The Urgency of Regulations Revision Related to Filing Bankruptcy and Postponing Debt Payment Obligations Amid the COVID-19 Pandemic

The purpose of this research is to analyze the requirements of bankruptcy regulations and postponement of debt payment obligations on the increase in bankruptcy filings and delays in debt payment obligations in the middle of the COVID-19 Pandemic. This research uses a normative juridical research method with a statutory approach and a conceptual approach that is supported by primary and secondary legal materials. The results of this research indicate that the increase in filing for bankrBankruptcydelays in paying debt obligations at the Commercial Court is due to unclear rules regarding filing for bankrBankruptcyecially the requirements in filing for bank bankruptcy do not specify the amount of debt that can be filed for bankrBankruptcyre is a need for consideration in making and stipulating bankruptcy arrangements, both in the Draft Civil Procedure Code and the Bankruptcy Law and Suspension of Debt Payment Obligations, especially on issues: the amount of debtor debt, simple evidence, creditors holding guarantees in bankrBankruptcyminal confiscation in bankrBankruptcyker wage rating, bankruptcy estate settlement, and position of the arbitration award in bankruptcy cases.

THE ROLE OF REASONABLENESS IN THE REVIEW OF LABOUR ARBITRATON AWARDS (PART 1)

This article is published in two parts. In the first part (published in this edition of Obiter) the authors establish the general principles relating to administrative review and consider the different forms of review. Thereafter CCMA arbitration award reviews are considered. As is characteristic of special statutory reviews the Labour Relations Act, 1995 (“the LRA”) makes specific provision for the review of CCMA arbitration awards. The grounds of review are presented in such a manner that it has the effect of limiting the ambit. The administrative nature of CCMA arbitrations is considered. It is pointed out that the courts regard the CCMA as organ of state andthat the rendering of an arbitration award is considered as the commission of an administrative act that is subject to the constitutional imperatives of the administrative justice right of the Constitution. The authors also establish that the courts have not interpreted the restrictive scope of section 145 of the LRA as falling foul of the constitutional right to administrative justice. Rather, the courts have reasoned that, when reading section 145 in light of the constitutional right to administrative justice, the alleged misconduct, grossirregularity, exceeding of powers or impropriety as the case may be need only be measured against the constitutional imperatives of the administrative justice right in order to ensure constitutional consistency. So construed, an arbitration award would be reviewable if the reviewing court is able to conclude that the commissioner has committed misconduct or a gross irregularity or has exceeded his powers in terms of section 145(2) of the LRA because the decision is not justifiable in terms of the reasons given. The award would, however, not be reviewable only because it is perceived to be unjustifiable per se; the justifiability must be attributed to one or moreof the statutory grounds of review found in section 145(2) of the LRA. In Part 2 of the article the effect of the judgment of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd 2007 12 BLLR 1097 (CC) will be analysed as well as the application of the principles established in Sidumo in subsequent case law. Finally the reasonableness standard and private arbitration reviews will be considered. Part 2 will be published in the following edition of Obiter.

THE ROLE OF REASONABLENESS IN THE REVIEW OF LABOUR ARBITRATON AWARDS (PART 2)

This article is published in two parts. In the first part (published in the previous edition of Obiter) the general principles relating to administration review were established and the different forms of review considered. It was also established that the making of a CCMA arbitration award constitutes administrative action that is subject to the constitutional right to administrative justice; that justifiability is a constitutional requirement for just administrative action and that a failure to make a decision that is justifiable in terms of the reasons given may render an award reviewable in terms of section 145 of the LRA. This second part of the article will build on the conclusions of the first by focusing on setting out the key findings made by the CC in Sidumo v Rustenburg Platinum Mines Ltd (2007 12 BLLR 1097 (CC)) as regards the test for reviewing arbitration awards in terms of section 145 of the LRA. The purpose is to establish how reasonableness might best be understood and defined as well as to determine its implications for subsequent review proceedings. Case law that has sought to interpret and apply the principles established in Sidumo, will likewise be discussed in order to contextualise the place of reasonableness in the review of arbitration awards with a view better to understand its implications for the courts’ review function. Particular attention will be given to determining the applicability of the reasonableness standard to jurisdictional reviews. The principles laid down by the labour appeal court in Fidelity Cash Management Service v CCMA (2008 3 BLLR 197 (LAC)) will also be discussed with the objective of determining whether the court’s approach that an award is not reviewable because of flawed reasoning determining that the outcome is sustainable according to reasons identified in the record, and whether this finding is consistent with CC’s findings in Sidumo. It will also be considered whether the reasonableness standard as introduced by Sidumo will have any influence on the review of private arbitration awards in terms of section 33 of the Arbitration Act 42 of 19652 and whether parties can agree that an award would be reviewable on the same grounds and subject to the same test as a CCMA award. Finally, proposals will be made in respect of the interpretation and application of the reasonableness principle for the purpose of assisting in review proceedings to come.

Ņujorkas konvencijas par ārvalsts šķīrējtiesas spriedumu atzīšanu un izpildi V panta otrās daļas piemērošanas problemātika

By one of the recent decisions, the Latvian court did not recognise an ad hoc arbitration award made in the UK based on Article V(2)b) of NYC and Article 5(1)1) of the Arbitration Law (non-arbitrability rules). Arbitration agreement was concluded between a creditor and a guarantor, and the court found that in Latvia the domestic arbitration could not hear the disputes, the adjudication of which may infringe the rights of a person who is not a party to the arbitration agreement. The court concluded that in the arbitration case at hand, the main debtor’s rights were infringed, as the main debtor was not participating in proceedings. Thus, the dispute could not be resolved by the arbitration in accordance with legal doctrine and the Civil Law. This article discusses the nature and interpretation of Article V(2) of the NYC, the relation between sections a) and b), and the author gives a practical guidance on applicability hereto.

Problems of recognition and enforcement of international commercial arbitration decisions

The article analyzes the problematic aspects of recognition and enforcement of international commercial arbitration decisions on the territory of the Russian Federation. It is noted the complexity and lack of procedural guarantees for the parties to the dispute to implement the arbitration award. It is concluded that it is necessary to remove obstacles to the rapid and effective execution of commercial arbitration decisions.

Clause of Unlawful Action that May Void Arbitration Rules

Arbitration is a way of resolving a civil dispute outside a public court based on an arbitration agreement made in writing by the disputing parties. The problem in this research is whether the Arbitration decision can be overturned by the District Court because it contains clauses of illegal acts?, and What are the forms of illegal acts that can be overturned by the District Court? The type of research used is descriptive normative legal research. From the results of the research, it can be concluded that: An Arbitration Award can be overturned by the District Court because it contains a clause on illegal acts, is a decision that has been tested and examined through a civil court hearing that it is proven based on the evidence submitted by the disputing parties that the arbitration award contains actions against the law. And a form of illegal action that can be annulled by the District Court is a decision that has permanent legal force stating that the arbitration award is proven to have been an illegal act committed by one of the parties.

Micula and Others v. Government of Romania

678Arbitration — Arbitration award — International Centre for Settlement of Investment Disputes (“ICSID”) — ICSID Convention, 1965 — Article 54 — Enforcement proceedings — Convention on the Settlement of Investment Disputes Act 1966 giving ICSID Convention domestic effect in United StatesJurisdiction — Subject matter jurisdiction over enforcement of an ICSID Award — Foreign Sovereign Immunities Act 1976 — Act of State doctrine — Foreign sovereign compulsion doctrine — Whether act of State doctrine or foreign sovereign compulsion doctrine barring enforcement of an ICSID AwardState immunity — Jurisdiction — Petition to enforce arbitration award — Foreign Sovereign Immunities Act 1976 — Exceptions to sovereign immunity — Arbitration exception — Romania’s agreement to arbitrate — Whether Romania’s agreement to arbitrate nullified by Romania’s accession to European Union — Whether United States court having jurisdiction to enforce arbitration awardTreaties — ICSID Convention, 1965 — Sweden–Romania Bilateral Investment Treaty, 2002 — Romania’s agreement to arbitrate — Romania acceding to European Union in 2007 — Whether Romania’s agreement to arbitrate nullified by Romania’s accession to European Union — Whether United States court having jurisdiction to enforce arbitration awardRelationship of international law and municipal law — Treaties — ICSID Convention, 1965 — Obligations of the State under ICSID Convention — United States law — Convention on the Settlement of Investment Disputes Act 1966 — Section 3 — Jurisdiction of federal courts to enforce an ICSID award whilst award subject of review by a foreign sovereign — The law of the United States

Gavazzi and Gavazzi v. Romania

728Jurisdiction — Investment — Shares — ICSID Convention, Article 25 — Salini test — Municipal law — Whether domestic formalities on investment registration were relevant to jurisdiction — Whether the purchase of shares satisfied the criteria of contribution, duration, risk and economic developmentJurisdiction — Investment — Claims to money — Arbitration award — ICSID Convention, Article 25 — Whether an arbitration award was a claim to money and thus a covered investmentJurisdiction — Time-bar — Applicable law — Whether time limitations under municipal law were relevant to jurisdictionCounterclaim — Contract — Jurisdiction — ICSID Convention, Article 42 — ICSID Convention, Article 46 — Applicable law — Whether the BIT permitted free-standing counterclaims based on breach of contract — Whether the applicable law of the contractual counterclaim was relevant to jurisdictionAdmissibility — Res judicata — Issue estoppel — Whether a related contractual arbitration and judicial review of the award under Romanian law precluded claims regarding breach of the BITFair and equitable treatment — Debt restructuring — Freezing bank accounts — Whether the State’s failure to restructure the acquired company’s debts on agreed terms and its acts and omissions in relation to the acquired company’s bank accounts breached the standard of fair and equitable treatment — Whether the breaches of fair and equitable treatment caused the bankruptcy of the acquired companyExpropriation — Debt restructuring — Contract — Whether the State’s failure to restructure the acquired company’s debts on agreed terms was a measure having similar effect to expropriation without compensation — Whether the claimants were entitled to suspend their agreed additional investments in the acquired companyFair and equitable treatment — Denial of justice — Public policy — Whether the State failed to provide effective means of asserting claims and enforcing rights — Whether a wrong decision was a denial of justice in breach of international law — Whether the judicial annulment of a commercial arbitration award on grounds of public policy was discriminatory or in bad faithRemedies — Damages — Valuation method — Evidence — Equitable principles — Whether the acquired company was a going concern — Whether it was appropriate to use past cash flow in valuation — Whether there was sufficient evidence to use an unlevered income approach to valuation — Whether quantum of damages could be determined according to equitable objective 729principles – Whether any reduction should be made for contributory negligence — Whether moral damages were appropriateRemedies — Interest — Whether it was appropriate to award compound interest

Micula and Others v. Romania

629Arbitration — Arbitration award — International Centre for Settlement of Investment Disputes (“ICSID”) — ICSID Convention, 1965 — Article 54 — Enforcement proceedings — Arbitration (International Investment Disputes) Act 1966 implementing ICSID Convention in domestic lawRelationship of international law and municipal law — Treaties — ICSID Convention, 1965 — Obligations of the State under ICSID Convention — European Union law — Treaty on the Functioning of the European Union — Article 351 — Duty of sincere co-operation — Whether obligations of the State under EU law interfering with enforcement of an ICSID arbitration awardTreaties — Treaty on the Functioning of the European Union — Article 351 — Obligations of Member States of the European Union — Conflicting treaty obligations — Obligations arising under pre-EU treaties — Obligations arising under EU Treaties themselves — Whether EU Treaties affecting duty of a Member State to respect rights of non-member States under prior agreement — The law of the United Kingdom