Geneva
Michael McIlwrath, GE, Florence
Michele Potestà, Lévy Kaufmann-Kohler, Geneva
Luca Radicati di Brozolo, Milan
David Roney, Partner, Sidley Austin, Geneva
Eliana Tornese, ICC, Paris

To see the full programme and to register, please follow the link below:

http://www.camera-arbitrale.it/en/news/Tips+for+conducting+a+successful+arbitration.php?id=455

Young ICCA Mentees Write Group Paper

As the 2013-2014 Mentoring Programme gets underway, we are pleased to present the work of one group from the 2012-2013 programme. Mentored by Professor Piero Bernardini, Buddy David Earnest (USA) and Mentees Raul Gallardo (Colombia), Garðar Víðir Gunnarsson (Iceland) and Tobiasz Kaczor (Poland) prepared a paper together entitled “Four Ways to Sharpen the Sword of Efficiency in International Arbitration.” The paper covers topics such as the impact of the parties’ preliminary choices on efficiency of the proceedings, procedure as the foundation of arbitral efficiency, the arbitrator as settlement facilitator and the use of information technology in arbitration.

Download PDF: four_ways_to_sharpen_the_sword_of_efficiency_yicca_group_paper.pdf (180kb)

 

 

STATE-TO-STATE ARBITRATION PURSUANT TO BILATERAL INVESTMENT TREATIES: THE ECUADOR-US DISPUTE

by Marcin Orecki*

This paper presents the state-to-state arbitration between the United States (US) and Ecuador that was a consequence of an investor-state arbitration in the Chevron case (both arbitrations pursuant to the US-Ecuador Bilateral Investment Treaty (BIT)). The questions inter alia were whether a dispute between the US and Ecuador existed at all and whether silence on behalf of the US alone could create a positive opposition in order to determine the existence of a dispute. However, one of the most important issues in the case was an alleged attempt by Ecuador to re-litigate the arbitral award of the Chevron case, and, if that were possible, to create an appellate jurisdiction of the state-to-state arbitral tribunal. This kind of jurisdiction would be contrary to the BIT`s object and purpose and would risk destabilizing the
international adjudicatory system. The arbitral tribunal resolved the dispute on 29 September 2012. However, as the award is not available to the public, the outcome is unknown. After evaluating the arguments, it must be noted that each argument raises doubts and the solution to this case is not straightforward. However, the arguments presented by the US, especially the policy arguments connected with investment law and arbitration principles such as depoliticization, seem to be more convincing.

Download PDF: State_to_State_Marcin_Orecki_10_02_201 (750 kb)

 

* LL.M. candidate (Geneva LL.M. in Int’l Dispute Settlement [MIDS], 2013); MA in Law (2012, University of Warsaw). I would like to thank Mr. Michele Potestà and Ms. Elizabeth Boomer for comments on an earlier draft of this paper.

“International Commercial Arbitral Awards: Moving from Secrecy towards Transparency?”

by M. Florencia Villaggi

A large portion of International Commercial Arbitral Awards in different jurisdictions are unpublished. The public only has access to them when they are challenged in a judicial court. The majority of arbitration users highly value the confidentiality of the awards, but at the same time there are substantial benefits from its public disclosure.

This essay focuses on whether it would be beneficial to promote the publication of International Commercial Awards; and if it is the case, how such publication could be conducted in order to reconcile it with the user’s expectations of confidentiality. When confidentiality is not specified in the arbitration agreement, its existence and scope varies in light of the different standards that may regulate it. Therefore, the essay starts by analysing the treatment given to the issue in institutional arbitration rules, domestic legislation and case law. It continues to discuss the arguments both pro and against mass publication of International Commercial Awards. And lastly, it concludes that an increase in publication of awards is desirable, but it should not be achieved through the expense of completely depriving arbitration users of their confidentiality. The author therefore proposes a compromising solution to reconcile both interests at stake, by the implementation of a mechanism that would promote publication of International Commercial Awards with minimal impact on the parties’ confidentiality expectations. Publication of arbitral awards in the proposed way could bring greater transparency to the system, strengthen the fairness and quality of arbitrators, proceedings and awards, and contribute to the development and evolution of arbitration.

Download PDF: Villaggi-confidentiality-vs-publication-of-awards-edited05_01_13.pdf (378 kb)