Signature Litigation’s Post

Download: https://lnkd.in/eKfBgDvE The SCC Arbitration Institute (SCC) has introduced a new policy concerning the Board's decisions on the seat of arbitration in investment cases concerning parties from member states of the European Union (EU). This policy clarifies how the SCC will in line with the SCC Rules navigate the complexities of EU law and recent rulings by the Court of Justice of the European Union (CJEU), to ensure the legal enforceability of awards rendered in intra-EU, or potentially intra-EU investment treaty arbitrations.

Noah A. Barr has provided an overview of the alignment of Member States' treaty practices with the #EU model of international investment protection. 🕰 More than a decade since the EU assumed responsibility for foreign direct investment, a significant overhaul has been initiated to address the criticism of investor-state arbitration and to transition from Member State bilateral investment treaties (#BITs) to an EU-centric model. 📑 Despite the EU's reformed approach not yet being widely enacted, Barr's analysis suggests domestic reforms could pave the way for consistent EU-wide investment protection. The article scrutinises the extent to which recent treaty reforms by Member States reflect the EU's model, highlighting congruence in substantive protections and innovative strides in #disputeresolution and non-economic clauses. Are you interested in the intersection of EU policy and international investment law? Find out more in 𝘈𝘳𝘣𝘪𝘵𝘳𝘢𝘵𝘪𝘰𝘯: 𝘛𝘩𝘦 𝘐𝘯𝘵𝘦𝘳𝘯𝘢𝘵𝘪𝘰𝘯𝘢𝘭 𝘑𝘰𝘶𝘳𝘯𝘢𝘭 𝘰𝘧 𝘈𝘳𝘣𝘪𝘵𝘳𝘢𝘵𝘪𝘰𝘯, 𝘔𝘦𝘥𝘪𝘢𝘵𝘪𝘰𝘯 𝘢𝘯𝘥 𝘋𝘪𝘴𝘱𝘶𝘵𝘦 𝘔𝘢𝘯𝘢𝘨𝘦𝘮𝘦𝘯𝘵! 💡

4-5's Josep Galvez, FCIArb explores Arbitration Beyond the EU: Key Insights from the Svea Court of Appeal's Ruling in Spain v. Triodos in his latest article for Law360. The recent decision by the Svea Court of Appeal to annul the intra-EU investment treaty award in Spain v. Triodos SICAV II marks a pivotal moment in the landscape of arbitration within Europe. This ruling, which emphasizes the conflict between EU legal principles and intra-EU arbitration awards, underscores the increasing challenges faced by investors in seeking enforcement of such awards within EU jurisdictions. As the EU courts continue to invalidate intra-EU arbitral awards, understanding the legal environment and considering alternative jurisdictions can significantly impact the enforceability and success of arbitration proceedings. For more detailed analysis,see the article in full here: https://lnkd.in/eTxdUhPx #Arbitration #LegalInsights #EU #Brexit #InvestmentDisputes #Law360

For a long time, Fork in the Roadclauses have remained dormant within international investment law (“IIL”). It was not until 2009 that the sole arbitrator, Jan Paulsson, in Pantechniki v. Albania for the very first time, declined his jurisdiction on the basis of the FITR clause contained in the Albania-Greece BIT. When it came to the application of the FITR clause, Mr. Jan Paulsson invested his emphasis on the normative sources of the claims concerned and the question of whether the claim brought before the investor-state arbitral tribunal has an “autonomous existence” from the claim submitted to the other court or arbitral tribunal instead of merely focusing on whether the dispute brought before the investor-state arbitral tribunal and the dispute submitted to another court or tribunal are the same. However, such an approach did not gain widespread acceptance, as many other tribunals continued to adhere to a rigid and formalistic interpretation regarding the application of FITR clauses. In this article, three recent Chinese cases in relation to the application of the FITR clause will be examined. Based on these examination, we will then subsequently discuss why the emphasis regarding the FITR clause should be shifted from formalism to substantialism. By Dr. Shouzhi AN  Mark Yang & Jilong Li  #anjiebroad #arbitration

In their piece, Gerard J. Meijer, Piotr Wilinski, and Thomas de Boer have provided an overview of the ongoing legal battle involving Spain and intra-EU investment awards enforcement. The authors delve into a case before the District Court of Amsterdam where Spain, in its strategic legal maneuvers, argued that its obligations under an investment treaty award constitute unlawful state aid under EU law. This argument is pivotal as it challenges the #enforcement of the award within the EU, pushing the boundaries of the New York Convention and the Brussels I bis Regulation. The Amsterdam Court's interim judgment sided with Spain, granting itself jurisdiction and setting the stage for a complex interaction between EU state aid rules and international arbitration norms. This case exemplifies the intricate dance between national courts and international obligations, particularly in the realm of intra-EU investment disputes post-#Achmea. The outcome could significantly influence the enforcement landscape of #internationalarbitration awards within the EU, highlighting the tension between EU law and international treaty obligations. #investmentlaw #investmentarbitration #disputeresolution

A legal development? What impact will it make in international investment arbitration in 2025? The English Court of Appeal recently ruled that sovereign immunity cannot be invoked to resist the enforcement of ICSID awards in the case of Border Timbers Ltd & co. v Republic of Zimbabwe (2024). This landmark decision reinforces the binding nature of arbitration awards under the ICSID Convention, highlighting the primacy of international arbitration in resolving disputes between investors and states. Why This Matters For international arbitrators, states, and investors, this ruling underscores the importance of understanding the legal framework governing the recognition and enforcement of ICSID awards: 1. For Arbitrators: A robust understanding of enforcement ensures arbitrators can craft awards that are enforceable in jurisdictions worldwide, safeguarding the credibility of international arbitration. 2. For States: States must acknowledge their obligations under the ICSID Convention. Sovereign immunity cannot shield them from compliance, emphasizing the need for careful treaty commitments and responsible dispute resolution practices. 3. For Investors: Investors can be assured that their rights under ICSID awards will be upheld, providing a stable and predictable framework for protecting cross-border investments. This decision is a significant affirmation of the ICSID framework, promoting confidence in the rule of law and reinforcing the enforceability of arbitration awards globally. Let’s continue the conversation: What are your thoughts on this development? How do you see this decision shaping the landscape of international investment arbitration? #ICSID #Arbitration #SovereignImmunity #InvestmentLaw #RuleOfLaw #InternationalArbitration

I’ve also had the brief privilege of representing a South Asian state in Bilateral Investment Treaty disputes under PCA Rules, seated in The Netherlands and Singapore. These cases - which not a lot of Indian advocates deal with - delved into the intersection of public international law and commercial interests, offering unique legal and procedural challenges. For me, it was an experience as investor-state disputes test advocacy skills on a global stage and emphasize the importance of understanding geopolitical contexts in dispute resolution. What I learned in theory at Humboldt-Universität zu Berlin, I was able to apply in practice, just briefly. If you’ve worked on public international law matters, what’s been your biggest takeaway? #InvestorStateDisputes #InternationalArbitration #PCA #PublicInternationalLaw #DisputeResolution

LATIN AMERICA - JURISDICTION Contrary to the Common Law System, most of the countries of Latin America have civil codes. Legislation and regulations provide the legal framework such as dispute resolutions, sanctions and conditions of the contractual relationships. Latin American Countries failed to create uniformity with the international maritime industry for the following reasons: • 1) Not all of the countries have adopted the various international conventions, which will give the Parties a more limited exposure to Claims and risks, and a standard and known rules. • 2) the countries have implemented the conventions in different ways. • 3) There are few dedicated maritime tribunals. Most cases will be heard by civil or commercial judges without the specialist maritime expertise. The above creates: - dealys in the legal procedures, - contradictory courts resolutions and, - escalating claim costs. - lack of investment because it is not a friendly jurisdiction.

Our Partner Nelson Goh and Associates Henrietta Tonkin and Joseph Fox-Davies recently published a case note with the European Investment Law and Arbitration Review. This case note considers the decision of the Court of Justice of the European Union in Commission v. United Kingdom, ruling that the UK Supreme Court’s judgment in Micula v. Romania violated EU law. This reignites a crucial debate on the clash of international legal norms, and in this case, interestingly, the issue of whether treaty obligations are erga omnes partes or if rights are owed only to the injured state. Access the pre-publication: https://lnkd.in/ea4Y8pNf #PallasPartners #InternationalLaw #InternationalArbitration  

The U.S. Court of Appeals for the District of Columbia Circuit recently issued a decision that supports the enforcement of intra-EU awards in the US. This comes after EU member States have resisted enforcement of intra-EU awards based on EU law and the CJEU’s judgments in Achmea and Komstroy. The DC Circuit dismissed Romania’s intra-EU objections in the enforcement proceedings of the Micula v Romania intra-EU award. This, along with a recent German court decision to dismiss Spain’s attempts to prevent the enforcement of an intra-EU award in the US, may indicate that the US is becoming a viable jurisdiction to enforce intra-EU investment treaty awards.  Read more about the implications of this recent decision in our blog co-authored by Freshfields' Global Co-Head of International Arbitration Noiana Marigo, with partners David Livshiz, Carsten Wendler and Lee Rovinescu, senior associates Ruth Montiel and Gregorio Pettazzi, and associate Gonzalo Salazar Lizausaba. Freshfields Bruckhaus Deringer #internationalarbitration #investmentarbitration #disputeresolution #europeanunion https://lnkd.in/efiSGJ9z