Inside Arbitration: Issue #7 of the publication from Herbert Smith Freehills’ Global Arbitration Practice

We are delighted to share with you the latest issue of the publication from the Herbert Smith Freehills Global Arbitration Practice, Inside Arbitration.

In addition to sharing knowledge and insight about the markets and industries in which our clients operate, the publication offers personal perspectives of our international arbitration partners from across the globe.

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U.S. Supreme Court’s First Opinion of 2019: Kavanaugh Favours Arbitrators’ Power to Decide Arbitrability

The U.S. Supreme Court’s first opinion of 2019, written by recently appointed Justice Brett Kavanaugh, confirms the long-standing support of the Court for arbitrators to decide the issues of arbitrability of a dispute submitted to arbitration.  The unanimous ruling defends the provisions of the Federal Arbitration Act, confirming that a contract’s terms control who decides, in the first instance, whether a dispute is subject to arbitration.

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Herbert Smith Freehills appoints Christian Leathley US Head of International Arbitration

Herbert Smith Freehills has appointed Christian Leathley to the role of US Head of International Arbitration in New York.

Christian, who is also the Head of the firm’s Latin America Group, is based in Herbert Smith Freehills’ New York office, where he has been based since 2015. Prior to relocating to the New York office Christian was based in the firm’s London office.

A highly-regarded international arbitration specialist with nearly 20 years of experience, Christian focuses his practice on international commercial and investment arbitration servicing clients’ interests in all countries throughout Latin America. He also regularly appears as an advocate before all major international arbitration tribunals, with particular experience in the practice of public international law.

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The new draft Dutch BIT: what does it mean for investor mailbox companies?

The Netherlands has released a new draft investment treaty for public comment (“Draft BIT“).  If adopted, the Draft BIT may raise questions about the Kingdom’s attractiveness for foreign investors who have long taken advantage of Dutch treaty protections by structuring their investment via companies in the Netherlands.  The Netherlands proposes to use the new model as a basis for renegotiating its existing BITs with non-EU states, and, as such, the new draft’s more restrictive provisions may be significant for existing investors with protection under existing BITs, as well as those considering future investments. Key features of the Draft BIT are considered below.

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Dawood Rawat v Mauritius: Dual-national claim dismissed based on treaty context interpretation

On 6 April 2018, a Tribunal constituted under the UNCITRAL Arbitration Rules rendered an Award on Jurisdiction in the case Dawood Rawat v. The Republic of Mauritius (PCA Case 2016-20).  Following a thorough analysis of the interpretation of the 1973 Investment Protection Treaty between the Republic of France and Mauritius (the “France-Mauritius BIT” or the “Treaty”), the Tribunal denied protection of the relevant investment protection treaty to a dual national – a French-Mauritian businessman – despite the treaty was silent on its application to dual nationals.  This approach was contrary to prior investment treaty decisions, such as Serafín García Armas and other v Venezuela, in which tribunals have rejected jurisdictional objections brought by respondent states where relevant the bilateral investment treaty (“BIT”) was silent on the exclusion of dual nationals.

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State-to-State dispute settlement under the EU’s draft Withdrawal Agreement: CJEU jurisdiction not arbitration

We have known for some time now that the UK and EU have very different views regarding the state-to-state dispute resolution mechanism to be contained in the Withdrawal Agreement between the EU and the UK. The EU has never made any secret of its intention for the CJEU to adjudicate on disputes between the UK and the EU over the interpretation of, and compliance with, the Withdrawal Agreement. Yesterday the EU released a draft Withdrawal Agreement for the UK’s consideration which contains a state-to-state dispute resolution provision which is consistent with that approach. This post provides an initial reaction to this draft provision.

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Inside Arbitration: Issue #5 of the publication from Herbert Smith Freehills’ Global Arbitration Practice

We are delighted to share with you the latest issue of the publication from the Herbert Smith Freehills Global Arbitration Practice, Inside Arbitration.

In addition to sharing knowledge and insights about the markets and industries in which our clients operate, the publication offers personal perspectives of our international arbitration partners from across the globe.

Continue reading

Event: Investing in Latin America: How best to protect your investments, Thursday 8 March 2018

Herbert Smith Freehills and the ICC warmly invite you to attend ‘Investing in Latin America: How best to protect your investments?

DateThursday 8 March 2018
Time18:00: Registration
18:30: Panel discussion followed by drinks and networking
VenueExchange House, Primrose Street, London, EC2A 2EG
Please click here to view map
Price£120 non-members/ £85 members
Registration Click here to register with the ICC directly. Registration cannot be made through Herbert Smith Freehills.
Please note there are a limited number of spaces.

 

In a post-Brexit world, Latin America is likely to present British investors with significant new opportunities for growth and expansion. Drawing on the extensive experience of leading UK based practitioners and arbitrators, this seminar will analyse recent trends and examine how parties can best protect their investments in the region.

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