Although the COVID-19 pandemic's full impact on the world economy remains unclear, a global surge in insolvency is expected in 2021 and 2022. A party's insolvency can affect pending and future arbitrations, which will generally depend on whether the insolvency occurs before, during or after the arbitration. However, early comprehension of certain basic factors might mitigate future risks ensuing from a counterparty's insolvency.
The Court of Cassation recently issued its decision in the ongoing Schooner saga, agreeing with the applicants that the Court of Appeal violated the Code of Civil Procedure (CCP) by preventing them from raising jurisdictional arguments in annulment proceedings. This appears to be the first time that the Court of Cassation has explicitly held that Article 1466 of the CCP does not prevent parties from raising new jurisdictional arguments at the annulment stage.
Under Article 1526 of the Code of Civil Procedure, if an award's enforcement is likely to severely harm the rights of one of the parties, such enforcement may be stayed or amended. This article clarifies the conditions which must be met for Article 1526 to apply and sets out the evolution of the courts' interpretation of the notion of severe harm to the rights of one of the parties.
The COVID-19 pandemic has undeniably disrupted the performance of contracts. Although the Paris Commercial Court has ruled the pandemic to be a force majeure event in a commercial contract, this characterisation may not be retained in all situations. This article provides helpful tips to keep in mind when analysing a contractual situation, in light of French law specificities that might be unknown to foreign companies or counsel involved in arbitration proceedings to which French law applies.
The First Civil Chamber of the Court of Cassation recently overruled a Paris Court of Appeal decision and determined that there was no basis for the argument that Antrix Corporation Ltd had not made certain procedural objections during arbitration and therefore could not raise them in enforcement proceedings. The decision raises interesting questions about the nature of the 'waiver' contemplated in the Code of Civil Procedure.
A German electricity generation company recently filed a request for arbitration against the Netherlands at the International Centre for Settlement of Investment Disputes. The application is based on the Dutch government's decision to phase out coal for electricity generation. The company has invoked an investor-state dispute settlement clause in the Energy Charter Treaty, which the European Union co-signed on behalf of the Netherlands. This marks the first investment arbitration against the Netherlands.
In the ongoing dispute between Ecuador and US energy multinational Chevron Corporation, The Hague District Court was again called upon to consider whether an award issued pursuant to the US-Ecuador bilateral investment treaty could be set aside. The ruling confirms The Hague court's positive view of investment arbitration and orders which are rather unconventional in such arbitration.
In recent setting aside proceedings, The Hague Court of Appeal had to decide whether an arbitral award issued in proceedings under the International Chamber of Commerce Arbitration Rules had to be set aside due to the fact that the award was contrary to public policy. In its assessment, the court took a bold approach. The decision demonstrates that while the court is conscious of the competence and authority of arbitral tribunals, it will assess a case individually and fully when it comes to public policy.
In 2018 the government adopted its new model bilateral investment treaty (BIT). Following this adoption, the government has now obtained the authorisation required to start the renegotiations with eight non-EU countries and conclude new BITs with two others. The government has made clear that the new model BIT is intended to serve as an opening offer that sets the scene for the negotiations. However, as each negotiation will have its own dynamic, it is difficult to predict what the new Dutch BITs will look like.
The Amsterdam Court of Appeal recently had to decide on an application for recognition and enforcement of an online arbitral award regarding a loan in bitcoins. To date, this has been a subject that the Dutch courts have seldom encountered. Notably, the Amsterdam Court of Appeal took a critical approach in what may be considered a test case for recognition and enforcement of online arbitral awards in the Netherlands.