Further to its report on the outcome of the consultation on investment protection and investor-state dispute settlement in the TTIP, the EU Commission has issued a “Concept Paper” which envisages a very different future for resolution of investor-state disputes.
The Concept Paper builds on the four key areas which the Commission previously identified as requiring further consideration, explaining that there is opportunity for “profound reform” of the investment protection and ISDS systems. In particular, the Concept Paper contains two clear messages:
- Despite the outcome of last yearâs con and the apparent weight of opinion in the European Parliament, the Commission is not minded to remove substantive investment protections or investor-state arbitration from the TTIP.
- The Commission envisages major changes in the future for ISDS which, if adopted in the TTIP and accepted more broadly in other free trade and investment agreements, would have significant implications for the way in which investors are able to protect their investments and resolve disputes with host states.
A summary of, and comment on, the Concept Paper can be found on our Public International Law Notes blog here.
For further information, please contact Andrew Cannon, Partner or Hannah Ambrose, Professional Support Consultant, or your usual Herbert Smith Freehills contact.
Hannah AmbroseProfessional Support ConsultantEmail
+44 20 7466 7585
The Hong Kong Court of First Instance recently granted an appeal from its own decision to allow enforcement of two Mainland arbitral awards. This case turns on service of a notice of arbitration and notice of hearing, which were deemed served under the applicable Chinese arbitration commission’s rules, but not under the law of Hong Kong, where enforcement was sought. To read the full judgment (in Chinese), please click here. Continue reading
The CJEU has issued its much awaited decision in the reference to the Court of Justice of the European Union (CJEU) by the Lithuanian Supreme Court in the case of Gazprom (C-536/13). The Lithuanian Court referred to the CJEU three questions regarding the effect of the Brussels I Regulation (EC) No 44/2001 (the Regulation). As discussed in our earlier blog piece here, the reference related to a request to enforce an arbitral award which has a similar effect to an anti-suit injunction and has therefore been of considerable interest to the arbitration community. This is particularly the case following the opinion of Advocate General Wathelet which considered not only the text of the original Brussels Regulation, but also the Recast Regulation (see our blog post here for more information).
Since the Dutch governmentâs announcement last year that Indonesia had terminated the 1995 Bilateral Investment Treaty (BIT) between those countries, speculation has been rife regarding the status of Indonesiaâs remaining BITs, signed with more than 60 countries.
On 12 May 2015, The Jakarta Post reported that the Indonesian Government intends to renegotiate its BITs, to bring greater certainty both to foreign companies doing business in Indonesia and to the Indonesian government. In particular, The Jakarta Post quotes Azhar Lubis, deputy director for investment monitoring and implementation at the Indonesian Investment Coordinating Board (BKPM), as suggesting that Indonesia may seek to restrict access to Investor State Dispute Settlement under its treaties to cases where the government has expressly consented that disputes with a particular investor may be referred to arbitration. Lubis stated that such a revision would be consistent with Indonesia’s 2007 Direct Investment Law, which stipulates that international arbitration claims should be filed based on an agreement between both parties. Continue reading
As reported in our previous post, on Wednesday 4th March Herbert Smith Freehills hosted an event in partnership with Chatham House (the Royal Institute for International Affairs, London), seeking to explore the opposition to the TTIP and, in particular, the Investor State Dispute Settlement (ISDS) chapter within it. Chaired by HSF partner, Andrew Cannon, the panel represented a broad range of stakeholders from in-house counsel, government officials, academia and civil society, together with HSF partner, Christian Leathley. The panel explored why ISDS arouses such opposition, and whether and how it can be improved to strike a balance between investment protection and the right of governments to regulate. The panel also considered whether the TTIP and its ISDS provisions will be a blue print for future free trade agreements.
The Chatham House report of the event is now available here.
Herbert Smith Freehills is pleased to announce that Bangkok Partner Gavin Margetson has been appointed Chair of the ICC Thailand Commission on Arbitration.
As Chair, Gavin will work closely with the rest of the committee, which also includes Victor Smith, Managing Partner at Bangkok-based disputes management consultancy Charndell; Siriporn Chaiyasuta, General Counsel for Chevron Europe, Eurasia, Middle Eastern Exploration & Production; Hatasakdi Na Pombejra, Managing Director at Bangkok-based tax and legal services firm HNP Legal; FrÃ©dÃ©ric Favre, Partner at Bangkok-based law firm Vovan & Associes; and Anan Chantara-Opakorn, Law Professor at Thammasat University. Continue reading
Herbert Smith Freehills’ Global Arbitration Practice is delighted to announce that Paula Hodges QC has been appointed as Vice President of the Court of the London Court of International Arbitration (the LCIA).
Paula is a member of the LCIA’s Board of Directors and has been a member of the LCIA Court since 2012. The LCIA Court’s members are chosen to provide and maintain a balance of leading practitioners in commercial arbitration, from the major trading areas of the world.Â
The LCIA Court has an important role in the governance of the LCIA. The LCIA draws on the expertise and experience of the Court members to safeguard its reputation, support the steering of the institution and make strategic decisions as to its development.Â The Court is also the final authority for the proper application of the LCIA Rules and its principal duties under the LCIA Rules 1998 and 2014 are the selection and appointment of tribunals, the control of costs and the determination of challenges to arbitrators. Under the LCIA Rules 2014, the LCIA Court also has an important role in deciding whether an emergency arbitrator can be appointed and determining whether multiple arbitrations can be consolidated into a single proceeding.
Paula comments: “I am delighted to be increasing my involvement with the LCIA, a modern and efficient international institution which remains at the forefront of arbitral practice”.
Also appointed to Vice President is EY Park of Kim & Chang.Â Audley Sheppard QC of Clifford Chance, who has served as a Vice President since 2011, was reappointed to serve a further term in the role. Â Further information about the selection of the next President, Judith Gill QC, the appointment of new Members of the LCIA Court and changes to the LCIA Board of Directors, can be found here.
Paula Hodges QCPartner, head of global arbitration practiceEmail
+44 20 7466 2027
The inaugural ICCA-HKIAC Summit will bring together thought leaders and visionaries from the dispute resolution industry and the field of international law. Around the themes ‘Bridging Cultures’ and ‘Connecting Futures’, the Summit will provide a platform for the creation of innovative solutions for the future of international dispute resolution.Â
Herbert Smith Freehills’ global head of dispute resolution, Justin D’Agostino, will chair a key session ‘Looking into the Future: Challenges to Investment Across Borders‘. Investor-state dispute settlement has proved to be an extremely hot topic of late, not least given the controversy surrounding its proposed inclusion in the Transatlantic Trade and Investment Partnership Agreement and the recent talk of the need for a permanent adjudicative body or an appellate review mechanism. With the continued progress on intra-Asia trade agreements, this session will examine the differing opinions to these and other topics, from the point of view of both the state and the investor, and will look to what the future may hold.Â
The Opening Reception of the Summit (click here) will be held at the Grand Hyatt on Tuesday, 12Â May 2015 and is sponsored by Herbert Smith Freehills. The Summit Conference, at which MsÂ Yibing Mao, the Chief Legal Counsel & Senior Vice President of Asset Management for Marriott International in Asia-Pacific will deliver the keynote address, will be held on Wednesday, 13 May.Â
Further information on the Summit can be found at www.hksummit.org.
Over the course of the last year, sanctions imposed on Russia in response to its intervention in Ukraine have been expanded to include restrictions on some of the largest government-owned entities in Russia’s financial, energy and defense sectors. Commercial entities must therefore consider their options for resolving current or potential disputes. In this post, we consider the impact of the sanctions against Russia on the future of dispute resolution for Russian entities and individuals considering doing business in Russia.
The US, EU and Canada first imposed sanctions on Russia in March 2014. Further states have followed suit, and both the substance and territorial scope of the sanctions have since been expanded. Restrictions affect both individuals and corporate entities, notable government owned entities. Russia’s financial, energy and defense sectors are affected, which in turn impacts Russian parties’ ability to trade and invest outside Russia. Continue reading
Filed under News, Sanctions
In the recent case of Ever Judger Holding Company Limited v Kroman Celik Sanayii Anonim Sirketi (HCCT 6/2015), the Hong Kong Court of First Instance (CFI) granted an anti-suit injunction to restrain the further conduct of litigation commenced in Turkey (click here for the full judgment). The CFI noted an historic reluctance in English law to enjoin litigation in foreign jurisdictions â for reasons of comity or the appearance of undue interference â but concluded that, at least when it comes to enforcing agreements to arbitrate in Hong Kong, the courts of Hong Kong will ordinarily be prepared to grant anti-suit injunctions in appropriate cases.
The proceedings in Turkey relate to a dispute over the condition of a cargo of steel wire rods purchased by a Turkish company, Kroman Celik Sanayii Anonim Sirketi (Kroman). Upon the arrival of the cargo in Turkey by ship, Kroman commenced litigation in the Turkish courts against the ship’s owner, Ever Judger Holding Company Limited (Ever Judger), seeking approximately USD 3.93 million for damage to the cargo. Ever Judger, relying on the Hong Kong arbitration clause incorporated into the bills of lading, served a notice of arbitration and subsequently applied to the CFI for an injunction to restrain further conduct of the Turkish litigation against it. Continue reading