Recent Posts

I spent a recent weekend in a former Member State of the European Union. You know, the one that didn’t care for all this EU Primacy stuff, and bailed. I was amidst a sizeable group of QCs turned KCs. And they all asked the same question: “What’s up in Washington?” I started in about Tucker Carlson but was quickly cut short. “No, no, young fellow. We mean all this stuff about Spain and the DC Circuit.” So I gave them the two-minutes-over-cocktails version of “Achmea in the US Courts 2023.” But you all have your own beverages, and more time. …
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In the world of the New York Convention, it is widely if not universally understood that the grounds for annulment of an Award to which the Convention applies are provided not by the Convention, but by the domestic arbitration law of the arbitral seat (or other lex arbitri agreed by the parties). That principle has also been widely understood in US federal courts, but alas, until last week, not – at least not definitively and clearly — in the important US Eleventh Circuit Court of Appeals. The Eleventh Circuit has now come around. This was foreshadowed in a panel decision…
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Readers of this post will fall into two groups. The first and largest don’t pay much attention to investment arbitration. They will wonder why I write this. The second and much smaller group lives and breathes investment arbitration. I will rejoice if they read this.

Just when you thought the US law concerning judicial enforcement of annulled foreign arbitral awards was becoming relatively settled and predictable, if not very satisfactory, along comes the US Tenth Circuit Court of Appeals with a fresh and helpful perspective. That Court has held that a US district court did not abuse its discretion when it refused to vacate its initial judgment giving recognition and enforcement to such an award, and declined to give effect to a judicial annulment judgment thereafter sought and obtained from a court at the seat of arbitration in Bolivia. (Compañia de Inversiones Mercantiles S.A. v….
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In a dream last night, YOU, Dear Wing, received an email from the Chair of the Tribunal, “Re: New Case”: “My Dear Colleague X: I am serving as a Wing in a recently filed ICC Arbitration with an amount in dispute in excess of US $3 Billion. Together with my Fellow Wing Ms. Z, who knows and admires you, as I do, we are charged with the joint selection of the Chair. I would like to put your name forward if OK. The parties and counsel are completely different from our current case together and there is no subject matter…
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Corruption — of the bribing State officials variety — can seem like a distant abstraction. Until one reads about it, in excruciating detail. We had that opportunity recently, courtesy of a 360-page ICSID Tribunal Award that declared inadmissible, on grounds of corruption, the expropriation and FET (and other) claims of an investor that deployed an elaborate bribery and influence peddling scheme to secure its investment rights from the State. BSG Resources Ltd. v. Republic of Guinea, ICSID Case No. ARB/14/22 (Award dated May 18, 2022, available at www.italaw.com with the document identifier italaw170322.pdf, hereinafter the “BSGR” case). What should we…
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