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State immunity

Recent Developments in Investment Disputes: ICSID, The Energy Charter Treaty, Solar Industry and FSIA

Arbitration claims for breaches of the Energy Charter Treaty have emerged in the last couple of years, as certain countries have tried to reduce or place restrictions on financially favorable regulatory measures aimed at promoting renewable energy.

Two of those arbitration cases have recently come under the spotlight and I found that it would be interesting to provide you with a general description of those two cases.READ MORE

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Hong Kong Court Sets High Standard for Crown Immunity Exception

On 8 June 2017, the Hong Kong Court of First Instance (the Court) ruled in TNB Fuel Services Sdn Bhd v. China National Coal Group Corporation that a Chinese state-owned enterprise was not entitled to rely on the doctrine of Crown immunity in proceedings relating to the enforcement of an arbitral award unless this company could demonstrate that it bears almost no independence and acts fully under the control of the Crown.READ MORE

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U.S. Supreme Court in May… Arbitration and International Litigation Not Far Away

Spring and the month of May seem to have inspired the U.S. Supreme Court (the Supreme Court) justices. In less than three weeks, the Supreme Court rendered three interesting opinions with respect to arbitration and international litigation:

  • Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co. (on FSIA pleading standards);
  • Kindred Nursing Centers Partnership v. Clark (on whether state-law could require that a PoA expressly refer to arbitration agreements before an attorney-in-fact can bind his or her principal to an arbitration agreement);
  • Water Splash, Inc. v. Menon (on whether the Hague Service Convention allows service of process by postal channels).

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Belgian Constitutional Court Rules on State Immunity From Execution

In a judgment dated 27 April 2017, the Belgian Constitutional Court (the Constitutional Court) largely confirmed the validity of the Belgian legal provision on State immunity from execution (Article 1412quinquies of the Belgian Judicial Code).

As a general rule, Article 1412quinquies of the Belgian Judicial Code provides that assets located in Belgium that belong to a foreign State are immune from execution and cannot be subject to enforcement proceedings by creditors. As mentioned before, France recently adopted a similar provision which largely mirrors Article 1412quinquies of the Belgian Judicial Code.

Exceptions to that rule are, however, possible if very strict conditions are met: a party wishing to seize the assets belonging to a State needs to obtain a prior authorisation from a judge (juge des saisies). This judge will only authorise the seizure if (i) the foreign State has “expressively” and “specifically” consented to the seizure of the assets; (ii) the foreign State has specifically allocated those assets to the enforcement of the claim which gives rise to the seizure; and (iii) the assets are located in Belgium and are allocated to an economic or commercial activity.

Given the difficulty of meeting those requirements, two entities (NML Capital Limited (NML), an American hedge fund which holds debts securities against Argentina, and Yukos Universal Limited (YUL), an entity that had been granted a multi-billion arbitral award against Russia) initiated legal proceedings before the Constitutional Court seeking the annulment of Article 1412quinquies of the Belgian Judicial Code.READ MORE

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France Amends Rules on State Immunity from the Execution of Judgments and Arbitral Awards

On 9 December 2016, the French Parliament adopted a law (the Law) which amended the rules on State immunity from the execution of judgments and arbitral awards contained in Article L 111-1 of the French Code on Civil Enforcement Procedures (Article L 111-1). The Law now makes it more difficult for a creditor to enforce, in France, a judgment or an arbitral award on goods belonging to a foreign State.READ MORE

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U.K. Supreme Court Rules on State Immunity and (Crown) Act of State Doctrines

On 17 January 2017, the U.K. Supreme Court (the Supreme Court) handed down three exceptionally significant decisions on allegedly tortious acts done by British Armed Forces in the context of overseas military operations or by government officials alleged to have been complicit in the wrongful acts done by foreign States. Each of the three decisions dealt with important questions of law such as State immunity, the “Foreign Act of State” doctrine, the “Crown Act of State” doctrine as well as the compatibility of overseas detentions with Article 5 of the European Convention of Human Rights (ECHR).

The three decisions at issue are: (i) Rahmatullah (No 2) e.a. v. Ministry of Defence; (ii) Al-Waheed and Serdar Mohammed v. Ministry of Defence; and (iii) Belhaj e.a. v. Straw e.a.READ MORE

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U.S. Supreme Court Expected to Rule on FSIA Pleading Standards and Expropriation Exception

On 2 November 2016, the U.S. Supreme Court (the Supreme Court) heard the oral arguments in a case where it was asked to clarify the pleading standards and the “expropriation” exception of the U.S. Foreign Sovereign Immunity Act of 1976 (FSIA).

The case arose in the context of a dispute between Helmerich & Payne International (HMI) – an American company – and Helmerich & Payne de Venezuela (HMV) – a subsidiary of HMI incorporated under the laws of Venezuela – on one hand, and the Venezuelan government and the national petroleum company PDVSA, on the other hand.READ MORE

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