In Search of Limits of Regulatory Powers. Antin v. Spain (ICSID Case No. ARB/13/31)

This submission analyses the award rendered in one of the ‘Spanish saga’ cases by a tribunal constituted under the Energy Charter Treaty. This group of cases concern renewable energy disputes and relates to the limits of states’ sovereign powers to amend their regulatory frameworks. The analysis commences by a short presentation of the relevant factual background of the dispute. It then proceeds to each stage of the arbitral proceedings: jurisdiction, merits and remedies. The submission finishes with a number of conclusions drawn from the award, referring to legal issues that can potentially serve as lessons learned for the future.

Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean, Preliminary Objections (ITLOS)

On January 28, 2021, a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) delivered a judgment in which it rejected preliminary objections raised by the Maldives in arbitral proceedings instituted by Mauritius, concerning the delimitation of the maritime boundary north of the Chagos Archipelago in the Indian Ocean.

Swords into Plowshares: A Pilgrimage for the CSS Alabama

During the American Civil War, Britain sold ships to the Southern Confederacy in breach of neutrality obligations, triggering a dispute with the United States carrying threats of armed conflict. Some American politicians saw the dispute as an opportunity to annex Canada, then a weak assemblage of British colonies. Ultimately, arbitration in Geneva averted war, opening an era of long Anglo-American cooperation. The historical consequence of this landmark 1872 arbitration remains difficult to overstate. In addition to its diplomatic importance, the case introduced significant procedural precedents for international arbitration, including dissenting options, reasoned awards, party-appointed arbitrators, collegial deliberations, and arbitrators’ declarations on their own jurisdiction. The saga of the CSS Alabama, the vessel from which the arbitration took its name, provides a narrative as griping in detail as the arbitral proceedings prove meaningful in legal legacy.

2. How arbitration works

This chapter explains how arbitration works in practice. Arbitration takes place if and only if parties have consented to it. Their consent needs to make clear how, specifically, arbitration is going to work for them. Parties in some situations may use courts and through them the executive apparatus to assist in arbitral proceedings. Under most arbitration agreements, once the arbitrator or arbitral tribunal has given the final arbitral award, arbitral jurisdiction comes to an end, and so there is no place for a party to turn to appeal against an adverse award. However, a losing party nevertheless may have opportunities to challenge an award, including in proceedings in national courts.

The Award in the Matter of an Arbitration Concerning The “Enrica Lexie” Incident (Perm. Ct. Arb.)

On June 26, 2015, the Italian Republic (Italy) commenced arbitral proceedings under the United Nations Convention on the Law of the Sea (UNCLOS) by serving on the Republic of India (India) a Notification under Article 287 and Annex VII, Article 1 of UNCLOS and Statement of Claim (Notification and Statement of Claim) in respect of the dispute concerning the Enrica Lexie incident. On July 2, 2020, having issued its Award to Italy and India (the Parties), the Arbitral Tribunal (Tribunal) published the operative part or the “dispositive” of the Award at the Permanent Court of Arbitration, which acts as registry for the proceedings.

Einstweiliger Rechtsschutz in grenzüberschreitenden Schiedsverfahren

The thesis focuses on the difficulties of determining the applicable law in interim proceedings in cross-border arbitral proceedings. First, it examines whether arbitral tribunals have a lex arbitri. Subsequently, the various possibilities of interim measures are described and the question is discussed whether arbitral tribunals have to refer to the Rome I Regulation or Section 1051 of the German Code of Civil Procedure in order to determine the applicable conflict of laws for contractual obligations. Then, it is analysed how the applicable substantive law is to be determined or how to proceed in case of non-determinability of such. Finally, the consequences of the application of a substitute law for the main proceedings are discussed.

Der kartellrechtliche ordre public in der internationalen Schiedsgerichtsbarkeit

When a state court has to decide whether to enforce or to set aside an arbitral award, it examines whether the enforcement of the award would violate fundamental principles of the forum - its public policy (ordre public). Competition law provisions that are part of these principles form the state's public competition policy. It comes into play not only during the review of the arbitral award, but affects the arbitral proceedings even before they are initiated. This thesis examines all these effects and their role in ensuring the compliance of arbitral awards with competition law. While it represents the outcome of a Franco-German dissertation project, it takes into account numerous other legal systems as well.