Latest news on duty of care
We organised a breakfast session this month on the expansion of the French duty of care and the resulting litigation risks for companies. This is a hot topic: On 25 May 2023, BPCE, BNP Paribas and Crédit Agricole were given formal notice by NGOs to stop financing the Swiss company Glencore, which contributes to the […]
Dismissal of an application for exequatur on the ground of a fraud against an arbitration award
Two Italian companies, BEG and Enelpower, signed a cooperation agreement for the construction and operation of a hydroelectric power station in Albania. When Enelpower decided not to go ahead with the project, BEG brought claims for compensation before an arbitration tribunal as per the arbitration clause provided for in the contract. These claims were dismissed […]
Clarification of the interplay between the Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods and the liability for defective products
The insurer of an Italian company, subrogated to the latter’s rights, sued a French company and its insurer on the basis of the liability for defective and non-compliant food ingredients, which were then to be incorporated by the purchasing company into its own products. In a ruling dated 21 October 2021 (RG 20/04472), the Versailles […]
Sultan of Sulu Case
Several Philippine nationals have initiated ad hoc arbitration proceedings concerning the interpretation and performance of an agreement concluded in 1878 between the Sultan of Sulu and two European explorers. This agreement, described by the claimants as a “lease agreement” and by Malaysia as a “cession of territory and sovereignty“, covered the territories on the north […]
Spain cannot rely on the Achmea and Komstroy decisions to elude enforcement of an ICSID award in the United Kingdom.
In its decision dated 24 May 2023, the High Court of Justice Business and Property Courts Commercial Court (High Court) refused to set aside an arbitral award based on the Energy Charter Treaty (ECT) ordering Spain to pay €120 million to the European investor Infrastructure Services Luxembourg and its subsidiary Energia Termosolar (formerly Antin). The […]
An arbitral tribunal that finds that it has jurisdiction under Article 26 of the ECT in a dispute between EU investors and an EU Member State does not commit a manifest excess of power within the meaning of Article 52(1) of the ICSID Convention
In a decision dated 8 May 2023, an ICSID ad hoc Committee ruled on an application to set aside an award made in an arbitration brought under Article 26 of the Energy Charter Treaty (“ECT”) by Baywa R.E. Renewable Energy Gmbh and Baywa R.E. Asset Holding Gmbh against Spain. In its award dated 25 January […]
Investment arbitration in EU: excess of power and jurisdiction under Article 26 ECT
An arbitral tribunal’s finding that it has jurisdiction under Article 26 of the Energy Charter Treaty in a dispute between EU investors and an EU Member State does not manifestly exceed its powers pursuant to Article 52(1)(b) of the ICSID Convention. On 2 March 2023, an ad hoc committee rendered a decision on a request […]
Investment arbitration in EU: could choosing London as the seat of arbitration revive a defunct intra-EU BIT?
In a judgment dated 8 March 2023, the Amsterdam District Court opened the door to the question of whether choosing London as the seat of arbitration could revive an intra-EU BIT now prohibited by the Commission, the Member States and the ECJ. The Netherlands and Poland terminated, effective 2 February 2019, the BIT that had […]
Enforcement of arbitral awards against States under Sanctions: a new challenge
In addition to the classic difficulties relating to immunity, the enforcement of arbitral awards against certain States faces an additional obstacle following a ruling by the CJUE on November 11, 2021: the freezing of assets subject to sanctions. Tunisian company Siba Plast carried out several attachments on various assets of the Libyan National Transitional Council […]
Suspension of the statute of limitations in the case of expert proceedings: a useful reminder from the French Cour de cassation
While in principle the suspension and interruption of the statute of limitations may not be extended from one legal action to another, this is not the case when the two legal actions have the same purpose, as is the case with the warranty of hidden defects and the action for breach of the seller’s obligation […]