Establishing investor status is a precondition for substantive protections, and a key jurisdictional issue in arbitration, of investor–state disputes under the Energy Charter Treaty (ECT). This article argues that the differences in the ways the term “investment” is interpreted in arbitration under the ICSID Convention and in international commercial arbitration are to a large extent preserved in arbitration under the Energy Charter Treaty. In ICSID arbitration, which preserves many elements of state sovereignty, tribunals have set a higher threshold for “investment.” In international commercial arbitration, on the other hand, the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) has interpreted the term more broadly, thus capturing more investor activities in the energy sector of the host states. Moreover, both types of arbitral procedure available under the Energy Charter Treaty continue to have their respective advantages and disadvantages. However, given the changing role of states in the global energy sector, this traditional divide may become less clear.

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The more things change, the more some stay the same. This article first highlights renewed concerns about delays and, especially, costs in international commercial arbitration (ICA). Many now urge quite radical solutions to make ICA more efficient, including allowing parties to authorize arbitrators to facilitate settlement (Arb–Med). At the same time, there are growing calls for more transparency, non–party participation, and other rule changes to promote the legitimacy of the burgeoning field of investor–state arbitration (ISA). Such reforms are justified by the greater variety of public interests involved in ISA, despite some possible losses in efficiency. We should resist a tendency simply to extend the solutions devised or proposed for ICA, particularly in the form of Rules of arbitral institutions, to contemporary ISA.However, some reforms incorporating proper safeguards may also be advisable in both fields, such as Arb–Med processes, or arbitrator remuneration providing better incentives to streamline proceedings. Many reforms can be implemented by institutions devising tailored ISA Rules, to be added as options for investors in bilateral or regional investment treaties or Free Trade Agreements (FTAs). Our article therefore proposes a variety of improvements. These are based on comparisons of the main Rules adopted for ISA (ICSID and the UNCITRAL Rules), the arbitration Rules of institutions like the Australian Centre for International Commercial Arbitration (ACICA) and the Japan Commercial Arbitration Association ( JCAA), and some of the provisions already found in Australia’s FTAs or governing trade disputes under the World Trade Organization (WTO) system. Hopefully, these improvements will enable ISA to keep developing through bilateral initiatives such as the proposed Australia–Japan FTA, emerging regional initiatives, and ultimately a new multilateral framework for investment. Although reforms are currently needed to bolster the legitimacy of ISA, longer–term reforms may instead re–emphasize efficiency, rather like ICA has done after decades spent achieving global acceptance.

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Canada’s State Immunity Act is problematic in that it does not clearly prevent foreign states from raising pleas of jurisdictional immunity to defeat applications seeking the recognition and enforcement of arbitral awards made against them. Worst, the Act can even be interpreted as allowing foreign states to raise such pleas to avoid obligations arising out of international awards. In this respect, Canadian law is clearly out of step with the law in force in jurisdictions that can truly be said to be wholehearted supporters of the international arbitration system, where such pleas are, quite rightly, unambiguously forbidden. While ideally the problem would be addressed through a legislative amendment, this article contends that it can be addressed through a dynamic and contextual interpretation of the Act’s provisions relating to the waiver exception.

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Having the same person act as both arbitrator and mediator to resolve a dispute may be an effective means of dispute resolution but is not without pitfalls for the unwary. There are many inherent problems with this combination that, if left unresolved, can jeopardize the arbitration proceedings or the enforceability of any resulting arbitration award. This article examines the conduct that may give rise to a successful challenge of a dual role arbitrator for his/her conduct during the arbitration or mediation proceedings and how such a challenge may be avoided. Specifically, this article demonstrates how parties can explicitly or implicitly waive their rights to challenge the dual role arbitrator in this regard.

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International arbitration awards are generally difficult to undo these days, given the legislative and judicial trend in many countries to take a restrictive approach towards review and appeals from such awards. However, where a costs award is made and there may be serious questions as to how those costs were arrived at by an arbitrator, an argument may be made that enforcement of such an award raises public policy concerns. This article examines two recent Singapore cases discussing the public policy ground under Singapore’s International Arbitration Act, one of which relates directly to an award on costs. It explores whether a too restrictive approach to this ground might prove counter–productive to the overall objective of promoting arbitration as a method of dispute resolution.

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The “public policy” ground for setting aside an arbitral award has been the subject of considerable debate in the realm of arbitration law. The Indian Supreme Court in the case of ONGC v. Saw Pipes, while giving an expanded meaning to “public policy,” held that a “patently illegal arbitral award” is against public policy and hence could be set aside by courts on that ground. The judgment was widely seen as erroneous by legal commentators and practitioners alike. This article, however, attempts to present a counter–view and argues that the Indian Supreme Court’s judgment in Saw Pipes, contrary to the views of many, has in fact laid down a correct and sound legal principle giving the doctrine of public policy its full amplitude.

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In Sourcing Unlimited, Inc. v. Asimco Int’l, Inc., the United States Court of Appeals for the First Circuit reverses a district court decision denying defendants’ motion to compel arbitration. In doing so, the court addresses two key issues. First, the court analyzes, as a matter of first impression, whether it has jurisdiction to hear an interlocutory appeal from an order denying a motion to compel arbitration of an international commercial dispute, where the appeal is brought by a party that did not sign the agreement containing the arbitration clause. Second, the court addresses the circumstances under which it is appropriate to compel arbitration based on principles of equitable estoppel. The court’s analysis brings into focus what United States courts appear to be doing when they compel arbitration on this basis.

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The NAFTA arbitral award on Canadian Cattlemen is specific in having its entire reasoning based on principles of treaty interpretation. Attempting to clarify the notion of “investment” under the NAFTA Agreement, this award carefully examines every principle of interpretation recognized under the Vienna Convention on the Law of Treaties that is applicable to the case. This article analyses the tribunal’s use of the methods of interpretation such as plain and ordinary meaning, object and purpose, context, subsequent practice and of supplementary means of interpretation. In terms of supplementary methods of interpretation, the tribunal’s reference to previous arbitral awards as supplementary means of treaty interpretation is evaluated, especially against the background of the lack of precedential force of international arbitral awards.

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The interrelation between European law and investment treaties is becoming ever more important. Recently,international arbitral tribunals had to consider questions such as the validity of bilateral investment treaties (BITs) concluded or in force between EU Member States and the applicability of EC law in investment disputes. An Advocate General (AG) at the European Court of Justice (ECJ) opined that some of Austria’s and Sweden’s BITs would violate EC law. In the course of the most recent enlargement processes of the EU, the Commission demanded adjustments to BITs of the now new Member States. In addition, the Commission’s Minimum Platform on Investment (MPoI) encroaches upon Member States’ competence to conclude and amend their BITs. Both the Communities and the Member States are parties to the Energy Charter Treaty (ECT). Under this treaty, third state nationals may bring claims against both the Communities and the Member States, but whereas EU nationals are barred from bringing claims against the Communities, they may still bring claims against other Member States. While the fate of the Treaty of Lisbon is still unclear, its entry into force would have fundamental consequences for international investment law.

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Due to the growing number of investor–state arbitrations and increasing number of bilateral investment treaties (BITs) being signed, it has become important to understand the implications of BITs for host countries. In this light, this article analyses the broad asset based definition of investment in the BITs signed by four South Asian countries, namely Bangladesh, Pakistan, India, and Sri Lanka. This analysis also assumes importance because these four countries, together, had signed 155 BITs at the end of 2007. Since the definition of investment is an important component of the investment treaties, this article attempts to understand the implications of a broad asset based definition of investment on the regulatory discretion of these four countries. In this context,this article also discusses the jurisprudence on the definition of investment that has emerged in the International Centre for Settlement of Investment Disputes (ICSID) cases and other international arbitration forums and its relationship with the broad asset based definition of investment which is found in most BITs.

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This article reviews nineteen cases concerning the setting aside of foreign–related arbitral awards in China. Apart from presenting statistical information, the author focuses on how the courts interpret regulations in cases. The main finding is that the Supreme People’s Court (SPC) tends to apply the regulations with a pro–arbitration attitude, which can be supported by its restrictive interpretation of prescribed grounds, preference for remission and broad use of setting aside awards only partially. In addition, the study also reveals a series of practical problems caused by an inconsistent arbitration legal system. The author recommends that the Arbitration Law (AL) of China should not only prescribe the grounds for setting aside foreign-related awards directly but also clearly specify the definition of foreign–related arbitral award.

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Over the past two decades various national courts have repeatedly been asked to enforce arbitral awards that have previously been set aside in their country of origin. However, even today judgments in case law and opinions among arbitration practitioners continue to differ remarkably on the question of the (il)legitimacy of enforcement orders for such awards. As was demonstrated in the article by Christopher Koch, French courts have manifested their readiness to enforce annulled awards in principle, whereas others, like the U.S. courts, have shifted from an enforcement–friendly attitude to a rather more reluctant approach. The following article explores the constraints that confine enforcing courts’ discretion on enforcement and discusses the approaches taken by Austrian and German courts.

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This article examines to what extent awards which have been annulled in their country of origin can be enforced in France and the United States. In the 1990s the Hilmarton case in France and the Chromalloy decision in the United States seemed to indicate that French and U.S. case law was moving in a similar direction. In both cases the courts enforced awards that had been set aside in their place of origin, not pursuant to the New York Convention, but on the basis of the more favourable provisions of domestic arbitration law. However, since then, the French and U.S. courts have taken diametrically opposed views. While the French courts continue to ignore foreign annulment decisions altogether, and will enforce an international arbitration award regardless of what the home jurisdiction finds as to its validity, U.S. courts have increasingly refused to enforce awards which were set aside at the place of arbitration. U.S. courts will disregard a foreign annulment decision only if it fundamentally violates U.S. public policy. This article argues in favour of a middle approach. By giving the word “may” in the phrase “Recognition and enforcement of the award may be refused” in Article V of the New York Convention greater weight, enforcement courts can examine the validity of a foreign annulment decision in the light of internationally recognized annulment reasons and not from the perspective of domestic rules pertaining to the recognition of foreign judicial decisions. This should strengthen the international efficacy of commercial arbitral awards within the framework of the New York Convention and not on the basis of domestic arbitration law.

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French labour law mainly protects the needs of the employees and consequently takes precedence over private agreements. Bearing this in mind, arbitration is rarely used in labour disputes in France and whenever it is used, it is essentially restricted to disputes arising out of collective agreements between national or local unions of employers and national or local unions of employees.

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Being a UNCITRAL Model Law country and a signatory to the New York Convention, Ukraine has a regime generally favourable to international commercial arbitration. However, some peculiarities outside of the original scope of the UNCITRAL Model Law and the New York Convention do exist in Ukraine, which may surprise foreign practitioners. The present article briefly discusses those special features of international commercial arbitration in Ukraine relating to arbitrability, evidentiary practice, recognition and enforcement of awards.

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Antisuit injunctions restrain foreign court proceedings in case of a valid agreement for arbitration. In the common law world, it has been argued that they have contributed to London’s eminent position as a popular arbitral seat and that the opinion of Advocate General Kokott of September 4, 2008 and the European Court of Justice (E.C.J.) judgment of February 10, 2009, following the referral of West Tankers Inc. v. RAS Riunione Adriatica di Sicurta S.p.A. (The Front Comor) to the E.C.J. in December 2006, has already promulgated a change in this state of affairs.

The purpose of this article is to discuss comparatively antisuit injunctions in relation to arbitration in the United States, the United Kingdom, and in Europe, analyze the aforementioned opinion given by Advocate General Kokott and the E.C.J. judgment that followed, and the future of London’s arbitral popularity, and finally, set out the modern function and role of antisuit injunctions in light of the efforts to harmonize private international law.

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That there is a general preference for three-member tribunals in international arbitration cannot be gainsaid. Conventional wisdom has it that having three arbitrators as opposed to only one helps to improve the quality of the proceedings and the ultimate award, and increases party confidence in the arbitral process. This article examines the conventional wisdom on the benefits of having three arbitrators, and specifically questions whether having party-nominated co-arbitrators generally improves quality or reasonably increases party confidence. The article also proposes ways in which party-nominated co-arbitrators might be selected to better serve both the tribunals on which they sit and the parties that nominate them.

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In Bhatia International v. Bulk Trading S.A., the Indian Supreme Court ruled that the Arbitration and Conciliation Act, 1996 (“the Act”), applies to international commercial arbitrations held outside India. In its aftermath, this ruling has been misconstrued and misapplied by the Indian courts to fundamentally alter the nature of the Act and widen their jurisdiction over such international commercial arbitrations. This article critically examines the ruling, identifies the law laid down, explains the limits of its application, and offers positive suggestions for unwary foreign parties to avoid its trap.

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Nigeria is a federation and the rising profile of arbitration law and practice has brought to the fore questions regarding the validity of a substantive federal law on arbitration. The constitutional schematic of legislative competence between the National Assembly and the State Houses of Assembly has generated judicial discourse in other areas of the law which offer an insight into the proper interpretation of the relevant constitutional provisions. This article is a critique of the various arguments in favour of a substantive federal law on arbitration. It is argued, contrary to what appears to be conventional wisdom, that arbitration is a residual matter within the legislative competence of the State Houses of Assembly. The article also reviews the laudable provisions of the current Draft Federal Arbitration and Conciliation Bill proposed by the National Committee on the Reform and Harmonization of Arbitration and Alternative Dispute Resolution (ADR) Laws in Nigeria against the background of the deficiencies in the current statutory regime under the Arbitration and Conciliation Act 1990 and the principles evolved by the courts.

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Parties to international sale of goods transactions often exercise their rights to choose a governing law and refer disputes to arbitration. Where their choice is incomplete, as is the case where the Contracts for the International Sale of Goods (CISG) is chosen, complex conflict of laws problems can arise, including disputes over the governing limitation period. While such disputes are traditionally resolved using conflict of laws methodologies, this article argues a superior solution can be achieved through procedural law. Through a simple discretion, arbitral tribunals may apply the limitation period from either the International Institute for the Unification of Private Law (UNIDROIT) Principles 2004 or the UN Limitation Period Convention. Such an approach makes determination of the governing limitation period a simpler process, allowing parties to focus their attention on what they are really concerned with—the merits.

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States have traditionally preferred the finality of investor-state awards, in preference to “consistency and correctness.” Following the decisions in SGS and Lauder, however, commentators have argued that “consistency and correctness” ought to outweigh finality. In this article, it is argued that, based on the available evidence, the “tide has not turned”: states and investors continue to prefer finality over consistency and correctness. It is further argued that, based on this position, reform ought to be considered to seek to protect the finality of investorstate arbitral awards. It is submitted that this reform can be achieved through the creation of an Additional Annulment Facility and the issuing of an “interpretive note” by the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID) Administrative Council.

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In Dallah v. Pakistan, the English High Court refused to enforce against Pakistan an award rendered by an International Chamber of Commerce (ICC) tribunal in Paris, on the basis that Pakistan was not a party to the underlying arbitration agreement. Interestingly, it reached that conclusion based on the same French test which had been applied by the arbitral tribunal to reach precisely the opposite conclusion. The High Court’s judgment provides a useful opportunity to consider a number of issues concerning the enforcement of New York Convention awards against non-signatories, and to reflect on possible disadvantages of the French “direct” approach to arbitration agreements (i.e., reviewing them independently of any applicable law).

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Five years after the 2003 Spanish Arbitration Act came into force, the Court of Arbitration of the Official Chamber of Commerce and Industry of Madrid (CAM) has entirely modified its arbitration rules. The new set of rules incorporates the major modern arbitration trends which lawyers from other countries are familiar with. This article sums up the main features of the new rules and the statutes of the court to show that the new regulations have increased the transparency of the institution and offers a body of rules to be applied to arbitrations with seats not only in Spain but also all over the world.

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The amendment to Article 85-1, section 2 of the Taiwanese Government Procurement Act, promulgated on July 4, 2007, is generally regarded as the most important change made in the field of Taiwanese construction law in recent years. The new law provides an avenue for contractors to refer disputes arising from government procurement construction contracts to arbitration without a written arbitral agreement, when certain criteria are met. This is quite noteworthy because it deviates from the general requirement for a written arbitration agreement. Furthermore, various questions relating to the application of the amendment also demonstrate that the concise language of such amendment is not sufficient to cope adequately with the needs in practice. This article aims to highlight and analyze major controversial issues relating to the amendment with available administrative interpretation letters and jurisprudence in the hope of providing a better picture of the application of the new law.

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One of the key aspects of national and international arbitrations is the manner in which evidence is gathered and presented to the arbitral tribunal or panel. The collaboration of parties in these matters can shape the outcome of almost every dispute. However, the approach of international courts and tribunals such as the Iran-United States Claims Tribunal (IUSCT) toward the concept of presenting and producing evidence is subject to many issues, for example, the rules of evidence, applicable law, the arbitrators’ legal background, the inherent power of courts and tribunals and the principle of fair trial. Truly, no aspect of international arbitration has caused as much friction as the issue of discovery. The scope of discovery available to parties varies, and is often a delicate issue in international disputes as parties from different legal backgrounds frequently have very different expectations as to how the evidence-gathering process should be conducted.

In brief, this article does not promote the notion that liberal discovery is a fundamental right, rather it focuses on developing a model that treats cost effectiveness as a fundamental issue which should be examined when drafting procedural rules.

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Transnational law as applied in international arbitration is based on private contracts and the principle of party autonomy. It is therefore often described as being increasingly detached from domestic and international law. At the same time, it is well accepted that international arbitral tribunals must apply certain mandatory norms protecting public policy irrespective of the law otherwise applicable. Based on a survey of arbitral practice, this article argues that, taken together, both developments contribute to the emergence of transnational hierarchies of norms, a “constitutionalization” of transnational law.

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The ability of state entities to submit to international arbitration remained the subject of hot debate for a long time under Brazilian law. Brazil’s resistance to arbitrability of disputes involving public administration was not very different from the resistance faced by other countries around the world. Brazil began to overcome traditional hostilities related to arbitration involving state entities in 2005, as a result of legislative reforms, which expressly authorized the use of arbitration in public-private partnerships (PPPs) and in concession contracts, as well as favorable decisions rendered by the Superior Court of Justice. In light of these developments, it can now be said that Brazilian law fully and finally recognizes the capacity of state entities to submit to arbitration. This recognition provides greater security to investors that contract with Brazil’s state entities, and ultimately contributes to the country’s economic growth.

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With the purpose of protecting the users of International Chamber of Commerce (ICC) arbitration services, the Paris Court of Appeal found that the exclusion of liability clause provided under Article 34 of the ICC Rules is null and void under French law as it authorizes the arbitral institution not to perform its main contractual obligation to organize and administer the arbitration proceedings. Thus, the ICC may be found liable under French law for breaches of its obligations under its contractual relationship with the parties to the arbitration proceedings. However the reinforcement of the control exercised over the proper performance of the arbitral institution’s obligation is balanced by the fact that for the institution’s liability to be effective, there is an evidentiary issue which may be difficult for the parties to establish.

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In its September 25, 2008 decision in Czech Republic v. Pren Nreka, the Paris Court of Appeal held notably that in ad hoc arbitration under a bilateral investment treaty (BIT), the notion of “investment” must be interpreted in accordance with the terms of the BIT and is not subject to objective criteria or tests external to the BIT, while giving an extremely broad reading to language in a BIT defining an “investment” as “any kind of asset invested in connection with economic activities.” As discussed in the commentary below, this should revive the debate as to whether, in investment arbitration, a common and unified definition of the notion of “investment” should be applicable worldwide and before any arbitral tribunal.

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This article seeks to provide a comprehensive review of the international law on confidentiality in arbitration both in terms of theory and in practice (by examining national legislation and the rules of the various institutions). The essential point is that the problem is not in defining confidentiality but in defining the exceptions to the duty of confidentiality where such a duty is recognized. The argument is made that, in practice, it is difficult to come up with a comprehensive formula for, or list of, all the exceptions to the obligation of confidentiality. However, there is an examination of the most comprehensive and recent attempt to codify the exceptions to the duty of confidentiality in the New Zealand Arbitration Act 1996 (2007 Amendment). Nonetheless, even as the New Zealand Arbitration Act 1996 recognizes, no code can be fully comprehensive, and there must be room for an independent third party (either the tribunal or the curial court) to rule on permitted exceptions to the obligation of confidentiality.

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The group of companies doctrine aims to extend, under certain conditions, the arbitration agreement signed only by one or some of the companies of a group also to the non-signatory companies of the same group. One of the most interesting issues related to this doctrine is the relationship with the piercing or lifting the corporate veil doctrine. This article analyzes and compares the case law applying these two theories, in order to determine whether there is any difference between them in relation to their scope and the conditions required by courts and arbitration tribunals for their application. In particular, the article aims to determine, on the basis of the result of the above analysis, whether there is any reason for the group of companies doctrine to exist and, as consequence, whether it is possible to rely on it to extend the arbitration agreement to the non-signatory companies of a group.

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Parallel proceedings are common even when an arbitral agreement mandates that all disputes be resolved in one forum. When a party to an arbitration agreement wishes to prevent the other from pursuing a parallel proceeding it may seek an antisuit remedy, either from the court at the seat of arbitration or from the arbitral tribunal. This article considers when and on what authority an arbitral tribunal should grant an antisuit order. This article argues that an exclusive arbitration agreement, requiring the parties to resolve their disputes through arbitration to the exclusion of any other forum, gives arbitrators the authority to grant an antisuit order to remedy a breach of the arbitration agreement itself. It is also argued that an award of damages covering the costs of the parallel litigation may be an appropriate supplementary remedy for the breach of an arbitration agreement, or an appropriate remedy for the breach of an antisuit order already granted.

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This article describes the still relatively recent changes in Turkey’s attitude towards foreign direct investment (FDI), the wave of FDI inflows as well as Turkey’s commitment to international investment instruments as contained in bilateral investment treaties (BITs) and the Energy Charter Treaty (ECT). Further, this article identifies certain potential catalysts for investment claims against Turkey, describing perceived shortcomings in Turkey’s legislative and administrative system which might carry the potential to trigger such claims by foreign investors against Turkey. This article concludes that the national policy-makers in Turkey should carefully analyze legislative and administrative reform decisions in light of Turkey’s commitments contained in the international investment instruments to which Turkey has subscribed.

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The article explores the rules applicable to the determination of damages for breaches of investment protection standards other than expropriation in the light of recent awards rendered in disputes involving Argentina. The authors argue, in essence, that: (i) the standards of compensation and valuation techniques used for expropriation are not, as such, legally barred in cases of non-expropriatory breaches of international investment law; (ii) the criteria to determine whether or not to borrow the standards and techniques used in case of expropriation are of a factual nature, namely the type of asset or of damage which is at stake and the intensity of the interference with the economic position of the investor; (iii) the valuation techniques that may be deployed to assess specifically what is required by a given standard of compensation are not, as such, imposed by international investment law and, as result, a tribunal can decide whether or not to use the Discounted Cash Flow (DCF) method to assess the fair market value of a given asset.

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Recently, with the introduction of the Law No. 1076- VI dated March 5, 2009, the issue of arbitrability of corporate disputes has once again become highly controversial in Ukraine, reminiscent of the discussions which took place in 2007–2008 following the Recommendations of the High Commercial Court of Ukraine of December 28, 2007. This time corporate disputes became non-arbitrable as a matter of law. This article briefly analyzes the true reasons behind the legislative amendments as well as their particular scope. Despite the broad definition of a corporate dispute, share purchase agreements are still not covered by it and are thus fully arbitrable.

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Unlike the umbrella clauses contained in bilateral investment treaties (BITs), the termination clauses and issues relevant to the termination of BITs have not sparked the same level of legal interest. BITs occupy an area in the legal system at the intersection of sensitive political and legal issues and, as such, the process of termination of BITs is not void of its complexities. This article discusses some of the issues of termination of BITs by first setting up a brief background on the termination of treaties. It then focuses on BITs and their termination effectuated pursuant to the provisions of the treaty, before turning to supposed premature termination of BITs. The discussion on damages resulting from improper termination is integrated into the debate on the benefits of renegotiation over termination. New econometric studies are more conclusive on the impact of BITs on economic growth in the host states. In this politically sensitive area, when combined with the complex political and legal considerations, the ideal of the survival of the relationship after a termination seems to be the preferred choice.

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Privilege remains a persistent problem for parties, counsel, and arbitrators in international arbitration. It presents a challenge to which there can be no single, perfect solution in complex arbitral proceedings where the law and practice of several jurisdictions may be relevant to the selection of appropriate rules of privilege. It is, however, possible to identify a growing consensus from a close study of international arbitral practice and the considerable scholarship in this area. This article examines the key approaches which arbitral tribunals may take to resolve the issue of privilege in international arbitration, drawing upon the existing guidance of institutional and procedural rules, national laws and the theoretical bases for privilege in all legal systems. Based on this analysis and the consensus which emerges, this article tenders a definitive revision of existing procedural rules which would provide the certainty, without unnecessary prescription, that this complex area of arbitral procedure demands.

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This article surveys the enforcement of arbitration awards in five Southeast Asian nations: Vietnam, Laos, Cambodia, Thailand, and Myanmar. Each has large and urgent needs for foreign investment but each presents a legal system with a less than spotless record for effective and transparent investment protection. The article reviews current laws and the extent to which practice follows the law. In light of the conclusion that law and practice are often not aligned across the region, it concludes with a short discussion of the implications and possible alternatives for those affected.

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ID: JOIA2009044

A continuing controversy in international commercial arbitration concerns the right of a private party to an arbitration to execute an award against a recalcitrant state party, despite the advent of the doctrine of restricted immunity, which seemingly applies only to waiver of jurisdiction, not execution. The problematic issue is the extent to which, if at all, a state that has waived sovereign immunity from jurisdiction has also waived immunity from execution—in effect from enforcement of an arbitral award by attachment of its sovereign assets. In a sign that the old order may be changing, some courts have been willing to hold that consent by a state to arbitration implies waiver of immunity from execution as well as from jurisdiction. The issue was recently tackled by the Hong Kong Court of First Instance, in FG Hemisphere Associates L.L.C. v. Democratic Republic of Congo. Reyes, J. looked at what might constitute waiver of sovereign immunity, particularly with respect to immunity from execution in the context of enforcement of an arbitral award against a state, finding that participation in an arbitration, including agreement to arbitral rules requiring satisfaction of an award, was not sufficient to constitute waiver of immunity from execution in itself. Taking that decision as a useful starting place, this article discusses the issue of waiver of sovereign immunity from execution with respect to arbitral awards.

Copyright © 2009 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2009045

During the ten years that followed the enactment of the Arbitration Act 1999, the Swedish Supreme Court and courts of appeal have rendered a number of decisions in arbitration-related matters. This article comments on selected cases of particular interest to the international practitioner, including, inter alia, the Swedish doctrine of assertion, the law applicable to an agreement to arbitrate, arbitrability of competition law issues, review of arbitrators’ fees, confidentiality, reasons in arbitral awards and the jurisdiction of Swedish courts in international matters.

Copyright © 2009 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2009046

In West Tankers Inc. v. RAS Riunione Adriatica di Sicurta S.p.A. (The Front Comor), the European Court of Justice (ECJ) held that it is inconsistent with Council Regulation 44/2001 (EC) for a court of an EU Member State to issue an antisuit injunction forbidding a lawsuit to proceed in another Member State, even if the antisuit injunction is issued in support of an arbitration agreement. This comment summarizes the ECJ’s judgment, which has given rise to considerable criticism, as well as the U.K. House of Lords’ earlier judgment, which had advocated the opposite conclusion. It also considers some of the consequences of the ECJ’s judgment, including in particular the risk that judgments rendered in disregard of arbitration agreements will have to be enforced, and proposes a possible solution to this problem.

Copyright © 2009 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2009047

In Dallah v. Pakistan, the English Court of Appeal confirmed the High Court’s refusal to enforce against Pakistan an award rendered against it by an ICC tribunal in Paris, on the basis that Pakistan was not a party to the underlying arbitration agreement. Fuller comment on the case and the issues raised by it is included in the authors’ comments on the High Court judgment in a previous issue of this journal. The present note restricts itself to summarizing the findings of the Court of Appeal, which are similar to those of the High Court (although one of the Court of Appeal judgments contains a much more extensive discussion of the residuary discretion to enforce under the New York Convention), and to commenting on the Court of Appeal’s intriguing obiter dicta concerning the Hilmarton/Chromalloy controversy.

Copyright © 2009 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2009048

Copyright © 2009 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2009049

Copyright © 2009 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2009050