Non-ICSID investment arbitration awards can be challenged either in the courts of primary jurisdiction at the seat of the arbitration or, when opposing an application for enforcement, in the courts of secondary jurisdiction at the place of enforcement. Either way, it will be the degree of arbitration-friendliness of the national court that determines whether or not a challenge to set aside or refuse enforcement of the award will succeed. Although MENA courts are more arbitration-friendly than is commonly thought, there remains some uncertainty over how reliable they are in enforcing (investment) arbitration awards against state entities. There is little (if any) practical guidance to date. Investors are therefore advised to tread carefully before committing to arbitration in a MENA jurisdiction or seeking enforcement of a non-ICSID award there.
{"title":"Recourse Against Non-ICSID Investment Arbitration Awards in the MENA Region","authors":"G. Blanke","doi":"10.54648/bcdr2016033","DOIUrl":"https://doi.org/10.54648/bcdr2016033","url":null,"abstract":"Non-ICSID investment arbitration awards can be challenged either in the courts of primary jurisdiction at the seat of the arbitration or, when opposing an application for enforcement, in the courts of secondary jurisdiction at the place of enforcement. Either way, it will be the degree of arbitration-friendliness of the national court that determines whether or not a challenge to set aside or refuse enforcement of the award will succeed. Although MENA courts are more arbitration-friendly than is commonly thought, there remains some uncertainty over how reliable they are in enforcing (investment) arbitration awards against state entities. There is little (if any) practical guidance to date. Investors are therefore advised to tread carefully before committing to arbitration in a MENA jurisdiction or seeking enforcement of a non-ICSID award there.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121556313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Georges R. Delaume (19212016): A Life of Service to Intellectual Integrity and Scholarship","authors":"Nassib G. Ziadé","doi":"10.54648/bcdr2016023","DOIUrl":"https://doi.org/10.54648/bcdr2016023","url":null,"abstract":"","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"698 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128257568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Panagiotis A. Kyriakou, Laura Halonen, Noradèle Radjai
The present contribution discusses the forms and standards of compensation, as well as the valuation methods, applicable to investment claims arising out of armed conflicts in the MENA region. It explores the general international law framework, language found in treaties concluded by MENA states, as well as particularities in the domestic damages regimes.
{"title":"An Analysis of the Compensation Regime Applicable to Claims Arising from Armed Conflicts Affecting Investments in MENA","authors":"Panagiotis A. Kyriakou, Laura Halonen, Noradèle Radjai","doi":"10.54648/bcdr2016026","DOIUrl":"https://doi.org/10.54648/bcdr2016026","url":null,"abstract":"The present contribution discusses the forms and standards of compensation, as well as the valuation methods, applicable to investment claims arising out of armed conflicts in the MENA region. It explores the general international law framework, language found in treaties concluded by MENA states, as well as particularities in the domestic damages regimes.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114089695","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article discusses appropriate remedies for findings of corruption in investor-state arbitration. While grounded in the premise that a contract that hides corrupt payment should be null and void, the article also posits that each arbitration case involving allegations of corruption presents unique underlying facts and circumstances. The author questions the legitimacy of arbitral awards that punish only the investors and exonerate the states whose officials also may have had unclean hands. He argues that a host state that does not investigate and prosecute its corrupt government officials can be estopped in certain circumstances from raising corruption as a defense in arbitration proceedings. The article notes that several legal systems apply the unclean hands doctrine with varying degrees of strictness. Therefore, when faced with cases in which both sides are liable for a concerted act of corruption, arbitral tribunals could have a sound legal basis for resorting to remedies other than those deriving from the tainted contract.
{"title":"Accountability for Corruption in Investment Arbitration: Equitable Remedies for Findings of Illegality","authors":"Nassib G. Ziadé","doi":"10.54648/bcdr2016037","DOIUrl":"https://doi.org/10.54648/bcdr2016037","url":null,"abstract":"This article discusses appropriate remedies for findings of corruption in investor-state arbitration. While grounded in the premise that a contract that hides corrupt payment should be null and void, the article also posits that each arbitration case involving allegations of corruption presents unique underlying facts and circumstances. The author questions the legitimacy of arbitral awards that punish only the investors and exonerate the states whose officials also may have had unclean hands. He argues that a host state that does not investigate and prosecute its corrupt government officials can be estopped in certain circumstances from raising corruption as a defense in arbitration proceedings. The article notes that several legal systems apply the unclean hands doctrine with varying degrees of strictness. Therefore, when faced with cases in which both sides are liable for a concerted act of corruption, arbitral tribunals could have a sound legal basis for resorting to remedies other than those deriving from the tainted contract.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116470579","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
An administrative contract is subject to a legal regime, the essence of which is the consensual nature of the contract combined with the proper functioning of public service. The absence of this feature from the consideration of arbitral tribunals, especially in investment disputes, was the basis of a theoretical gap from which a legal trend affirming a contrast between the nature of administrative contracts and the arbitration system emerged. A legitimate question arises as to whether the recent attention given by arbitration tribunals to this issue, especially in investment disputes, might allow scholars to overcome their differences regarding the arbitrability of administrative contracts.
{"title":"The Arbitrability of Administrative Contracts","authors":"Mohamed Amin El Mahdi","doi":"10.54648/bcdr2016013","DOIUrl":"https://doi.org/10.54648/bcdr2016013","url":null,"abstract":"An administrative contract is subject to a legal regime, the essence of which is the consensual nature of the contract combined with the proper functioning of public service. The absence of this feature from the consideration of arbitral tribunals, especially in investment disputes, was the basis of a theoretical gap from which a legal trend affirming a contrast between the nature of administrative contracts and the arbitration system emerged. A legitimate question arises as to whether the recent attention given by arbitration tribunals to this issue, especially in investment disputes, might allow scholars to overcome their differences regarding the arbitrability of administrative contracts.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114355652","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Historically, Mixed Courts of Egypt, and recently international arbitration, have led to controversial debates as to their role in the Egyptian legal system. The Mixed Courts have been and are often still considered an infringement of Egyptian sovereignty because they were established during colonialism. However, the courts came into existence because Egypt needed a new, efficient legal system to end the consular courts, which were created under the Capitulations Treaties in the Ottoman Empire and caused unequal and sometimes biased treatment of Egyptian nationals. But beyond the geopolitical and historical context, the Mixed Courts have contributed to the development of the modern Egyptian legal system and Egyptian heritage in comparative law and international private law. Although the Mixed Courts and international arbitration proceedings are similar (e.g., different nationalities and legal backgrounds of judges and arbitrators, the possibility to apply different laws to the parties’ disputes), the historical and political context that resulted in the creation of the mechanisms is different. Thus, the claim that international arbitration would overstep Egyptian sovereignty is unfounded. On the contrary, Egypt’s desire to have a modern set of arbitration rules is shared with other States seeking participation in the economic globalization, and international arbitration has proved to be an appropriate mechanism for international trade dispute resolution.
{"title":"Mixed Courts of Egypt and International Arbitration","authors":"P. Leboulanger","doi":"10.54648/bcdr2016003","DOIUrl":"https://doi.org/10.54648/bcdr2016003","url":null,"abstract":"Historically, Mixed Courts of Egypt, and recently international arbitration, have led to controversial debates as to their role in the Egyptian legal system. The Mixed Courts have been and are often still considered an infringement of Egyptian sovereignty because they were established during colonialism. However, the courts came into existence because Egypt needed a new, efficient legal system to end the consular courts, which were created under the Capitulations Treaties in the Ottoman Empire and caused unequal and sometimes biased treatment of Egyptian nationals. But beyond the geopolitical and historical context, the Mixed Courts have contributed to the development of the modern Egyptian legal system and Egyptian heritage in comparative law and international private law. Although the Mixed Courts and international arbitration proceedings are similar (e.g., different nationalities and legal backgrounds of judges and arbitrators, the possibility to apply different laws to the parties’ disputes), the historical and political context that resulted in the creation of the mechanisms is different. Thus, the claim that international arbitration would overstep Egyptian sovereignty is unfounded. On the contrary, Egypt’s desire to have a modern set of arbitration rules is shared with other States seeking participation in the economic globalization, and international arbitration has proved to be an appropriate mechanism for international trade dispute resolution.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134436030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recourse to arbitration in state contracts or state entity contracts has been a longstanding hot topic in Egypt. In the aftermath of the Arab Spring, Egyptian courts have caused a major implosion in the rules governing arbitration in state contracts and state entity contracts. The so-called requirement of the minister’s approval was and continues to be at the centre of the post-2011 judicial unwinding of a number of Mubarak era transactions. A brief history of the requirement of the minister’s approval of arbitration agreements in state contracts and how it has been applied before and after the Revolution raises legitimate considerations about whether this legislative requirement is useful. The author believes that this requirement should be abolished. The decision to abolish the requirement of the minister’s approval should be seen through the lens of the developments brought about by Law No. 32 of 2014 and the balance the law aims to strike between the legitimate interest of the state in protecting the integrity of state contracts and the legitimate interest of investors in protecting their contractual rights. From that balance emerges a key notion, namely, the legitimate right (not only obligation) of the state (as in the executive branch of the government) to protect its investment climate and the sanctity of its commitments, and by proxy, also its international law obligations to observe standards of conduct afforded to foreign investors in bilateral investment treaties and other general international law obligations. It is that right to which the government of Egypt has availed itself by eliminating third-party nullification rights of state contracts and the post-2011 enforcement of those rights. It is also through the lens of that right that the necessity of abolishing the requirement of the minister’s approval should be considered.
{"title":"Consent Ltd.: A Brief History of Egypts Ministerial Approval Requirement for Arbitration of State Contracts and Why It Should Be Abolished","authors":"Karim Youssef","doi":"10.54648/bcdr2016004","DOIUrl":"https://doi.org/10.54648/bcdr2016004","url":null,"abstract":"Recourse to arbitration in state contracts or state entity contracts has been a longstanding hot topic in Egypt. In the aftermath of the Arab Spring, Egyptian courts have caused a major implosion in the rules governing arbitration in state contracts and state entity contracts. The so-called requirement of the minister’s approval was and continues to be at the centre of the post-2011 judicial unwinding of a number of Mubarak era transactions. A brief history of the requirement of the minister’s approval of arbitration agreements in state contracts and how it has been applied before and after the Revolution raises legitimate considerations about whether this legislative requirement is useful. The author believes that this requirement should be abolished. The decision to abolish the requirement of the minister’s approval should be seen through the lens of the developments brought about by Law No. 32 of 2014 and the balance the law aims to strike between the legitimate interest of the state in protecting the integrity of state contracts and the legitimate interest of investors in protecting their contractual rights. From that balance emerges a key notion, namely, the legitimate right (not only obligation) of the state (as in the executive branch of the government) to protect its investment climate and the sanctity of its commitments, and by proxy, also its international law obligations to observe standards of conduct afforded to foreign investors in bilateral investment treaties and other general international law obligations. It is that right to which the government of Egypt has availed itself by eliminating third-party nullification rights of state contracts and the post-2011 enforcement of those rights. It is also through the lens of that right that the necessity of abolishing the requirement of the minister’s approval should be considered.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134541751","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article tackles a highly debated topic in Egyptian arbitration circles – the “deemed internationalisation of institutional arbitration.” The article provides a succinct theoretical overview of the notion of “internationalisation” in a comparative context and offers an in-depth analysis and critique of the “actual” vs. “deemed” internationalisation under Egyptian Arbitration Law No. 27 of 1994. It also explains the relevant criteria under Article 3 of the Egyptian Arbitration Law and discusses the ramifications of characterising an arbitration as “international” as opposed to “domestic” in cases where the Egyptian Arbitration Law is the lex loci arbitri.
{"title":"The Deemed Internationalisation of Arbitration under Egyptian Arbitration Law No. 27 of 1994 Considerations Beyond Hope and Fear","authors":"M. Wahab","doi":"10.54648/bcdr2016005","DOIUrl":"https://doi.org/10.54648/bcdr2016005","url":null,"abstract":"This article tackles a highly debated topic in Egyptian arbitration circles – the “deemed internationalisation of institutional arbitration.” The article provides a succinct theoretical overview of the notion of “internationalisation” in a comparative context and offers an in-depth analysis and critique of the “actual” vs. “deemed” internationalisation under Egyptian Arbitration Law No. 27 of 1994. It also explains the relevant criteria under Article 3 of the Egyptian Arbitration Law and discusses the ramifications of characterising an arbitration as “international” as opposed to “domestic” in cases where the Egyptian Arbitration Law is the lex loci arbitri.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128168169","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Cairo Court of Appeal 7th Economic Circuit 7/12/2015 Case No. 393 of Judicial Year 132 Arbitration","authors":"","doi":"10.54648/bcdr2016010","DOIUrl":"https://doi.org/10.54648/bcdr2016010","url":null,"abstract":"","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114323558","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Cairo Court of Appeal rendered an important decision regarding an arbitral tribunal’s decision on the challenge of an arbitrator, concluding that the procedures to challenge arbitrators provided for in the Egyptian Arbitration Law are not part of public policy. The Court thus rejected the party’s request to set aside the challenge decision and refused to examine it before the issuance of the final award.
{"title":"On the Consideration of the Procedures to Challenge Arbitrators in the Egyptian Arbitration Law as Mandatory and the Ability to Appeal Decisions Made by Arbitral Institutions. A Commentary on the Cair","authors":"D. Hussein","doi":"10.54648/bcdr2016016","DOIUrl":"https://doi.org/10.54648/bcdr2016016","url":null,"abstract":"The Cairo Court of Appeal rendered an important decision regarding an arbitral tribunal’s decision on the challenge of an arbitrator, concluding that the procedures to challenge arbitrators provided for in the Egyptian Arbitration Law are not part of public policy. The Court thus rejected the party’s request to set aside the challenge decision and refused to examine it before the issuance of the final award.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121794843","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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