January 2017 - international litigation blog
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January 2017

American Bar Association Publishes Opinion on Investment Court System

On 14 October 2016, the Investment Treaty Working Group of the American Bar Association (ABA) published a report (the Report) on the European proposal for an Investment Court System.

As most of you know, the proposal for an Investment Court System emanates from the European Union and aims at replacing the traditional Investor-State Dispute Settlement mechanisms (ISDS). The Investment Court System finds its roots in a public consultation initiated by the European Commission on ISDS in the context of the negotiations for the Transatlantic Trade and Investment Partnership (TTIP). At the time, the European Commission received nearly 150,000 responses, an overwhelming majority of which opposed the traditional ISDS mechanisms that were being contemplated during the TTIP negotiations. Most criticisms viewed the traditional ISDS mechanisms as a threat to democracy, to public policy, to public finance and to the sovereign’s right to regulate. Many also expressed concerns on the independence and impartiality of arbitrators.

In response to those criticisms, the European Commission formulated, in September 2015, a concrete proposal for a new Investment Court System.

While the European Union is currently working on the implementation of the Investment Court System and has recently launched a public consultation on the topic (responses are due by 15 March 2017), I thought it interesting to discuss the views that the ABA expressed on this new international court system.READ MORE

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U.S. Supreme Court to Rule on Various Issues in the Field of International Litigation and Arbitration

The United States Supreme Court (the Supreme Court) will likely be placed in the spotlight in the next couple of weeks, as the new U.S. President Donald Trump will soon have the opportunity to appoint a nominee to replace the late Supreme Court Justice Antonin Scalia.

Meanwhile, I wanted to share with you an overview and a short discussion on a series of cases in the field of international litigation and arbitration that have recently been granted certiorari by the Supreme Court and that are likely to draw the attention of arbitration and international litigation practitioners.READ MORE

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French Conseil d’État Clarifies Standard of Review in Arbitral Awards Annulment Proceedings

On 9 November 2016, the French Conseil d’État (the Conseil d’État), the French Administrative Supreme Court, ruled on the standard of review to be applied by French administrative courts in actions to set aside international arbitral awards.

Under French law, an action to set aside an arbitral award should, in principle, be brought before a civil court (i.e. the Court of Appeal of the place where the award is made). However, French administrative courts have jurisdiction to hear actions to set aside arbitral awards relating to administrative contracts.

The case at hand helps clarify the uncertainty concerning the standard of review to be applied by these administrative courts.READ MORE

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New York District Court Finds Section 1782 Applicable to Arbitral Tribunals… but What Kind of Arbitral Tribunals?

Happy New Year!

After having spent the last weeks of 2016 reporting on the Belgian aspects of the enforcement proceedings of the Yukos awards, I wanted to share some thoughts with you on a recent development that took place on the other side of the Atlantic.

On 16 November 2016, the District Court for the Southern District of New York (the S.D.N.Y), handed down its decision in In Re Ex Parte Application of Kleimar N.V. This decision adds up to the relatively large number of federal district court cases which have – following the U.S. Supreme Court’s judgment in Intel v. AMD – showed a willingness to consider arbitral tribunals to be included within the meaning of 28 U.S.C. Section 1782 (Section 1782).

Section 1782 is a U.S. Federal Statute that allows a litigant before a “foreign or international tribunal” outside the United States to apply to the U.S. district courts to obtain discovery against a person or entity residing or found in the district where the application is sought. The questions of whether this federal statute also applies in arbitration proceedings and whether arbitral tribunals fall within the category of “international tribunal” within the meaning of Section 1782 remain, however, uncertain.READ MORE

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