Nationalist International Commercial Arbitration?: The Supreme Court and State Law Equitable Estoppel in GE v/ Outokumpu

2020 ◽  
Author(s):  
Benjamin Davis
Keyword(s):  
Supreme Court ◽  
State Law ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Supreme Court

REFUSAL TO RECOGNIZE AND GRANT PERMISSION TO ENFORCE INTERNATIONAL COMMERCIAL ARBITRATION AWARDS DUE TO IMPROPER NOTIFICATION ABOUT ARBITRATION PROCEEDINGS

2017 ◽  
Author(s):  
Anayit Khoperiya ◽  
Keyword(s):  
Supreme Court ◽  
Hague Convention ◽  
Case Law ◽  
Legal Assistance ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Negative Case ◽  
The Supreme Court ◽  
The Hague ◽  
The Hague Convention

The article analyses the refusal to recognize and grant permission to enforce awards of international commercial arbitration because of improper notification about the arbitration. The study concerns the new case law of the Supreme Court in cases of recognition and granting permission to enforce the awards of international commercial arbitration in cases where the party against whom the decision is made denies that it has been notified of the arbitration or appointment of an arbitrator. Particular attention was paid to the analysis of the decisions of the Supreme Court in cases No. 824/26/19 of November 28, 2019 and No. 824/69/19 of February 13, 2020 on the application of Jurginsky Mashzavod LLC on the enforcing of the decision of the Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation on debt collection from PJSC Pokrovske Mine Management. These decisions were assessed as a negative case law that does not contribute to the development of arbitration in Ukraine. It was concluded that in cases No. 824/26/19 and No. 824/69/19 the Supreme Court formulated two extremely negative opinions for the development of international commercial arbitration: 1) the need to inform the different jurisdictions parties of the arbitration proceedings, where in these jurisdictions the Hague Convention is binding, in form of provision of international legal assistance, which would harm the pace of arbitration proceedings; 2) the necessity to notify the parties by arbitration via mail with a postal description of the enclosed documents. The provisions of the Hague Convention regarding the requirement of arbitration notifications of the parties on the implementation of arbitration proceedings using the procedure of international legal assistance were analysed. It was established that the provisions of this convention cannot be interpreted as establishing an obligation for arbitration tribunals to notify the parties of the arbitration proceedings, which are situated in states-parties to this convention, through the procedure of international legal assistance only. The practice of the Supreme Court in other cases on the recognition and granting permission to enforce of international commercial arbitration decisions, where the party against which the decision was made denies that it has been notified about the arbitration or appointment of an arbitrator, was positively assessed. This practice is pro-arbitration. It was emphasized the importance of forming pro-arbitration practice of the Supreme Court, which ensures the image of Ukraine as a friendly jurisdiction for arbitration and for investment accordingly.

Legal Ground of Choice of Law Agreement Permissibility in International Commercial Arbitration

2020 ◽  
Vol 7 ◽  
pp. 23-30
Author(s):  
T. V. Novikova ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Ad Hoc ◽  
Civil Code ◽  
Commercial Arbitration ◽  
Choice Of Law ◽  
International Commercial Arbitration ◽  
The Supreme Court ◽  
Research Goal ◽  
The Russian Federation

Problem statement. Specific nature of international commercial arbitration raises an issue whether in this case lex fori is capable to be the ground of choice of law agreement permissibility. Topicality of the issue is determined by the Supreme Court of the Russian Federation explanation of 09 July 2019 to courts referring issues of choice of law permissibility to lex fori. Goals and tasks of the research. Goal – research of legal ground of choice of law permissibility in international commercial arbitration. Tasks: to study the ICAC approaches to choice of law acknowledgement; to advance a hypothesis on the influence of explanation by the Supreme Court of the Russian Federation in respect of article 1210 of the Russian Federation Civil Code to the ICAC practice and to draw a conclusion on the international commercial arbitration «procedural documents» provisions as the ground for it to acknowledge choice of law agreement. Methods. Methods of formal logic play a key role: analysis of the ICAC practice permitted to distinguish three approaches to choice of law agreement permissibility grounding; induction of ratio decidendi of the ICAC separate decisions – to draw a conclusion on the article 1210 of the Russian Federation Civil Code influence to the ICAC practice in general and on this basis to advance a hypothesis on possible influence of explanations by the Supreme Court of the Russian Federation in this respect; comparison of the international commercial arbitration rules – to draw a conclusion that these provisions are the ground of choice of law acknowledgement by the tribunal. Results, brief conclusion. Firstly, three approaches of the ICAC to the choice of law agreement permissibility grounding have been revealed and in each them the ICAC relies on the article 1210 of the Russian Federation Civil Code. As far as the article 1210 has an impact on choice of law permissibility grounding within the ICAC, explanations by the Supreme Court of the Russian Federation in respect of this article are capable to have a possible impact on the ICAC practice. Secondly, within the international commercial arbitration the choice of law agreement permissibility grounding should be based on provisions of its «procedural documents», e. g. national law on international commercial arbitration, rules of institutional arbitration or ad hoc arbitral tribunal, – these rules (but not conflict of laws addressed to courts of the state of the arbitration seat) could be considered as its peculiar lex fori.

International commercial arbitration in Canada after Uber Technologies Inc v Heller

2020 ◽  
Author(s):  
Tamar Meshel
Keyword(s):  
Supreme Court ◽  
Standard Form ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Gig Economy ◽  
The Supreme Court

Abstract This article examines the Supreme Court of Canada’s judgment in Uber Technologies Inc v Heller from an international commercial arbitration perspective, focusing on two specific issues. The first issue is the Court’s application of a provincial domestic, rather than international, arbitration statute to Uber and Heller’s international arbitration agreement, on the ground that the agreement is not ‘commercial’. The article argues that this finding is not in line with international arbitration instruments and practice. The second issue is the Court’s interpretation and application of the competence–competence principle, which permits arbitral tribunals to decide their own jurisdiction. The article maintains that the Court’s approach does not offend this principle, but that the Court provides insufficient guidance to lower Canadian courts on how to implement this approach in future cases. The article concludes that the Court’s decision, while far-reaching in many respects, should not disturb the enforcement of routine international commercial arbitration agreements in Canada. The decision may have implications, however, for arbitration agreements contained in international contracts—particularly standard form contracts—that might give rise to employment disputes, such as those in the gig economy, or that contain terms that may seem to bar a party’s access to the arbitral process.

Wyeth v. Levine: Challenging Implied Pre-emption for drugs

2009 ◽  
Vol 37 (3) ◽  
pp. 527-530
Author(s):  
Pooja Nair
Keyword(s):  
Supreme Court ◽  
Drug Administration ◽  
Medical Devices ◽  
Food And Drug Administration ◽  
State Law ◽  
Drug Labeling ◽  
The Supreme Court ◽  
Premarket Approval ◽  
Tort Claims

In March 2009, the Supreme Court held in Wyeth v. Levine that federal drug labeling laws do not pre-empt state tort claims against drug manufacturers. The decision surprised many Court watchers, coming on the heels of a 2008 decision, Riegel v. Medtronic, in which the Court found that the Food, Drug, and Cosmetic Act (FDCA) does pre-empt state-law claims for injuries caused by medical devices that received premarket approval from the Food and Drug Administration. Wyeth dealt an immediate and surprising blow to the pharmaceutical industry’s principal strategy for avoiding tort lawsuits, but failed to clarify the Court’s overall pre-emption jurisprudence.

scholarly journals PENGAKUAN TERHADAP PIHAK NON-ADVOKAT DALAM PEMBERIAN BANTUAN HUKUM (Politik Hukum Bantuan Hukum Dalam Peraturan Perundang-Undangan Di Indonesia)

2017 ◽  
Vol 6 (3) ◽  
pp. 399
Author(s):  
Akmal Adicahya
Keyword(s):  
Supreme Court ◽  
Access To Justice ◽  
State Law ◽  
Legal Aid ◽  
Procedural Law ◽  
The Supreme Court ◽  
The Government ◽  
The Right ◽  
Law Student

Access to justice is everyone rights that have to be fulfilled by the government. The regulation number 16 year 2011 of legal aid is an instrument held by the government to guarantee the right. The regulation allowed the participation of non-advocates to provide the legal aid. Through this policy, government emphasizes that:1) Indonesia is a state law which legal aid is an obliged instrument; 2) the prohibition of non-advocate to participate in legal aid is not relevant due to inadequate amount of advocate and citizen seek for justice (justiciabelen), and the advocate is not widely extended throughout Indonesia; 3) Non-Advocates, especially lecturer and law student are widely spread; 4) there are no procedural law which prohibits non-advocate to provide a legal aid. Those conditions are enough argument for government to strengthen the participation of non-advocates in providing legal aid. Especially for The Supreme Court to revise The Book II of Guidance for Implementing Court’s Job and Administration.Keywords: legal aid, non-advocate, justice

Impeachment and Removal from Office

2020 ◽  
pp. 147-150
Author(s):  
Danny M. Adkison ◽  
Lisa McNair Palmer
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Elected Officials ◽  
Grand Jury ◽  
State Law ◽  
Chief Justice ◽  
The Supreme Court

This chapter discusses Article VIII of the Oklahoma constitution, which concerns impeachment and removal from office. Section 1 states that “the Governor and other elective state officers, including the Justices of the Supreme Court, shall be liable and subject to impeachment for wilful neglect of duty, corruption in office, habitual drunkenness, incompetency, or any offense involving moral turpitude committed while in office.” Moreover, “all elected state officers, including Justices of the Supreme Court and Judges of the Court of Criminal Appeals, shall be automatically suspended from office upon their being declared guilty of a felony by a court of competent jurisdiction.” Two other methods for removing elected officials not mentioned in Section 1 are specified in state law pursuant to Section 2. The first provides for a grand jury to accuse an official and present its findings to a district judge. The second allows the governor to instruct the attorney general to investigate an official and, if official misconduct is found, to institute proceedings in court. Section 3 designates the chief justice of the Oklahoma Supreme Court as the presiding officer in an impeachment trial. Lastly, Section 4 requires senators to take an oath and specifies a two-thirds vote of those present in order to convict.

BG Group Plc v. Republic of Argentina (Sup. Ct. U.S.)

2015 ◽  
Vol 54 (1) ◽  
pp. 130-151
Author(s):  
Christina Trahanas
Keyword(s):  
United States ◽  
Supreme Court ◽  
Judicial Review ◽  
The United States ◽  
Commercial Arbitration ◽  
Court Of Appeals ◽  
Investment Treaty ◽  
The Supreme Court ◽  
First Time ◽  
Investment Treaty Arbitration

On March 5, 2014, the Supreme Court of the United States (the Court or Supreme Court) rendered its decision in BG Group PLC v. Republic of Argentina (BG Group). Applying principles from judicial review of commercial arbitration awards to the investment treaty context, the Court overturned a decision of the United States Court of Appeals that vacated an investment treaty arbitral award. BG Group is significant because it is the first time that the Supreme Court has reviewed an investment treaty arbitration.

scholarly journals Change, Creation, and Unpredictability in Statutory Interpretation: Interpretive Canon Use in the Roberts Court's First Decade

2018 ◽  
pp. 71
Author(s):  
Nina Mendelson
Keyword(s):  
Supreme Court ◽  
Extensive Study ◽  
Second Order ◽  
State Law ◽  
Statutory Interpretation ◽  
Future Directions ◽  
The Supreme Court ◽  
Congressional Staff ◽  
The Many ◽  
Roberts Court

In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation constrained and predictable, supplying Congress with a stable interpretive background. Based on an extensive study tracking the use of over 30 interpretive canons in the first 10 years of the Roberts Court, this Article attempts to contribute evidence to the debate over canons. The data raise substantial questions regarding stability and predictability. Despite a long tradition of use, some canons have essentially disappeared; meanwhile, the Court has created others out of whole cloth. In addition, application is erratic. The Roberts Court Justices have declined to apply even the most widely engaged canons 20–30% or more of the time, often for difficult-to-anticipate reasons; some well-known canons, such as the rule of lenity and the presumption against preemption, were applied roughly at a 50–50 rate. The story is worse in the many cases in which multiple canons are considered. Based on these and other findings, this Article accordingly argues that predictability and stability arguments cannot supply a firm foundation for canon use. The study also reveals troubling mismatches between canons actually in use and congressional staff acceptance of canons. The Article concludes by suggesting some future directions for investigation and reform.

Biosimilars and federal preemption in the USA

2018 ◽  
Vol 15 (3) ◽  
pp. 138-144
Author(s):  
Jeffrey R Bousquet
Keyword(s):  
Supreme Court ◽  
Information Exchange ◽  
Price Competition ◽  
Exchange Process ◽  
State Law ◽  
License Application ◽  
The Supreme Court ◽  
Manufacturing Information ◽  
The Usa ◽  
Federal Circuit

Summary This article reports on the recent decision by the Court of Appeals for the Federal Circuit (“Federal Circuit”) in Amgen v. Sandoz on remand from the U.S. Supreme Court. The Supreme Court held that a biosimilar applicant cannot be compelled under federal law to provide a copy of its abbreviated biologics license application (“aBLA”) and manufacturing information to the reference product sponsor (“RPS”) as required by the Biologics Price Competition and Innovation Act (“BPCIA”). The Supreme Court remanded the case to the Federal Circuit to determine whether there was any remedy under California state law available to Amgen, and if so, whether such remedy is preempted by the BPCIA. The Federal Circuit held that the BPCIA preempts state law remedies for a biosimilar applicant’s failure to comply with the BPCIA. This article also briefly discusses three other recent cases involving situations where the biosimilar applicant initiates the BPCIA information exchange process but provides only partial or no manufacturing information to the RPS or fails to complete the process by opting out at some later stage of the process.

Less Than Zero?

2008 ◽  
Vol 102 (3) ◽  
pp. 563-572 ◽  
Author(s):  
Carlos Manuel Vázquez
Keyword(s):  
Supreme Court ◽  
State Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
First Case ◽  
International Court ◽  
The Supreme Court ◽  
Executive Agreements ◽  
The Law

Medellín v. Texas is the first case in which the Supreme Court has denied a treaty-based claim solely on the ground that the treaty relied upon was non-self-executing. In Foster v. Neilson, the only other case in which the Court had denied relief on this ground, the Court offered its view that the treaty was non-self-executing as an alternative ground for denying relief. The Court soon thereafter disavowed its conclusion that the treaty involved in Foster was non-selfexecuting, and, in the intervening years, it repeatedly declined invitations to deny relief on this or related grounds. Many observers (including me) thought that the Court would again skirt a ruling on non-self-execution in Medellín because the president had issued a memorandum ordering compliance with the judgment of the International Court of Justice (ICJ) in Avena. After all, the Court in American Insurance Ass’n v. Garamendi had recently struck down a California law on the ground that it conflicted with a “policy” reflected in certain sole executive agreements. The president in Medellín seemed to be standing on stronger ground, as he was insisting that state law give way to an obligation imposed by a treaty that had received the consent of the Senate and was accordingly the supreme law of the land. But the Court defied this expectation, with potentially regrettable results for the law of treaties.

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