Arbitration Links - Linklaters
  • Year: 2018
  • Month: April

Intra-EU investment arbitration post-Achmea: A look at the additional remedies offered by the ECHR and EU law

24 April 2018 Guillaume Croisant; Xavier Taton, Europe

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In its landmark Achmea case, the Court of Justice of the EU (“CJEU”) found the arbitration provision of the bilateral investment treaty (“BIT”) between the Netherlands and Slovakia to be incompatible with EU law (see our previous post for a first analysis).

This decision potentially affects the roughly 200 BITs concluded between the EU Member States, although its overall implications are far from clear. Against that background, however, investors in EU Member States who object to State measures which have impacted their investments elsewhere in the EU might be expected to look for additional routes to a remedy. What might these be? Two which stand out for closer analysis in particular are the European Convention on Human Rights (“ECHR”) and the fundamental principles of EU law.

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Successful challenge on basis of serious irregularity – A tribunal’s failure to deal with contribution claim

13 April 2018 Sadie Buls, England & Wales

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In P v D & Ors [2017] EWHC 3273 (Comm), London’s Commercial Court upheld a challenge to a London Court of International Arbitration award brought under s.68 Arbitration Act 1996 for serious irregularity. The claimant sought remission of the award on the basis that the Tribunal failed to deal with all the issues that were put to it (in particular, it failed to consider the claimant’s contribution claim in the proceedings), thereby causing the claimant substantial injustice. In its judgment, the Court identified a number of errors in the Tribunal’s award and provided guidance on when a LCIA Tribunal can exercise post-award powers to make corrections or issue additional awards under the LCIA Rules.

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Does a slip buy more time? English High Court considers the relationship between corrections of awards and time limits for appeal

05 April 2018 Stephen Lacey, England & Wales; Europe

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In DSMG v Songa [2018] EWHC 538 (Comm), the English High Court has examined whether an application to the tribunal to make straightforward corrections to an award extends, under the English Arbitration Act 1996 (the “Act”), the period for bringing a challenge in court against the award. It appears that it is only where an application for corrections is material - in the sense of enabling a party to know whether it has grounds to challenge an award - that it will do so.

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