Editorial Board:

Prof. dr hab. Andrzej Szumański, Sylwester Pieckowski, Wojciech Błaszczyk, dr Beata Gessel-Kalinowska vel Kalisz, dr Andrzej W. Wiśniewski,

Paweł Pietkiewicz, dr Rafał Morek, Tomasz Zbiegień

Editors and coordinators: dr Beata Gessel-Kalinowska vel Kalisz, b.gessel@gessel.com.pl;

dr Rafał Morek, rafal.morek@klgates.com

Secretary Editor:

Agnieszka Różalska, arozalska@pkpplewiatan.pl.

Court of Arbitration at PCPE Lewiatan

Flory Street 9/3

00-586 Warsaw

tel. (+48 22) 565 20 70

fax (+48 22) 565 20 95

e-mail: sadarbitrazowy@pkpplewiatan.pl

www.sadarbitrazowy.org.pl

Project co-financed by the European Union within the framework of the European Social Fund

Issue No. 3(3)/2010:

EDITORIAL

Rafał Morek 4

ANALYSES & OPINIONS

2010 UNCITRAL Arbitration Rules Maciej Tomaszewski 5

New UNCITRAL Arbitration Rules from the backstage Piotr Nowaczyk 16

Mediation in civil matters is gaining slow acceptance in Poland

Sylwester Pieckowski 22

ARBITRATION INSTITUTIONS IN OTHER COUNTRIES

Kuala Lumpur Regional Centre for Arbitration: New UNCITRAL Arbitration Rules already in force

Adelina Prokop 26

Iran-US Claims Tribunal still in operation: Krzysztof Skubiszewski replaced by Hans van Houtte

Artur Barczewski 26

INVESTMENT ARBITRATION

The law applicable to resolution of investment disputes Katarzyna Michałowska 29

Views previously expressed by an arbitrator as grounds for a challenge – comments based on the ICSID decision in the Urbaser case

Maria Hauser-Morel 33

Transparency in investment arbitration: Ukraine’s prospective

Julia Chernykh 39

Annulment of the Sempra v. Argentina award – a new precedent for non-precluded measures clauses?

Agnieszka Różalska-Kucal 44

CONFERENCE REPORTS

Cross-Border Dispute Resolution: The perspective for Rus-sia and the CIS, 14 September 2010, Moscow

Krzysztof Stefanowicz 48

CURRENT NEWS

Swiss Federal Tribunal set aside an arbitral award on public policy grounds

Marek Neumann 50

Arbitration law reform in Spain Mikołaj Jasiak 51

Upcoming Events and Recent Publications 53

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EDITORIAL

The main thread of this 2010 Fall Edition of the Arbitration E-Review is the new UNCITRAL Arbitra-tion Rules. On 15 August 2010 they replaced the old 1976 UNCITRAL Rules, which were commonly considered the most important set of rules for international ad hoc arbitration. The new Rules are to match contemporary challenges brought by arbitration practice, but at the same time to “preserve the structure, spirit, and style” of its predecessor.

The various themes related to the UNCITRAL Arbitration Rules are discussed in this e-Review in sev-eral diverse features highlighting issues from different perspectives. The articles by Dr. Maciej Tomas-zewski and Mr. Piotr Nowaczyk, both authors belonging to the most renowned and experienced Polish arbitrators on the international stage including ad hoc arbitration, are particularly interesting. While one article contains a legal discussion of a more academic nature, the other reveals more what went on behind the scenes of the UNCITRAL works on the new Rules.

The consistency of own arbitration rules with the model developed by the UNCITRAL, as well as rea-diness to administer individual arbitrations in accordance with the UNCITRAL Rules, has been used as a marketing tool by a number of permanent courts of arbitration. It is illustrated by the recent exam-ple of the Kuala Lumpur Regional Centre for Arbitration in Malesia, which announced itself to be the first arbitration institution worldwide to incorporate and apply the new UNCITRAL Rules. Many other courts of arbitration admit, as discussed by Ms. Adelina Prokop in her article, that the UNCITRAL Rules served as a model for drafting their own rules.

It is worth reminding ourselves that the UNCITRAL Rules also apply in proceedings handled by some specific arbitration bodies, such as the Iran-US Claims Tribunal. The history and activities of this insti-tution, which was for many years presided over by Prof. Krzysztof Skubiszewski who passed away last February, are presented in the feature authored by Mr. Artur Barczewski.

The Fall Edition of the Arbitration E-Review should particularly please readers with a special interest in investment arbitration. We have published the four most informative articles related to this area. We expect to keep this line in the Winter Edition, in which will be published among other features, the reports on the International Investment Arbitration conference – Need for Changes of Legal Regulations of 26 October 2010, and the Foreign Direct Investment International Competition Moot competition, in which Polish students achieved unprecedented success.

While on the topic of conferences, we note with satisfaction that the Lewiatan Court of Arbitration has been/is a co-organizer of some other important events taking place this fall, including the following conferences: Cross-Border Dispute Resolution: The Perspective for Russia and the CIS – on 14 September in Moscow (you will find herein Dr. K. Stefanowicz’s report), ABA Section of International Law’s 2010 Fall Meeting – 2-6 November in Paris, The Perspectives of ADR Development – 26 November in Łódź, and International Commercial Arbitration – Austrian/Polish Twin Conference – 3 December in Vienna.

November 18th will be a particularly important day for the Polish arbitration society. On this date, a conference and gala will take place at the Royal Castle in Warsaw to celebrate the 60th anniversary of the Court of Arbitration at the Polish Chamber of Commerce. On the eve of this important event, we jointly congratulate and send our best wishes to its President, Mr. Marek Furtek, as well as to all cur-rent and former members of the governing bodies of the Court, its arbitrators and mediators, em-ployees, and all others engaged in the promotion and development of institutional arbitration in Pol-and.

Dr Rafal Morek, advocate Dr Beata Gessel-Kalinowska vel Kalisz, legal advisor

The 2010 UNCITRAL Arbitration Rules

Dr Maciej Tomaszewski

On 12 July 2010 the United Nations Commission on International Trade Law (“UNCITRAL”) adopted a new version of the Arbitration Rules1 which as of 15 August 2010 replace the previous Arbitration Rules adopted by UNCITRAL on 28 April 1976 and recommended to be applied when resolving disputes related to international trade by a resolution No. 31/98 of the General Assembly of the United Nations of 15 December 1976.1

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ANALYSES AND OPINIONS

I. Introduction

The UNCITRAL Arbitration Rules of 1976 quickly gained significant recognition in the eyes of lawyers and business entities interested in resolving, by way of ad hoc arbitration, dis-putes arising out of international trade transac-tions and gradually overtook in practice the Rules of Arbitration of the United Nations Eco-nomic Commission for Europe of 1963, which were often applied in this area, especially in East-West relations.1

While originally the UNCITRAL Arbitration Rules of 1976 were intended for international ad hoc trade arbitration, in practice they came to have a broad application in proceedings be-fore ad hoc arbitral tribunals which resolved so-called investment disputes between States and foreign investors2. In Poland these rules

The Author is an Associate Professor of the University of Warsaw, Department of Law and Administration.

1 With regard to these arbitration rules see S. Matysik, Arbitraż ad hoc według Regulaminu Europejskiej Komisji Gospodarczej ONZ [Ad hoc arbitration according to the Rules of the United Nations Economic Commission for Europe], Palestra 1975, No. 9, pp. 39-47. Translation into Polish of the Rules of the United Nations Economic Commission for Europe published by the Polish Chamber of Foreign Trade in a brochure from the series entitled Legal Issues, Warsaw, April 1965.

2 Over thirty bilateral agreements on mutual support and protection of investments (so-called BIT) concluded by Poland with various States expressly provide for resolu-tion of disputes between a State and a foreign investor by way of ad hoc arbitration with the application of the UN-CITRAL Arbitration Rules. These agreements are listed by K. Michałowska, Poufność czy jawność międzynarodo-wego arbitrażu inwestycyjnego? [Confidentiality or disclo-

were often applied to ad hoc arbitration in ‘purely domestic’ cases between Polish busi-ness entities. Apart from this, the UNCITRAL Arbitration Rules of 1976, hereinafter referred to as the “1976 Rules”, were used as an inspir-ing model when preparing the rules for arbitral proceedings of certain permanent arbitration courts (institutions)3.

Thirty years after the 1976 Rules were adopted, at the thirty ninth UNCITRAL session in New York held from 19 June 2006 to 7 July 2006, it was decided that Working Group II (Arbitration and Conciliation) would under-take, as a priority, the task of revising these rules. To facilitate the task, a list was drawn up of issues to which that group should pay par-ticular attention4. Working Group II, in whose work many arbitration specialists - represent-ing various systems and legal traditions - took part, operated under the leadership of the dis-tinguished Swiss lawyer, Micheal E. Schneider,

sure of international investment arbitration?], Przegląd Prawa Handlowego 2009, No. 7, p. 52, footnote 4.

3 The 1976 Rules recently served as a model, for exam-ple, in the preparation of the so-called Swiss Rules of International Arbitration, adopted on 30 September 2003 by the industrial-trade chambers of six Swiss can-tons, which chambers conduct institutional arbitration. See B. Stucki, E. Geisinger [in:] International Arbitration of Switzerland, A Handbook for Practitioners, ed. G. Kauf-mann-Kohler and B. Stucki, Kluwer-Schulthess, The Hague 2004, pp. 181-182.

4 A list of these issues has been prepared by the Secre-tariat of UNCITRAL as a document marked as A/CN.9/WG.II/Wp.143, available at the UNCITRAL web-site given above in footnote 1.

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a partner at the renowned law firm LALIVE. After four years of intensive work by this group5, it was possible to agree and adopt new UNCITRAL Arbitration Rules, hereinafter the “2010 Rules”.

Even just a brief comparison of the two ver-sions of the rules allows one to notice that they have an almost identical layout and division of material, and that the new version has only a slightly larger number of articles6. It can also be seen clearly that the authors of the 2010 Rules attempted to retain the concise style and main solutions of the 1976 Rules, introducing into the new version only indispensable correc-tions and supplements dictated by the needs of contemporary arbitration practice7. They thus took into account, inter alia, the need to make use in arbitration of modern technological fa-cilities, the need for a reasonable limitation on time and costs of arbitral proceedings, as well as the fact of the increasingly frequent appear-ance in these proceedings of multiple entities on the side of the claimant and the respondent.

The purpose of this paper is to present the most important changes introduced into the new rules, as well as to draw attention to cer-tain problems related to application of the rules to ad hoc arbitration proceedings in Poland.

5 The course of this work has been related systematically by the chairman of the Polish delegation to Working Group II, deputy director of the Legal Department at the Ministry of the Economy, legal counsellor M. Szymańska, in Biuletyn Arbitrażowy (KIG) 2008, No. 6, pp. 115-119; No. 9, pp. 38-42; 2010, No. 1(13), pp. 43-47 and No. 2(14), pp. 60-67. See also A. Szumański, Kierunki zmian ustawodawstwa w międzynarodowym arbitrażu hand-lowym [Directions of changes in UNCITRAL legislation in international trade arbitration], Przegląd Prawa Hand-lowego 2007, No. 1, p. 51 et seq., T. Miśko, Rewizja Regu-laminu Arbitrażowego UNCITRAL z 1976– zagadnienia wybrane, części I i II [Review of the UNCITRAL Arbitration Rules of 1976– selected issues, parts I and II], Monitor Prawniczy 2009, No. 1, supplement, p. 45 et seq.

6 The 1976 Rules comprise 41 articles, whereas the 2010 Rules comprise 43 articles.

7 See statement of the chairman of Working Group II, M. E. Schneider, quoted on the Internet in the article of K. Karadelis, New UNCITRAL Rules at last, Global Arbitra-tion Review, www.globalarbitrationreview.com, 12 July 2010.

II. Scope of application

Pursuant to Art. 1 Sec. 1 of the 2010 Rules, they are applicable when the parties agree that dis-putes arising between them as to a defined le-gal relationship, whether contractual or not, will be referred to arbitration conducted ac-cording to these rules subject to such modifica-tion as the parties may agree8. The authors of the new version rightly resigned from the re-quirement contained in the 1976 Rules that an agreement of parties which provides for appli-cation of the rules or introducing a change to the rules be concluded in writing. The issue of the required form of such agreement should be settled by the provisions of the applicable law, and not the provisions of arbitration rules. Also accurate was the decision to replace the restric-tive wording which suggested that the rules apply only to settlement of disputes concerning a contract with the clear indication that they apply to disputes as to a defined legal relation-ship, whether contractual or not.

In order to remove uncertainty as to which ver-sion of the UNCITRAL arbitration rules applies in a given case, in Art. 1 Sec. 2 of the 2010 Rules a presumption was inserted that parties to an arbitration agreement concluded after 15 Au-gust 2010 referred to the rules in effect on the day of commencement of the arbitral proceed-ings, unless they agreed on application of dif-ferent version of those rules. However, that presumption does not apply when the arbitra-tion agreement was concluded by way of accep-tance - after 15 August 2010 - of an offer sub-mitted before that date.

In the new rules, as in the previous ones, it was indicated that the provisions of the rules can-not breach mandatory provisions of the law which governs the arbitral proceedings (Art. 1 Sec. 3).

A question arises here as to whether in the case that the parties did not agree on the principles and manner of proceeding before an ad hoc arbitral tribunal the arbitrators may independ-

8 The 2010 Rules are also accompanied by a model arbi-tration clause, which refers to the Rules, to be inserted in contracts.

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ANALYSES & OPINIONS

ently decide that the arbitral tribunal will con-duct the proceedings according to the 2010 Rules. Pursuant to the provision of Art. 1184 § 2 of the Code of Civil Procedure, in the ab-sence of a different arrangement of the parties, the arbitral tribunal may, subject to the statu-tory provisions, conduct proceedings in such a manner as it considers appropriate. It follows clearly from this that if in the discussed case the arbitrators independently take a decision to apply the 2010 Rules, then all provisions of Part Five of the Code of Civil Procedure will have priority over the provisions of these rules – not only mandatory provisions (ius cogens) but also directory provisions (ius dispositivum). This is because the provision of Art. 1184 § 2 of the Code of Civil Procedure states that in the absence of a different arrangement of the par-ties, the arbitral tribunal may conduct the pro-ceedings in such a manner as it considers ap-propriate, but “subject to the provisions of the act”, and so regardless of whether these are mandatory or directory provisions. Under Pol-ish law, the freedom of arbitrators in determin-ing the rules of proceedings is undoubtedly much less than the freedom of the parties in this scope.

III. Transmission and delivery of no-tices

Under the 2010 Rules, a notice, including a no-tification, communication or proposal, may be transmitted by any means of communication which provides or allows for a record of its transmission (Art. 2 Sec. 1).

If an address has been designated by a party specifically for this purpose or authorized by the arbitral tribunal, any notice shall be deliv-ered to that party at that address, and if so de-livered shall be deemed to have been received. Delivery by electronic means such as facsimile or e-mail may only be made to an address so designated or authorized (Art. 2 Sec. 2).

In the absence of such designation or authori-zation, a notice is (a) received if it is physically delivered to the addressee, or (b) deemed to have been received if it is delivered at the place

of business, habitual residence or mailing ad-dress of the addressee (Art. 2 Sec. 3).

If, after reasonable efforts, delivery cannot be effected in accordance with the rules indicated above, a notice is deemed to have been re-ceived if it is sent to the addressee’s last known place of business, habitual residence or mailing address by registered letter or any other means that provides a record of delivery or of at-tempted delivery (Art. 2 Sec. 4).

IV. Notice of arbitration and reply to such notice

The provisions concerning notice of arbitration in the two versions of the rules do not differ significantly, though the 2010 Rules no longer provide (though they do not rule out) for the possibility of including a statement of claim in such notice, and furthermore stipulate in Art. 3 Sec. 5 that any controversy with respect to the sufficient content of a notice of arbitration which should be finally resolved by the arbitral tribunal, cannot hinder the constitution of the arbitral tribunal.

A novelty in the 2010 Rules are the provisions indicating a 30-day deadline for furnishing a response to a notice of arbitration, as well as the necessary and admissible content of such response (Art. 4 Sec. 1 and 2), as well as the reservation that the constitution of the arbitral tribunal cannot be hindered by any controversy with respect to a lack of response to the notice of arbitration, or an incomplete or late re-sponse to such notice, which controversy should be finally resolved by the arbitral tribu-nal (Art. 4 Sec. 3).

V. Representation and assistance

The previous provision concerning the choice of persons representing or assisting the party has been retained though supplemented by an additional sentence stating that if a person is to act as a representative of a party, then the arbi-tral tribunal, on its own initiative or at the re-quest of any party, may at any time require proof of authority granted to the representative in such a form as the arbitral tribunal may de-termine (Art. 5 sentence 3).

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ANALYSES & OPINIONS

VI. Designating and appointing authorities

A novelty is the regulation in one place, i.e. in Art. 6, of essentially all the issues related to the selection and functions of the so-called ap-pointing authority, which in the 1976 Rules were dispersed in different places9. The 2010 Rules indeed encourage the parties to select such an authority as quickly as possible, stating above all that unless the parties have already agreed on the choice of appointing authority, a party may at any time (during arbitration) propose one or more institution or person, in-cluding the Secretary-General of the Permanent Court of Arbitration at the Hague (“PCA”), one of whom would serve as appointing authority (Art. 6 Sec. 1).

If all the parties10 have not agreed on the choice of an appointing authority within 30 days after receipt by them of the proposal referred to in Art. 6 Sec. 1, any party may request the Secre-tary-General of the PCA to designate the ap-pointing authority (Art. 6 Sec. 2).

Except as referred to in Art. 41 Sec. 4, if the ap-pointing authority refuses to act or if it fails to appoint an arbitrator within 30 days after it receives a party’s request to do so, fails to act within any other period provided by the 2010 Rules, or fails to decide on a challenge to an arbitrator within a reasonable time after re-ceiving a party’s request to do so, any party may request the Secretary-General of the PCA to designate a substitute appointing authority (Art. 6 Sec. 4). In this context, however, one should note that in connection with the provi-sion of Art. 1176 § 2 of the Code of Civil Proce-dure, “a reasonable time” for the appointing authority to take a decision on a challenge to an arbitrator in arbitral proceedings pending in Poland cannot exceed one month, counting from the date the request is made challenging an arbitrator, in the procedure agreed by the

9 See Art. 6, 7, 8 and 12 of the 1976 Rules.

10 According to the terminology adopted in the 2010 Rules, a party is each and every entity appearing in arbi-tration as claimant or as respondent.

parties11 (that is, for example, set out in the 2010 Rules). If, however, by this deadline the appointing authority does not take any decision or dismisses the request for challenging, then the party requesting the challenging may apply to a Polish State court for an arbitrator to be challenged, where contrary provisions of the agreement of the parties (including arbitration rules agreed by them) are in this case ineffec-tive.

Also worth noting is the new provision of Art. 6 Sec. 5 of the 2010 Rules, pursuant to which when performing the functions provided in these rules the appointing authority and the Secretary-General of the PCA may request from each of the parties and the arbitrators informa-tion which they deem to be necessary and they should give the parties and, respectively, the arbitrators the possibility of presenting their views in whatever manner they consider ap-propriate. All letters to or from the appointing authority and the Secretary-General of the PCA should be addressed by the sender to all par-ties.

If a party requests the appointing authority to appoint an arbitrator pursuant to Art. 8, 9, 10 or 14 of the 2010 Rules, the party making such request should send to the appointing authority copies of the notice of arbitration and, if it ex-ists, any response to the notice of arbitration (Art. 6 Sec. 6).

VII. Composition of the arbitral tribunal

As to the number of arbitrators the new version of the rules, as previously, provides in principle that unless the parties agree otherwise, three arbitrators are appointed (Art. 7 Sec. 1). How-

11 The provision of Art. 1176 § 2 of the Code of Civil Pro-cedure speaks, somewhat unfortunately, about submit-ting a request ‘to the arbitral tribunal’ for an arbitrator to be challenged under the procedure set down by the par-ties, though this procedure does not have to provide for submission of such request to an arbitral tribunal or even via such court. It may be a question of, in particular, submission of such request directly to the appointing authority which the parties attribute competence in re-solving the issue of a challenge of an arbitrator, just as it is provided for by both UNCITRAL Arbitration Rules.

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ANALYSES & OPINIONS

ever – and this is a significant novelty which one should not overlook – if the parties have not previously agreed on the number of arbi-trators and none of the remaining parties has responded within 30 days to a proposal sent to it by the other party to appoint a sole arbitrator and the opposing party or parties has/have not appointed a second arbitrator pursuant to Art. 9 or 10, then the appointing authority may, at the request of a party, appoint a sole arbitra-tor pursuant to the procedure provided for in Art. 8 Sec. 2, if it determines that, in view of the circumstances of the case, this is more appro-priate (Art. 7 Sec. 2).

Particularly worthy of attention are the provi-sions of Art. 10 of the new rules concerning the appointment of arbitrators in so-called multiple arbitrations in which more than one entity ap-pears on the part of the claimant or the re-spondent or on both sides, which the 2010 Rules calls (somewhat misleadingly) a party12.

Thus, if three arbitrators are to be appointed, and multiple parties (more precisely – multiple entities) appear as claimant or respondent, then unless the parties agree on another method of appointing the arbitrators, all the entities appearing as claimant or respondent should jointly appoint an arbitrator (Art. 10 Sec. 1).

If the parties have agreed that the arbitral tri-bunal is to be composed of a number of arbitra-tors other than one or three, then the arbitra-tors are appointed according to the method agreed upon by the parties (Art. 10 Sec. 2). However, in the event of a failure to constitute the arbitral tribunal according to the principles set out in the 2010 Rules, then the appointing authority, at the request of any party, will con-stitute the arbitral tribunal, and, in doing so, may revoke any appointment already made and

12 In arbitral proceedings, just as in proceedings before a state court, in principle only two parties appear: claimant and respondent, where more than one entity may appear on each of these sides. Apart from this, an arbitration agreement may have more than one party. Pursuant to the English-language tradition, the 2010 Rules refers to as parties all entities appearing in arbitration as claim-ants or respondents.

appoint or reappoint each of the arbitrators and designate one of them as the presiding ar-bitrator (Art. 10 Sec. 3). This wholly new provi-sion is not entirely clear and undoubtedly re-quires a broader analysis, for which there is no room in this paper. In any event it should be noted that what lies behind that provision is the legitimate idea of overcoming practical dif-ficulties related to constituting the arbitral tri-bunal which sometimes arise as a result of an incorrect wording of arbitration clauses, espe-cially those which refer to multiple-party dis-putes.

VIII. Challenging and replacement of arbitrators

In the new version the provision has been re-tained (with minor stylistic changes) which imposes on a ‘candidate’ for arbitrator and a person already appointed as arbitrator the ob-ligation to disclose all circumstances which are likely to give rise to justifiable doubts as to his or her impartiality or independence (Art. 11)13.

The 2010 Rules, just like the 1976 Rules, pro-vide that an arbitrator may be challenged if circumstances exist which give rise to justifi-able doubts as to the arbitrator’s impartiality or independence (Art. 12.1), whilst not mention-ing anything – as opposed to Polish law and the UNCITRAL model law of 1985 – about the pos-sibility of challenging an arbitrator for reason of his or her lack of qualifications set forth in the agreement of the parties14. It seems, how-ever, that in arbitration to which the 2010 Rules (or the 1976 Rules) apply the party may also challenge an arbitrator who does not have 13 The 2010 Rules are also accompanied by a model statement on independence of the arbitrator pursuant to Art. 11 of those Rules.

14 Art. 1174 § 2 of the Code of Civil Procedure and Art. 12 Sec. 2 of the UNCITRAL model law. See M. Tomaszewski, Przyczyny wyłączenia arbitra według prawa polskiego [Reasons for challenging an arbitrator under Polish law] [in:] Międzynarodowy i Krajowy Arbitraż Handlowy u Progu XXI Wieku, Księga Pamiątkowa dedykowana dok-torowi habilitowanemu Tadeusz Szurski [International and national Trade Arbitration at the beginning of the 21st Century, Memorial Book dedicated to Doctor Tadeusz Szurski], ed. P. Nowaczyk, S. Piechowski, J. Poczobut, A. Szumański, A. Tynel, Warsaw 2008, pp. 245-260.

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the qualifications set forth in the agreement of the parties since the provisions of the agree-ment of the parties and the mandatory provi-sions of the law applicable to the arbitral pro-ceedings have priority over these rules15.

Art. 13 of the 2010 Rules regulates the proce-dure for challenging an arbitrator essentially in a similar way as Art. 11 and 12 Sec. 1 of the 1976 Rules.

Pursuant to Art. 12 Sec. 3 of the 2010 Rules16, the provisions of Art. 13 are applicable to chal-lenge proceedings concerning an arbitrator for the reason that the arbitrator fails to act or cannot act de iure or de facto. In this case, in my opinion, one should speak correctly about a revocation or better still – removal of the ar-bitrator, and not about his or her being chal-lenged17, though in practice this is not very im-portant.

In the matter of replacement of arbitrators a certain improvement was introduced of the solutions provided in Art. 13 Sec. 1 of the 1976 Rules. The principle was retained that a substi-tute arbitrator may be appointed or selected pursuant to the procedure set forth in the rules which was applicable to the appointment or selection of the substitute arbitrator, adding to

15 If the parties specified in the agreement the qualifica-tions required from an arbitrator, then it should be ac-cepted that their intention was that an arbitrator who does not have these qualifications could be challenged under the same procedure as with regard to an arbitra-tor with regard to whom there are justifiable doubts as to his or her impartiality or independence.

16 This is an equivalent of Art. 13 Sec. 2 of the 1976 Rules.

17 See also R. Skrzypczak, Instytucja wyłączenia, odwoła-nia i ustąpienia arbitra w prawie polskim [The institution of challenging, removal and withdrawal of an arbitrator in Polish law] [in:] Prace laureatów konkursu na najlepszą pracę magisterską dotyczącą problemów sądownictwa polubownego i mediacji im. prof. dr hab. Jerzego Jaku-bowskiego [Papers of the laureates of the Prof. Jerzy Jaku-bowski competition for the best Master’s Degree thesis concerning the problems of conciliatory jurisprudence and mediation], IV Edition, Twigger, Warsaw 2009, pp. 435-539; A. Szumański, Arbitrzy i zespół orzekający [Arbitra-tors and adjudicating panels] [in:] System Prawa Hand-lowego [Commercial Law System], Vol. 8 Arbitraż hand-lowy [Commercial Arbitration], ed. A. Szumański, Rozdz. 8, C.H. Beck, Warsaw 2010, pp. 444-446.

it that this procedure applies even when in the process of appointing the arbitrator who is to be replaced the party did not exercise its rights to appoint or to take part in his or her ap-pointment (Art. 14 Sec. 1).

Furthermore, of much importance is the new provision, contained in Art. 14 Sec. 2 of the 2010 Rules, pursuant to which if the appointing authority determines, at the request of a party, that in view of particular circumstances of the case it would be justified for a party to be de-prived of its right to appoint a substitute arbi-trator, the appointing authority, after giving an opportunity to the parties and the remaining arbitrators to express their views in this re-spect may (a) appoint a substitute arbitrator or (b) after the closure of the hearings, authorize the other (remaining) arbitrators to proceed with the arbitration and make any decision or award. This provision is aimed, inter alia, at preventing a sabotage of arbitration, for exam-ple, where an arbitrator appointed by a party (being in collusion with such party) steps down or is removed or challenged, following which the party appoints a substitute arbitrator who then steps down or is removed or challenged, etc. It seems, however, that the solution is suffi-cient as provided in letter (a) Art. 14 Sec. 2, i.e. appointment of a substitute arbitrator by the appointing authority, instead of by the party appointing subsequent arbitrators who by their conduct paralyze the arbitral proceed-ings. However, doubts are raised by the possi-bility of the appointing authority’s taking a de-cision authorizing the ending of arbitration and the issue of an award by the arbitral tribunal in an incomplete composition (truncated arbitral tribunal). Such solution may be supported by the need for a quick end to arbitral proceedings at an advanced stage (following the closing of hearings). However, such a solution may be opposed by mandatory provisions, and even the public order clause in certain States18. One

18 In its judgment of 20 July 2010, the Supreme (Busi-ness) Arbitration Tribunal overturned the award of the International Court of Commercial Arbitration at the Industrial-Trade Chamber of the Russian Federation handed down in Moscow by a truncated two-person arbitral tribunal, acting pursuant to the rules of that

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could however think that where arbitral pro-ceedings are subject to a law which excludes admission of a truncated arbitral tribunal, the appointing authority will refrain from issuing the authorization provided under letter (b) Art. 14 Sec. 1 of the 2010 Rules and avail only of the possibility provided under letter (a) of that article. In my opinion, it should act simi-larly if in the State in which the arbitration award issued by the truncated arbitral tribunal is to be recognized or enforced, the public or-der clause may be an obstacle to its recognition or enforcement19.

Unlike in the 1976 Rules, the issue is regulated of repetition of certain acts (especially hear-ings) in the case of replacement of an arbitra-tor. Art. 15 of the 2010 Rules states that if an arbitrator is replaced, the proceedings shall resume at the stage where the arbitrator who was replaced ceased to perform his or her func-tions, unless the arbitral tribunal decides oth-erwise. This refers here of course to an arbitral tribunal in the proper, complete composition.

IX. General principles of procedure

In the new rules, as in the previous ones, the principle is emphasized that subject to the pro-visions of those rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the par-ties are treated with equality and at an appro-priate stage of the proceedings each party is given a reasonable opportunity of presenting its case. A new sentence has been added to this basic principle stating that in exercising its dis-cretion the arbitral tribunal should conduct proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute (Art. 17 Sec. 1).

court following the death of the third arbitrator of that panel, who died after the hearing had been closed. See regarding this judgment: S. Perry, Russian award set aside after arbitrator’s death, on the website of the Global Arbitration Review of 28 July 2010.

19 On the disputed problem of truncated arbitral tribu-nals see A. Szumański, op. cit.17, pp. 418-421.

In order to speed up and make more efficient the proceedings a new provision has been in-troduced pursuant to which as quickly as is practically possible following constitution of the arbitral tribunal and the invitation of the parties to express their views, the tribunal should establish the provisional timetable of the arbitration. Furthermore, it has been de-cided that in each case the arbitral tribunal may, after making it possible for the parties to express their views, extend or abridge any pe-riod of time prescribed under the rules or agreed by the parties (Art. 17 Sec. 2).

The principle has been maintained that at the request of a party made at an appropriate stage of the proceedings, the arbitral tribunal should hold hearings for the presentation of evidence by witnesses and expert witnesses, and for oral argument. In the absence of such request, the arbitral tribunal decides whether to hold such hearings or whether the proceedings will be conducted on the basis of documents and other materials (Art. 17 Sec. 3).

All communications made by a party to the ar-bitral tribunal should be at the same time communicated by it to all the remaining par-ties, unless the arbitral tribunal decides other-wise, if it may do so under applicable law (Art. 17 Sec. 4). It is undoubtedly a matter here of the law applicable to the arbitral proceed-ings, and not the law applicable to settlement of the merit of the dispute.

A new provision has been included in the 2010 Rules concerning the participation of third par-ties in the arbitration. Pursuant to Art. 17 Sec. 5 of these rules, the arbitral tribunal may, at the request of any party, permit that one or more third person join the arbitration as a party if such person is a party to the arbitration agree-ment, unless the arbitral tribunal finds, after giving all parties, including the person or per-sons to be joined to the arbitration, the oppor-tunity to be heard, that joinder should not be permitted because of prejudice to any of those parties. It is further pointed out that the arbi-tral tribunal may make a single award or sev-eral awards in respect of all parties so involved in the arbitration.

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X. Place of arbitration

The provisions of the two rules essentially do not differ as regards the place of arbitration, except that the provision of the 1976 Rules stating that the award (ruling) of the arbitral tribunal is to be made in the place of arbitration has been replaced by a provision which intro-duces the presumption that an award has been made in the place of arbitration (Art. 18 Sec. 1 sentence 2). If therefore in the award a place of issue has been indicated which is different from the place of arbitration, then this presumption does not come into play20.

XI. Language

The provisions of the 2010 Rules concerning the language which is to be used in arbitral proceedings (Art. 19) do not differ from the regulations contained in the previous version.

XII. Statement of claim and statement of defence

In this regard the existing solution has been made more precise and somewhat improved, while it is worth emphasizing that according to the new version the statement of claim and statement of defence should (and not as in the former version – “may”) be accompanied as far as possible by all documents and other evi-dence cited by the party in such submissions (Art. 20 Sec. 4, Art. 21 Sec. 4). This means that if a party had the possibility of attaching a given document to an earlier submission, then the arbitral tribunal may at a later stage not accept this document or not take it into account when making its award.

20 As regards the notion of place of arbitration (place of proceedings before an arbitral tribunal) and the place of issue of an award in Polish law, see Ł. Nowak, Miejsce arbitrażu w prawie polskim [Place of arbitration in Polish law], Biuletyn Arbitrażowy (KIG) 2008, No. 8, pp. 35-46; T. Ereciński, K. Weitz, Sąd arbitrażowy [Arbitral tribunal], LexisNexis, Warsaw 2008, pp. 61-66 and 68-69; J. Szpara, Miejsce wydania wyroku a miejsce arbitrażu (w kontekście uznawania i wykonywania zagranicznych orzeczeń arbi-trażowych) [Place of issue of an award and place of arbi-tration (in the context of recognition and enforcement of foreign arbitral awards)], ADR. Arbitraż i Mediacja 2009, No. 2, pp. 73-85.

XIII. Plea as to lack of jurisdiction

The principles provided for in the previous ver-sion have been maintained without material changes, and thus the principle that the arbitral tribunal has the power to rule on its own juris-diction (Kompetenz-Kompetenz) and the princi-ple of separateness (independence, autonomy) of the arbitration clause contained in the so-called main agreement (Art. 23 Sec. 1), as well as the principle of limitation in time for raising a plea of lack of jurisdiction of the arbitral tri-bunal (Art. 23 Sec. 2), as well as a provision allowing the arbitral tribunal to rule on its own jurisdiction, either as a preliminary question or in a separate award (ruling) on the merits of the dispute (Art. 23 Sec. 3).

XIV. Interim measures

Far more developed and practically better than in the 1976 Rules are the provisions of Art. 26 of the new version concerning the granting of interim measures, or put briefly - measures. By way of an example, it was explained that such measures include in particular every measure by which, at any time before the final award is issued, the arbitral tribunal orders a party to:

(a) maintain or restore the status quo pend-ing determination of the dispute;

(b) take actions that would prevent or re-frain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process itself;

(c) preserve assets out of which a subse-quent arbitral tribunal award may be satisfied, or

(d) preserve evidence that may be relevant and material to the resolution of the dispute (Art. 26 Sec. 2).

Apart from this, pre-requisites were shown for applying such measures, stating that a party submitting an application for an interim meas-ure listed above under letters a, b and c, should sufficiently satisfy the arbitral tribunal that (a) if such measure is not ordered there is a likelihood that harm will result which is not adequately reparable by an award of damages and such harm to the applicant substantially

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outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted, and (b) there is a rea-sonable possibility that the requesting party will succeed on the merits of the claim, whereas the determination on this possibility will in no way affect the discretion of the arbitral tribunal in making any subsequent determination (Art. 26 Sec. 3). It should be pointed out here that according to Polish law, an arbitral tribu-nal grants a measure by issuing a decision in this matter which is subject to enforcement once it has been granted a clause of enforce-ability by a State court (Art. 1181 of the Code of Civil Procedure).

XV. Taking of evidence

The 2010 Rules contain a new provision con-cerning testimony of witness and expert wit-nesses selected by the parties. Pursuant to Art. 27 Sec. 1, witnesses and expert witnesses called by the parties for the purpose of testify-ing to an arbitral tribunal on any issue of fact or expertise may be any individual, notwithstand-ing that the individual is a party to the arbitra-tion or in any way related to a party. State-ments by witnesses and expert witnesses may be presented in writing and should be signed by them, unless the arbitral tribunal decides otherwise.

Also new is the provision pursuant to which witnesses and expert witnesses may be heard under the conditions and examined in the manner set by the arbitral tribunal (Art. 28 Sec. 2). Thus, if there are no obstacles on the part of the provisions of the law applicable to the arbitral proceedings, the arbitral tribunal may, for example, require that a witness or ex-pert witness swear or promise that he or she will tell the truth and withhold nothing21.

21 At present, the applicable provisions of the Code of Civil Procedure on the conciliatory court, in contrast to the former Art. 706 § 1 of the Code of Civil Procedure, do not provide – but do not, in my opinion, prohibit – the taking of a promise from parties, witnesses and experts. This is why the taking of a promise, and even an oath of a content determined reasonably by the arbitral tribunal, is - in my opinion - admissible, though in Poland a breach of such promise or oath by way of making false testi-

A provision has also been introduced to the new version of the rules, unknown in the pre-vious version, that the arbitral tribunal may require the retirement from the room of a wit-ness or expert witness during the testimony of other witnesses or expert witnesses. However, the arbitral tribunal should not, in principle, ask that a witness or expert witness who is a party to the arbitration retire (Art. 28 Sec. 3 sentence 2) and a provision which provides for the possibility that the arbitral tribunal direct that witnesses and expert witnesses be exam-ined through means of telecommunication that do not require their physical presence at the hearing, e.g. by so-called videoconference (Art. 28 Sec. 4).

Separate and partially comprehensively up-dated provisions have been devoted to inde-pendent experts appointed by the arbitral tri-bunal. Above all, it has been accurately indi-cated that appointment by the arbitral tribunal of such experts should take place after consul-tation with the parties (Art. 29 Sec. 1 sentence 1). Apart from this, the 2010 Rules state that such expert should, in principle, prior to ac-cepting the appointment, submit to the arbitral tribunal and the parties a description of his or her qualifications and a statement on his or her impartiality and independence22. Within the time ordered by the arbitral tribunal, the par-ties should inform the arbitrators whether they have any objections to the qualifications, im-

mony does not result in criminal liability. However, civil law tort liability cannot be ruled out (Art. 417 of the Civil Code) if the normal (adequate) effect of false testimony were to be harm caused to a party. See M. Łaszczuk, O dopuszczalności odbierania przyrzeczenia od świadków przez sąd polubowny [On the admissibility of taking pro-mise from witnesses by an arbitral tribunal] [in:] Między-narodowy i Krajowy Arbitraż Handlowy u Progu XXI wie-ku, Księga Pamiątkowa dedykowana doktorowi habilito-wanemu Tadeusz Szurski, ed. P. Nowaczyk, S. Pieckowski, J. Poczobut, A. Szumański, A. Tynel, C.H. Beck, Warsaw 2008, pp. 69-77.

22 While it is true that the 2010 Rules were not accompa-nied by a separate model statement of the expert on his or her impartiality and independent, one could use for this purpose, without any problems, the model statement on independence pursuant to Art. 11 of those Rules, es-sentially provided for arbitrators.

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partiality or independence of the expert. The arbitral tribunal should promptly decide whether to accept such objections. Once an ex-pert has been appointed, a party may object to an expert only if the objection is for reasons of which the party becomes aware later, and the arbitral tribunal should promptly take a deci-sion on this matter (Art. 29 Sec. 2).

The 2010 Rules do not present an obstacle to the parties agreeing that, apart from these rules, also the IBA Rules on the Taking of Evi-dence in International Arbitration23 will be ap-plied to settle a dispute in the scope of evidence proceedings. In that case, the provisions of the IBA Rules - being more developed and detailed in the matter of evidence proceedings - should have priority over the provisions of the 2010 Rules.

XVI. Award of the arbitral tribunal

In the matter of the required form and content of the award, there are no important differ-ences between the two versions. Both versions contain, inter alia, a provision that the arbitral tribunal should give the reasons for its award, unless the parties agreed that the award be issued without giving any reasons at all. In connection with this, one should note that if the place of arbitration is in Poland, then the award should contain the reasons for the resolution, even if the agreement of the parties states oth-erwise (Art. 1197 § 1 of the Code of Civil Proce-dure). An agreement which releases the arbi-trators from giving the reasons for the award will, however, be effective in ad hoc arbitration taking place in Poland if such arbitration is sub-ject to the provisions of the European Conven-tion on International Commercial Arbitration, made in Geneva on 21 April 196124, as it fol-

23 It is worthwhile here pointing out that this year the International Bar Association carried out a review of the IBA Rules on the Taking of Evidence in International Commercial Arbitration adopted on 1 June 1999.

24 Journal of Laws of 1964, No. 40, Item 270. On this Con-vention, see H. Trammer, Konwencja europejska o międzynarodowym arbitrażu handlowym, Prawo w Handlu Zagranicznym [European Convention on Interna-tional Commercial Arbitration, Law in Foreign Trade], 1965, No. 8. However, decidedly erroneous is the view

lows clearly from Art. VIII letter a of that Con-vention that reasons for an arbitral award are not given if the parties “expressly agreed that reasons should not be given”.

The issue of making arbitral awards public is expressed somewhat differently. The version of 2010, just as the version of 1976, states that the arbitral award may be made public upon the consent of all parties, but adds immediately after that this may take place insofar as disclo-sure of the award is required from a party as its legal obligation in order to protect or seek its right or in relation to proceedings before a court or other appropriate authority.

Apart from this, one should note a material change concerning the determination of the applicable law for resolving the merits of a dis-pute in the case that the parties themselves have not designated this law. The 1976 Rules stated that in such case the arbitral tribunal is to apply the law determined by the conflict of law rules which that tribunal considers appli-cable. This consideration, adopted from Art. VIII Sec. 1 sentence 2 of the above-mentioned European Convention on Interna-tional Commercial Arbitration, was in practice not very clear and too complicated for arbitra-tors who were not very familiar with the con-flict of laws mechanisms of private interna-tional law. This is why in the 2010 Rules this solution was abandoned and a simpler provi-sion introduced (though also not easy to be correctly applied in practice) that in the case that the parties failed to designate the applica-ble law, the arbitral tribunal should apply the law it considers to be appropriate (Art. 35

that according to the Code of Civil Procedure one should allow the possibility of a withdrawal from justifying an arbitral award in the case of an express will of the par-ties, as suggested, for example, by T. Wiśniewski, M. Hauser-Morel, Wyrok, zasady wykonywania i inne sposoby zakończenia postępowania arbitrażu [Award, rules for enforcement and other means of ending arbitral proceed-ings] [in:] System prawa handlowego [Commercial Law System], Vol. 8, Arbitraż handlowy, ed. A. Szumański, op.cit. 4, p. 509.

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Sec. 1 sentence 2)25. Contrary to appearances, this new provision should not, however, be un-derstood as permission for arbitrators to en-tirely freely and arbitrarily determine the law applicable to the merits of a dispute between parties. In my opinion, a much better solution would be a requirement that in the case of a lack of choice made by the parties, the arbi-trators apply the law which has the closest connection to the subject of the dispute or legal relationship from which the dispute arises26.

XVII. Costs of arbitration

Similarly to the previous rules, the new rules contain a definition of costs of arbitration. However, they point out clearly that costs of travel and other expenses of arbitrators, wit-nesses and experts, as well as costs of assis-tance of experts and legal representatives, should be reasonable (Art. 40 Sec. 2).

As regards fees and expenses of the arbitrators, as in the previous version, it is required that the amount of these be reasonable, taking into account the amount in dispute, its level of com-plexity, time devoted by the arbitrators to ex-amine and resolve the dispute, as well as all other relevant circumstances of the case (Art. 41 Sec. 1).

Entirely new in this matter is the provision of Art. 41 Sec. 3 of the 2010 Rules which requires that the arbitral tribunal, promptly after its constitution, inform the parties as to how it proposes to determine its fees and expenses, including any rates it intends to apply. Within 15 days of receiving that proposal, any party may refer the proposal to the appointing au-thority for review. If, within 45 days of receipt of such a referral the appointing authority finds that the proposal of the arbitral tribunal is in-consistent with the principles set out in Art. 41 Sec. 1, it will make any necessary adjustments,

25 It is similarly stated, for example, by Art. 17 Sec. 1 sen-tence 2 of the Arbitration Rules of the International Chamber of Commerce of 1998.

26 This is stated, for example, by Art. 33 Sec. 1 in fine of the above-mentioned footnote 5 of the Swiss Rules on International Arbitration.

which will be binding on the arbitral tribunal. The purpose of these provisions is to eliminate the arbitrariness sometimes encountered in the practice of international ad hoc arbitration on the part of arbitrators in determining their own fees and expenses, and thus to limit the possi-bility of unnecessary disputes arising in this respect between the parties and the arbitra-tors.

Also worth noting is the provision of the new rules which provides that in relation to inter-pretation, correction or completion of an award, the arbitral tribunal may encumber the parties related to such costs, except however for additional fees (Art. 40 Sec. 3).

The provisions which allow arbitrators to re-quest from the parties payment in equal parts of the pertinent advance payment against costs of arbitration have been essentially maintained without major changes (Art. 43).

XVIII. Final remarks

All things considered, the changes and supple-ments introduced into the new version of the UNCITRAL Rules are correct and meet the needs of day-to-day practice. They are very balanced and moderate, thanks to which they leave the arbitral tribunal significant room for manoeuvre in resolving certain procedural is-sues, subject, of course, to the fundamental principles of arbitral proceedings which have always to be observed. Retaining the style, structure and main concepts of the previous version means that using the 2010 Rules will not create any major difficulties in practice, especially for those who are familiar with the provisions of the 1976 Rules, which will un-doubtedly continue for many years to be ap-plied to ad hoc arbitration based on arbitration clauses drawn up before 15 August 2010, unless the parties agree ex post to ‘shift’ to the new version.

New UNCITRAL Arbitration Rules from the backstage

Piotr Nowaczyk

29 June 2010 will be recorded in history as the date when UNCITRAL (United Nations Commission on International Trade Law) enacted the new text of the UNCITRAL Arbitration Rules (known as the UNCITRAL Arbitration Rules, as revised in 2010).

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The “old” and very dependable text of Arbitra-tion Rules had been in force and unchanged since 15 December 19761. On the 30th anniver-sary of its enactment the decision to revise this commendable act was made. It may seem bi-zarre that work on the act containing 41 ar-ticles has taken for 4 years. The Working Group No. II for Arbitration and Conciliation started its work in 2006 and finished it in 2010. Four years of work to revise 41 articles seems quite unbelievable. To compare, once a member of a Russian delegation told me during a break of a session that Vladimir Putin called him together with a few professors and demanded presenta-tion of draft revision of the commercial code within 6 months. This contrast in the prepara-tion period of the short text of the Rules and the complicated text of the largest state in the world’s commercial code calls for reflection. It illustrates the enormous attention that paid to the quality of the dispute settlement procedure in arbitration. The works of the Working Group have been regularly and in detail described by the Chair of Polish delegation director Maria Szymańska2 in her reports systematically pub-lished in the Arbitration Bulletin of the Court of Arbitration at the Polish Chamber of Com-merce3. The very last one contains detailed in-formation on the discussion regarding the final version of the New Rules.

The Author is a Partner at Salans Warsaw Office

1 Available at: http://www.uncitral.org/pdf/ english/texts/arbitration/arb-rules/arb-rules.pdf

2 Legal Advisor, Deputy Director of Law Department in the Ministry of Economy of the Republic of Poland.

3 No. 6 (April 2008), No. 9 (January 2009), No. 11 (June 2009), No. 13 (January 2010), No. 14 (April 2010), No. 15 (September 2010).

The works started at the 45th UNCITRAL session held in Vienna in September 2006. They lasted for another 7 sessions. The last one, the 52nd, was held in New York during 1-5 February 2010.

For the Polish reader it may be interesting to describe the atmosphere and the surroundings in which the works of the Working Group were held. The auditorium of the United Nations General Assembly, located between the 42nd and 48th street on the East River bank, is known to everyone even from television transmissions. A little less impressive but equally dignified and functional though, were other rooms of the Working Group plenary ses-sions in New York and also in the international UNO City in Vienna.

An unwritten ritual demands that each delega-tion wishing to take the floor put vertically a sign with the state’s name in front of the dele-gation’s Chair. The Chair of the session should not only have good eyesight, but also the ref-lexes to note the order of representatives wish-ing to take the floor and grant them access to the floor in that particular order. The Chair of all the sessions was Michael Schneider, born in Germany, Partner of Lalive Law Firm, currently living in Geneva. He carried out an extremely professional job, displaying amazing talents of brief resumarizing of notified proposals and searching for compromise.

Sixty states4 are full members of UNCITRAL, while 22 states5 have achieved observatory status. Delegations from the Vatican and Pales-tine also took part.

4 List in alphabetical order in English (Algeria, Armenia, Australia, Austria, Bahrain, Belarus, Benin, Bolivia, Bul-

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Forty other international organizations are members of the Working Group and active role players, as well as groups from the UN System, both inter-governmental and non-govern-mental. In order to be precise all of them should be mentioned: International Centre for Settlement of Investment Disputes (ICSID), World Bank, Asian-African Legal Consultative Organization (ALLCO), International Cotton Advisory Committee (ICAC), Permanent Court of Arbitration (PCA), Alumni Association of The Willem C. Vis International Commercial Arbi-tration Moot (MAA), American Arbitration As-sociation (AAA), American Bar Association (ABA), Arab Association for International Arbi-tration (AAIA), Asia Pacific Regional Arbitration Group (APRAG), Asociacion Americana de De-recho Internacional Privado (ASADIP), Associa-tion for the Promotion of Arbitration in Africa (APAA), Association of the Bar of the City of New York (ABCNY), Cairo Regional Centre for International Commercial Arbitration (CRCICA), Center for International Environ-mental Law (CIEL), Centre Pour L’etude et ļa Pratique de L’arbitrage National et Internation-al (CEPANI), Centro de Estudios de Derecho, Economia y Politica (CEDEP), Chartered Insi-tute of Arbitrators (CIARB), Comité Français de L’arbitrage (CFA), Construcion Industry Arbi-tration Council (CIAC), Corporate Counsel In-ternational Arbitration Group (CCIAG), Council of Bars and Law Societies of Europe (CCBE), Forum for International Commercial Arbitra-tion C.I.C (FICACIC), Gulf Cooperation Council (GCC) Commercial Arbitration Centre, Interna-

garia, Cameroon, Canada, Chile, China, Colombia, India, Iran, Israel, Italy, Japan, Kenya, Latvia, Lebanon, Mada-gascar, Malaysia, Malta, Mexico, Mongolia, Morocco, Na-mibia, Nigeria, Norway, Pakistan, Paraguay, Poland, Re-public of Korea, Russian Federation, Senegal, Republic of Serbia, Singapore, South Africa, Spain, Sri Lanka, Switzer-land, Thailand, Uganda, United Kingdom of Great Britain and Northern Ireland, United States of America, Venezu-ela, Zimbabwe).

5 List in alphabetical order in English (Argentina, Bel-gium, Costa Rica, Croatia, Cuba, Finland, Indonesia, Iraq, Kuwait, Libyan Arab Jamahiriya, Mauritania, Mauritius, Netherlands, Panama, Peru, Philippines, Qatar, Romania, The former Yugoslav Republic of Macedonia, Turkey, United Arab Emirates).

tional Court of Arbitration (ICC), Institute of International Commercial Law, Inter-American Bar Association (IABA), Inter-American Com-mercial Arbitration Commission (IACAC), In-ternational Arbitral Centre of the Austrian Fed-eral Economic Chamber (VIAC), International Arbitration Institute (IAI), International Bar Association (IBA), International Insolvency In-stitute (III), International Institute for Sustain-able Development (IISD), International Swaps and Derivatives Association (ISDA), Kuala Lumpur Regional Centre for Arbitration (KLRCA), London Court of International Arbi-tration (LCIA), Milan Club of Arbitrators, Queen Mary University of London School of Interna-tional Arbitration (QMUL), Regional Centre for International Commercial Arbitration – Lagos (RCICAL), Swiss Arbitration Association (ASA).

Another unwritten custom states that a delega-tion member taking the floor for the very first time in the session in question should: express thanks for being given the floor, congratulate the Chair of the session for being elected for this function and thank the UNCITRAL Secreta-riat for the “tremendous work” performed be-tween particular sessions on the preparation of the current session and working documents. After this the speaker can start speaking to the merits. This ritual considerably slows down the works of a Working Group and especially so during the first day of the session. It becomes more comical on the fifth day of the session when members of a delegation, who have not spoken until this time and are speaking for the very first time, congratulate the Chair of the session for being elected for this function and thanks the UNCITRAL Secretariat for the “tre-mendous work” performed between particular sessions on preparation of documents for the current session, whereas other delegates start packing their documents, glance at their watch-es and think about the departure of their planes.

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The UN is obviously a very specific organiza-tion. Wiesław Górnicki6 called the UN a “glass menagerie”. The Author has reservations about this description taking into account his 10 years’ participation in the legendary United Nations Students’ Association. In order to un-derstand the oddity of the slow speed of the Working Group’s works it is necessary to un-derstand the specifics of the UN and in particu-lar the need to achieve international consensus for each decision taken. The respect afforded to each delegation’s view, discussion of the nuances of each proposal and patience when listening to each idea greatly deviates from the model of the Russian commercial code’s revi-sion. I leave it up to the Reader to decide which method is better. It can easily be said that the works of the Working Group have been held in an atmosphere of amazing constructive coop-eration and understanding. There were mo-ments that were difficult and there were funny moments too, but in the end the works were finalized.

The text of the New UNCITRAL Arbitration Rules was published in English on 12 July 2010, and came into force on 15 August 2010. It is quite a strange date, since in 2010 this day fell on a Sunday, and in many Christian countries this day is a religious holiday, in some even a national one. Shortly after 15 August 2010 the rest of the official language versions were an-nounced (Arabic, Chinese, French, Russian, Spanish). It may transpire that only from the official publication in other languages than Eng-lish that the delegation members found or will find out what they have adopted. The Rules will be applicable to arbitration agreements (clauses) entered into after 15 August 2010.

During four years of works the text of the Rules has only grown from 41 to 43 articles. The con-tent and the numbers of particular articles have changed considerably though.

The main aim of the revision was to ensure greater efficiency of arbitration proceedings in

6 Wielki Świat, Czytelnik 1976; O Narodach Zjednoczo-nych bez tajemnic, Młodzieżowa Agencja Wydawnicza 1979.

the present times. The world has changed dur-ing the last thirty years. The Rules enacted in 1976 were not adapted to investment disputes, even though the Washington Convention had been enacted 11 years earlier7. Moreover, the “old” Rules were not fully suited to the latest technical and communication innovations cur-rently used in international arbitration.

The revision process has been specifically limited by UNCITRAL. The following rule has been adopted: the revision process will not “alter the structure of the text, its spirit or its drafting style and should respect the flexibility of the text rather than make it more complex”.

The previous Rules have been widely used to settle commercial disputes everywhere, where the parties had not indicated a particular arbi-tration institution. They had been used in dis-putes between private entities, between states, in investment disputes and by arbitration insti-tutions in ad hoc administered arbitrations. The Rules have been unanimously evaluated as be-ing the most efficient instruments that are well-suited to arbitration. The New Rules contain more provisions regarding multi-party dis-putes, intervention of a third party, liability of arbitrators, and the possibility of excluding ex-pert witnesses appointed by the Arbitration Tribunal. The replacement of an arbitrator and the issues of arbitration costs are also different-ly regulated. In addition, the provisions on pre-liminary orders are more detailed.

The 14 most important differences between the “old” and the “new” text may be highlighted.

First and foremost in Art. 1 the written form of the arbitration agreement has been abandoned. Moreover, the term “commercial” has been abandoned and the Rules’ scope of application has been expanded to all legal relationships, contractual as well as non-contractual (“a de-fined legal relationship, whether contractual or not”). The replacement of the word “contract” with “legal relationship” is a revolutionary step.

7 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, Washington D.C.

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In Art. 2 has been introduced a possibility of filing a notice of arbitration and any notifica-tions or proposals by any means of communica-tion that provides or allows for a record of its transmission. However, one important limita-tion has been brought in, namely that the par-ties shall assign for this purpose one particular e-mail address or fax number. Correspondence sent only to these assigned addresses is consi-dered delivered.

Art. 4 introduced as a novelty a 30-day time limit for providing a response to a notice of arbitration. The previous Art. 19 of the Rules failed to prescribed any time limit, but only allowed the Tribunal to prescribe the time limit for submitting the response to the statement of claim. Moreover, the New Art. 4 allows the res-pondent to submit a counterclaim against the claimant, but also allows the respondent to submit any other claims against other parties than the claimant. Locating this provision at the beginning of the Rules makes it possible to submit any claims even before the constitution of the tribunal. It simplifies the choice of arbi-trators, allowing them to be free from potential conflict of interests.

In Art. 6 the period during which the parties must agree on the Appointing Authority has been shortened from 60 to 30 days. As is evi-dent that, this body plays an important role in appointing arbitrators, examining challenges, considering replacements of arbitrators, as well as establishing their fees and approving their costs. In the event the 30-day time limit is not adhered to or there is lack of agreement, each of the parties may ask the Secretary General of the Permanent Court of Arbitration in the Ha-gue to appoint the Appointing Authority.

The new Art. 7 introduced for the Appointing Authority possibility to appoint the sole arbi-trator in cases where one party proposed to appoint a sole arbitrator and the other parties failed to respond thereto or failed to nominate the second arbitrator. Then, upon a request of the party, the Appointing Authority may ap-point the sole arbitrator if it finds in view of the circumstances of the case, this is more appro-priate.

In multi-party disputes, where there are mul-tiple parties as claimant or as respondent, in the event of any failure to constitute the Arbi-tral Tribunal, the Appointing Authority has been authorized to revoke any appointment already made and appoint or reappoint each of the arbitrators and designate one of them as the presiding arbitrator (Art. 10).

Many innovations have been added in cases of challenges of arbitrators and their disclosure of circumstances essential for deciding about their independence and impartiality (Art. 11-13). The New Rules offer the model of State-ment of Independence, which has been at-tached to the Rules as an appendix. Worth men-tioning is that appendix to the New Rules pro-vides for a model arbitration clause and possi-ble waiver statement allowing to exclude any recourse in the future against the arbitral award.

Art. 16 refers to another waiver, namely exclu-sion of arbitrators’ liability. The parties who agreed to the New Rules waive the possibility of having any claims against arbitrators and the Appointing Authority based on any act or omis-sion in connection with the arbitration, exclud-ing intentional wrongdoing. This exclusion con-cerns the liability of all persons appointed by the Tribunal, it may concern also the court re-porter and expert witnesses appointed by the Tribunal.

Art. 17 sec. 5 allows, at a request of any party, a third person or persons to be joined in the arbitration as a party provided such person is a party to the arbitration agreement (joinder). The Tribunal may grant a single award or sev-eral awards in respect of all parties so involved in the arbitration.

Art. 26 establishes the liability of a party, who requested for an interim measures, for any costs and damages caused by the measure, if in the final award the Tribunal decides otherwise, stating that this measure should not have been granted. Upon this basis, the Tribunal may award such costs and damages at any stage of the proceedings. Moreover, the Tribunal’s pos-sibility of deciding about preserving evidence has been strengthened.

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ANALYSES & OPINIONS

Art. 27 in an express manner allows the sub-mission of written witness statements.

Under Art. 28 modern means of communication such as video-conferencing may be used for examining witnesses and expert witnesses in a way not requiring their physical presence at the hearing.

Art. 35 contains a novelty, namely the phrase “The arbitral tribunal shall apply the law desig-nated by the parties...” has been replaced by “The arbitral tribunal shall apply the rules of law designated by the parties...”. In practice it allows the parties to invoke inter alia the rules of UNIDROIT Principles of International Commer-cial Contacts.

Art. 41 introduced a possibility for the Appoint-ing Authority, and in the absence of such au-thority, the Secretary General of the Perma-nent Court of Arbitration to revise the amount of arbitrator fees. It is also now possible to veri-fy the amount of arbitrator fees. After such ve-rification, the decisions of the Appointing Au-thority are binding on the Tribunal. During the discussions it was underlined that this mechan-ism should prevent excessive arbitrator fees. The fees can now also be corrected in the event that they are not “reasonable in amount, taking into account the amount in dispute, the complex-ity of the subject matter, the time spent by the arbitrators and any other relevant circums-tances”. The introduction of this provision may also be said to be advantageous for the Tribun-al in cases where the previously deposited ad-vance was too low due to the above-mentioned circumstances. At the same time, this provision allows any party to present its comments or objections regarding the costs of the Tribunal within 15 days. The Appointing Authority shall within 45 days decide whether the amount of the costs was in accordance with the Rules. The introduction of this provision brings ad hoc arbitration in line with the standards of institu-tional arbitration, giving the parties a greater sense of security in such delicate matters as arbitrator fees and costs.

This article is supposed to highlight only the most important changes in the New UNCITRAL Arbitration Rules. Worth mentioning is that members of Polish delegation, Dir. Maria Szymańska, Prof. Andrzej Szumański and the Author are working on comprehensive com-mentary on the New UNCITRAL Rules, which will be issued by the publisher C.H. Beck.

Mediation in civil matters is gaining slow acceptance in Poland

Sylwester Pieckowski

“One cause of low competitiveness of Polish economy is a too long time and too high cost of recovery of claims in business disputes, which constitutes a barrier in growth of entrepreneurship. In my opinion, a too little use by business people of alternative to state courts methods of claim recovery, is one of the causes of such situation” (Letter of Adam Szejnfeld, State Secretary, Ministry of Economy to the President of Polish Arbitration Association, August 8, 2008).

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ANALYSES AND OPINIONS

I. Legal framework

Poland was one of the first EU Member States to enact a detailed and complete legislation on mediation in civil and commercial matters by the Law of 28 July 2005 that amended the Civ-il Procedure Code and introduced mediation as a separate part of the Code. (“Polish Medi-ation Law”).1 The Law entered into force on 10 December 2005.

The Law introduces mediation as a new insti-tution into the Polish civil procedure, thus, it creates an alternative way of resolving dis-putes in civil matters and in addition to the traditional way of dispute adjudication by state courts. Mediation should result in fast resolution of a number of disputes, in a way which is most convenient and satisfactory to the parties – within a settlement. The drafters have intended to make mediation as much attractive for the parties involved as practica-ble in order to make mediation reality. To this end, the provisions of the Law were intended simple and straight. Mediation should facili-tate dispute resolution in civil matters, but at the same time, legitimate rights of parties should be duly protected. Sylwester Pieckowski, LL.M. (Michigan), advocate, international arbitrator and mediator, head of dispute resolution department at Law Firm Chadbourne & Parke LLP, Warsaw, President of the Polish Arbitration Association, Deputy Director of the Business Media-tion Center in Warsaw, V-President of the Court of Arbitration at the Polish Confederation of Private Em-ployers Lewiatan, V-President of the Civic Council on ADR at the Ministry of Justice (present).

1 The Journal of Laws, 2005, No. 172, item 1438.

Having in mind such objectives it was stated that all disputes in civil matters that qualify for amicable agreement can be resolved by means of settlement concluded in front of mediator. Such settlement having been con-firmed by court has legal status equal to court settlement. In addition, by embarking on med-iation the running of statutes of limitation is interrupted, and if mediation is proved un-successful, it runs anew.

The Law provides for comprehensive regula-tion of both facets of mediation in civil mat-ters: (i) conventional or contractual mediation and (ii) mediation in court proceedings (court-annexed mediation)

II. Voluntary Process

The Law made contractual and court-annexed mediation legitimate alternatives to civil court adjudication of disputes. The statute includes a financial incentive for plaintiffs to reach a settlement in court-connected arbitration - the return of three-quarters of the court fee already paid.

Mediation under the statute is a voluntary process. For contractual mediation to occur, there must be a pre- dispute agreement to me-diate future disputes, or a post-dispute agree-ment to mediate the existing dispute. For court-referred mediation to take place, the parties must also agree because the statute allows a party to stop the process by objecting to mediation within seven days of the court's referral.

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ANALYSES & OPINIONS

To protect the legitimate rights of the parties, the statute provides that embarking on media-tion interrupts the running of statutes of limi-tations, and if mediation is unsuccessful, the statute of limitations runs anew from the time of the interruption. The Law prescribes a faci-litative model of voluntary mediation in which a neutral mediator helps the parties conduct their negotiations.

III. Confidentiality

The Polish mediation law contains a limited confidentiality provision. It requires the me-diator not to disclose facts learned during the mediation proceeding. The only exception is if the mediator and the parties so agree. The sta-tute protects the mediator from having to tes-tify as witness in civil proceedings.

IV. Procedures

The provisions on mediation procedure call for the mediator to establish the date and place of the joint mediation session, unless the parties agree to forego it.

The Law requires the mediator to draft a report specifying the place and time of the mediation, as well as the names and addresses of the parties, the mediator, and the result of the mediation. The re-port is to be signed by the mediator. If the parties enter into a settlement, it must be signed by the parties and included in or attached to the report. if a party refuses or does not sign the settlement, the reason should be stated in the report.

After a settlement is reached in court-referred med-iation, the mediator is supposed to submit the re-port to the referring court. A party to the media-tion may request the court to approve, or ap-prove and enforce, a settlement. The court may refuse to approve a mediation settlement in whole or in part if the settlement is contrary to the law or principles of social coexistence, or is incompre-hensible or contradictory. The court may approve a settlement by issuing a decision after an in cam-era session. To enforce a settlement, upon a party

request the court must stamp an enforcement seal on the settlement document. Once approved by the court, a mediation settlement has the same legal virtue as a settlement entered into before the court.

V. Who may serve as a mediator

Poland's Law allows la]ny person with full legal capacity to make legal representations" to serve as a mediator. The explanatory memorandum submitted by the government states that a "[m]ediator's abilities do not rest in mediator knowledge but in his personality. Therefore, in order to make easier for the parties to undertake mediation, no specific requirements as to mediator's education are foreseen."

Although the mediation law does not contain any standards to assure the quality of mediators, the Civil Council for Alternative Methods of Conflict and Dispute Resolution (“the ADR Council") es-tablished by the Minister of Justice in 2005, adopted a code of ethics for mediators, standards of conduct for mediators and mediation proceedings; and standards for training of mediators.

VI. Numbers of mediation organiza-tions, centers and mediators

According to the Law, the associations and public organizations may establish mediation centers and maintain lists (registers) of per-manent mediators. This information is to be released to the president of the circuit court of appropriate jurisdiction.

As of June 2008, the official statistics reported by the circuit courts presented indicated that there are 331 associations dealing with media-tion; 72 mediation centers; and 2,676 perma-nent mediators.

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ANALYSES &OPINIONS

DISPUTES ASSIGNED BY COURT TO MEDIATION:

Year: civil commercial labor family juvenile ALL

2006 1.448 256 33 270 298 2.305

2007 1.399 258 74 326 276 2.333

2008 1.455 210 109 216 223 2.213

2009 1.842 540 252 716 256 3.606

Total

(2006-

2009):

6.144 1.264 466 1.739 1.053 10.666

VII. Conclusions and ways to go

The foregoing statistics, the reported activity of mediation centers and institutions that con-duct private mediations, and research studies undertaken by the Ministry of Justice's Civic Council indicate that civil mediation has found a home in Poland but the official statistics con-firm the sobering fact that the usage rate with-in the society at large is growing but is still quite small. Nonetheless, Polish ADR experts and regulators are still cautiously optimistic that usage numbers will grow. But the low numbers of users suggest that initiatives are needed by Polish lawmakers, courts, legal pro-fessionals, mediation institutions, and the me-dia to put mediation in Poland back on track.

On the policy side, mediation cannot signifi-cantly grow without clear and steady support by the state and its governing bodies. Law-makers urgently need to enact legislation to address the financing of civil mediation. At the same time, Polish judges must develop an in-depth understanding and appreciation of med-iation. If judges do not support the process, the endeavor to increase the volume and quality of mediation may not succeed. Courts also need to develop procedures for court-annexed med-iation, ethical standards for mediators and a roster of trained mediators.

In addition, mediation centers need to focus on training mediators and developing a program to certify them. These centers also need to es-tablish ethical standards for mediators in pri-vate mediation, procedures for mediation pro-ceedings and help develop effective mediation techniques.

And more, lawmakers, mediation centers, judges and the media must convey a positive message about mediation to business leaders, entrepreneurs, and individual consumers. That message is that mediation is the best way to resolve their disputes as well as the fastest and most inexpensive way. and they should try mediation first before resorting to arbitration or litigation. The media must accept mediation as a TOP ISSUE for societal development and better legal discourse. This is absolutely man-datory for ultimate success of mediation in Poland.

Kuala Lumpur Regional Centre for Arbitration:

New UNCITRAL Arbitration Rules already in force

Adelina Prokop

The UNCITRAL Arbitration Rules have been used for the settlement of disputes both in ad hoc arbitra-tions and institutional arbitrations. The Kuala Lumpur Regional Centre for Arbitration is the first arbi-tration court in the world to adopt the new version of the UNCITRAL Arbitration Rules, which will take effect in Kuala Lumpur on 15 August 2010.

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The UNCITRAL Arbitration Rules have been adopted with a view to provide a comprehen-sive set of rules for ad hoc arbitrations. Howev-er, the Rules are also commonly used by the arbitral institutions, with most such institu-tions across the world administering cases go-verned by the UNCITRAL Arbitration Rules. Such a service is offered by e.g. the Internation-al Centre for Dispute Resolution, Singapore In-ternational Arbitration Centre, Arbitration In-stitute of the Stockholm Chamber of Commerce, the Japan Commercial Arbitration Association, and the WIPO Arbitration and Mediation Cen-tre. 35

Special procedures for cases under the UNCI-TRAL Arbitration Rules have also been adopted by some arbitral institutions, such as the Arbi-tration Institute of Stockholm Chamber of Commerce, International Centre for Dispute Resolution and the Japan Commercial Arbitra-tion Association.

Moreover, many international arbitral centres’ rules of arbitration were based on the UNCI-TRAL Arbitration Rules adopted in 1976. Both the Australian Centre for International Com-mercial Arbitration and the Cairo Regional Cen-tre for International Commercial Arbitration have adapted the UNCITRAL Rules to create their own arbitration rules. It is worth noting, however, that the UNCITRAL based arbitration rules differ (see Art. 12a of the Rules of Arbitra-tion of the Cairo Regional Centre, which pro-vide for the removal by the Centre of an arbi-trator that holds up or deliberately delays the

The Author is a 5th year law student at University of Warsaw.

commencement or the continuation of the arbi-tral proceedings).

The UNCITRAL Rules are also directly applied by some arbitral institutions, such as the Per-manent Court of Arbitration and the Hong Kong International Arbitration Centre.

The Kuala Lumpur Regional Centre for Arbitra-tion is the first (and most probably, thus far, the only) arbitral institution that has decided to modify its arbitration rules so as to incorporate without any amendments the new version of the UCITRAL Rules. The Kuala Lumpur Centre was established in 1978 in the capital of Malay-sia. It is a non-profit organization functioning under the auspices of the international intergo-vernmental Asian-African Legal Consultative Organization, comprising 47 governments of the Asian and African region.

The Malaysian Arbitration Act clearly states that the Kuala Lumpur should maintain its sta-tus as an independent arbitral institution. Art. 34 of the Act provides that any arbitration, both domestic as well as international and con-ducted under the Rules of the Centre, is ex-cluded from the supervision or intervention of the Malaysian Courts. The parties in the arbi-tration proceedings conducted by the Centre may be represented also by foreign lawyers. The Centre provides a wide range of services, including mediation, conciliation and arbitra-tion. Malaysia is a signatory of the New York Convention on the Enforcement and Recogni-tion of Foreign Arbitral Awards.

Iran-US Claims Tribunal still in operation: Krzysztof Skubiszewski replaced by Hans van Houtte

Artur Barczewski

Only few know that the Iran-US Claims Tribunal is still in operation and decides arbitration disputes. Probably fewer are aware that Prof. Krzysztof Skubiszewski, who passed away in February, was until recently the President of that Tribunal. He has been replaced by the Belgian arbitrator Hans van Houtte. The purpose of this article is to serve as a reminder of this outstanding Pole as well as to present the causes for the establishment and the functioning of the Iran-US Claims Tribunal.

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ARBITRATION INSTITUTIONS IN OTHER COUNTRIES

In the handbook on arbitration, written by Alan Redfern and Martin Hunter, you may from time to time come across references to cases de-cided within the framework of the Iran-US Claims Tribunal. From footnotes we can learn that awards of the Tribunal had been rendered in the 1980s. This brings us very closely to the hasty acknowledgement that the Iran-US Claims Tribunal must have finalized its work. After all, there is surely no “Arbitral Tribunal” which has been conducting its work for more than twenty years?

Nothing could be more misleading. For many readers it can turn out to be surprising or at least interesting that firstly the Iran-US Claims Tribunal still conducts its work and secondly that for more than fifteen years Prof. Skubis-zewski was serving as President of this Tribun-al, until he was replaced by the Belgian arbitra-tor Hans van Houtte this year. 1

The Activity of the Iran-US Claims Tribunal

The notion of “Iran-US Claims Tribunal” is well-known to every arbitration enthusiast, but it might be troublesome to specify the reasons of its establishment or the way of its functioning. The Islamic revolution 1979 led to a break-down of economic relations as well as to a po-litical crisis between Iran and the United States of America. It reached its peak when the US Embassy in Teheran was seized on 4 November 1979 and 52 US citizens were taken as hostag-

The Author is a lawyer at K&L Gates Warsaw Office and a 5th year

student at Viadrina University.

es. This, in turn, led to a counter reaction on the part of the US which decided to “freeze” Iranian assets on the basis of the Presidential Decree of 14 November 1979. Consequently, Iran lost control of funds approximately totaling of USD 10–12 billion. The funds which Iran lost control of were temporarily used to secure the claims asserted by the US citizens in approx. 2000 proceedings before the common courts.

Agency for the purpose of settlement of the existing dispute was undertaken by Algeria. The effect of its endeavors was first of all draft-ing of the General Declaration and the Claims Settlement Declaration in January 19, 1981.

It was stated in the General Declaration that the USA would restore Iran’s financial situation to its condition before Iran’s funds were frozen. However, it must be noted that approx. USD 1 billion was retained on the bank Security Ac-count. These funds were to be used for satisfac-tion of potential claims of US citizens. As a re-sult of conclusion of the Declaration, the pro-ceedings instituted before the common courts were discontinued, and the interim measures of protection granted before were cancelled. The disputes were to be settled by way of arbitra-tion before the Iran-US Claims Tribunal.

The Claims Settlement Declaration establishes a mechanism as well as procedural and materi-al legal frameworks of dispute resolution. Pur-suant to Art. II section 1 of the Claims Settle-ment Declaration, the Iran-US Claim Tribunal with its seat in Hague was established.

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The Tribunal’s jurisdiction includes: (i) claims of the citizens of one state against the govern-ment of the second state arising out of debts, contracts (including transactions which are the subject of letters of credit or bank guarantees), expropriations or other measures affecting property rights (Art. II section 1), (ii) official claims between the Contracting States, arising out of contractual arrangements between them for the purchase and sale of goods and services (Art. II section 2) and (iii) disputes regarding interpretation or performance of the provisions of the Declaration (Art. II sec. 3).

The Tribunal jointly comprises nine members. Each of the Contracting States appoints three members. Six arbitrators appointed in this manner appoint three other arbitrators origi-nating from third states. The function of the Tribunal Chairman is performed by one of the arbitrators originating from a third state. The Tribunal is divided into three chambers. In principle, the disputes are resolved by an arbi-tral tribunal comprising three arbitrators, whe-reas the chairman is the arbitrator from a third state. In exceptional cases, the Tribunal com-prising nine arbitrators adjudicates. This situa-tion occurs for disputes between Iran and the USA, and in the event a three-person arbitral tribunal addresses an important issue to be considered by a full composition of the Iran-US Claims Tribunal.

The Tribunal operates on the basis of UNCI-TRAL Arbitration Rules (Art. III Section 2), as amended by the Contracting Parties. The Tri-bunal’s decisions are published, which has con-siderably contributed to the development of arbitration as such, popularizing of the UNCI-TRAL Arbitration Rules and a discussion on the current issues being the subject of the Tribun-al’s decisions.

More than 4,700 cases2 have been considered to date. It must be noted that approx. 1,000 of them concerned claims exceeding USD 250,000. What is interesting is that the total amount of all compensation awarded exceeded USD 2.5 billion. An interesting manner of ensuring en-

2 http://www.state.gov/s/l/3199.htm

forceability of the awards issued by the Tribun-al is stipulated in Art. IV of the Claims Settle-ment Declaration regarding dispute resolution. The funds paid to a security account are used for satisfying the claims of US citizens. Iran was obligated to keep at least USD 500 million on this account until the Tribunal Chairman certi-fies that all claims have been satisfied pursuant to the provisions of the Claims Settlement Dec-laration.

The Tribunal has currently finished considera-tion of citizens’ claims which could be asserted by January 19, 1982.3 The Tribunal deals with consideration of official claims between the USA and Iran and is likely to continue its work for several years.

Prof. Skubiszewski as the Tribunal Chairman in 1994-2010

Prof. Krzysztof Skubiszewski, until his death in February 2010, was the Tribunal Chairman. He was appointed to this position in February 1994.

Prof. Skubiszewski was an outstanding expert in international public law. He published more than 150 articles on this field of law. He wrote the first handbook on international law in Polish “International public law. Outline of a lecture”.

However, Prof. Skubiszewski was mainly known as the creator of the Polish diplomacy of the Third Republic of Poland. He was Foreign Affairs Minister for four years. The position of Poland on the international scene was not as stable as now. Minister Skubiszewski was very concerned about regulating the relationships with our neighbors. His endeavors resulted in the conclusion of a border treaty on recognition of the borderline on Odra and Nysa Łużycka rivers, and the good neighborhood and friendly cooperation treaty with Federal Republic of Germany. Additionally, it was during his term of office that a bilateral relationships treaty and the agreement on withdrawal of the Soviet ar-my was signed with Soviet Union.

3 http://www.iusct.org/background-english.html

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Minister Skubiszewski was able to resume dip-lomatic talks in an unique manner. Those close-ly cooperating with him recall that the then German Minister Hans Dietrich Genscher agreed with him many times by stating: “Yes, yes Minister, you are right” 4. During the talks regarding unification of Germany, Prof. Skubis-zewski, was the only participant able to speak the languages in which the discussion was inte-rexchangeably conducted, namely German, English and Russian5.

Prof. Skubiszewski delivered lectures in France, USA, Great Britain and Switzerland, He was a correspondent-member of the Polish Acade-my of Science and a scientist at the Institute of Legal Sciences of the Polish Academy of Science. He served as an ad hoc judge of the International Court of Justice in Hague. He re-ceived the honoris causa doctorate at numerous universities. He was honoured with the White Eagle Medal [Order Orła Białego] and Merit Cross of the German Federal Republic. He also received an award of the Foreign Ministers of Poland and Germany and the Pomerania Nostra award. On November 13, 2009 he was deco-rated with Merit Award “Bene Merito” in rec-ognition of his outstanding achievements for Polish foreign services and scientific interna-tional heritage.

Prof. Skubiszewski’s successor will certainly duly continue the great Pole’s works. Hans Van Houtte is a professor specializing in arbitration at the Institute of International Commercial Law at the Catholic University in Leuven. He possesses vast experience in investment arbi-tration disputes. He also sat as an arbitrator on the following Tribunals whose function was slightly similar to the US-Iran Claims Tribunal: Real Property Claims Commission (Bosnia),

4 See R. Kuźniar at http://www.ceeol.com/aspx/issuedetails.aspx?issueid=1a514878-0486-4d06-90c5-6daba4674359&articleid=2123db07-8e24-453d-9d80-d99fb19227d6#a2123db07-8e24-453d-9d80-d99fb19227d6

5 http://www.rp.pl/artykul/23,431239_Laczyl_polski_patriotyzm__z_europejskoscia.html

United Nations Compensation Commission, Eritrea-Ethiopia Claims Commission as well the Claims Resolution Tribunal for Dormant Ac-counts in Switzerland.

The law applicable

to resolution of investment disputes

Dr Katarzyna Michałowska

Which law should be applied by an international arbitration tribunal to resolve disputes between a foreign investor and a host State? Is international law the only applicable law? Which meaning is to be given to the law of the host State? If a dispute has arisen in connection with a breach by the host State of a contract with a foreign investor and a bilateral investment treaty includes a clause whereby the host State obligated to observe any obligations it undertakes in relation to the investor (which is the basis for the investor to present the dispute for resolution in accordance with the procedure envi-saged in the treaty), how relevant is the proper law of the contract? Which law is applicable to the procedure before the tribunal?

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Procedure

The procedure before an international arbitral tribunal in investment disputes may be subject to a law other that the law applicable to the merits of the dispute. Investment disputes may be conducted under the UNCITRAL Arbitration Rules (or other arbitral rules, such as those of the ICC), or under the ICSID Convention, in ac-cordance with the ICSID Arbitration Rules. If an investment dispute is resolved under the UN-CITRAL Rules (as provided for in the majority of Poland’s BITs), similar problems are encoun-tered in international investment arbitration as in international commercial arbitration, e.g. with respect to enforcement or annulment of awards. The ICSID Convention, on the other hand, creates a self-contained system of proce-dural rules, independent of the national legal systems. It must be added that some BITs do not regulate the procedure and do not refer to any established arbitration rules but empower the parties, and where the parties cannot reach a decision, the arbitral tribunal, to determine the rules of procedure1.

The author is an Adiunkt at the Faculty of Law and Ad-ministration at Warsaw University and an attorney.

1 See Article 12.7 of the Poland-Netherlands BIT (Journal of Laws of 1994, No. 57, item 235): “Unless the parties decide otherwise, the tribunal shall determine its own procedure”, that applies to disputes between the Con-tracting Parties but applies mutatis mutandis to disputes

Merits

First, the treaties on the promotion and reci-procal protection of investments provide that investment disputes are to be resolved on the basis of the law. “An arbitral tribunal’s deci-sion is rendered “on the basis of the law”, if the award is based on well-recognized internation-al law precedents as developed, e.g., by the In-ternational Court of Justice, or ICC or UNCI-TRAL tribunals (…)” (CME Czech Republic BV v. Czech Republic, UNCITRAL Arbitration, Final Award, March 14, 2003, ¶ 406). An arbitral tri-bunal could resolve an investment dispute ex aequo et bono only if the parties so agreed (see Article 33.2 of the UNCITRAL Rules and Article 17. 3 of the ICC Rules).

Second, the law applicable to an investment dispute is to be established based on the proper bilateral or multilateral investment treaty under which the dispute arises. However, the treaties are similar in that the Contracting Par-ties as a rule provide for the application of legal rules of the same type. Some Polish BITs that provide protections to Polish investors abroad and foreign investors in Poland only stipulate that the arbitration tribunal is to apply the pro-visions of the treaty concerned and the rules and principles of international law (see Article

between a Contracting Party and an investor of the other Contracting Party (Article 8.2).

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INVESTMENT ARBITRATION

8.3 of the Polish - French BIT2). The provisions of some other BITs are more elaborate and sti-pulate that the tribunal is to resolve a dispute based on the law of that Contracting State party to the dispute on whose territory the invest-ment was made, including its rules of dispute resolution, the provisions of the BIT, the terms of any special agreements relating to the entity that made the investment, and rules and prin-ciples of generally applicable international law (see Article 9.5 of the Poland – Belgium and Luxemburg BIT3).

The ICSID Convention points in the first place to the law agreed by the parties as the basis for a decision. If the parties have not agreed on applicable law, then the Tribunal shall apply the law of the Contracting State party to the dispute and such rules of international law as may be applicable. The Convention stipulates that the Tribunal may not bring in a finding of non liquet on the ground or silence or obscurity of the law. If the parties so agree, the Tribunal has the power to decide a dispute ex aequo et bono.4

The basic problems relating to the jurisdiction of the tribunal must be resolved by reference to the BIT. It provides the definition of a “pro-tected investment”, while the law of the host State determines the legal nature of the proper-ty rights relating to the investment (e.g., whether the investors acquired shares in a company or a real estate, whether a mortgage was created in favour of the investor). Analysis of the BIT is also required to determine wheth-er a claim against the State is made by an en-titled person, i.e. “an investor”, as it is the BIT that defines which natural and legal persons are protected. However, it is a matter for the law of the Contracting State to determine which individual is to be considered its national or, based on incorporation or legal seat, its juridi-cal person.

2 Journal of Laws of 1990, No. 38, item 220.

3 Journal of Laws of 2001, No. 15, item 153.

4 Art. 42 of the ICSID Convention.

The BIT would determine what claims may be filed before the arbitral tribunal. A majority of investment treaties provide that an investor may present to an international investment tribunal “investment disputes as far as the rights and obligations under the present treaty are concerned” (e.g., the Polish-German BIT5), including claims of expropriation. Such treaties therefore allow disputes relating to whether there was an expropriation, what its extent was, and what compensation should be paid by the State. However, some BITs (such as the Polish-Chinese BIT6) limit the scope of a dis-pute to the level of compensation that has been granted by the courts of the host State.

Arbitral tribunals have considered whether the legal rules stipulated in the BIT that belong to different legal orders are to be applied in any particular sequence, e.g. the law of the host State before international law. Where the BIT is silent on this, one cannot conclude that such a hierarchy exists. In a dispute under a Czech-Dutch BIT which provides that the tribunal should rule on the basis of the law, taking into consideration “in particular, but not exclusive-ly” the law of the Contracting State, the BIT and other agreements between the Contracting States and general rules of international law, the tribunal held that: “The Tribunal’s analysis is that the application of the four sources of law as provided for in [Art. 8(6)] of the Treaty have no ranking according to the wording of the Treaty” (CME Czech Republic BV v. Czech Re-public, UNCITRAL Arbitration, Final Award, March 14, 2003, ¶ 400)7.

5 Article 11.1, Journal of Laws of 1991, No. 27, item 116, as amended.

6 Journal of Laws of 1989, No. 13, item 67, Article 10.

7 See a similar provision on the choice of law in the Polish-Dutch BIT, Article 12.6” “The tribunal shall decide on the basis of respect for the law, including particularly this Agreement and other relevant agreements existing between the two Contracting Parties and the universally acknowledged rules and principles of international law. (…)”. This provision is part of the Article that governed disputes between the Contracting Parties, but under Article 8.2 is to be applied mutatis mutandis, to disputes between an investor and the State.

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A large number of disputes involving contracts between a foreign investor and the State re-solved in the ICSID system resulted in a large number of arbitral awards that discuss the re-lationship of host State law and internation-al law, and the fields of application of both systems. When it applies domestic law, a tri-bunal may not be guided by a general impres-sion of what that law is. In the Klöckner Indus-trie-Anlagen GmbH v. Republic of Cameroon, the annulment procedure under the ICSID Con-vention has lead the annulment of the award, i.a., because the tribunal transgressed its pow-ers (Article 52) by breaching Article 42.1 of the Convention. When it ruled on the duty of loyal-ty towards a contractual partner, the tribunal did not apply the proper law, but was guided only by a general belief, formulated on its un-derstanding of long-term contracts and “other codes” that French law (then applicable on parts of the territory of Cameroon) provided for such a duty. „In its reasoning, limited to postulating and not demonstrating the exis-tence of a principle or exploring the rules by which it can only take concrete form, the tri-bunal has not applied „the law of the Contract-ing State” (Klöckner v. Republic of Cameroon Case (ARB/81/2) Annulment Decision, May 3, 1985, ¶ 79).

International law is ascribed a supplementing or corrective function over the domestic law. International law will therefore apply where there are gaps in the domestic law or it does not conform to the international standard. The recent awards, however, advocate a more pragmatic approach, not limited by dogmatic concepts, but adapted to the circumstances of the case. „The law of the host State can indeed be applied in conjunction with international law if this is justified. So too international law can be applied by itself if the appropriate rule is found in this other ambit” (Wena Hotels Li-mited v. Arab Republic of Egypt, ad hoc Com-mittee Decision on Application for Annulment of February 5, 2002, ¶ 941).

When applying a BIT, including its provisions on the treatment to be accorded to an investor, the tribunal applies the general rules of inter-pretation of treaties. „It is a cardinal rule of the

interpretation of treaties that each and every operative clause of a treaty is to be interpreted as meaningful rather than meaningless. It is equally well established in the jurisprudence of international law, particularly that of the Per-manent Court of International Justice and the International Court of Justice, that treaties, and hence their clauses, are to be interpreted so as to render them effective rather than ineffec-tive” (Eureko BV v. Republic of Poland, Partial Award, 19 August 2005, ¶ 248). This approach, that assumes an effort to give meaning to each provision of the BIT, was followed by the tri-bunal in its interpretation of a clause by which the Contracting Party obligated to “observe any obligation it may have entered into with regard to investments of investors of the other Con-tracting Party”8 that was part of the BIT along with guarantees of fair and equitable treat-ment, full protection and security, national and most favoured nation treatment.

Application of the rules of international law to investment disputes includes not only treaty rules but also, to a large extent, customary law, e.g. on international liability of states, state of necessity, protection of vested rights, protec-tion of aliens and their property in a state of insurrections, exhaustion of local remedies.

Tribunal are also guided by a general rule of fairness that dictates that a decision should take into consideration concrete circumstances of the case. Such would be the case where the tribunal is to rule on a proper method of calcu-lation of interest on compensation for expropr-iation and must choose one of several methods applied by arbitral tribunals. “While simple interest tends to be awarded more frequently than compound, compound interest certainly is not unknown or excluded in international law. No uniform rule of law has emerged from the practice in international arbitration as regards the determination of whether compound or simple interest is appropriate in any given case. Rather, the determination of interest is a prod-uct of the exercise of judgment, taking into ac-count all of the circumstances of the case at

8 Polish-Dutch BIT, Article 3.5.

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hand and especially considerations of fairness which must form part of the law to be applied by this Tribunal. (…) It is not the purpose of compound interest to attribute blame to, or to punish, anybody for the delay in the payment made to the expropriated owner; it is a me-chanism to ensure that the compensation awarded the Claimant is appropriate in the cir-cumstances (Compañía del Desarrollo de Santa Elena, s.a. v. The Republic of Costa Rica, ICSID Case no. ARB/96/1, Final Award, February 17, 2000, ¶ 103, ¶ 104).

As can be seen from the above, legal rules that are part of various legal order are applicable to the resolution of investment disputes, and the international investment tribunals continue to state their relation to one another and their field of application.

Views previously expressed by an arbitrator as grounds for a challenge – comments based on the

ICSID decision in the Urbaser case

Dr Maria Hauser-Morel

On 12 August 2010, two arbitrators dismissed a challenge against Professor McLachlan acting as an arbitrator in the ICSID case Urbaser S.A. et al. v. Argentina. The challenge, brought by Urbaser, was based on the fact that Professor McLachlan has previously expressed views on two issues which were to be decided by the tribunal in this case. The decision rendered by the two arbitrators raises a ques-tion do, and if so to what extent, legal views previously expressed by an arbitrator prevent him or her from prejudging the case. Challenges based on published statements about legal issues call for atten-tion, especially in the context of complex arbitrations, where one would expect to see arbitrators with good knowledge of applicable laws and expertise in the particular field of law. It goes without saying that if one is an expert in a given field of law, one is inclined to publish articles and books in this field, thus expressing his or her opinions, which may eventually be relevant for the arbitration.

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I. Summary of the decision

Urbaser’s challenge was based on views that Professor McLachlan had expressed in his pub-lications on two issues that Urbaser considered crucial to the arbitration1.

First, Urbaser referred to Professor McLach-lan’s publications on the possibility to invoke a most-favored-nation (MFN) clause in relation to jurisdiction. In the arbitration which is still pending, Urbaser is seeking claims under the Spain-Argentina BIT in the same way as in the Maffezini case, where Mr. Maffezini successfully invoked, by way of a MFN clause in the Spain-Argentina BIT, the provisions of the Spain-Chile BIT2. Urbaser raised that in one of his publica-tions Professor McLachlan described the juris-

The Author is a lawyer at Salans Paris office.

1 Urbaser S.A. and Consortio de Aguas Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. ARB/07/26, Decision on Claimants’ Proposal to disqualify Professor Campbell McLachlan, Arbitrator (12 August 2010), http://ita.law.uvic.ca/documents/Urbaser ArbitratorChallenge.pdf. According to Article 58 of the ICSID Convention, a proposal to disqualify an arbitrator shall be taken by the other members of the tribunal. 2 The Urbaser decision of 12 August 2010, para. 23; Emi-lio Agustin Maffezini v. Kingdom of Spain, ICSID Case No. ARB/97/7, Decision on Objections to Jurisdiction (25 January 2000), www.icsid.worldbank.org.

dictional decision handed down in the Maffezini case as “heretical” and indicated his preference for the decision in the Plama case (in which the tribunal took the stance that one cannot invoke an MFN clause in relation to the arbitration clause). Urbaser argued that Professor McLach-lan “has already prejudged an essential element of the conflict that is the object of this arbitra-tion”3.

The second ground of the challenge related to Professor McLachlan’s comments on Argenti-na’s defence to emergency measures, i.e., the defence of necessity. The said comments were made by Professor McLachlan in non related arbitral proceedings. However, considering that Urbaser was seeking similar measures in the pending arbitration, Urbaser argued that comments given by Professor McLachlan showed that he had prejudged the defence of necessity.

The arbitrators dismissed the challenge, noting that:

…the crux of the analysis is whether the opinions expressed by Prof. McLachlan qualify as indicating a manifest lack of the qualities required to provide inde-

3 The Urbaser decision of 12 August 2010, para. 23.

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pendence and impartial judgment…. What is required, when it comes to ren-dering a judgment in a legal dispute, is the ability to consider and evaluate the merits of [the] each case without rely-ing on factors having no relation to such merits …

If … any opinion previously expressed on certain aspects of the ICSID Conven-tion be considered as elements of pre-judgment in a particular case because they might become relevant … no po-tential arbitrator of an ICSID tribunal would ever express views on any such matter, whether it may be procedural, jurisdictional, or touching upon the substantive rights deriving from BITs. (emphasis in the original)4

The arbitrators found that the opinions ex-pressed by Professor McLachlan were those of an academic, not an arbitrator, and consequent-ly, they did not prevent Professor McLachlan from taking full account of the facts, circums-tances, and arguments presented by the parties in this case5.

The decision in the Urbaser case was generally approved by the commentators6. However, it has been argued that the evaluation of the chal-lenge may not have been sufficiently exhaus-tive7. Indeed, while the end result of the chal- 4 The Urbaser decision of 12 August 2010, paras. 40 and 48.

5 The Urbaser decision of 12 August 2010, para. 49.

6 A. Ross, McLachlan survives challenge based on academ-ic writings, Global Arbitration Review, 16 August 2010, www.globalarbitrationreview.com; T. Cole, Arbitrator appointments in investment arbitration: Why expressed views on points of law should be challengeable, Invest-ment Treaty News, 23 September 2010, www.invest-menttreatynews.org; Mealey’s International Arbitration Report, Vol. 25, No. 8 August 2010, p. 10; Challenge to arbitrator on basis of previous writing and awards, PLC, 17 August 2010, www.practicallaw.com; ICSID rejects proposal to disqualify arbitrator based upon his published academic opinions,– Practice note from LexisPSL DR, 25 August 2010; D. Kalderimis, Challenging the Arbitrator, NZ Lawyer, 3 September 2010, www.nzlawyer-magazine.co.nz.

7 T. Cole, op.cit.; D. Kalderimis, op.cit.

lenge appears correct, the way in which the arbitrators dealt with the two grounds of the challenge may appear not specific enough. The reasoning of the decision centres on general policy grounds that since Professor McLach-lan’s opinions were those of an academic, there is no reason to think that Professor McLachlan has prejudged the case. However, the decision does not deal with the specific arguments raised by Urbaser in its challenge.

II. Views expressed by an arbitrator as grounds for a challenge

International arbitration rules do not enume-rate grounds on which a challenge against an arbitrator may be based on. Most of the time, they foresee that challenges may be introduced when there are “justifiable doubts as to the arbi-trator's impartiality or independence”8. The ICC Rules allow challenges for “alleged lack of inde-pendence or otherwise” 9 (i.e., without the thre-shold of “justifiability”).

The ICSID Convention allows challenges (ac-cording to the Convention, proposals for “dis-qualification”) in cases of “a manifest lack of the qualities required by paragraph (1) of Article 14 [of the Convention]”. According to Article 14(1), arbitrators shall be persons “who may be relied upon to exercise independent judgment”10.

Helpful guidelines on types of circumstances susceptible to raise questions of arbitrators’ independence or impartiality may be found in the IBA Guidelines on Conflicts of Interest in International Arbitration (the “IBA Guide-lines”)11. These Guidelines have included a “Green List”, in which a situation where an arbi-trator has previously expressed views on issues which arose in arbitration:

8 See for example Swiss Rules of International Arbitra-tion (Article 10(1)), LCIA Arbitration Rules (Article 10(3)), SCC Arbitration Rules (Article 15(1)), UNCITRAL Arbitration Rules (Article 10(1)).

9 Article 11(1) of the ICC Rules of Arbitration.

10 Articles 14(1) and 57 of the ICSID Convention.

11 The IBA Guidelines on Conflicts of Interest in Interna-tional Arbitration, http://www.ibanet.org.

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4.1.1 The arbitrator has previously pub-lished a general opinion (such as in a law review article or public lecture) concerning an issue which also arises in the arbitration (but this opinion is not focused on the case that is being arbi-trated).

In the commentaries to the IBA Guidelines, the Working Group has stressed that in situations enumerated in the Green List the arbitrator has no duty to disclose and that the Green List cov-ers situations in which “there is no appearance of a lack of impartiality and independence and so no conflict of interest exists”12.

Article 3 of the IBA Rules of Ethics (published in 1987, i.e. 17 years before the IBA Guidelines) provides that:

Partiality arises when an arbitrator … is prejudiced in relation to the subject-matter of the dispute…Facts which might lead a reasonable person, not knowing the arbitrator’s true state of mind, to consider that he is dependent on a party create an appearance of bi-as. The same is true if an arbitrator … has already taken a position in relation to [the dispute].13

As a matter of comparison, national civil proce-dure codes enumerate grounds for the exclu-sion of a judge, but do not refer to a situation where a judge’s previous publications could constitute grounds for his or her exclusion for a case14.

12 O. L O de Witt Wijnen, N. Voser and N. Rao, Background Information on the IBA Guidelines on Conflicts of Interest in International Arbitration (article detailing the drafting history of the IBA Guidelines), Business Law Internation-al, 2004, Vol 5, No. 3, p. 434, http://www.ibanet.org.

13 Article 3 (1) and (2) of the IBA Rules of Ethics for In-ternational Arbitration enacted by the IBA in 1987, i.e. 17 years before the IBA Guidelines, http://www.ibanet.org (Article 3 was invoked by Urbaser in the context of the challenge against Professor McLachlan).

14 See for example Articles 48 – 49 of the Polish Code of Civil Procedure, Article 341 of the French Code of Civil Procedure, § 41 of the German Code of Civil Procedure.

Most challenge decisions are not published, therefore, it is difficult to establish a general practice with regard to challenges based on previously expressed views15.

To the author’s best knowledge, in only one recent arbitration, Fireman’s Fund v. Mexico, an issue similar to the one decided in the Urbaser case was raised, but eventually did not result in a challenge. This may suggest that there is a limited recourse to this base for a challenge.

In the case of Fireman’s Fund, Mexico had con-cerns about the independence and impartiality of Professor Lowenfeld, acting as an arbitrator upon Fireman’s nomination. More specifically, Mexico alleged that Professor Lowenfeld had expressed public opinions on issues relevant to the case, including the interpretation of certain articles of the NAFTA Treaty. Mexico had re-quested Professor Lowenfeld to provide clarifi-cations in this regard, which the arbitrator did. The challenge was eventually not introduced16.

In at least two publicly known Investor-State arbitration cases, challenges were brought based on arbitrators’ oral presentations making reference to the subject matter of the dispute and/or the parties themselves. While the cir-cumstances which had arisen in these cases were different from the Urbaser case, where Professor McLachlan’s statements were not made in relation to the arbitration, they pro-vide some guidance as to the evaluation of chal-lenges based on expressed views.

15 See G. B. Born, International Commercial Arbitration, 2009, p. 1556.

16 Mexico also alleged that Professor Lowenfold had commented in two non-related arbitrations on draft submissions on the very same articles of the NAFTA Treaty made by the same counsel as the one acting on behalf of Mexico – See Meg N. Kinnear, Andrea K. Bjor-klund, John F.G. Hannaford, Article 1125 – Agreement to Appoint Arbitrators [in:] Meg N. Kinnear, Andrea K. Bjor-klund et al., Investment Disputes under NAFTA. An Anno-tated Guide to NAFTA Chapter 11, Last updated: March 2008 Supplement No. 1, Kluwer Law International, pp. 1125-1 – 1125-14 (cited after www.kluwer-arbitration.com).

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In the Perenco v. Ecuador case17, Ecuador’s challenge to disqualify Hon. Judge Brower (act-ing as arbitrator upon Perenco’s nomination) was based on an interview he gave in which he made comments about Ecuador and about the pending arbitral proceedings, indicating that “…Ecuador currently is expressly declining to comply with the orders of two ICSID tribunals with very stiff interim provisional measures…”18. Unlike the Urbaser case, the Perenco v. Ecuador challenge raised the issue of the arbitrator’s direct bias towards the respondent-party. The challenge was accepted.

In the Canfor Corp. v. United States case19, the United States brought a challenge against an arbitrator who one year before his appoint-ment gave a speech to a Canadian government council. In this speech, the arbitrator criticized US governmental measures concerning soft-wood lumber, describing them as “harassment”, where the legitimacy and affect of the very measures were in the heart of the arbitration20. After having received the views of the parties and the challenged arbitrator, ICSID advised the challenged arbitrator that it would issue a decision upholding the challenge if the arbi-trator did not wish to resign. The challenge was eventually never decided because the arbitra-tor did resign21. However, the debate in the

17 Perenco Ecuador Limited v. The Republic of Ecuador & Empresa Estatal Pertoleos Del Ecuador, ICSID Case No. ARB/08/6, The PCA Secretary General’s Decision on Challenge to Arbitrator (8 December 2009), www.pca.org.

18 The Perenco v. Ecuador decision of 8 December 2009, para. 27.

19 Canfor Corporation v. The United States of America – case brought under NAFTA Chapter 11 and the UNCI-TRAL Arbitration Rules; more information about the case www.state.gov/s/l/c7424.htm.

20 Sam Luttrell, Bias Challenges in International Commer-cial Arbitration: The Need for a ‘Real Danger’ Test, Kluwer Law International, 2009, pp. 230 – 231.

21 Barton Legum, Investor-State Arbitrator Disqualified for Pre-Appointment Statements on Challenges Measures, Arbitration International, 2005, Volume 21, Issue 2, pp. 241 – 245 (cited after www.kluwerarbitration.com); Judith Levine, Dealing with Arbitrator ‘Issue Conflicts” in International Arbitration, Dispute Resolution Journal, February – April 2006, http://www.allbusiness.com.

pleadings submitted in relation to the challenge centred on one key issue: whether the arbitra-tor’s comments addressed the specific matter in dispute or whether the remarks were of a general nature and merely related to the sub-ject matter of the dispute22.

While the ICC Court does not publish its deci-sions on challenges, general summaries of the Court’s decisions may be found in articles pub-lished from time to time by the Secretary Gen-eral of the Court or other members of the Se-cretariat. In one of the recent publications, ref-erence was made to a challenge which was based on the fact that the arbitrator had pre-viously expressed views on the issue under dispute. The Court rejected the challenge23.

III. The “open mind” test

Relevance of an arbitrator’s previous publica-tions is a matter of impartiality. More specifi-cally, it raises a question of an arbitrator’s po-tential bias or predisposition towards legal is-sues at stake24 (which in turn translates into a bias or predisposition toward one of the par-ties).

In ICSID arbitration, if an arbitrator has pub-lished general views on issues at stake in a giv-en arbitration, the question is whether, despite having taken a position on these issues, the ar-bitrator “may be relied upon to exercise inde-pendent judgment”, as required by Article 14(1) of the Convention (a similar approach shall be applied under other arbitration rules). In other words, is the arbitrator, despite having pre-viously taken a position on an issue, capable of reviewing his or her position with an “open mind”, based on particular circumstances of

22 Barton Legum, op.cit.

23 Jason Fry, Simon Greenberg, The Arbitral Tribunal: Applications of Articles 7-12 of the ICC Rules in Recent Cases, ICC International Court of Arbitration Bulletin 2009, Vol. 20 No. 2, pp. 12 – 30.

24 Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua S.A. v. The Argen-tine Republic, ICSID Case No. ARB/03/17, Decision on the proposal for disqualification of a member of the Arbitral Tribunal (22 October 2007), para. 29, www.icsid.worldbank.org.

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a case? It goes without saying that there should be no automatism in answering this question.

This is true not only for cases, where an arbi-trator published an article about an issue con-templated in the pending arbitration, but also if the arbitrator analysed a specific legal issue in previous arbitrations. As noted in the Suez v. Argentina challenge decision:

… the fact that a judge or arbitrator had made a determination of law or a finding of fact in one case [does not] mean that such judge cannot decide the law and the facts impar-tially in another case…25

This does not mean that previously published views have absolutely no relevance for an arbi-trator’s impartiality. More importantly, one should not satisfy oneself, as suggested in the Urbaser case, that if opinions expressed by an arbitrator were those of an academic, and not an arbitrator, this does not prevent the arbitra-tor from being impartial.

While, in principle, giving views in public on a legal issue and being an arbitrator in a case where the same issue arose may go as a pair, this does not dispense the arbitrator from car-rying out the “open mind” test. As stated in the Suez v. Argentina case, it is, above all, a question of an arbitrator’s state of mind: only the arbi-trator knows whether he or she is capable of exercising an independent judgment26.

Thus, before accepting an appointment, an ar-bitrator should consider whether he or she has prejudged certain elements of a case27. Often, an arbitrator may realize only later in the arbi-tration, after having read the parties’ pleadings and participated in a hearing, that he or she had publicly taken a view on a given legal issue dis-cussed in the arbitration. In such a case, the

25 The Suez v. Argentina decision of 22 October 2007, para. 36.

26 The Suez v. Argentina decision of 22 October 2007, para. 30.

27 Rusty Park: Is arbitration in its autumn?, Global Arbi-tration Review, 5 October 2010, www.globalarbitration-review.com.

arbitrator may wish to consider disclosing such a circumstance to the parties to give them an opportunity to assess it from their perspective. Although the Green List does not even require an arbitrator from disclosing such circums-tances, in some cases, such disclosure may be needed, for instance, when the legal issue on which an arbitrator had taken a position is the heart of the dispute.

The parties to arbitration proceedings would usually expect that the arbitrator has an “open state of mind” during the whole arbitration, which translates into being neutral towards the parties, both on a personal level as on the me-rits of the case. Such neutrality will undoubted-ly enhance the parties’ confidence in the arbi-trator and limit the likelihood of challenges based on previously published views. Although nothing can prevent parties from filing tactical or frivolous challenges based on previous pub-lications, one would expect from the parties a certain level of professionalism, excluding such behaviour.

As reflected in the decisions discussed in this article, evaluation of challenges based on pre-viously published views will be carried out in light of the particular circumstances of the case28. The analyzed case law also takes a prac-tical view based on the specific characteristics of international arbitration, and in particular, the reality of a narrow pool of arbitrators29. As reflected in some of the analyzed decisions and as suggested by the IBA Guidelines, the evalua-tion of challenges also takes into account the degree of generality of the arbitrator’s state-ment30. If the lack of impartiality has been con-firmed, one may also consider to what extent it

28 Swiss Federal Tribunal, 1st Civil Division, Case X v. Association Y., 4A_506/2007 (20 March 2008), Point 3.3.2.2, http://bger.ch.

29 Swiss Federal Tribunal, 1st Civil Division, Case A. et B. v. Comité International Olympique, Fédération Internationale de Ski et Tribunal Arbitral du Sport, 129 III 445 (27 May 2003), Point 3.3.3, http://bger.ch.

30 Point 4.1.1 of the Green List mentions a situation when an arbitrator “has previously published a general opinion … concerning an issue which also arises in the arbitra-tion…”

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is “manifest” (as provided by Article 57 of the ICSID Convention) or causes “justifiable doubts” (as provided by many arbitration rules). Final-ly, due regard may be given to the question whether the arbitrator acts as a single arbitra-tor or as a member of a panel of arbitrators, where all decisions are subject to deliberations.

IV. Conclusions

In conclusion, one should stress that a mere possibility of future challenges should not pre-vent arbitrators from publishing articles and books. As rightly pointed out by William Park:

If a scholar has expressed a firm opi-nion on a narrow and controverted point on which the case hangs, she may not inspire confidence in the party that received the rough side of the academic analysis. However, learned profession-als do (and should) write treatises sharing their knowledge. A professor of contract law at an American law school would not normally be disqualified for having written about ‘offer and accep-tance’. It would be a shame to exclude from service those who really know something, leaving arbitration only to the ignorant31.

31 W. W. Park, Part III Chapter 9: Arbitrator Integrity [in:] The Backlash against Investment Arbitration, ed. M. Wai-bel, A. Kaushal et al., 2010, pp. 200 – 201.

Transparency in investment arbitration: Ukraine’s prospective

Yuliya Chernykh

Ukraine is not a newcomer for investment arbitration. Only ICSID is a forum where 10 disputes have been registered against Ukraine since 1998. Information recently revealed by the Ministry of Justice of Ukraine shows a bigger spectrum of arbitration fora where cases against Ukraine are pending.

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Recent first losses brought more concern and dramatically increased a demand for transpa-rency. Only after first negative experiences be-came known investment arbitration as well as commercial arbitration involving state enter-prises became a matter of big interest for the Ukrainian society.

I. Period of Relative Arbitration Apathy

First ICSID cases with certain degree of publici-ty did not provoke much interest in Ukrainian society, although being commented in details by the lawyers representing Ukraine1 and some other commentators:

Yuliya Chernykh - FCIArb, Partner with ARBITRADE

1 Международный центр по урегулированию инвестиционных споров (ИКСИД): Некоторые вопросы юрисдикции и арбитражного производства», Киев - 2005г. (International Center for Settlement of Investment Disputes: Some Issues of Juris-diction and Arbitration Proceedings: Kiev, 2005).

Case Publicly availa-

ble documents Comments

1. Joseph C. Lemire –v-Ukraine ICSID No. ARB (AF)/98/1

Award embodying the Parties’ set-tlement of 18 September 2000

The dispute was settled (please note further com-ments in rela-tion to the cur-rently pending ICSID cases vis-{-vis Settlement agreement)

2. Generation Ukraine-v-Ukraine ICSID No. ARB/00/9

Award of 16 Sep-tember 2003

The Tribunal dismissed all claims of the Investor.

3. Tokios To-keles-v-Ukraine ICSID No. ARB/02/18

Procedural Order No.1 Decision on Juris-diction of 29 April 2004 Dissenting Opi-nion of 29 April 2004 Procedural Order No.3

Final award dismissing all claims of the Investor is not made public.

4. Western NIS Enterprise Fund-v-Ukraine ICSID No.ARB/04/2

Order dated 16 March 2006

Settlement agreed by the parties and proceeding discontinued at their request (Order taking note of discon-tinuance issued by the Tribunal on June 1, 2006 – not public)

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II. Triggers of Public Interest

Two recent cases turned international arbitra-tion into widely commented and vigorously discussed topic in Ukraine. The one related to purely investment arbitration case under USA-Ukraine BIT Joseph Charles Lemire-v-Ukraine (ICSID Case ARB/06/18)2, the other was a commercial arbitration case against Ukrainian state company with a potential impact on the whole country Rosukrenergo-v-Public JSC Naf-togaz (Arbitration Institute of the Stockholm Chamber of Commerce V(043/2008), V (097/2008), V (098/2008), V(175/2008), V (176/2008), V (002-004/2009)).

II.1. Joseph Charles Lemire-v-Ukraine On 14 January 2010, ICSID tribunal ( Professor Juan Fernández-Armesto, Mr. Jan Paulsson, Dr. Jürgen Voss) issued the Decision on Jurisdic-tion and Liability. Both parties disagreed on the overall result of that Decision. While the Minis-try of Justice of Ukraine claimed the Decision to be of big success for Ukraine3, the investor’s lawyers persuaded the public that the Decision was a major victory for their client4. This dispute was submitted to ICSID by Ameri-can investor contributed into development of Gala Radio (one of the leading radio stations in Ukraine) against Ukraine under:

- The Treaty between the United States of America and Ukraine Concerning the Encouragement and Reciprocal Protec-

2 A new second case lodged by the same Mr. Lemire against Ukraine

3 http://www.minjust.gov.ua/0/24333 - news on the site of the Ministry of Justice of Ukraine under heading “Arbi-tration Tribunal dismissed all claims in a dispute Joseph Charles Lemire-v-Ukraine” (visited as of 5 September 2010).

4 http://www.galaradio.com/news/2043 - official press-release of Gala Radio in response to the press-release issued by the Ministry of Justice of Ukraine (visited as of 5 September 2010).

tion of Investment, done in Kyiv on Oc-tober 17, 1996, and

- The Settlement agreement between Claimant and Respondent on the settle-ment of a dispute, dated March 20, 2000, which was recorded as an award on agreed terms on September 18, 2000 (ICSID No. ARB (AF) 98/1.

The interest of the public aroused and led to the heated debates by serious amount claimed by the American investor, amounting to USD 60 million plus interest. Overall, the Tribunal found no violations of the Settlement agreement of 2000, however it de-cided that the manner in which Ukraine dealt with the award of radio frequencies breached fair and equal treatment embodied in Article II.3 of the Ukraine-USA BIT.

II.2. Rosukrenergo-v-Naftogaz On 8 June 2010, the Arbitration Institute of the Stockholm Chamber of Commerce (Johan Munck, Andres Knutsson and Claes Lundblad) issued a separate award in international com-mercial arbitration case ordering Ukrainian state company Naftogaz to transfer 12.1 billion cubic meters of gas to Claimant RosukrEnergo, a Swiss-registered subsidiary of Russian energy company Gazprom that acted as an interme-diary in Russian-Ukrainian gas trading. This is the second award that has been issued in con-solidating proceedings related to “gas wars” between Ukraine and Russia in the beginning of 2009. The award became the heart of bitter political conflict. The former Prime Minister Yulia Tymo-shenko accuses the current government of con-ceding the case against Swiss energy company RosUkrEnergo and made the translation of the award (obtained from unknown sources) pub-lic at her official site www.tymoshenko.ua.) In the meantime criminal investigation has been initiated on the basis of the arbitration award and former officers of Naftogaz were arrested. This past August 2010, Shevchenkivsky District

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Court (a Ukrainian court of first instance) en-forced the award, the Kiev Court of Appeal con-firmed that decision and the cassation lodged by Naftogaz is still pending.

III. Disclosure of all pending arbitration cases and negotiations by the Minis-try of Justice of Ukraine

Shortly after the society became alarmed and intrigued, the Ministry of Justice of Ukraine5 took an unprecedented step and disclosed the full list of all pending cases against Ukraine at various fora and those cases which were at the negotiation stage. More particularly, as of 24 June 2010, the date of disclosure, there are 14 pending cases (12 arbitration proceedings, 2 litigation proceed-ings listed at the following page) before various fora against Ukraine or its entities. The pending negotiations are in disputes:

- between Seagroup International, Inc. and Ukraine

- between AmRUZ TRADING AG and Ukraine

- between Ministry for Land and Property of the Russian Federation and Ukraine

- related to property rights of the JC Pry-karpatZahidtrans

- between Alfred C. Toepfer International G.m.b.H. and Ukraine

- in relation to the claim of Prominpro Export Import Ltd.

- between Swissphoto AG and Derzhkom-zem (State Committee for Land Re-sources)

5 A special Department on Representation of the Interest of Ukraine in Foreign Jurisdictional Bodies is acting with-in the structure of the Ministry of Justice of Ukraine for the purpose of representing Ukraine in various fora.

- in relation to the claim of JC CJSC Bor-schagivskyi Chemical-Pharmaceutical Factory

- between Contra Praha s.r.o. and Ukraine

- in relation to the claim of RECOM Metall-gesellschaft GmbH (Germany)

- in relation to the dispute between Ban-comar and the State Shipping Company “Chornomorske Shipping Company”

- related to the protection of the Russian investors invested into Illichivsk Sea Trade Port (dispute between Illichivsk Sea Trade Port and Ukrtranscontainer)

- related to the dispute between Split Cen-ter, Split Group and Ukraine

- related to the dispute between Olympic Entertainment Group AS (Estonia) and Ukraine

- related to the dispute between Centragas Holding AG and Ukraine

- related to the dispute between Unicom Bankering SA and JSC UDP

- related to the dispute between Pinar-Com and Odessaoblenergo and Energoatom and others.

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INVESTMENT ARBITRATION

№ Parties Sum in Dispute Forum Date of filing re-

quest for Arbitra-tion/Claim

1. Lemire-v-Ukraine USD 70 million ICSID 11 September 2006 2. Laskaridis Shipping Co. LTD, Lavinia

Corporation, А.К.Laskaridis and P.K. Laskaridis (Greek) -v-Ukraine represented by the Cabinet of Ministers of Ukraine

USD 9 million Ad hoc arbitration under UNCITRAL Arbitration Rules 1976

7 November 2007

3. Alpha Projectholding GmbH (Austria) –v-Ukraine

USD 12 million ICSID 1 June 2007

4. JSC “Tatnafta” (Russia)-v-Ukraine USD 2,4 billion Ad hoc arbitration under UNCITRAL Arbitration Rules 1976

23 May 2008

5. Vanco Prykerchenskaya Ltd. (BVI) -v- Ukraine

USD 100 million Arbitration Institute of the Stockholm Chamber of Com-merce

16 July 2008

6. Windjammer Beteiligungsgesellschaft GmbH & Co.KG and Inmaris Perestroika Sailing Maritime Service GmbH (Germ-nany)-v-Ukraine

n/a ICSID 22 May 2008

7. Bosh International Inc. (USA) -v-Ukraine USD 8 million ICSID 21 August 2008 8. GEA Group Aktiengesellschaft-v-Ukraine USD 8 million ICSID 28 October 2008 9. Globex International, Inc., Global Traid-

ing Resourse Corp.-v-Ukraine USD 35 million ICSID 21 May 2009

10. Torno Global Consalting S.p.a and Beta Funding S.r.I. (Italy)-v-Ministry of Trans-portation and Communication and the State Agency of Auto Roads

EUR 45 million ICC Arbitration Court

22 September 2009

11. Naftrac Limited (Cyprus)-v-National Agency of Ecological Investments

USD 185 million PCA, Hague 25 November 2009

12. Remington Worldwide Limited (UK)-v-Ukraine

USD 33 million Arbitration Institute of the Stockholm Arbitration Institute

25 September 2008

13. JSC “Contstruction-Industry Trade Com-pany Pilon-v-Ukrainian Embassy in Greece

Over USD 64 million and EUR 500,000 for moral damages

Court of first in-stance in Greece 1 August 2008

1 August 2008

14. A.Yu.Semeiy-v-Government of Ukraine USD 23,583,662,714

Arbitration Court of Moscow (state court)

24 February 2010

IV. Bizarre Legislative Initiatives

The scandal that arose and the political tension that has been created around the arbitration cases have named some bizarre legislative in-itiatives in relation to the enforcement of for-eign arbitration awards in Ukraine with the attempt to solve locally possible negative out-

come for Ukraine vis-{-vis concrete arbitration award in RosUkrEnergo-v-Naftogaz.

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Draft Suggested changes Status No. 6544 of 17 June 2010

to forbid enforcement of arbitration awards if it menaces the energy safety of Ukraine and to suspend enforcement if a criminal investigation related to the issue is pending to permit settlement including set-tlement in arbitration for the companies with the state share exceeding 25 % only under a special Reso-lution of the Cabinet of Ministers of Ukraine

Pending (under considera-tion in committee)

No. 6591 dated 25 June 2010

to put cases involving movable property of the State and state companies within exclusive jurisdic-tion of the Ukrainian courts (the restriction is suggested to implement in regard of all available and future arbitration awards)

Dismissed

No. 6658 “On protec-tion of Energy Safety of Ukraine”

to forbid execution of con-crete arbitration award issued in Rosukrenergo-v-Naftogaz

Dismissed

None of the legislative drafts attempts to solve the issue of an increasing demand within Ukrainian society for transparency in invest-ment arbitration despite that there is still a room for potential suggestion even on the level of BITs that are presently still under negotia-tions and not-yet-ratified bilateral investment treaties (up today only 69 BITs are ratified by Ukraine).

V. Conclusion

Recent disclosures made in Ukraine vis-{-vis international arbitration shows that increased demand for transparency in investment arbi-tration is met in Ukraine by particular contex-tual and ad hoc reactions inspired mostly by political expediency. Although, the cat will be always out of the bag somehow, well-balanced regulatory response at least in relation to the non-ratified bilateral investment treaties is still feasible; and I will say for my part that this is a desirable solution for Ukraine.

Annulment of the Sempra v. Argentina award

– a new precedent for

non-precluded measure clauses?

Agnieszka Różalska-Kucal

On 29 June 2010 the Ad Hoc Annulment Committee established for the annulment proceeding of the ICSID Tribunal in the Sempra v Argentina case1 decided to annul the award on the basis of manifest excess of powers of the Tribunal. It concerned non-application of the applicable law de facto by its wrong interpretation.

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INVESTMENT ARBITRATION

I. Foreword

The investment dispute before the Internation-al Centre for Settlement of Investment Disputes (the ICSID Tribunal) was initiated on the basis of art. VII of the Agreement between the United States of America and the Argentine Republic concerning the Reciprocal Encouragement and Protection of Investment (the BIT)1. The arbi-tration proceeding was based upon Chapter 4 of the Convention on the Settlement of Invest-ment Disputes between States and Nationals of other States, established in Washington on March 18, 1965 (ICSID Convention). Each final award can however be verified. This is done by the Annulment Committee, which may be es-tablished under art. 52 of the ICSID Convention. It enables parties to a dispute to annul an award on the basis of five alternative require-ments. One of the them is manifest excess of powers by the arbitration tribunal (art. 52 “b”). In the case at hand, the motion for annulment was brought by the Republic of Argentina and it concerned – in the latter’s opinion – the incor-rect interpretation of the BIT’s provisions.

The Author is a trainee at the Warsaw Bar of Legal Advi-sors, PhD student at University of Cardinal Stefan Wyszynski in Warsaw and works at the Court of Arbitra-tion at PCPE Lewiatan.

1 Agreement between the United States of America and the Argentine Republic concerning the Reciprocal Encou-ragement and Protection of Investment, art. XI, 14 No-vember 1991, available at: http://www.pca-cpa.org/upload/files/10%20US-Arg%20BIT.pdf

II. Arbitration proceeding before the ICSID tribunal

The dispute between Sempra and Argentina arose due to various actions undertaken by Argentina in order to stop its economic crisis in 2000-2003. These actions were inter alia: freezing of all financial transfers to and from Argentina, revaluation of all transactions from US dollars to pesos and changes of price index-es that resulted e.g. in decreases of companies’ share prices. The investor claimed violation of BIT’s provisions including violation of the fair and equitable treatment standard (FET clause, art. II of the BIT), full protection and security (art. II of the BIT) and unlawful expropriation (art. IV of the BIT).

In its defense, Argentina raised among other arguments two particular lines of reasoning. Firstly, the state of necessity, being recognized as a circumstance precluding wrongfulness under international customary law. According to art. 25 of the Articles on State Responsibility for International Wrongful Acts issued by the International Law Commission (ILC Articles):

1. Necessity may not be invoked by a State as a ground for precluding the wrongful-ness of an act not in conformity with an international obligation of that State unless the act:

(a) Is the only way for the State to safeguard an essential interest against a grave and imminent peril; and

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INVESTMENT ARBITRATION

(b) Does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the in-ternational community as a whole.

2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:

(a) The international obligation in question excludes the possibility of invoking neces-sity; or

(b) The State has contributed to the situation of necessity.

The second was art. XI of the BIT, being the non-precluded measures clause (the NPM clause) allowing the State to undertake actions aimed at protection of its essential interests, which in ordinary circumstances are forbidden under the treaty. It states: “This Treaty shall not preclude the application by either Party of measures necessary for the maintenance of pub-lic order, the fulfillment of its obligations with respect to the maintenance or restoration of in-ternational peace or security, or the Protection of its own essential security interests.” In both cases, the essential interest protected by the State was its economic and financial situation.

The arbitration tribunal decided that the main aim of the investment treaty is the protection of investors, especially in difficult situations such as an economic crisis in the hosting State. Con-sequently, all exceptions to this rule shall be interpreted very restrictively. Since art. XI of the BIT does not provide any requirements as to its applicability, i.e. it does not indicate which acts of the State and in which situations they are permitted, the Tribunal decided that art. 25 of the ILC Articles should be the basis for interpretation of the state of necessity un-der the Treaty. Furthermore, it stated that the Treaty is not a separate source of law from in-ternational customary law. Even if the BIT pro-vision such as art. XI does not invoke customa-ry international law expressly, it is neverthe-less necessary for its interpretation. The Tri-bunal decided that the requirements stated in art. 25 of the Articles have not been met, hence

the State cannot justify its acts by the state of necessity. At the same time, art. XI of the BIT does not provide any other regulations in this regard. Finally, the Tribunal stated that it is necessary to take into account also the inter-ests of the investor, which would be seriously impaired by the application of art. XI of the BIT or art. 25 of the ILC Articles2.

III. Decision of the Annulment Committee

The Annulment Committee annulled the award and stated that the Tribunal manifestly ex-ceeded its powers by incorrectly applying the relevant law. It started its reasoning by indicat-ing that an investor acting on the basis of the Treaty and being its beneficiary may request such protection as it is provided. It regards also the possibility of exclusion of this protection when stated3. The Treaty and its provisions are the source of law which shall be applied in the very first instance while a decision is made in investment disputes. It is also underlined by art. 38 of the Statute of the International Court of Justice, which treats ”international conven-tions” as the primary source of international law. If international law does not provide the peremptory norm (ius cogens) in relation to a particular situation, the states may agree oth-erwise than it is regulated by international cus-tomary law. Since art. 25 of the ILC Articles does not contain such peremptory norm, in an investment treaty this aspect may be regulated differently, including by finding solutions that are less profitable for the investor. From an economic point of view it may be unreasonable, but it is certainly lawful.

Secondly, the Committee pointed out that the two provisions have different scope of applica-tion. Art. 25 of the ILC Articles is not applicable for interpretation of art. XI of the BIT - at most what can be said is that some of the wording is similar4.

2 Award, op.cit. 1, para. 366-391.

3 Decision on Annulment, op.cit. 1, para. 187-197, 202.

4 Decision on Annulment, op.cit. 1, para. 198-199.

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Finally, the Committee underlined that both provisions are legally different. The state of necessity from art. 25 of the ILC Articles is a circumstance precluding wrongfulness. Due to specific circumstances, it becomes a justifica-tion for an act prohibited by international law. The act itself however is still a violation of in-ternational law and that is why the State still has to pay due compensation (art. 27 of the ILC Articles). The NPM clause from art. XI operates differently. In this case the treaty is not violated at all. This provision is relevant prior to, and not afterwards, in relation to the prohibited act. And no compensation shall be paid, since no violation took place5.

The Committee concluded that the Tribunal had exceeded its powers. It needed to state however that this excess was manifest. Under the Vienna Convention on the Law of Treaties, a treaty shall be interpreted in accordance with the ordinary meaning of the words (art. 31). The word “manifest” simply means “clear” or “obvious”, otherwise: easily understood. First and foremost it was necessary to decide if the Tribunal had not applied the applicable law, what would be the ground for the annulment, or whether it did in fact apply it, but incorrect-ly, which is not sufficient to annul the award. The Committee took into consideration the Tri-bunal’s statement that “necessity or emergency is not conducive in this case to the preclusion of wrongfulness, and that there is no need to un-dertake a further judicial review under art. XI, given that this Article does not set out condi-tions different from customary law in such re-gard”6. The Committee underlined that it does not indicate an incorrect interpretation of the applicable law, but lack of its application. The tribunal mainly focused on international cus-tomary law, identifying the BIT provision with it. In this manner it did not apply the applicable law and manifestly exceeded its powers7. The annulment of the award was therefore justified

5 Decision on Annulment, op.cit. 1, para. 200, 203.

6 Award, para. 388.

7 Decision on Annulment, op.cit. 1, para. 205-219.

on the basis of art. 52 “b” of the ICSID Conven-tion.

IV. Conclusion

There were many similar cases to the above against Argentina. In four of them, initiated by the following companies: CMS8, LG&E9, Enron10 and finally Sempra v. Argentina raised as its arguments both the state of necessity and the NPM clause. In only one case did Argentina win on the basis of the NPM clause – in the LG&E case. In the CMS case there was a very similar award to the one discussed here, and it was also subject to the annulment proceeding. The Annulment Committee, chaired by Prof. James Crawford, did however not find grounds to an-nul the award and it decided that the NPM clause applied. The Tribunal’s interpretation was wrong since it was based almost solely upon art. 25 of the ILC Articles; however, the Tribunal still applied the applicable law.

The award in the Sempra case can indeed be a precedent for the use of NPM clauses in in-vestment treaties. Up to now their interpreta-tion was not clear and the LG&E award has been much criticized.

The decision discussed here confirms that the NPM clause is a separate and different treaty based on circumstances precluding State re-sponsibility as well as necessity of payment of any compensation for a state’s acts. Equally important, the clause may be successfully raised in the event of an economic crisis and any requirements regarding its applicability are stated solely in the clause itself. Hence, if the tribunal identifies the clause with the state of necessity based on international customary

8 CMS Gas Transmission Company v. Argentine Republic, ICSID Case No. ARB/01/8, Award, May 12 2005; 44 ILM 1205 (2005).

9 LG&E Energy Corp., LG&E Capital Corp. and LG&E In-ternational Inc. v. Argentine Republic, ICSID Case No. ARB/02/1, Decision on Liability of October 03, 2006, 21 ICSID Rev.—FILJ 203 (2006).

10 Enron Creditors Recovery Corporation (formerly Enron Corporation) and Ponderosa Assets, L.P. v. Argen-tine Republic (ICSID Case No. ARB/01/3).

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law, it will be a ground for annulment of the award. It enables states to take necessary ac-tions in crisis situations, which will not be sanc-tioned by enormous damages, while investors will be aware of which standard of treatment under the treaty they may request in times of an economic crisis.

Cross-Border Dispute Resolution: The prospects for Russia and the CIS

14 September 2010, Moscow

Dr Krzysztof Stefanowicz

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CONFERENCE REPORTS

Dispute resolution in Russia and its neighbor-ing states? Rumors and gossip as well as many extreme examples suggest “very” alternative methods of dispute resolution in this region, which makes the idea of an arbitration confe-rence in Moscow intriguing, especially if the ABA is its organizer. The number of firms and participants taking part in the conference (in various manners) was impressive. As an exam-ple I will mention ICC-Russian, LCIA, LEWIA-TAN, and many renowned international and domestic law firms.

The Conference was opened by Glenn P. Hen-drix (Immediate Past Chair, American Bar As-sociation Section of International Law). Follow-ing that, the opening remarks were made by Andrew Somers (President and Chief Executive Officer, American Chamber of Commerce in Russia), Minister of Justice of the Russian Fed-eration – Aleksander Vladimirovich Konovalov, Alexei Kostin (President of MKAS) and John Beyrle, the US Ambassador in Russia.95

The first panel was titled: Judicial Assistance and Enforcement Proceedings in Cross-Border Litigation and Arbitration. The moderator was Glenn P. Hendrix (the speakers: Rupert D'Cruz, Dmitry Dyakin, Varvara Knutova, Maxim Kulkov, Charles D. Schmerler).

The panelists’ speeches and the discussion compared Russian, American and English legal solutions. The issue of enforcement of arbitra-tion awards, the role of state courts in this phase of proceedings – as the last phase of arbi-tration, yet very important for its promotion. Very insightful speeches of Russian lawyers

dr Krzysztof Stefanowicz – SALANS Warsaw Office, Ser-nior Partner

supplemented descriptions of foreign regula-tions on enforcement matters.

The next panel moderated by Ilya Nikiforov (speakers: Andrew Durant, Lisa Korologos, John B. Quinn, Jeremy Scott), continued the topic of dispute resolution’s efficiency. The introducing motto was the proverbial phrase: winning the case is not a[the?] deal, it is to recover the win-nings. This slogan has a particular meaning in Eastern Europe regarding offshore vehicles and banks in the realization of foreign investments. These financial structures motivated by so-called tax rationalization can be a real barrier to enforcing the compensation awarded. The panelists showed different aspects of recover-ing assets abroad, even beginning with criminal techniques for collecting money and ending with a description of legal instruments in a few US states.

After lunch the arbitration presentation moved in a different direction.

The motto of the panel moderated by Gene Burd and Thomas A. Firestone was President Miedwiediew’s statement regarding “terroriza-tion of business”. The speakers (Kirill Kabanov, Ivan Marisin, Nick Marsh, Pavel Sichev) represented law firms as well as public admin-istration entities. The program’s hypothesis was a review of the risks connected with doing business in Russia. However, “corporate raid-ing”, i.e. hostile acquisitions, are not only a Rus-sian phenomenon. It would be a huge challenge to extensively compare global solutions and experience with reality and the various at-tempts made in Russia. The panelists described a few arbitration cases and proceedings based on the RICO act, the Ukrainian and Kirgizstan experience and the legal status in Russia, in

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particular regarding penal regulations. Ques-tions regarding the role of arbitration or public jurisprudence in eliminating the “terrorization of business” still need to be answered.

The next panel moderated with great vigor by Yulia Andreeva (the speakers: Graham Coop, Alexander S. Komarov, William R. Spiegelberger, Peter Wolich) returned to pure arbitration is-sues. Investors/entrepreneurs in every state with their material role in business are grap-pling with a fundamental dilemma: to sue the sovereign or to peacefully coexist with it? The YUKOS bankruptcy resulted in a great number of proceedings with the Russian state or state entities as a party. The participants tried to re-fer to these proceedings and experiences, look-ing for an optimum answer to the question on the method of commercial dispute resolution with the state. The moderator, with a great in-quisitiveness, tried to lead the panelists away from pure formal legal answers to the dilemma mentioned. An entrepreneur’s agent gave a very pessimistic view on the future of BIT dis-putes. Despite the moderator’s efforts, an op-posing opinion was unfortunately lacking.

The last panel provided a broader discussion involving all the Conference’s participants. The 266 registered participants in most part parti-cipated in the Conference. The final discussion led by Vladimir Khvalei and Irina Paliashvili was aimed at discussing current arbitration prob-lems. The discussion’s participants presented a great variety of views on the current status and the future of arbitration proceedings in Russia – from very pessimistic to positive ones. The discussion finished with the Conference partic-ipants participating in an electronic vote (in the majority Russian lawyers) on ten selected questions regarding arbitration in Russia. One of the most interesting results was their rather low opinion of mediation and explicit prefe-rence for English law in international transac-tions, especially in partner agreements.

The introduction to the closing remarks was given by Salli A. Swartz, (Chair, American Bar Association Section of International Law). In the closing remarks, Stephen N. Zack, (Presi-dent, American Bar Association) thanked the Conference organizers and was grateful for the extensive participation of especially the Rus-sian lawyers, which emphasizes the globaliza-tion of the legal profession.

The final Conference event was a reception at the residence of the US Ambassador in Russia, at Spaso House. This historical building and the story regarding Mikhail Bulhakov’s inspiration for the Satan’s ball scene in the Master and Margarita by the palace interior, was the crowning event of the Conference.

Swiss Federal Tribunal set aside an arbitral award on public policy grounds

Marek Neumann

On April 12, 2010 the Swiss Federal Tribunal rendered a judgment in Club Atlético de Madrid SAD v. Sport Lisboa E Benfica - Futebol SAD setting aside an arbitral award rendered by a tribunal of the Court of Arbitration for Sports (CAS) for violation of public policy. Relying on Art. 190(2)(e) of the Private International Law Act (PILA),1 the Tribunal found that the award disregarded the res judicata effect of a previous judgment rendered by the Commercial Court of the Canton of Zurich. It is the first time the Federal Tribunal has set aside an arbitral award on public policy grounds under the PILA.1

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The Tribunal decided on a dispute involving two major European football clubs over a play-er transfer. At the start of September 2000, Da-niel de Cruz Carvalho (Dani) joined Benfica from Ajax Amsterdam. Dani was contracted for four seasons under an employment contract, but terminated it for cause shortly after its con-clusion in order to join Atlético. On June 1, 2001 Atlético claimed compensation for Dani’s training and promotion within the meaning of Art. 14.1 of the then in force FIFA Regulations for the Status and Transfer of Players (1997 FIFA Regulation). According to Art. 14.1, a pro-fessional player's former football club was en-titled to compensation for his training and de-velopment. On April 26, 2002 FIFA’s Special Committee issued its final decision upholding the claim and awarding Benfica USD 2.5 million from Atletico. 1

In June 2002 Atlético appealed the Special Committee decision to the Commercial Court of the Canton of Zurich (Commercial Court). Atlético, being a member of FIFA, based its claim on Article 75 of the Swiss Civil Code which entitles members of an association to challenge a resolution of the association passed without their assent, in the event that it is in breach either of the law or of the articles of as-sociation. In a judgment of June 21, 2004 the Commercial Court held that the decision of the FIFA Special Committee was void as it was The Author is a PhD student at University of Warsaw.

based on the 1997 FIFA Regulation which was found to violate European and Swiss competi-tion laws.

On October 21, 2004 Benfica once again sought compensation from Atlético for Dani’s training before a FIFA Special Committee. When its claim was rejected, Benfica decided to appeal the decision to the CAS as FIFA in the meantime had introduced an arbitral review procedure for the decision of the FIFA Special Committee.

The CAS upheld Benfica's appeal and ordered Atlético to pay EUR 400,000 based on the 1997 FIFA Regulation. CAS held that it could not be prevented from considering the case “de novo” as the Commercial Court's decision only deter-mined the legality of the FIFA Regulation and, thus, had no res judicata effect. Atletico brought an action before the Federal Tribunal to set aside the CAS award. The Federal Tribunal held that the CAS had erred in disregarding the res judicata effect of the Commercial Court's deci-sion. Relying on Art. 190(2)(e) of the PILA which permits a court to set aside an award violating public policy, the Tribunal observed that it consists of both a procedural and ma-terial aspect. The procedural public policy was found to be breached “in case of violation of fundamental and generally recognized proce-dural principles, the disregard of which contra-dicts the sense of justice in an intolerable way, so that the decision appears absolutely incompati-ble with the values and legal order of a state

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ruled by laws”.2 The Tribunal held that CAS had violated this principle by disregarding the ma-terial legal force of the previous decision.

In its ruling the Fedral Tribunal found irrele-vant that the Commercial Court's decision was not rendered in an arbitral proceeding but in an “independent Swiss domestic procedure”, dealing with the annulment of a resolution of an association. Similarly, the Tribunal held that the introduction of the possibility to appeal the FIFA Special Committee's decision to the CAS did not change the fact that both proceedings, before the Commercial Court and before the CAS, concerned the legality of the FIFA Special Committee’s decision granting compensation to Benfica in the amount of USD 2.5 million for Dani’s training and promotion. The decision in the former proceeding barred Benfica from claiming compensation as it is binding erga omnes (i.e. concerns all the members of FIFA).

Although this is the first time that the Swiss Federal Tribunal has relied on Art.190(2)(e) of the PILA to set aside an arbitral award, it does not seem to weaken the general attitude of the Swiss courts towards the principle of public policy and material public policy in particular. The Federal Tribunal had previously decided the issue of res judicata as part of procedural public policy in Fomento de Construcciones y Contratas v. Colón Container Terminal.3 This time the principle of res judicata served as a basis for setting aside an arbitral award despite the fact that the proceedings concerned in-volved different parties. This was because of the erga omnes effect of the Commercial Court's proceeding. In this context, however, as ob-served by Nathalie Voser and James Menz, it may be doubtful whether there might have been a way to come to the same result by rely-ing solely on the erga omnes effect, rather than on the issue of res judicata.4

2 Swiss Federal Tribunal Decision, ¶ 2.2.2.

3 Fomento de Construcciones y Contratas S.A. v. Colon Container Terminal S.A., Swiss Federal Tribunal (Bundesgericht), May 14, 2001.

4 N. Voser, J. Menz, Swiss Federal Tribunal sets aside CAS award for violation of procedural public polic, available

at: http://us.practicallaw.com/5-502-9576?q=&qp=&qo=&qe=

Arbitration law reform in Spain

Mikołaj Jasiak

Parliamentary works on amendments to Spanish arbitration law of 2003 are pending. The reform is aimed at making Spain a more attractive jurisdiction for arbitration proceedings, especially for entities based in Latin America.

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The Spanish parliament is working on reform of the Arbitration Act of 23 December 2003 (Ley 60/2003, BOE nr 309, de 26-12-2003) (the “Act”). The Ministry of Justice has stated that the reform is aimed at improving the ease and speed of dispute resolution via arbitration as well as making Spain a more attractive juris-diction for arbitration, especially for Latin American entities. The project consists also of some controversial solutions. 100

Present regulations of the Act were criticized for lack of appropriate judicial procedures in the field of control and supervision over arbi-tration proceedings. Currently the first instance courts relevant for the place of arbitration is-sues decisions on arbitration proceedings and on exequatur. Matters related to claims for arbi-tration award derogation in turn belong to Au-diencias Provinciales. Decisions related to ‘arbi-tration matters’ are contradictory and conse-quently the court practice is chaotic and incon-sistent with the certainty of the principles of law and legal practice’s needs.

In light of the above, changes on judicial pro-ceedings linked to arbitration are deemed the most important modifications included in the project. Court competence in matters such as

subsidiary arbitrators’ appointment, granting exequatur and derogating the arbitral awards will be moved from courts of first instance and Audiencias Provincionales to Tribunales Superi-ores de Justicia de las Comunidades Autonomas – Supreme Courts of Spanish regions – the Auto-nomous Communities. Tribunales Superiores de Justicia de Comunidades Autonomas constitute the highest judicial power at the regional level.

Author is a lawyer at the law firm Domański Zakrzewski Palinka in Warsaw

In Spain, there are 17 such courts in total. Arbi-tration matters will fall under the competence of civil – criminal departments. Local relevance will be determined in compliance with the ex-isting rule, i.e. Supreme Courts are relevant for arbitrations that take (took) place in a given Autonomous Community. Some practitioners believe that in the pending legislation process, the Cortes (Spanish Parliament) will introduce a mechanism of appeal to the ‘central’ Supreme Court. This mechanism is obviously aimed at ensuring compliance of the jurisprudence of the 17 regional Supreme Courts.

Courts of first instance will remain competent for execution of arbitral awards after exequatur and deciding on interim measures. By moving the competence from courts of first instance and Audiencias Provincionales to Tribunales Superiores, increased harmony and uniformity of jurisprudence as well as improved quality regarding merits will be achieved.

Another significant change consists of a modifi-cation of one of the main basis for setting aside arbitral awards, i.e. the public policy clause. The Spanish legislator decided to replace ‘con-tradiction to public order rules’ with ‘manifest contradiction to public order rules’. The above change has been welcomed by Spanish practi-tioners. It is also consistent with the general tendency to limit the public order clause.

The reform of the Act promotes mediation over arbitration in an indirect and quite surprising manner. The Spanish legislator excluded ex ae-quo et bono arbitration between domestic enti-ties and allowed it only in international arbitra-tion. It was deemed that ex aequo et bono reso-lutions are more relevant to mediation and consequently laws on mediation are currently subject to amendments.

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A new mechanism introduced by the Act’s amendment is corporate arbitration. Share-holders and members of governing bodies may challenge the company’s resolutions via arbi-tration.

Introduction of compulsory insurance of arbi-trators and arbitration institutions are some of the controversial proposals related to the reform of the Act. According to critics, this is against the principle of arbitrators’ immunity. Moreover, given the amounts at stake, it would be very difficult to provide arbitrators with insurance.

Another controversial solution is the prohibi-tion of publishing distinctive opinions and in-troduction of the obligation to draft a justifica-tion to the arbitration award, even if the parties decided otherwise.

Amendments to the Act were adopted by the Spanish government in July 2010. Currently, the Cortes commission is working on the project.

Spanish arbitration law was adopted in 2003, and is based on UNCITRAL model law with some modifications. Deemed as a corner stone for development of arbitration in Spain, it is becoming increasingly popular in the country. The number of proceedings at the arbitration courts of the Spanish Chambers of Commerce is still increasing: 420 in 2007, 547 in 2008 and 751 in 2009.

UPCOMING EVENTS AND RECENT PUBLICATIONS

17 November 2010, Paris

Joint Colloquium on international arbitration,

Conference organized by: the ICC International

Court of Arbitration, the American Arbitration

Association (AAA) and the International Centre for

Settlement of Investment Disputes (ICSID)

17-20 November 2010, Hong Kong

"Rethinking International Arbitration" 25 anniver-

sary of the Hong Kong International Arbitration

Centre (the “HKIAC”). Conference Program

18 November, Warsaw

60th anniversary of the Court of Arbitration at the

Polish Chamber of Commerce in Warsaw

6 December 2010, Paris

“An arbitration is only as good as the arbitrator”,

Conference organized by ICC Institute of World

Business Law

13-14 December 2010, Mauritius

Launching Mauritius as a Centre for International

Arbitration, Conference organized by the Govern-

ment of Mauritius Republic, The International Court

of Arbitration of the International Chamber of

Commerce, The Permanent Court of Arbitration at

The Hague, The International Centre for the Settle-

ment of Investment Disputes, The London Court of

International Arbitration, The United Nations

Commission on International Trade Law (UNCI-

TRAL), The International Council for International

Arbitration (ICCA), Conference Program

21-22 January 2011, Singapore

Singapore International Arbitration Forum - “The

Future for International Arbitration", Conference

organized by: the Singapore International Arbitra-

tion Centre and supported by the International

Chamber of Commerce, the International Centre for

Dispute Resolution Singapore, the Permanent Court

of Arbitration, the WIPO Arbitration and Mediation

Centre, the Chartered Institute of Arbitrators, the

Singapore Institute of Arbitrators, the Singapore

Corporate Counsel Association, the Law Society of

Singapore, and the Singapore Academy of Law.

Conference Program

Ł. Błaszczak, Wyrok sądu polubownego w po-stępowaniu cywilnym, Wolters Kluwer Polska - OFICYNA, 2010

Ch. Boog, Swiss Rules of International Arbitration – Time to Introduce an Emergency Arbitrator Procedure?, ASA Bulletin, (Kluwer Law Interna-tional 2010 Volume 28 Issue 3) pp. 462 – 477

L. Fei, Public Policy as a Bar to Enforcement of International Arbitral Awards: A Review of the Chinese Approach, Arbitration International, (Kluwer Law International 2010 Volume 26 Issue 2 ) pp. 301 – 311

P. Ferrario, Challenge to Arbitrators: Where a Counsel and an Arbitrator Share the Same Office - The Italian Perspective, Journal of International Arbitration, (Kluwer Law International 2010 Vo-lume 27 Issue 4 ) pp. 421 – 426

M. King and I. Meredith, Partial Enforcement of International Arbitration Awards, Arbitration In-ternational, (Kluwer Law International 2010 Vo-lume 26 Issue 3 ) pp. 381 - 390

P. Shaughnessy, Pre-arbitral Urgent Relief: The New SCC Emergency Arbitrator Rules, Journal of International Arbitration, (Kluwer Law Interna-tional 2010 Volume 27 Issue 4 ) pp. 337 - 360

J. Shookman, Too Many Forums for Investment Disputes? ICSID Illustrations of Parallel Proceed-ings and Analysis, Journal of International Arbi-tration, (Kluwer Law International 2010 Volume 27 Issue 4 ) pp. 361 - 378

Selected by: Litigation and Dispute Resolution

Team, K&L Gates Jamka sp.k.