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There Is Ordinary Situation and There Is Latvia’s Situation
HOW LATVIA REINVENTED THE ARBITRATION WHEEL Latvia made its first attempt to introduce modern arbitration law in 1998 when the Chapter D “Arbitration” of the Civil Procedure Law was adopted. This Chapter specifically dealt with arbitration. However, unlike regulatory frameworks in the two other Baltic states (Estonia and Lithuania), it was not based on the UNCITRAL Model Law. The Chapter D was extremely unsuccessful. While it was in force, Latvia had numerous arbitral institutions (there were more than 200), and many of them were vaguely structured “pocket arbitrations.” As a result, Latvia suffered from an extremely low level of trust in arbitration. There was a pressing need for a reform. Finally, the new Arbitration Law of Latvia was adopted on September 11, 2014, and entered into force on January 1, 2015. The new law did not fully substitute the Chapter D. The Chapter D still contains rules on enforcement of institutional arbitral awards rendered in Latvia (Articles 534-537). Notably, Article 536 of the Chapter D preserves the grounds that entitle courts to refuse to issue a writ of execution for enforcement of institutional arbitral awards. However, most other issues relevant to arbitration were transferred to the Arbitration Law.
Tactical Misuse of the GDPR in Arbitration: Is It an Actual Risk?
The data protection landscape has evolved significantly in recent years, particularly following the entry into force of the European Union’s General Data Protection Regulation (Regulation (EU) 2016/679, the ‘GDPR’) in May 2018. The GDPR’s broad applicability has raised significant yet unanswered questions for international arbitration practitioners. Many articles have been written on the general applicability of the GDPR to arbitration proceedings. This chapter will, however, focus on a specific question: tactical misuse of the GDPR in arbitration. The chapter explores potential scenarios involving tactical misuse of data protection regulation in different stages of arbitration proceedings, and ways that the arbitral tribunal or the opposing party and its counsel may have to prevent such misconduct or react to it. The chapter broadly defines tactical misuse as situations where a party to an arbitration invokes the GDPR with the aim of obtaining tactical benefit in the proceedings without legitimate grounds for doing so. Most often, such situations arise when a party invokes the GDPR to avoid disclosing unfavourable documents in arbitration. This chapter will focus on the GDPR. But that is not to belittle the relevance of any other pieces of data protection legislation, particularly local regulations applicable in each party, counsel, or arbitrator’s home jurisdiction.
When Enough Is Enough: The ArbitralTribunal’s Power to Stay or TerminateProceedings due to Party Non-compliancewith Procedural Obligations
Parties to arbitration often ‘cry foul’ and complain about alleged procedural violations by the opposing side. If there is a breach, tribunals may usually choose from a range of potential mechanisms to enforce compliance. In limited cases, this may include the stay or termination of the arbitration. This chapter will analyse both situations in which arbitration laws and arbitration rules expressly provide for the stay and termination of proceedings in reaction to a procedural breach, as well as situations in which such a measure is deemed possible even without an express rule to this effect. In this regard, a particular focus of the chapter will be on the consequences related to the failure by a claimant to provide security for costs.
What Is the Difference Between a Judgeand an Arbitrator?
Is the role of an arbitrator the same as the role of a judge? The short answer is “no, not at all.” Although both arbitrators and judges administer justice, being an arbitrator is not like being a judge in a court of law. Even though arbitrators are sometimes described to non-lawyers as “private judges,” this description can be misleading because there are, in fact, big differences between the tasks carried out by arbitrators and those effectuated by judges. However, despite these differences, the questions put before a court in a civil matter and an arbitral tribunal are often the same, and therefore comparing the two makes sense. Comparisons between arbitration and civil litigation are often undertaken from the perspective of the parties or parties’ counsel. In this chapter, by contrast, we will explore the issue from the decisionmaker’s perspective. Having experience as both state judges and arbitrators, we have observed the differences between the roles first-hand. Some of the differences are necessary, some are beneficial, but others may be unnecessary and arguably detrimental to the administration of justice. It is our hope that by highlighting varying perspectives, disparities, and alternatives, our reflections can catalyze improved arbitral processes.
Preserving Evidence in Arbitration Proceedings: From a Swedish and Norwegian Perspective
The outcome of the majority of commercial disputes depends on the evidence presented during the proceedings. Consequently, access to evidence is a crucial aspect of almost every dispute. This includes preserving evidence which may be at risk of deteriorating or being lost. This chapter discusses the possibility of requesting court assistance to secure evidence prior to the commencement of arbitration proceedings – an opportunity that may have been overlooked in the past. Requesting assistance from courts to preserve evidence prior to filing suit is regulated in many jurisdictions and is fairly uncontroversial with respect to court litigation. However, the matter is not clearly regulated with regard to arbitration proceedings. This has caused uncertainty as to whether it is possible for parties to request such assistance from the courts. The purpose of this chapter is to examine whether parties who are bound by an arbitration agreement may request assistance from the general courts to secure evidence prior to the initiation of the arbitration. The chapter examines the issue under both Swedish and Norwegian law. The reason for the comparative perspective is that the relevant legislation is very similar in Sweden and Norway. However, legal scholars have approached the issue differently in the two countries, and this provides for an interesting comparison. The comparative aspect is also compelling because the issue has been a subject of dispute in some fairly recent lower court decisions in Norway. In Sweden, on the other hand, the relevant court decisions are from the Supreme Court, but the rulings are quite old.
The Belgor Case Four Years On: Under What Circumstances May a Decision to Restrict a Party’s Right to Present Its Case Be Deemed Unjustifiable?
An important part of an arbitral tribunal’s management of the arbitration is to move the proceedings forward by issuing procedural decisions. These types of decisions often involve balancing the need for efficiency in the proceedings against a party’s right to present its case. In the Belgor case, the Swedish Supreme Court stated that an arbitral tribunal’s decision to deny a party’s request for an extension of time does not constitute a procedural irregularity unless the decision is unjustifiable (my italics). The Supreme Court did not explain the precise meaning of the term “unjustifiable,” and the concept has not appeared in later Supreme Court precedent. In the absence of such precedent, this chapter examines how the term “unjustifiable” has been applied in proceedings before the Svea Court of Appeal concerning the setting aside of an arbitral award under the first paragraph of section 34(7) of the Swedish Arbitration Act (the “Act”) due to alleged procedural irregularities.
The (Swedish) Doctrine of Assertion: And the Scope of the Arbitration Agreement
The scope of the arbitration agreement is central to the arbitral jurisdiction. It concerns the issue of the subject matter ambit (ratione materiae) of a binding arbitration agreement. The scope of the arbitration agreement is considered a question of interpretation that is to be determined according to the civil law rules and principles on contract interpretation. In that sense, the arbitration agreement is an expression of the common intention of the parties to submit to arbitration instead of litigation; it is an exercise of party autonomy, by means of which the parties waive the right of access to court. Another significant factor concerns the identity of the matter in dispute. Arbitral jurisdiction requires that the actual dispute constitutes a type of dispute covered by the scope. This implies that it is necessary to establish what the matter in dispute concerns. Under Swedish law, the civil procedural law principle denoted ‘påståendedoktrinen’ (the doctrine of assertion) is considered applicable when identifying the matter in dispute significant to the competence of the arbitral tribunal.
A Matter of Characterisation Distinguishing Issues of Arbitral Jurisdiction and Admissibility of Claims
It is axiomatic that arbitration is a matter of contract and, therefore, the legitimacy of arbitration depends on the fundamental premise that parties are not required to arbitrate without their consent. Arbitrators enjoy dispute resolution authority only when the parties have validly agreed to submit their disputes to arbitration. Disputes often arise regarding the existence, validity, or enforceability of an alleged agreement to arbitrate. Those disputes impact on and imperil the arbitrators’ jurisdiction. But some disputes that at first glance appear to involve a jurisdictional challenge might, in fact, relate to the admissibility of the substantive claims. Consider, for example, the scenario presented by escalation clauses. Escalation clauses are contractual provisions setting forth more than one dispute resolution method to operate in sequential order. They require compliance with the first agreed method (e.g., mediation) before initiating the next one (e.g., arbitration). Disputes that a party has failed to comply with one of those contractual pre-arbitration requirements present a question of characterisation. They could be characterised as ‘jurisdictional’, ‘admissibility’, or ‘procedural’ issues.
Submitting New Evidence after the Cut-Off Date: When Are Exceptional Circumstances Present?
Evidence plays a key role in any arbitration; no party will succeed without it. As both parties develop their case, it is common for further evidence to be submitted along the way as the proceedings move forward. However, in order to maintain procedural efficacy, parties should not be allowed to hinder the proceedings by submitting new evidence or facts at an inconveniently late stage when they could and should have submitted it before. That is why it is common in arbitration to agree on a cut-off date. A cut-off date is generally defined as a date after which the parties cannot present new facts, arguments or evidence, as the case may be. Its main purpose is to prevent a party from producing such new evidence or facts at a late stage in the proceedings, in a worst-case scenario at the hearing, which could derail the proceedings and harm the other party.
Beyond the Myth of the Bermuda Triangle:A Swedish Perspective on Conflicts ofInterest in the Context of Third-PartyFunding in International Arbitration
The issue of potential conflicts of interest in cases involving third-party funding (TPF) has been widely debated since TPF emerged in the 2000s. The most discussed issue relating to conflicts of interest has been the situation where an arbitrator may have a previous or existing relationship with a funder. However, it has also been argued that TPF can give rise to potential conflicts of interest emanating from the relationship between the funder and a funded party, counsel, or the funded party’s opposite party. In §9.02 of this chapter, we examine what actually constitutes a conflict of interest, howthe contractual TPF relationship is usually structured in Sweden, and whether it can generally be said that conflicts of interest are inevitable, or highly likely, to arise for funders and counsel involved in a funded dispute. In §9.03 of this chapter,weprovide an overview of rules and best practices regarding conflicts of interest and disclosure in relation to arbitrators in funded international arbitrations seated in Sweden.
The Accused Arbitrator: New Roles and Dilemmas in the Era of Arbitration Litigation
A NEW TREND TO CHALLENGE ARBITRAL PROCEEDINGS? The risk that arbitral awards are set aside or denied recognition or enforcement is a frequent topic for discussion among arbitrators. In the absence of formal statistics, it is uncertain whether such litigation is actually on the rise. A short glance into the case portal serviced by the Stockholm Chamber of Commerce displays a significant number of such cases from the Swedish Svea Hovrätt, of which some indeed come out successful. In Denmark, the number of such cases is lower, but still more frequent than before, if you look into the cases reported in Ugeskrift for Retsvæsen. However, during the last many years, none of these (reported) cases have held arbitral awards invalid by Danish courts.
First encounters often do not go entirely as expected. This is particularly the case where there has been much trepidation prior to the meeting. Often, this turns out to have been both unnecessary and counterproductive. After initial contact, it may become clear, sometimes immediately, that there was nothing to be concerned about. Fear may morph into empowerment as a bright and certain future suddenly emerges. When emergency arbitration first appeared in international arbitration, serious doubts, and at times vociferous opposition, were expressed in some quarters as to the viability of the procedure, and whether courts would, or even should, recognize and enforce decisions issued by emergency arbitrators. It is fair to say that the enforceability debate has dominated emergency arbitration jurisprudence. However, as has been identified, enforceability is ‘the wrong debate’. The debate has given rise to negative perceptions about emergency arbitration, with the focus on negative risks (viz. a court refusing enforcement) as opposed to positive outcomes (viz. obtaining urgent relief, with reported high levels of party compliance, thus avoiding the need to go to court). The debate has also seen other contentious and complex issues in emergency arbitration not receive the attention they deserve, including most prominently, the role of the seat of emergency arbitration, applicable laws, and the application of due process norms.
Stating the Obvious and Connectivity to Self
TAKING THINGS FOR GRANTED VERSUS MANAGING REFLEXES IN A MIX OF LEGAL TRADITIONS Numerous are the surprised, and even suspicious, reactions to an arbitrator asking about the meaning that counsel ascribe to a commonly used concept in international arbitration. Does the arbitrator not know what “cut-off date” means? Or understand that s(he) obviously can rule on the parties’ claims in any order that s(he) feels is appropriate or convenient? How about the arbitrator’s ability to “massage” the claim if it does not lend itself to a ruling or award as written? And everyone of course knows without asking that direct examination is a “no-no” beyond warm-up, and no one of course can call his or her own witnesses to be heard or cross-examined beyond the four corners of a witness statement. Everyone “in the know” knows about these matters, and it is not worth spending time on them, let alone writing about them, in a procedural order. Whatever the merit of these rather trivial examples, it is my view that too much is often taken for granted by too many at the beginning of an arbitration. And too little time is usually allocated at the outset to explore what exactly participants read into the quite standard documentation and the standard terminology, homegrown somewhere and then imported into new settings.
Re-examining the Approach to Factual Witness Evidence in International Arbitration
The concept of witnesses having a central role in the determination of legal disputes is as old as the law itself and is a constant across all major legal systems. But the way in which witness evidence is assessed, the primacy it plays (or does not play) and how it is deployed and verified differs significantly, not least between the civil and common law systems. One author notes that ‘few differences between common law and civil law procedure are as striking as the attitudes toward the testimony of witnesses’. Although civil and common law legal systems adopt different approaches to witness evidence, they share a common goal – that of seeking to arrive at what is most likely to be the truth. This task is by no means straightforward; science has demonstrated that human memory is easily distorted and often inaccurate.
Straddling the Divide Between Lawful and Unlawful Expropriation in International Law
A basic tenet of customary international law is that the taking of privately-held property is a legitimate exercise of state power, provided specific criteria as to public purpose, non-discrimination, due process and compensation are met. In other words, an act of expropriation which fulfils these criteria is lawful, and, as a consequence, does not engage the state’s responsibility for what is termed as an internationally wrongful act. However, if one or more of these criteria is lacking, the taking will be unlawful. This will bring into cause the responsibility of the state which follows from the commission of an internationally wrongful act. At the heart of actual adjudication of investment disputes based on allegations of unlawful expropriation is, without exception, the matter of absent compensation. At first glance, it may seem that the principles dealing with compensation to the investor who has suffered deprivation of its property are not affected by whether the expropriatory act is qualified as lawful or unlawful. However, in actual fact, there are significant distinctions both as regards the legal qualification to be undertaken and the methodology to be applied. These distinctions may bring about widely differing economic outcomes in a particular case (while they also – despite the application of quite distinct methodologies – may result in much the same economic outcome).
The Ins and Outs of Arbitrator Selection
When preparing for the filing of a request for arbitration (or the answer thereto), the representatives of the party and outside counsel are focused on collecting facts, developing legal arguments, and considering potential witness and expert evidence they will be able to use in the arbitration. During that already busy period, the selection of the party-appointed arbitrator or the process for selecting a sole arbitrator or presiding arbitrator is also underway. As with all the other preparatory work, the arbitrator selection is geared at winning the case or, to put it more objectively, to secure an optimal outcome of the case under the given circumstances. The following remarks might sound trivial for a lawyer who is already involved in arbitration proceedings for a long time; to those colleagues, I apologize. However, many in-house counsel and/or lawyers who are not regularly involved in arbitral proceedings might find these comments and suggestions helpful.
Paving the Way for Justice: Arbitration and EU Sanctions Against Russia
Prior to 2022, the European Union’s sanctions against Russia targeted a limited number of individuals and entities, and had limited effect on the day-to-day administration of arbitrations for most arbitrators and European arbitral institutions. However, the legal landscape in Europe experienced a seismic shift soon after the Russian invasion of Ukraine in February 2022. Instant termination of direct investments and international trade with Russia, coupled with the rapid expansion of the list of individuals and entities subject to sanctions, created a new legal reality with profound implications for international arbitration. Sanctions pose a critical dilemma for the regulator of effectively reconciling the core principles of access to justice, the right to efficient remedy, and the right to legal advice with the overarching objectives of sanctions. Arbitration, the sole effective legal remedy within the realm of international trade, currently finds itself in a precarious position. On the one hand, judicial proceedings and the arbitral process are exempted from sanctions. On the other hand, as demonstrated below, the arbitral process is not entirely treated equal to judicial proceedings.
Swedish Arbitration-Related Case Law 2022-2023
This chapter will account for court cases relevant to arbitration law from the Swedish Supreme Court and Swedish appellate courts for the period 1 May 2022-30 April 2023. It does not purport to be exhaustive; the aim is to highlight cases that can be assumed to be of interest to a non-Swedish reader.
Arbitration and Public Procurement: A Match?
In 2020, the annual turnover of the sectors subject to public procurement in Sweden alone exceeded SEK 800 billion. There is, therefore, no question that public procurement plays a major role in the Swedish economy. The aim of the public procurement rules is to govern the procurement process from ‘A–Z’, i.e., from the first decision of the contracting authority to commence a procurement, all the way through to the establishment of a contractual relationship between the contracting authority/entity and the winning bidder but, ever since the rules were first introduced in the early 1990s, they have repeatedly been accused of being complex and inflexible.
Corruption and Arbitration: Swedish Perspectives Against a French Backdrop
Corruption is an unwanted reality from which arbitration is not spared. Many of the most common business sectors in arbitration are the most exposed to corruption; such as, construction, infrastructure, defence and natural resources. There is a risk that dubious parties will try to find a ‘safe haven’ in arbitration by exploiting the privacy and integrity of arbitration proceedings. In most jurisdictions, corruption falls under the concept of international public policy (or ordre public international), the violation of which will render an award invalid or unenforceable. If contested, a national court will review the award, but the depth of the review differs among jurisdictions. Some jurisdictions have adopted a minimalist approach (e.g., Switzerland and the United Kingdom), while others have adopted a maximalist approach (e.g., France and the Netherlands). The minimalist approach can be defined as a review based only on the facts established in the award. This excludes the possibility to correct or supplement the arbitrators’ findings ex officio, even if such facts were established in a manner that is manifestly incorrect or contrary to the law. The maximalist approach allows a court to go beyond the findings laid down in the award. The maximalist approach is neither limited to the evidence produced before the arbitrators nor bound by their findings, assessments or qualifications. Using French case law as a comparative backdrop, this chapter seeks to study whether Swedish courts lean towards the minimalist or the maximalist approach, and to what extent Swedish law puts a duty of activity on arbitrators to raise issues regarding corruption ex officio and on their own initiative (sua sponte).
Ensuring Continuity of Contracts: Enforcing Self-Cleaning as a Tool to Combat Corruption Through Arbitration
The arbitration law scholarship includes a great number of corruption-related writings. However, what is an uncovered area is the application of arbitration for enforcing self-cleaning. Self-cleaning is a term used especially in public procurement law but may be applied for other corporate compliance purposes relating to restoring reliability. This article introduces a novel approach to apply the principle of self-cleaning in an arbitration context by examining whether contracts and the business relationship can be saved by the parties’ action in cases where corruption is evident by analyzing the applicability of arbitration as a method of self-cleaning for rehabilitation. Based on our findings, we demonstrate how this is possible. In the last ten years, contractual approaches to fight corruption have emerged and these apply the principle of proportionality to the need to call a contract terminated in case corruption is discovered. We are using the landmark International Chamber of Commerce (ICC) Anti-Corruption Clause 2012 (“the ICC Anti-Corruption Clause”) as an example. The ICC Clause purports to preserve the validity and continuity of the contract by providing remedies to the violations of the ICC Rules on Combatting Corruption 2011 (“ICC Anti-Corruption Rules”). The parties of a contract adhere to these Rules explicitly with a view to create an impact on their relationship. The key idea is that a party to a contract could, in many, although not all, cases remedy its breach of contract constituted by not adhering to the Rules.
The Subjective Scope of Arbitration Agreements under Norwegian and Danish Law
Privity of contract is recognized as a general doctrine across the Nordic countries. The doctrine limits the subjective scope of an agreement to the contracting parties. Accordingly, an agreement between A and B binds A and B; it does not bind C. Arbitration agreements are subject to the doctrine as well. If A and B have agreed to resolve their disputes arising out of X by arbitration, A may not initiate arbitration against C on the basis of A’s agreement with B, and, vice versa, C may not initiate arbitration against A on that basis. Reality is more complicated than the A-B-C example above. The subjective scope of agreements, including arbitration agreements, gives rise to frequent disputes, and the doctrine of privity does not always provide clear answers. Under some circumstances, C may be deemed a party to the agreement despite the fact that C did not initially sign and accept the agreement. Under other circumstances, the agreement is applicable to C even though C is not a party to the agreement.
Dispute Resolution by ‘Expert Decisions’: Illustrated by the Norwegian Expert Procedure and the SCC Express
Arbitration is the preferred dispute resolution mechanism for disputes in international contracts. The typical feature of alternative methods for dispute resolution is that they aim to enable the parties to resolve their dispute faster and in a more cost-efficient manner. Swift dispute resolution may be vital in certain contracts, typically in long-term contracts where a pending dispute may complicate or even undermine the essential spirit of cooperation. For example, disputed variation orders (DVOs) between a Contractor and its client may disrupt their cooperation and strain the liquidity of the Contractor. Similarly, disputes between the parties to a joint venture agreement may cause a deadlock, which again may lead to a most unfortunate outcome where the joint venture cannot fulfil its obligations to the end client. A full-scale arbitration process is rarely cost-efficient and proportional in minor disputes.
Paradigm Shift: Reflections on the Interpretation of International Investment Agreements by National and Supranational Courts Post-Achmea
The Court of Justice of the European Union (CJEU or the Court) in Republic of Moldova v. Komstroy, Case C-741/19, was called upon to answer the questions posed by the Paris Cour d’Appel, essentially addressing the interpretation of the notions of ‘investment’ and ‘investor’ under Article 1(6) and 1(7) of the Energy Charter Treaty (ECT), even though the underlying case had no immediate qualifications for the jurisdiction of the CJEU. National courts undertake the interpretation of international investment agreements (IIAs) in connection with the set aside or recognition and enforcement of investment arbitration awards. For example, the Paris Cour d’Appel in Venezuela v. Serafín García Armas and Karina García Gruber has set aside an investment arbitration award, deciding that the definitions of ‘investment’ and ‘investor’ in the Spain- Venezuela Bilateral Investment Treaty (BIT) required that assets were ‘invested by investors’ of the other contracting State and, hence, that investors must satisfy the nationality requirement when making the investment. In Clorox Spain S.L. v. Venezuela, the Swiss Federal Tribunal set aside an investment arbitration award noting that Article 1(2) of the Spain-Venezuela BIT reflects an asset-based definition of the notion of ‘investment’, and that the relevant BIT does not include a denial of benefits clause, nor additional requirements in establishing the nationality of an investor, which could justify the interpretation of the notion of ‘investment’ in a narrow sense, with emphasis on the wording ‘invested by investors’.
The Public International Law Significance of the Ascom Case
On November 18, 2021, the Swedish Supreme Court delivered its decision in the case of Ascom. Originating in an arbitral dispute under the Energy Charter Treaty, the case had become an opportunity for the court to contribute to the clarity of rules of the public international law on state immunity for the property of central banks and sovereign wealth funds. The dispute was between Kazakhstan and some foreign investors, resulting in an arbitral award in favor of the latter. Following failed attempts by the state to have the award set aside, the investors successfully requested the Swedish Enforcement Authority that the award be enforced. The district court upheld the decision. The Court of Appeal reversed it. Leave to appeal was granted by the Supreme Court, limited to the question of whether state immunity protected the attached property from enforcement. The property attached by the Enforcement Authority (financial instruments on a securities depository at a bank, receivables linked thereto, and funds on a cash account) was accumulated in and managed by the Kazakhstan central bank—the National Bank of Kazakhstan—as part of a sovereign wealth fund, the National Fund. The immunity protection for property belonging to a state’s central bank is consideredto be especially strong. There are, however, disagreements about the more precise content of this principle. The Supreme Court was thus called upon to determine this.
Execution of Arbitral Awards Against Sovereign Wealth Fund Assets: Enforcement Against States and the Supreme Court’s Decision in Ascom
A party alighting victorious from arbitration realises soon enough that if payment is not forthcoming, the award will only be as effective as its opportunities for being enforced. If the award is against a sovereign State – as it commonly will be in investment treaty arbitration – this complicates things. Enforcing in the respondent State’s jurisdiction may present difficulties. However, the competence of foreign courts and authorities to enforce the award is subject to the respondent’s sovereign immunity. An award creditor seeking to enforce its claim against a sovereign State must, therefore, not only ensure the recognition of its title to execution in a jurisdiction that is the location of suitable assets but must also ensure that these assets are not protected by State immunity. In November 2021, the Swedish Supreme Court (the ‘Swedish Supreme Court’ or ‘Court’) issued an important clarification of the law on sovereign immunity from execution in Ascom and Others v. Republic of Kazakhstan and National Bank of Kazakhstan (the ‘Ascom’ case). Adhering to the restrictive theory of sovereign immunity in respect of enforcement measures, the Court acknowledged the legitimate interest of an award debtor to have the award satisfied and denied immunity from execution of assets held for purposes of general State saving and investment. The decision confirms that Sweden is a favourable jurisdiction for the enforcement of arbitral awards against States.
Investment Protection under the Energy Charter Treaty in the Early Stages of an Underwater Gas Pipeline Project
The Energy Charter Treaty (the ECT) is a multilateral treaty for international long-term cooperation within the energy sector. The treaty was signed in 1994 and entered into force in 1998. Pursuant to the ECT, the Contracting Parties have undertaken to promote and protect investments in the energy sector by investors from other Contracting Parties and to facilitate the transit of energy through their respective ‘Areas’. The ECT stands out in comparison to other investment treaties, not only because of its focus on the energy sector but also because of its large number of Contracting Parties. There are currently fifty-three signatories and Contracting Parties to the ECT, including both states and organisations such as the EU and EURATOM. The laying down of an underwater gas pipeline will generally require significant resources, even at the very early stages of the project. Before the first section of the gas pipeline is placed on the seabed, the investor will often have spent significant funds preparing and obtaining necessary approvals for the project. Early-stage investments may include hiring consultants and contractors to analyse the environmental effects of the project, dealing with permit processes, and preparing, designing and planning for the manufacture, delivery and assembly of the pipeline.
Post M&A Disputes: Recent Nordic Case Law, Especially Regarding Loss Calculation
Arbitration is the main dispute resolution method used in Sale and Purchase Agreements (SPAs) between a buyer and seller concerning company shares or the asset itself. In recent years, especially in Denmark and Norway, several arbitral awards rendered have great importance outside the awards commented on. Post mergers and acquisitions (M&A) disputes can typically be divided into two main categories. The first category, earn-out disputes, concerns the seller’s entitlement to additional compensation in the future depending on the target company achieving certain results and will not be dealt with here. The article will instead focus on the second category, damage claims in case of breach of warranties. Loss calculation in awards occasionally seems to be handled less thoroughly than other parts of the case. Tribunals typically focus most of their attention on the liability question, at least on the basis of a review of awards and their reasoning. As post M&A disputes are mainly handled by arbitration, there is a shortage of publicly available case law, at least in Nordic countries, including case law regarding the way in which loss calculation after the breach of warranties in SPAs is carried out. This chapter presents three post M&A awards, focussing on the issue of loss calculation. The tribunals’ thorough and solid analyses in these cases, especially regarding loss calculation, should be of interest to a wider audience. Several of these awards also focus quite intensively on the calculation aspects.
The CJEU’s Case Law on Intra-EU Investment Arbitration and the Importance of the Place of Arbitration
ACHMEA AND ITS IMMEDIATE CONSEQUENCES The landmark ruling of the Court of Justice of the European Union (CJEU) in Slovak Republic v. Achmea has been at the core of the debate on the relationships between European Union (EU) law and investor-State arbitration for almost five years. The ruling was followed by several other decisions of the CJEU—examined in the following paragraphs—which confirmed its content and expanded its scope. Departing from Advocate General Wathelet’s Opinion, the March 6, 2018 judgment held that the investor-State dispute settlement provision contained in Article 8 of the Bilateral Investment Treaty (BIT) between the Netherlands and the Slovak Republic is incompatible with fundamental principles of EU law, such as those enshrined in Articles 267 and 344 of the Treaty on the Functioning of the European Union (TFEU). Article 267 TFEU empowers—or, in the case of last instance courts, requires—the courts of EU Member States to refer matters pertaining to the interpretation of the EU Treaties or to the validity and interpretation of acts of the EU institutions to the CJEU for a preliminary ruling. Article 344 TFEU prevents Member States from submitting disputes concerning the interpretation or application of the EU Treaties to any other settlement method.
The Exception in Theory, a Unicorn inPractice? Revisiting Security for Costs froma Practitioner’s Perspective
ARBITRAL TRIBUNALS HAVE THE POWER: NOW WHAT? In international arbitration, security for costs (cautio iudicatum sovlvi) has long played a fairly limited role. With third-party funding gaining traction in recent years, the international arbitration community has revisited the instrument. Both in theory and in practice, however, these discussions focused primarily on the implications of the non-applicant being funded by a third party. We take this development as a reason to revisit security for costs more generally. What can be regarded as settled nowadays is that arbitral tribunals have the power to order security for costs. Some national arbitration laws or institutiona rules explicitly vest the arbitral tribunal with this power. Absent such a provision (or an express agreement between the Parties), the power to order security for costs stems from the arbitral tribunal’s broad powers under the applicable national arbitration laws and/or the applicable institutional rules to issue provisional and conservatory measures.