Issues

Volume 4 (2017-2018)

Relja Radović - PROBLEMATIZING ABACLAT’S MASS CLAIMS INVESTMENT ARBITRATION USING DOMESTIC CLASS ACTIONS

The 2011 decision on jurisdiction and admissibility in Abaclat and Others v Argentina has started a discussion about mass claims processes in investment treaty arbitration. The tribunal concluded that although proceedings were initiated in aggregate, the continuance of the case contained a representative feature. This determination led them to declare that the applicable procedure could and had to be adapted. Today, the legacy of Abaclat and the availability of mass claims procedural devices in investment treaty arbitration remain questionable: can mass claims investment arbitration be qualified as ‘class-like’? If so, does it satisfy the fundamental principles of arbitration (particularly the principle of consent)? This article takes a comparative approach to answering these questions by putting mass claims investment arbitration procedures and United States class actions processes side-by-side. It argues that mass claims arbitration as construed in Abaclat cannot satisfy fundamental arbitration principles because it fails to observe the inextricable link between the parties’ consent, representative procedure, and representative relief. It is therefore wrong to view mass claims arbitration as an available device for investors in investment treaty arbitration.

Volume 3 (2016-2017)

Tomoko Ishikawa - Restitution as a ‘Second Chance’ for Investor-State Relations: Restitution and Monetary Damages as Sequential Options

The availability and appropriateness of non-pecuniary remedies in investor-state arbitration has been a matter of controversy, at the centre of which is the concern over the infringement of sovereignty by restitution. This article aims to demonstrate that there are situations where restitution should be regarded as a preferable remedy for the host state, rather than as a threat to its sovereignty, for it gives the state the opportunity to re-establish and maintain long-term investment relations with the relevant investor and, more importantly, to demonstrate its continuing commitment to the international investment and arbitration agreement (IIA) by complying with the restitution order. On the other hand, even in such situations, practical restrictions on ordering restitution, that is, the nec ultra petita principle and non- enforceability of non-pecuniary remedies, could effectively prevent the tribunals from ordering restitution. As a way to address this issue, this article proposes a ‘two-options’ approach, under which arbitral tribunals order restitution as the first option, and compensation as the second option, enabled when the first option fails. It argues that this approach is an effective way to give a ‘second chance’ for the host state to demonstrate its continued commitment towards a long term and stable investment environment in conformity with the IIA, while providing compensation as a safety net for the investors against the risk of non- enforceability of restitution. It concludes by proposing the inclusion of this approach in future IIAs as a way to put this approach into practice.

Stephen P. Anway - Is it time to adopt stare decisis and establish an appeal mechanism in investment treaty arbitration?

In recent years, investment treaty arbitration has been subject to sustained criticism. One key target of these attacks is that investment treaty arbitration lacks a system of binding precedent (stare decisis) and an appellate mechanism to enforce it, leading to inconsistent results and unpredictability about how future disputes will be resolved. This article considers the merits of that criticism and explains that it is helpful to distinguish between the normative question—is a stare decisis system in investment treaty arbitration desirable?—from the practical question—if it is desirable, what kind of stare decisis system, if any, can be realistically achieved. The author argues that, as a normative matter, stare decisis is desirable because it fosters consistency and predictability and avoids contradictory results that may be viewed to undermine the credibility of the investment arbitration system. Nevertheless, the author contends that, to implement an effective stare decisis system, an appellate or quasi-appellate body would be required to set the precedent and ensure that the precedent is followed. After reviewing the possible types of appellate systems, the author concludes that there are significant practical limitations to implementing an appellate mechanism and predicts that the system of no stare decisis will, however undesirable, endure for the foreseeable future.

Daniel R. Bennett, Q.C. and Madeleine A. Hodgson - Confidentiality in Arbitration: A Principled Approach

Confidentiality is often considered one of the benefits of arbitration. However, although arbitrations are generally private, parties would be wise not to consider them confidential, absent a confidentiality agreement. This paper examines the approaches to confidentiality in other jurisdictions, and the approach taken by Canadian courts, and concludes by proposing a principled approach to confidentiality in arbitration in Canada.

Shannon Salter and Darin Thompson - Public-Centred Civil Justice Redesign: a case study of the British Columbia Civil Resolution Tribunal

This article deals with the new British Columbia Civil Resolution Tribunal (“CRT”). First of its kind in the world, the CRT will focus on early online dispute resolution as a tool to improve access to justice in BC. The authors will begin by examining public access problems with the current civil justice system. They will then challenge some of the common assumptions underlying the status quo, with the aim of opening a dialogue about which facets of the civil justice system are foundational to the rule of law and which ones ultimately detract from it. The article will conclude by offering some principles of user-centred justice design, and illustrating them through their application to the CRT.

Kyle Richard Olson - The Appeal of the Right to Appeal: The ICDR Adopts Optional Appellate Arbitration Rules to Advance the Availability of Appellate Rights in International Commercial Arbitration

The author tackles the role of appellate rights in international commercial arbitration. After a discussion on the relevance of this topic in ICSID arbitration, the article turns to the new ICDR rules, which contain an opt-in set of appellate rules. While the analysis focuses on key aspects of this optional procedure, it also considers general objections and concerns often raised against the use of appeal mechanisms. The author concludes by pointing out that flexibility is a key element in international commercial arbitration and, as such, the ICDR rules provide an effective tool that parties can choose if it best serves their needs.

Ben Giaretta - Project Management in International Arbitration

“Saving time and costs” is a common demand in international arbitration. However, this can be a problematic goal to aspire to, as it can fail adequately to take into account all aspects of an arbitration, in particular the adaptive or change-driven lifecycle of the arbitration and the requirement for a high standard of quality. This paper proposes that the focus in international arbitration should instead be on project management. An arbitration should be viewed as a project that requires a full assessment of the objectives of the parties and other stakeholders, and proper project management in order to achieve those objectives. Arbitrators can draw on a considerable body of knowledge about project management from other industries. Applying project management skills to arbitration includes appropriate planning, identifying and managing work scope, engaging with stakeholders, organising issues and evidence, and closing the arbitration properly.

Giorgio Sassine - There Should be an Answer to § 1782(a) – as to whether its scope includes private arbitral tribunals

USC § 1782 grants standing to “a foreign or international tribunal” to obtain an order from a US federal district court compelling the production of evidence from uncooperative parties. Whether this provision extends to private arbitral tribunals has been the subject of controversy, with both sides of the argument pointing to the plain meaning of the term, the legislative history of § 1782, and principles of international arbitration in order to reach opposite conclusions. Federal courts, too, have reached different conclusions on the issue since 2004. While it is the author’s opinion that private arbitral tribunals are likely not within the scope of § 1782, this article highlights the need for a clear answer to the question in the face of ambiguous evidence, and provides avenues to finally settle the issue.

Nicolas Bremer - Seeking Recognition and Enforcement of Foreign Court Judgments and Arbitral Awards in the GCC Countries

Successfully obtaining a judgment or arbitral award may not be the final step in asserting a claim. Extra enforcement measures may be required when the losing party refuses to abide by the terms of a ruling. In international commerce, rulings must often be enforced in a jurisdiction other than the one where it was made. In this case, the ruling will have to be recognized by the competent authority of the country where enforcement is sought (the ‘requested country’). Obtaining recognition of a foreign ruling in a country that is part of the Gulf Cooperation Council (the ‘GCC’) can be laborious. Despite the ambitious strategies of the GCC countries regarding the recognition and enforcement of foreign arbitral awards, their local courts still have many reservations about foreign rulings. This article provides an overview of existing regulations pertaining to foreign rulings in the six GCC countries (Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates [the ‘UAE’]), and offers suggestions on strategies to deal with the challenges posed by these regimes.

Volume 2 (2015-2016)

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Maxime Hanriot - Online Dispute Resolution (Odr) As a Solution to Cross Border Consumer Disputes: The Enforcement of Outcomes

Online Dispute Resolution (ODR) is an interesting means of giving online consumers efficient remedies in cross-border disputes. While the effectiveness of ODR is sometimes problematic, ad hoc solutions can be implemented depending on whether the ODR procedure is adjudicative or non-adjudicative, and whether the outcomes are binding or non-binding. This allows parties to seek enforcement before a court or a public authority, or to rely instead on private enforcement mechanisms. The analysis of each of these situations shows that the enforcement of binding outcomes obtained through ODR should be sustained by public regulation. However, important instruments such as the Rome I, Brussels I and Brussels I recast European Regulations prohibit pre-dispute ODR agreements, but this scenario might rapidly change thanks to the European ADR Directive. Efforts of this kind pave the way for greater trust in engaging in cross-border transactions and should be encouraged.

James Ng - When the Arbitrator Creates the Conflict: Understanding Arbitrator Ethics through the IBA Guidelines on Conflict of Interest and Published Challenges

Arbitrator ethics is one of the most underdeveloped areas in international arbitration. Arbitrators are generally required to meet a baseline level of neutrality by disclosing any potential ethical conflicts and remaining independent and impartial throughout the arbitral process. Unfortunately, not all arbitral practice has met these ethical requirements. The “Application Lists” of the International Bar Association (IBA) Guidelines on Conflict of Interest in International Arbitration provide a theoretical basis for considering such ethical conflicts. This paper takes the “Application Lists” one step further: by matching them with published records of arbitrator challenges from the London Court of International Arbitration (LCIA) and the International Centre for Settlement of Investment Disputes (ICSID), the author will provide a practical scheme to gauge whether an ethical conflict merits disclosure or disqualification.

Interview with Chiann Bao, the Secretary-General of the Hong Kong International Arbitration Centre
Interview With Ambassador Mokhtar Lamani
Interview with Noah Hanft: The Future of ADR in Business
Patrick Dumberry - The Practice of States as Evidence of Custom: An Analysis of Fair and Equitable Treatment Standard Clauses in States’ Foreign Investment Laws

The article addresses a central question: did the fair and equitable treatment standard (FET) in investment regimes become a norm of customary international law? To answer this, Dumberry examines FET clauses in bilateral investment treaties and foreign investment laws of numerous states, as well as arbitral decisions involving allegations of breaches of FET obligations. His analysis shows that States have not engaged independently and consistently in the adoption of FET clauses. Consequently, Dumberry concludes that FET clauses cannot be considered customary international law.

Daniel Goldenbaum - L’arbitre international face à la corruption

Corruption plagues business relations. The international arbitrator can be confronted by it when parties refer to him or her a dispute concerning either a brokerage agreement hiding the payment of a bribe or the direct payment of a sum of money to the person deciding to award a contract to a company. The arbitrator then faces conflicting interests, raising the issue of the factual proof of bribery and his or her duty to report the facts to state authorities .

Regarding proof, shifting the burden or using a higher standard of proof than usual do not seem to be appropriate solutions to address the difficulty to prove bribery.

Regarding the reporting of bribery to state authorities, imposing this obligation upon arbitrators would be unjustified and counter-productive.

Finally, the international arbitrator must fight bribery while not losing his or her particularities. The difficulties to achieve these goals and the divergent opinions highlight the necessity of guidelines on the issue.

Doğan Gültutan - Review and Analysis of Interim Measures Available to Foreign Arbitrators in Turkey

Doğan Gültutan’s piece provides us with a detailed understanding of the legal rules on the granting of court-ordered interim measures in assistance to foreign arbitral proceedings in Turkey. In so doing, he underscores the crucial role played by courts in support of foreign arbitration, while also shedding light on the interactions between arbitral tribunals and Turkish courts. The author focuses on the types of relief available and the mechanisms triggering them, the procedure framing interim measures, counter-arguments that may be brought forth on appeal, enforcement of interim relief orders, and other ancillary issues.

Manu Misra - The Necessity Defence & Continental Casualty: Importation of WTO Principles at the ICSID

In investment arbitration, although several tribunals have dealt with the defence of necessity, a uniform concept of what necessity entails has been elusive and uniformity in the approach of tribunals has yet to be achieved. In contrast, WTO tribunals have a wealth of case law on the concept of necessity from which investment tribunals can seek and have sought guidance. An example is the case of Continental Casualty v Argentina. This article focuses on that cases methodology in the context of other ICSID tribunal rulings. It is argued that a consistent and predictable approach to the defence of necessity in investment arbitration decisions is possible, through which a better balance of investor protection and state sovereignty could be achieved.

Oliver Krauss - The Enforceability of Escalation Clauses Providing for Negotiations in Good Faith Under English Law

Escalation clauses providing for negotiating in good faith have evolved from mere unenforceable agreements to negotiate to agreements that could be enforced under certain conditions. English courts, however, have usually held some of these requirements to be missing which, in turn, precluded the enforcement of escalation clauses. The paper discusses the general idea of these agreements, gives an overview of their treatment before English courts, and emphasises the key elements that warrant their enforceability. Through a comparative analysis of the American and Canadian approaches to good faith, the paper aims to provide clarity on the issue of enforceability. In the author’s view, the recent ruling in Emirates Trading v Prime Mineral, as well as judicial positions held in other common law countries, will inspire English courts to be more lenient in enforcing escalation clauses providing for negotiating in good faith.

Volume 1, Issue 2 (1:2 – 2015)

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Dominique Hascher - Les perspectives françaises sur le contrôle de la sentence internationale ou étrangère

In this article, the author focuses on the judicial review of “international” arbitral awards. He emphasizes the peculiarities of French law, which are essentially grounded on the conception of an autonomous arbitral legal order (Putrabali). The first part of the article deals with the mandatory requirements of arbitral awards (reasons, scope of arbitral jurisdiction, etc.), while the second describes the desirable limits of judicial review. Judicial activism, where really necessary, is encouraged. Notable examples include the revision of an award tainted by fraud, and the rules concerning the extension of the arbitration agreement. Judicial self-restraint is also of paramount importance. However, this self-restraint has been neglected in cases dealing with the arbitrators’ duty to disclose relevant circumstances, in matters related to their impartiality and independence.

 

The author concludes by identifying some important points that French courts should tackle in the future, that is, the admissibility of challenges against decisions rendered by arbitral institutions, and their role in the proceedings concerning challenges against arbitral awards.

Antoine Champagne - Moral Damages Left in Limbo

In this article, the author highlights the marginal role of moral damages in international investment law. He emphasizes that the role of these damages is vaguely defined, which prevents arbitral tribunals from awarding them in most cases. The first part of the article defines the concept of moral damages and examines its status in public international law. This is followed by a jurisprudential analysis that reveals unsettled issues and controversial aspects surrounding this type of damages. The author concludes that borrowing concepts from other fields of international law, such as the approach taken by human rights tribunals, can clarify the status of moral damages in international investment law.

Armand de Mestral C.M. - The Constitutional Functions of the Caribbean Court of Justice

The Caribbean Court of Justice (CCJ) is a pivotal CARICOM institution, effectively representing the attempts to integrate the various economic and cultural realities of the region. The article tackles this central aspect by focusing on its constitutional role. After a historical introduction, the author addresses the original and appellate jurisdiction of the CCJ. Further on, the article touches upon institutional issues that might affect its functioning, such as costs for litigants and the influence of the CCJ on the legal profession. Finally, the conclusion highlights important challenges, among which stems the need for the development of a Community law directly applicable to all member States.

Richard W Pound - Sports Arbitration: How it Works and Why it Works

This article is a brief consideration of the matter of arbitration in sport – what it means, how it came about, how and why it works, and why it is particularly important as an aspect of sport governance. It is intended to provide the reader with a particular perspective of sport, namely a perspective that will appeal to jurists and their need to define and understand the contextual background to dispute resolution in sport.

The crucial importance of rules, their acceptance by the participants and the uncertainty of outcome in sport is highlighted to introduce the topic. The author then proceeds to a brief description of possible domestic recourses in sport-related disputes, as contrasted with the international sport system imperatives. Through illustrations coming from concrete cases, the author discusses the constitution and the role of organisations such as the International Olympic Committee (IOC), the Court of Arbitration for Sport (CAS), the International Council of Arbitration for Sport (ICAS), and the World Anti-Doping Agency (WADA).

Volume 1, Issue 1 (1:1 – 2014 )

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Christoph Schreuer - Jurisdiction and Applicable Law in Investment Treaty Arbitration

This article first discusses the law governing a tribunal’s jurisdiction. Jurisdiction is governed primarily by the instrument(s) bestowing jurisdiction. In the case of treaty arbitration, this will be the treaty offering consent to arbitration. On certain points, like the legality of the investment and the investor’s nationality, that treaty will refer to domestic law. A second part deals with the varying scope of jurisdiction exercised by investment treaty tribunals. It ranges from a wide jurisdiction over all disputes arising from investments to jurisdiction only over certain narrowly defined disputes. There is no clear correlation between these jurisdictional clauses and provisions on applicable law in the relevant treaties. A third part looks at situations in which the tribunal’s jurisdiction and the applicable law derive from different sources. This is the case, in particular, where the tribunal applies substantive standards that existed before the entry into force of the treaty providing for jurisdiction.

Elsa A Paparemborde - Looking Back at Canada — Periodicals: Autopsy of a Missed Opportunity to Address the Problem of Conflicting Provisions in the World Trade Organization and Preferential Trade Agreements’ Dispute Settlement Systems

Canada — Periodicals was a perfect, yet missed, opportunity for the WTO to tackle the problem of potentially conflicting outcomes under its own dispute settlement system and those of Preferential Trade Agreements such as NAFTA. This paper advances that Canada erred in simply acquiescing to WTO jurisdiction in this dispute, where that of NAFTA could legitimately have been raised and would clearly have been more advantageous to its position. At the time the dispute arose in 1997, Canada should have brought two arguments in front of the WTO dispute settlement body to get the case analysed under NAFTA. First, it should have asked for the dispute to be moved from the WTO to a NAFTA tribunal, arguing it was a more suitable venue under a forum non conveniens rationale. Second, it should have advocated for the WTO Panel or Appellate Body’s consideration of NAFTA provisions in its own proceedings. Looking at subsequent case law, it appears the second option would have had a greater chance of prevailing than the first. This gives us insight on how a case akin to Canada – Periodicals ought to be treated if it arose today.

Andrew de Lotbinière McDougall - L’influence de la culture sur la pratique de l’arbitrage international : une perspective personnelle

The author seeks to demonstrate the importance of culture in international arbitration by reflecting on his own personal experience in the arbitration department of a large international firm. Culture plays a critical role in international arbitration as cases often involve clients from different countries. Moreover, fluency in different languages, familiarity of legal culture, as well as international experiences are essential elements for the formation of a successful practice group in international arbitration.

L Yves Fortier et Annie Lespérance - La contribution des Nations Unies à l’arbitrage international

The authors examine the history and evolution of international arbitration by focusing on the primary role played by the United Nations in its development. The UN has in fact greatly contributed to the blossoming of arbitration as the preferred method of dispute resolution in interstate, commercial and investment matters. In particular, while the 1945 UN Charter and the UN Convention on the Law of the Sea acknowledged and promoted interstate arbitration, the New York and the Washington conventions consecrated the principle of recognition and enforcement of arbitral awards with regards to international trade and investment.

Justice Quentin Loh - The Limits of Arbitration

The arbitration landscape has changed significantly over the last few years. Fault lines have emerged, including the rising cost of arbitrations, the length of time taken to conclude arbitrations, the concerns over the true impartiality of arbitrators, the dissatisfaction with an unregulated industry, and the growing disconnect with end-users. Focusing on the Singapore experience, this article raises some limitations to arbitration, and in doing so engenders discussion as to how these limitations can be overcome.

Alain Prujiner - L’arbitre et le droit

The author addresses the relationship between the arbitrator and the law, with an emphasis on the law and procedure that is applicable to international arbitration. It is demonstrated that arbitrators no longer automatically refer to the private international law of the state that is the seat of arbitration to determine the applicable law, nor to private international law rules of a particular country. On the contrary, there is a trend towards internationalizing the rules of private international law: the arbitrator obtains the governing law directly from an autonomous transnational legal system that has its own substantive and procedural rules in private international law.

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