By: Fiona Parker,
on 9/20/2016
What has long been standard market practice in many jurisdictions is becoming more and more mainstream in Germany, too: compensating counsel in arbitration cases on an hourly basis, and being entitled to have the defeated party pay for it.
The post Hourly rates becoming more and more mainstream in German arbitration appeared first on OUPblog.
By: Fiona Parker,
on 7/26/2016
One of the reasons why parties choose arbitration is its time-efficiency. This is mainly due to the fact that the arbitral award decides the dispute in a final and binding manner and is subject to no appeal. Although time-efficiency belongs to the traditional advantages of arbitration, the users of arbitration have over the last years significantly increased the pressure to control time (and cost) in arbitration.
The post Post-award remedies before the arbitral tribunal: a neglected means of streamlining arbitration appeared first on OUPblog.
By: Fiona Parker,
on 1/19/2016
International arbitration expert Loukas Mistelis talks to George Miller about current arbitration issues. Together they discuss how the international arbitration landscape has developed, how arbitration theory has attempted to catch up with practice, and ask whether the golden age of arbitration is now passed.
The post Oxford Law Vox: Loukas Mistelis on international arbitration appeared first on OUPblog.
By: Fiona Parker,
on 9/29/2015
After venturing to the far East of Japan last year, 2015 sees the return of the International Bar Association’s annual meeting to Europe. Vienna will host the conference this year, a city which holds an interesting pedigree as a legal centre. The Annual Meeting itself promises to be a must-attend event for all international lawyers, with sessions ranging from climate change justice to human trafficking.
The post Hallo Wien! International Bar Association annual meeting 2015 appeared first on OUPblog.
By: Fiona Parker,
on 9/22/2015
As part of the launch of the sixth edition of 'Redfern and Hunter on International Arbitration', one half of the book’s authorial team Nigel Blackaby and Constantine Partasides QC met up with Law Vox podcast host George Miller. Together they discussed the evolution of international arbitration and the influential role Redfern and Hunter have played in the field.
The post Oxford Law Vox: The evolution of international arbitration appeared first on OUPblog.
By: Heather Saunders,
on 9/14/2015
Should investment disputes be solved by a permanent court or by arbitral tribunals? This is one of the key questions that might kill the efforts for what would be the largest regional free-trade agreement in history, covering 46% of world GDP: the Transatlantic Trade and Investment Partnership (TTIP).
The post From ad hoc arbitral tribunals to permanent courts: three examples appeared first on OUPblog.
By: Fiona Parker,
on 9/8/2015
As a young ICSID neophyte, I once asked Aron Broches, the World Bank’s General Counsel from 1959 to 1979, how he had come up with the idea for the Centre. “It was in the air,” he explained. In the late 1950s and early 1960s, there were indeed a number of proposals circulating for the creation of an international arbitral mechanism for the settlement of investment disputes.
The post Establishing ICSID: an idea that was “in the air” appeared first on OUPblog.
By: Louise Murgatroyd,
on 8/4/2015
Knowing when and how to cross-examine is an essential part of properly representing clients in international arbitrations. Many cases have been won by good cross-examinations and lost by bad cross-examinations, and that is just as true in international arbitrations as it is in any other dispute resolution procedure in which counsel are permitted to cross-examine witnesses.
The post The role of cross-examination in international arbitration appeared first on OUPblog.
By: DanP,
on 7/22/2014
Investment arbitration is a growing and important area of law, in which states and companies often find themselves involved in. In recognition of the one year anniversary of Investment Claims moving to a new platform, we have created a quiz we hope will test your knowledge of arbitration law and multilateral treaties. Good luck!
Investment Claims (IC) is an acclaimed service for both practitioners and academic users. Regular updates mean that subscribers have access to a fully integrated suite of current and high quality content. This content comes with the guarantee of preparation and validation by experts.
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The post How much do you know about investment arbitration? appeared first on OUPblog.
By: DanP,
on 6/24/2014
To paraphrase the Bard, the course of class arbitration never did run smooth. Ever since its inception in the early 1980s and 1990s, the development of class arbitration has been both complicated and controversial. For example, in 2003, the US Supreme Court decision in Green Tree Financial Corp. v. Bazzle, was read as providing implicit approval of class arbitration and resulted in the massive expansion of the procedure across the country. Seven years later, the Court took the opposite tack and decided to curtail the procedure with its opinion in Stolt-Nielsen S.A. v. Animal Feeds International Corp., which was followed by equally problematic decisions in AT&T Mobility LLC v. Concepcion, Oxford Health Plans LLC v. Sutter, and American Express Co. v. Italian Colors Restaurant.
One result of the Supreme Court’s recent activity has been the diminution in the number of class arbitrations that are being filed with arbitral institutions. However, the Court’s decisions have done little to silence either the policy debates or the litigation surrounding class arbitration. Indeed, approximately 80 federal court opinions and 40 state court opinions have been rendered on this subject in the last 12 months alone, which suggests that the United States’s struggle with large-scale arbitration is far from over.
Most observers recognize that the debate about class arbitration in the United States is closely tied to concerns about judicial class actions. However, other countries are beginning to expand the number and type of mechanisms used to provide relief for large-scale legal injuries at precisely the same time that the United States is pulling back from class actions and arbitrations. These other legal systems have created a variety of means of addressing mass injuries, including several types of large-scale arbitration. Furthermore, efforts to adopt large-scale arbitration in other jurisdictions typically do not generate the same type of animosity and opposition that is seen in the United States. This phenomenon suggests that there is much that the United States can learn by studying the mechanisms used in these other legal systems.
One jurisdiction that has come out strongly in favor of large-scale arbitration is Brazil, which has created a constitutional right to large-scale arbitration in labor disputes. The Brazilian legislature is also currently contemplating a bill (No. 5139/2009) that would extend the right to large-scale arbitration to other types of mass legal disputes. In many ways, Brazilian acceptance of class and collective arbitration is unsurprising, since Brazil also embraces various types of large-scale litigation. However, US courts and policymakers could find it useful to consider the way in which Brazil differentiates between matters that are appropriate for court and matters that are appropriate for arbitration, since some of these analyses may also be relevant in the United States.
Spain also provides for large-scale arbitration, although the Spanish procedure is statutory rather than constitutional in nature. The Spanish approach involves a non-representative collective procedure that addresses many of the concerns commonly enunciated by respondents, particularly with respect to the issue of consent. Because the Spanish statute on collective arbitration is limited to consumer disputes, the legislature was able to tailor the mechanism narrowly to suit the needs of the participants. This type of subject-specific approach could prove instructive to those in the United States who are concerned about the problems associated with a trans-substantive procedure or with questions of consent.
Some commentators have suggested that class arbitration in the United States has experienced difficulties because the procedure was created through non-democratic (i.e. judicial) means rather than through legislative measures. This theory would discount the usefulness of the Brazilian and Spanish procedures because they were implemented through democratic processes. However, other countries have adopted large-scale arbitration through judicial action and have nevertheless avoided the kinds of ongoing difficulties seen in the United States.
The Republic of Colombia was the first jurisdiction outside the United States to adopt large-scale arbitration through judicial means. Both the Supreme Court of Justice and the Constitutional Court have suggested that class claims are arbitrable, and at least one arbitral tribunal is known to have rendered an award in a group action. Although other jurisdictions, most notably Canada, have declined to adopt class arbitration through judicial means, Colombia’s acceptance of class arbitration suggests that the United States is not an outlier in terms of the way in which class arbitration has developed.
This conclusion is borne out by the fact that several other legal systems have authorized large-scale arbitration through judicial measures. For example, the German Federal Court of Justice authorized arbitration of shareholder disputes in 2009, after having decided against doing so in 1996. The earlier decision was based on the belief that the legislature should be the one to determine whether these types of issues were arbitrable. However, when the democratically elected officials failed to take action one way or another, the judicial branch decided to step in. As a result of the 2009 decision, the German Institution of Arbitration (DIS) created its Supplementary Rules for Corporate Law Disputes (DIS-SRCoLD), which allow for a unique type of non-representative collective arbitration. Although the rules are aimed primarily at so-called “traditional” multiparty disputes (i.e., those that involve only a handful of participants), some of the procedural elements could be usefully adopted in matters involving larger numbers of parties.
Large-scale proceedings have also been adopted by arbitral tribunals acting without the guidance of a court. The most well-known example of this phenomenon was seen in the context of investment arbitration. In 2011, the arbitral tribunal in Abaclat v. Argentine Republic allowed 60,000 Italian bondholders to join together and bring their claims in a single proceeding. The resulting procedure has been characterized as “mass” arbitration rather than class arbitration, since it contains both representative and aggregative features. Although no other mass arbitration has yet been seen in the investment realm, the award in Abaclat was cited with approval by the tribunal in Ambiente Ufficio v. Argentine Republic, which involved ninety claimants.
As the preceding suggests, large-scale arbitration takes many forms and arises in many different ways. Although the US Supreme Court has attempted to curtail one particular mechanism (class arbitration), there are a multitude of other means of allowing large numbers of similarly-situated parties to join together to assert their claims. Indeed, parties in the United States have already begun to experiment with various types of non-class arbitration. For example, some parties have successfully brought large-scale, non-representative (collective) arbitrations, while other parties have resorted to filing large numbers of bilateral arbitrations simultaneously so as to drive respondents to the settlement table. These techniques underscore the need for scholars, policy-makers and practitioners to continue to debate and discuss the various issues relating to large-scale arbitration in the United States. In so doing, a comparative analysis would be beneficial, since the best solution to these problems may be found in procedures developed in other jurisdictions.
Stacie Strong is Associate Professor of Law at the University of Missouri School of Law. She is the author of Class, Mass, and Collective Arbitration in National and International Law and Research and Practice in International Commercial Arbitration: Sources and Strategies.
The post Class arbitration at home and abroad appeared first on OUPblog.
By: Kirsty,
on 4/10/2014
This weekend will see the oral arguments for the 21st Annual Willem C. Vis International Commercial Arbitration Moot begin in the Law Faculty of the University of Vienna, an exciting event for students, coaches, arbitrators, and publishers. This yearly event is a highlight in the arbitration event calendar and a chance for lawyers and students from all over the world to meet. Oxford University Press will have a stand in the main meeting place, the Juridicum, and we’re looking forward to showcasing our great selection of products.
With nearly 100 mooting teams, the moot promises to be a busy, vibrant, and sociable event. To find out more about this year’s problem, visit the moot website. In case you didn’t know already, this year’s moot will be using the CEPANI rules.
At the OUP stand you will be able to find plenty of copies of the essential text, Redfern and Hunter on International Arbitration. Last year we caught up with the authors to discuss the book and the future of international arbitration, watch the videos below to find out more.
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Also available will be the second edition of Principles of International Investment Law by Rudolf Dolzer and Christoph Schreuer, and the third edition of Schlechtriem & Schwenzer: Commentary on the UN Convention on the International Sale of Goods (CISG) edited Ingeborg Schwenzer. If you come to the stand you will be able to demo the fantastic newly re-lauched online service Investment Claims on our iPads.
It’s hard not to notice that Vienna is a great location for this event, and with so much do to in between moots that you’ll be spoilt for choice. Once you’ve had a good look at the OUP stand, why not:
We’ll be setting up our stand early on Saturday (13 April) morning and will be packing up on Tuesday morning. Do come by and say hello if you’re at the Moot, we’re looking forward to seeing you!
Isabel Jones is Senior Marketing Executive in OUP UK’s Law department.
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The post Preparing for the Vis Moot 2014 appeared first on OUPblog.
By: Julia Callaway,
on 4/6/2014
Oxford University Press is excited to be attending the twenty-second International Council for Commercial Arbitration (ICCA) conference, to be held at the InterContinental Miami, Florida, on 6-9 April 2014. This year’s theme, “Legitimacy: Myths, Realities, Challenges” gives opportunity for practitioners, scholars and judges to explore the issues surrounding, what has been dubbed by some, the legitimacy crisis. To find out more take a look at this year’s exciting program devised by Lucy Reed and her team.
The four-day conference is packed with informative panel discussions, interactive breakout sessions, ICCA Interest Groups lunch meetings and networking events. With over 1,000 participants from around the world, highlights include “Legitimacy: Examined against Empirical Data” chaired by Jan Paulson, Holder of Michael Klein Distinguished Scholar Chair, University of Miami, and the opening session “Setting the Scene: What Are the Myths? What Are the Realities? What Are the Challenges?”, where Oxford author Eric Bergsten is to receive the ICCA Award for Lifelong Contribution to the Field of International Arbitration. Here are some of the conference events we’re excited about:
There is even a “Spotlight on International Arbitration in Miami and the United States” session which is not to be missed, but there is more to this amazing city than just arbitration. Located on the Atlantic coast in south-eastern Florida, Miami is a major centre and a leader in finance, commerce, culture, and international trade. In 2012, Miami was classified as an Alpha-World City in the World Cities Study Group’s inventory. In her upcoming title, Ethics in International Arbitration (publishing summer 2014), author Catherine Rogers argues:
“Ultimately, the challenge of ethical self-regulation is a challenge for the international arbitration community to think beyond its present situation, to future generations and future developments in an ever-more globalized legal world. It is a challenge for international arbitration to bring to bear all the pragmatism, creativity, and sense of the noble duty to transnational justice that it has demonstrated in the very best moments of its history.”
This comment highlights just one of the challenges facing arbitral legitimacy in the ever-growing world of international arbitration, which further highlights the importance of the ICCA’s chosen theme for the 2014 conference. If you are joining us in Miami, don’t forget to visit the Oxford University Press booth #16 where you can browse our award-winning books, and take advantage of the 20% conference discount. Plus, enter our prize draw to for a chance to win an iPad Mini, and pick up a free access password to our collection of online law resources including Investment Claims. See you in Miami!
Jo Wojtkowski is the Assistant Marketing Manager for Law at Oxford University Press. Rachel Holt is Assistant Commissioning Editor for Arbitration products at Oxford University Press.
Oxford University Press is a leading publisher in arbitration including the Journal of International Dispute Settlement, edited by Dr Thomas Schultz, and the ICSID Review edited by Meg Kinnear and Professor Campbell McLachlan, as well as the latest titles from experts in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from trademarks to patents, designs and copyrights, developing outstanding resources to support students, scholars, and practitioners worldwide.
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The post Preparing for International Council for Commercial Arbitration 2014 appeared first on OUPblog.
By: Alice,
on 3/3/2014
The recent adoption in July 2013 by the United Nations Commission on International Trade Law (UNCITRAL) of the Rules on Transparency in Treaty-based Investor-State Arbitration marks an important milestone in the development of international investor-state arbitration. In the early days of this type of arbitration in the late 1990s, tribunals like those formed under Chapter 11 of the North American Free Trade Agreement (NAFTA) were subject to criticisms that the process was “secret’ and thus not legitimate.
The new Transparency Rules respond to many of these old critiques and UNCITRAL can be applauded for the result of its significant efforts. In particular, the Transparency Rules include provisions addressing: the free publication of information and documents submitted in an arbitration (Articles 2-3), the submission of amicus briefs (Article 4), submissions by non-disputing treaty Parties (Article 5), open hearings (Article 6), and the protection of confidential information (Article 7).
However, despite the good news, there is a counter-tension in the transparency debate in investor-state arbitration in favor of secrecy and the protection of government information. A default to confidentiality and privacy has its historical origin in the commercial arbitration roots of the UNCITRAL Arbitration Rules, but was also evident in more recent statements by the UNCITRAL members in the negotiations that resulted in the new rules.
The tension was made most evident in Article 7 of the Transparency Rules, titled “Exceptions to transparency”, and specifically in subparagraph (2) where the critical definition of “confidential or protected information” is set out. Although subparagraph (3) of the article makes clear that a tribunal has the authority to determine whether a document is confidential or protected, this is undermined by subparagraph (2)(c) which states that information of the respondent State party to the arbitration designated as protected is determined by the law of the respondent State. This is in contrast to earlier negotiation text versions of Article 7(2)(c) where such determinations would have been determined by the tribunal.
Vienna International Centre. Photo by BambooBeast, 2011. CC-BY-SA-3.0 via Wikimedia Commons.
In effect, by making domestic law the governing law concerning the designation of documents as confidential, the ultimate authority to determine whether documents should be made public is effectively taken out of the hands of a tribunal. In well-developed systems of access to government information, such as with the Freedom of Information Act (FOIA) in the United States, or the Access to Information Act (ATIP) in Canada, this may not be problematic as there are domestic remedies for when government officials err too far on the side of secrecy.
The problem will be that, with States that have no such due process mechanisms, and a policy default to secrecy, Article 7 could well force tribunals to apply laws that are contrary to the very transparency objectives of the new Transparency Rules. The domino effect of this approach is that State respondents may apply the same restrictive approach to the production of documents to the arbitration itself – thus impeding transparency and potentially violating the new rules.
Some members of the UNCITRAL negotiating group believed the approach which was ultimately included in Article 7(2)(c) could be “open to abuse”. Specifically the view was offered in the October 2012 session of the UNCITRAL Working Group that “providing for mandatory application by a State of its national law in relation to information provided by it would permit a State to circumvent the object of the rules by introducing legislation precluding the disclosure of all information in investor-State disputes. In response, unanimous support was expressed for the proposition that it was not permissible for a State to adopt UNCITRAL rules on transparency and then use its domestic law to undermine the spirit (or the letter) of such rules.”
The compromise that occurred leading to the final version of the Transparency Rules Article 7(2)(c) was the inclusion of provisions in Article 1 relating to the “discretion and authority of the tribunal” to promote the transparency objectives of the new rules and provide a mechanism for balancing confidentiality and transparency. As stated in Article 1(6): “In the presence of any conduct, measure or other action having the effect of wholly undermining the transparency objectives of these rules, the arbitral tribunal shall ensure that those objectives prevail.”
It begs the question: what if a respondent State only partially undermines the transparency objectives of the rules? How such a provision will be applied in future by tribunals in the face of a respondent State intent on maintaining secrecy will be an important test of the effectiveness of the new UNCITRAL Transparency Rules.
Ian A. Laird is a Partner in the Washington, DC office of Crowell & Moring LLP and the Co-Founder and Editor-in-Chief of Investment Claims, an online law resource from Oxford University Press. He is also an Adjunct Professor at Columbia Law School and Georgetown University Law Center.
Investment Claims is a regularly updated collection of materials and analysis used for research in international investment law and arbitration. It contains fully searchable arbitration awards and decisions, bilateral investment treaties, multilateral treaties, journal articles, monographs, arbitration laws, and much more, all linked and cross-referenced via the Oxford Law Citator.
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The post Transparency in investor-state arbitration appeared first on OUPblog.
By: KimberlyH,
on 2/18/2013
How can we outline the discussion on the law and practice of international arbitration? What is the legal process for the drafting of the arbitration agreements or the enforcement of arbitral awards? Long-time international arbitrators Constantine Partasides, Alan Redfern, and Martin Hunters — co-authors of Redfern and Hunter on International Arbitration: Fifth Edition with Nigel Blackaby — sat down with the OUPblog to discuss the latest developments in their field. Watch the following videos to learn more about current views on international arbitration and what changes they expect to see in the future.
How did the idea of writing a book come about?
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What challenges are arbitrators facing now?
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How do you view the future of international commercial arbitration?
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Nigel Blackaby, Constantine Partasides, Alan Redfern, and Martin Hunter are the authors of Redfern and Hunter on International Arbitration: Fifth Edition. Nigel Blackaby is one of the partners of the international arbitration group at Freshfields Bruckhaus Deringer in Washington, DC. Constantine Partasides is a one of the partners of the international arbitration group at Freshfields Bruckhaus Deringer in London. Alan Redfern is the barrister and international arbitrator at One Essex Court Chambers in London. Martin Hunter is currently a barrister and international arbitrator at One Essex Court Chambers.
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The post What does the future hold for international arbitration? appeared first on OUPblog.
By: Kirsty,
on 3/31/2011
The conversation in the new and old media over the last several weeks has been dominated by reports about uprisings in Tunisia, Libya and Egypt and violent clashes in Bahrain, Yemen, the Ivory Coast, Iraq and elsewhere. In Libya, fighting currently is reported to take place close to strategic oil installations. Because of the scarcity of claims arising out of similar events in investor-state arbitration, political risk insurance claims determinations by the U.S. Overseas Private Investment Corporation (OPIC) can play an important role to develop this area of law and fill these gaps in future investor-state arbitral arbitrations.
OPIC has a long history of dealing with claims under political risk insurance policies arising from political violence. Its first political violence claims arose as a consequence of the rebuilding efforts by the Organization of American States following political strife in Dominican Republic in 1967. Early claims included a 1968 claim arising out of war damage to an extension of Jerusalem airport. Since then, OPIC has addressed political violence claims relating to projects in inter alia Pakistan, Bangladesh, Chile, Indonesia, Nicaragua, Haiti, the Philippines, Rwanda, Democratic Republic of Congo, Sierra Leone, Gaza, Colombia and Afghanistan. These claims concerned damages suffered as a consequence of declared war, violent secessions, military coups, civil war, or revolution. The variety of the different situations encountered in OPIC claims determinations provides valuable insight into how political violence can and does affect foreign investments.
One key element that OPIC determinations have spent significant time addressing is attribution to establish who is responsible the underlying act of violence and for what purpose it was committed. Was violence committed by a group that was trying to overthrow the government, was it committed by a group that was under the control of a government? Or was the violence non-political in nature and as such not covered by the OPIC policy?
The OPIC claims determination with respect to the Freeport mining project in Indonesia is perhaps particularly on point for current events. Freeport Indonesia was engaged in mining activities in the area then known as Irian Jaya (now West Papua), a province of Indonesia on the island of New Guinea The area in which Freeport Indonesia operated became part of Indonesia only after negotiations between the Netherlands and Indonesia. A year after Irian Jaya was joined to Indonesia, various dissident groups, known as the Organisasi Papua Merdeka (“OPM”) formed for the purpose of asserting independence.
In 1969, a first uprising took place, which did not damage Freeport Indonesia facilities. In 1976, though, Freeport Indonesia received letters from OPM demanding assistance in a renewed insurrection expected in spring of 1977. That uprising would reputedly be joined by a major invasion of nationalist forces from neighboring Papua New Guinea. An uprising did occur in 1977, including in the area of Freeport Indonesia’s facilities. Government of Indonesia armed forces were sent to quell the insurrection. The military apparently used Freeport Indonesia facilities as a base of operations. During the period from July 23, 1977 to September 7, 1977, Freeport Indonesia’s facilities suffered damage during acts of sabotage and attacks. Because the partisans shared a common purpose to assert independence, OPIC determined that the loosely affiliated OPM did constitute a revolutionary force despite its lack of a clear command structure. OPIC further applied a “preponderance” test, weighing the evidence available to OPIC to establish whether it was more likely than not that the harm done to Freeport’s facilities was the result of
