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For every lawyer practicing or aspiring to practice law in the US and every student striving to become a well-rounded litigator, familiarity with relevant case law is indispensable. This axiom holds particularly true in the realm of arbitration. As the ultimate arbiter on arbitration matters in the US, the decisions of the US Supreme Court carry paramount significance. This book serves as a vital resource, offering detailed analysis of nearly 40 cases by arbitration experts well-versed in the intricacies of the US legal system. Through meticulous commentary and critique, it vividly illustrates how SCOTUS has profoundly influenced the landscape of arbitration law and practice over the years.
Volume Editors: , , and
This book discusses how the Covid pandemic has reshaped investment screening mechanisms, investment law and arbitration. Contributions from leading academics and practitioners offer a fresh perspective on the reform of the ISDS mechanism and investment treaties; security and public order risks in FDI screening; the application of treaty standards and customary law defences; and the critical role of scientific data in investment arbitration. With rare insights and unpublished data, this book is your essential guide to understanding the resilience of the investment regime in these challenging times.
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How does the hybrid nature of SWFs affect the application of state immunity to these funds? May an SWF be sued in foreign courts for wrongful acts committed in the course of its investment activities? Can SWF investments be attached by a private creditor seeking to enforce an investment arbitration award against the fund’s state of nationality? This monograph addresses these questions from the perspective of the 2004 New York Convention and six selected jurisdictions (US, UK, France, Germany, Italy, China), with the broader aim of highlighting potential new standards for implementation of the state immunity rule to SWFs.
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In international law interpretation is ubiquitous. However, whereas in the case of treaty interpretation, this process has been codified in Articles 31-33 of the Vienna Convention on the Law of Treaties, the interpretation of rules of customary international law has remained largely unexplored. This monograph demonstrates not only that rules of customary international law can be interpreted but also that they have continuously been interpreted by international and domestic courts. Through an examination of this case-law, the various methods of interpretation of customary rules and their limits are identified as well as the similarities and differences with the rules of treaty interpretation.
In the context of the break-up of the Soviet Union and Yugoslavia, the independence of Montenegro and the unification of Germany, can a new State be held responsible for wrongful acts committed before its independence by the predecessor State? This book is the most comprehensive analysis of State practice, case law and scholarship identifying the factors and circumstances under which the rights and obligations arising from wrongful acts committed before independence can be transferred to a new State. This updated and revised second edition covers new developments, including the recent works of the International Law Commission and the Institute of International Law.
Essays In Honour of Piero Bernardini
Arbitration is adjudication and, like any form of adjudication, it must ensure justice to parties. Justice requires that in settling disputes arbitrators constantly balance the opposing interests of the parties and the different legal systems relevant to the resolution of the dispute from time to time at hand. This book addresses such issues by looking at the different stages of arbitration: from the selection of the arbitral seat to the definition of jurisdictional limits, from the choice of applicable law to the revision of arbitral awards.

The book collects essays by colleagues and friends of Piero Bernardini, a leading practitioner of international arbitration who was a champion in achieving balance in the administration of justice through arbitration.
Holding Foreign Investors Accountable for Violations of International Law
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Foreign investors benefit from investment protection standards in international investment law which are enforceable in investment arbitration. However, international law does not directly bind foreign investors and investment arbitration struggles to address foreign investor misconduct. Thus, host States cannot easily claim against foreign investors for breaches of international law in investment arbitration. In Counterclaims in Investment Arbitration, Edward Guntrip illustrates how host States can use counterclaim procedures in investment arbitration to hold foreign investors accountable for misconduct that breaches international law. Based on arbitral practice, the book sets out how host States can amend their State practice and litigation strategies to enhance the effectiveness of counterclaim procedures and assesses when host States should take this course of action.
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This chapter examines what constitutes the applicable law of an arbitral tribunal based on the ICSID Convention and ICSID Arbitration Rules, ICSID Additional Facility Arbitration Rules and UNCITRAL Arbitration Rules. The chapter examines how arbitral tribunals determine the applicable law with reference to party consent, arbitration rules and the different ways in which the applicable law can be used by an arbitral tribunal. Based on arbitral practice, the chapter highlights that, in the absence of party consent, arbitral tribunals have limited opportunities to refer to international law. The chapter then demonstrates how host States can use party consent to include international law in the applicable law by including applicable law clauses in their international investment agreements and domestic legislation.

In: Counterclaims in Investment Arbitration
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This chapter establishes the context for the book by examining how investment arbitration addresses foreign investor misconduct. It considers how investment arbitration precludes host States from challenging foreign investors in investment arbitration and discusses the limitations of trying to establish foreign investor misconduct using interpretations of investment protection standards, contributory fault, ‘in accordance with host State law’ clauses and counterclaims. After addressing the shortcomings of using host State courts, it sets out how counterclaims can be re-imagined to effectively challenge foreign investor misconduct if host States alter their State practice and litigation strategies.

In: Counterclaims in Investment Arbitration
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This chapter examines the jurisdictional limitations of investment arbitration under the ICSID Convention and ICSID Arbitration Rules, ICSID Additional Facility Arbitration Rules and UNCITRAL Arbitration Rules. The chapter demonstrates that host States can control the terms of party consent, which has a significant influence on the jurisdiction of an arbitral tribunal. The chapter then uses arbitral practice to show that party consent in broad terms includes counterclaims but exposes host States to more originating claims and that party consent in narrow terms excludes counterclaims entirely. Arbitral practice indicates that arbitral tribunals try to give effect to counterclaims where possible, so if host States can consent to counterclaims using tailored clauses in international investment agreements and domestic legislation, it is possible to establish jurisdiction over counterclaims without increasing the risk of host State liability.

In: Counterclaims in Investment Arbitration