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international litigation blog

Netherlands to Modernize Model BIT

The Netherlands is currently modernizing its model bilateral investment treaty (model BIT) and has recently published the draft of the new model BIT that the government intends to use as a basis for (re-)negotiating their existing and future bilateral investment treaties with non-EU Member States.

Following numerous recent criticisms involving investment protection and investment arbitration, the new draft model BIT is clearly aimed at striking a better balance between the rights and duties of host States, on the one hand, and investors, on the other hand. To this end, the draft model BIT introduces some interesting developments. In particular, it introduces stricter requirements for investors seeking protection.

With respect to investment arbitration, the draft model BIT provides for the following key changes:READ MORE

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U.S. Supreme Court Rules on Enforceability of Individual Arbitration Agreements in Employment Contracts

On 21 May 2018, the U.S. Supreme Court (the Supreme Court) handed down its decision in Epic Systems Corp. v. Lewis finding that arbitration agreements in which an employee agrees to arbitrate any claims against an employer on an individual rather than on a class or collective basis are enforceable and are not in violation of the National Labor Relations Act (the NLRA).

The judgment concerned three consolidated cases: Epic Systems Corp. v. Lewis; Ernst & Young LLP v. Morris and NLRB v. Murphy Oil USA, Inc. As the Court noted, the three cases differed in detail but not in substance.

In previous decisions (see: AT&T Mobility v. Concepcion; American Express Co. v. Italian Colors Restaurant; DIRECTV, Inc. v. Imburgia), the Supreme Court had already ruled that companies were entitled to include individual arbitration clauses in their consumer contracts which explicitly precluded those consumers from resorting to class arbitration. In the present case, the Supreme Court had to rule on whether companies could also include individual arbitration clauses in their contract with their employees which required those employees to waive their rights to participate in class and collective actions.READ MORE

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New York Court Rules on Proper Venue for Claims Brought Against Foreign Sovereigns

On 30 March 2018, the U.S. District Court for the Southern District of New York (the Court) handed down an interesting opinion on the issue of proper venue in relation to suing a foreign sovereign in a U.S. court.

The question of proper venue is distinct from that of jurisdiction which focuses on whether a particular court has authority to hear the case. Venue, however, deals with geographical location. Therefore, a court may have jurisdiction over a certain matter, yet be considered as an improper venue.

Choosing the proper venue is crucial in any action as a finding of improper venue can lead to burdensome and adverse consequences for the parties involved. For instance, the time spent on litigating the venue issue may render the claim time-barred due to the expiration of the statute of limitations and it will therefore be unable to move forward I  another forum. At best, improper venue will lead to additional costs for the parties as a party will need to re-file and re-serve the defendant.

The case at hand concerned an action taken against the Government of Ukraine by a group of plaintiffs consisting of a Ukrainian automobile business, Luxexpress-II Ltd; its founders, Mr. and Mrs. Ivaneko; a U.S. supplier, Alamo Group Inc.; and the U.S. corporation Luxexpress 2016 Corp. (the Plaintiffs).  The claims arose from Ukraine’s seizure of land and demolition of the Plaintiffs’ business equipment and property and the subsequent refusal to compensate the Plaintiffs. In response, the Plaintiffs filed claims for racketeering, fraud, abuse of process, theft, conversion, unjust enrichment and unlawful takings and wrongful expropriation before the Court. Ukraine sought to dismiss the claims, arguing, inter alia, that New York was not the proper venue.READ MORE

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U.S.’s Withdrawal from Iran Nuclear Deal: Consequences on Transnational Litigation

President Trump’s decision to pull the United States out of the Iran nuclear deal (also called JCPOA) is likely to have repercussions on U.S.-EU cross-border litigation. In this short article, I wanted to highlight the EU’s most likely response towards the re-instatement of U.S. sanctions: the expansion of the EU’s blocking statute.READ MORE

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Council of the EU Adopts New Approach on Negotiating and Concluding EU Trade and Investment Agreements

Yesterday (22 May 2018), the Council of the European Union adopted its conclusions to the new approach on the negotiation of EU trade and investment agreements.

The adoption of this new approach is a direct consequence of Opinion 2/15 of the Court of Justice of the European Union (the CJEU) on the division of competences between the EU and its Member States.READ MORE

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Draft Bill to Establish Brussels International Business Court

On 15 May 2018, the Belgian government submitted to Parliament a draft bill (the Bill) for the creation of a Brussels International Business Court (the BIBC). As you may remember, we have already discussed the BIBC a couple of months ago after the Belgian government approved the Bill in October 2017. Since then (and before its submission to the Parliament), the Bill has been reviewed by both the High Council of Justice and the Belgian Council of State.READ MORE

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U.S. Supreme Court Excludes Foreign Companies From Alien Tort Statute

On 24 April 2018, the U.S. Supreme Court (the Supreme Court) handed down its judgment in Jesner v. Arab Bank, holding that foreign (i.e. non-U.S.) companies cannot be sued under the Alien Tort Statute (the ATS). The case builds on the Supreme Court’s judgment in Kiobel v. Royal Dutch Shell, in which the Supreme Court held that U.S. federal courts did not have jurisdiction under the ATS to hear claims for violations of international law that took place wholly outside the territory of the United States. After Kiobel, however, the question of whether the ATS also applied to corporations remained open. This question has now been settled in the present case.READ MORE

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