Inter-State Arbitration

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Arbitration Agreement is no Waiver of State Immunity from Jurisdiction for the Purposes of Recognition and Enforcement – Comment on Commercial Court of Moscow’s decision in Tatneft v Ukraine

In April 2017, the Russia-based PJSC Tatneft initiated against Ukraine the process of recognition and enforcement in Russia of an arbitral award issued in the PCA investment arbitration OAO Tatneft v Ukraine under the UNCITRAL Rules and the Russia-Ukraine BIT. This June, the Commercial Court for the City of Moscow (the court of first instance, hereinafter – “the Court” or “the Russian Court”) dismissed Tatneft’s recognition and enforcement application, inter alia, sustaining Ukraine’s plea of immunity from jurisdiction [see А40-67511/2017 (in Russian)]. This post comments on the part of the Court's judgment concerning Ukraine’s immunity from jurisdiction. The Positions of the Parties and the Judgment Insofar as it is possible to ascertain the crux of the parties’ submissions from the text of the judgment, Ukraine raised two objections to jurisdiction. The first objection was based on Ukraine’s immunity from jurisdiction in the recognition and enforcement proceedings, and the second on the Russian courts’ lack of effective jurisdiction to try the claim due to the absence of Ukraine’s commercial assets…

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The Shifting Landscape of Investor-State Arbitration: Loyalists, Reformists, Revolutionaries and Undecideds

The investor-state arbitration landscape is shifting under our feet. The utility and legitimacy of traditional investor-state arbitration have come under fire, but states have not converged on a viable alternative. In simplified terms, three main camps are developing, which I call the “loyalist,” “reformist,” and “revolutionary” camps. The vast majority of states, however, are yet to take a…

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Self-Appointment in International Arbitration

At first glance, paragraph 14 of the UNCLOS Annex VII tribunal’s Order on Provisional Measures in Enrica Lexie (Italy v. India) appears quite mundane. It states in relevant part that “on 30 September 2015, the President of ITLOS appointed … H.E. Judge Vladimir Golitsyn as arbitrator and President of the Arbitral Tribunal” (para. 14). It becomes…

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Would a Multilateral Investment Court be Biased? Shifting to a treaty party framework of analysis

I have recently been pondering a common complaint voiced against the EU and Canada’s proposal for a multilateral investment court, which is that it would be biased against investors because all of the judges would be selected by states (see, for example, the ABA’s Report here and Judge Schwebel’s speech here). In my view, this…

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The South China Sea moves to the Indian Ocean: Conflicting Claims Over the Tromelin Islet and its Maritime Entitlements

The small, isolated, inhospitable (and inhabited) island of Tromelin, located in the Indian Ocean north of Mauritius and the French Reunion island, and east of Madagascar (see map), has been the subject of passionate debate in recent weeks in France, both in the media (here and here) and within the Parliament (transcript of the debate…

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