In other words, under the Convention, CAS maintains all rights to the enforcement of this Arbitral Award that it would have in the absence of the Convention. The Court further concludes that it need not grant res judicata effect to the decision of the Egyptian Court of Appeal of Cairo…]. Termorio sigue una estela similar. Del expediente existente, estamos de acuerdo.
On the record at hand, we agree]. Este principio es dispositivo en este caso. This principle controls the disposition of this case]. I therefore decline to defer to the Eleventh Collegiate Court's ruling, and I again confirm the Award and grant judgment thereon]. Como se sabe, no son los tribunales de primera instancia los que crean los precedentes, sino los de segunda aceptando o rechazando el razonamiento de los tribunales de primera instancia. Lo que deseo defender en este ensayo es que, de las aproximaciones existentes, la francesa es la mejor. The reasons given by the General Directorate to enable the said registration are studied herein, as well as its interpretation of the legal nature and effects that must be attributed to the said declaration of nullity in the commercial activity of the compa- ny.
Finally, it considers the practical effects implied in the opinion of the General Directorate regarding the definition of the persons who must procure accuracy of the subsequent entries which might came into contradiction with that entry recording the agreement so cancelled, and which must be cancelled as well.
La DGRN no comparte este criterio y estima el recurso en este punto.
Las soluciones que se plantean a este problema, se exponen en el apartado siguiente. Dos soluciones aparecen como posibles: En segundo lugar, surge el problema que ya se ha evocado en el punto I. Es decir, la DGRN parece cargar sobre los sufridos hombros de los utilizadores la mayor parte de las veces por imperativo legal del Registro, la ardua tarea de preservar la coherencia del Registro con la realidad exterior al mismo.
Pero supongamos que los Consejeros consienten en convocar la junta. Prol respecta a la constancia en el Registro Mercantil de la nulidad declarada con las repercusiones que esta ausencia de constancia tiene de cara a ter- ceros. This article discusses a number of awards in which arbitral tribunals have addressed allegations of corruption relating to the underlying investment, and where in many cases there has been a concurrent investigation by the host State or other regulatory authorities into that alleged corruption.
Further, this article explores the challenges which can arise for an arbitral Tribunal, including situations where the arbitral Tribunal may have access to more information than regulators, where an arbitral Tribunal may be called upon to scrutinize the actions or inactions of a host State regulator and where a regulatory finding contradicts a finding of a Tribunal. This article also explores core conceptual issues such as the evidential burden of proof in relation to a corruption allegation, whether an allegation of corruption relating to an investment is a jurisdictional or substantive issue and the extent to which arbitrators have a duty to uphold anti-corruption norms.
En , Estados Unidos fue el pionero en este sentido al dictar una ley sancionando actividades corruptas en el extranjero Foreign Corrupt Practices Act. Varios tribunales arbitrales han analizado dicha exigencia en sede jurisdiccional, por ejemplo, en los casos Fraport A. Frankfurt Airport Services Worldwide c. La jurisprudencia arbitral, se ha de notar, no ha acogido de forma expresa la doctrina de unclean hands.
A Commentary OUP , Foreign Investment Law Journal, Vol. II v ; Crivellaro, op. Should Arbitrators be bound by a duty to report corrupt practices? Las siguientes secciones analizan algunas de di- chas interacciones. Tal solicitud fue negada. Al respecto, el laudo en el caso EDF Services es ilustrativo. Otro de los hermanos de los supuestos consultores era un fun- cionario del gobierno hasta el 30 de junio de Foreign Investment Law Journal Vol.
Edgardo camPos y Sanjay PraDhan eds. Tal fue el caso en el arbitraje Siemens A. Se halla functus officio. El presidente Moi fue el jefe de Estado de Kenia desde hasta el El fraude Goldenburg fue puesto en la palestra por el demandante durante el arbitraje World Duty Free. En Wena Hotels c. She holds a Ph. The actual problem is the lack of coherence in treaty interpretation. And even though the wording among treaties may vary from one to another, contradic- tory interpretations of substantive concepts, such as the scope of the umbrella 2 The final and binding characters of arbitral awards are recognized by the major arbitration centers as well as by the UNCITRAL Model Law on International Commercial Arbitration of , as amended.
Law Review The major concern is that divergent legal interpretations of identical or similar treaty provisions led to uncertainty about the meaning of key standards of treatment and lack of predictability in areas that involve public policy issues. In this sense, we argue that it is time for redefining the ISDS system and for creating an appellate body that would have competence under treaty-based ISDS. We will then turn to the analysis of different approaches and alternatives given by scholars and policymakers, and of the main critics to the establishment of an appellate body II , before explaining the manner in which our proposal of an appeals facility for treaty-based ISDS could be implemented.
There was a need for es- tablishing a more restrictive remedy than the one applied for international com- mercial arbitration i. This is further confirmed by the exclusion of review of the merits of awards by article Annulment is not a remedy against an incorrect decision. Is there a need for an Appeals Facility? Emmanuel Gaillard and Yas Banifatemi, arguing that the third genera- tion of annulment cases, namely Wena and Vivendi I showed a proper balance in the review process.
This is clearly an obiter dictum not affecting the outcome of the decision; however, it shows that the annulment system is insufficient. From our perspective, this view does not analyze the problem as a whole. Even if we accept that the ad hoc Committee should not go beyond the limits of Article 52, the particularities of treaty-based ISDS deserves special consideration with respect to the interpretation given by arbitral tribunals.
See also Alain PelleT, supra n. II, Part I, p. It was not until when the first ICSID arbitration tribunal recognized the fact that the consent of the parties do not need to be in the same instrument but by a treaty from the part of the host state and by the submission to arbitration from the part of the investor.
Asian Agricultural Products Ltd. Sri Lanka, Award, June 27, In this sense, scholars and policymakers have considered the creation of an appellate body without having specific outcomes. Contrary to some skeptics, we believe that an appellate body is feasible and that it has a role to play in the future development of the ISDS system.
Each appellate body would be creating its own jurisprudence. Since this alternative could take time to achieve, we shall consider other options. This was part of the Trade Act of , as codified by the 19 U. BIT Model keep a provision regarding the possible establishment of such a mechanism Article Trends in Investment Rulemaking, p. It is Time for an International Appellate System?
Multilateral, Regional and Bilat- eral Governance Some other critics contend that the creation of an appeals facility would produce more disadvantages than advantages to the system, or even unin- tended consequences. We are from a different view. Furthermore, the author is sceptic regarding the possibility of transposing the WTO appellate system. Emmanuel Gaillard, arguing for the maintenance of a fundamental distinction between an appeal and the possibility of setting aside an award ; Christian J. Tams, An Appealing Option? How different they are today? Emmanuel Gaillard and Yas Banifatemi, Republic Czech September 13, and Lauder v.
Republic Czech September 3, Ian Laird and Rebecca Aske, supra n. For commentaries of these cases, B. Czech Republic; CME v. The reason is that the annulment mechanism is actually useful in investor-state cases. We argue that an appellate body can solve the concern of errors in treaty interpretation and con- tribute to achieving coherence and consistency in treaty-based ISDS.
We support the idea that the ISDS system needs one and unique appellate body. In order to achieve a jurisprudence constante, the appeals panel needs to be a permanent body, as the one existing in the WTO. On the contrary, we believe that the number of standing members could be strategically re- duced e.
Besides, while we agree that the panel shall be elected by the Admin- istrative Council, the nomination shall be done by the state members. However, in order to keep the system depoliticized, we encourage a pro- posal made by the ICSID Panel of Conciliators and Arbitrators designated by the contracting state and not a proposal made directly by the state gov- ernment. The appellate body may not include more than one national from the same state. Liard and Tood J. Unlike the proposal of the ICSID Secretariat regard- ing the appointment of the panel members for each case, we suggest a rotation system.
Being an appellate body member should be a part-time work but all persons serving on the appellate body should be available on short notice.
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They shall not participate in any pending ICSID arbitration during the whole period of their service neither as a counsel nor as an arbitrator , in order to avoid direct or indirect conflict of interest. We believe that the appeal mechanism shall be limited to issues of law cov- ered by the arbitral tribunal and legal interpretations. The appellate body could uphold, modify or reverse the legal findings of the arbitral tribunal. From our point of view, the ap- pellate body may grant or deny the annulment of the award based on Article 52 grounds, without extending the appeal to the five grounds for annulment of an award.
By contrast, an ad hoc Committee shall not engage in a review beyond the limits set by Article When a disputing party chooses one or another pro- ceeding, this choice shall be definitive and exclusive. Likewise, the choice for an appellate proceeding will exclude the possibility to set aside the award or to any other remedy in a local court. For this purpose, the award rendered pursuant to the appeals facility shall be binding and enforceable as if it were a final judgment of a domestic court.
Once a state has signed such a protocol, it agrees to the jurisdiction of the appellate body for any treaty-based ISDS. States may also choose to incorporate the appeals facility into their current or future IIAs only with respect to such treaties.
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The following chart might help us to understand how this could be applied in practice. Even if errors of facts are an inherent risk in judicial decisions, the problem that we want to solve is errors on treaty interpretation. Only the investor may initiate the appeal. The host state may agree to Yes No sign the protocol to participate to the appeal. The appellate body would have jurisdiction for further cases. Any disputing party can request the No Yes appeal but the jurisdiction will be limited to the disputing settlement.
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Only if the host state agrees to sign No No the protocol and the investor agrees to be bind by the appeal. Despite the critics, an appeals facility is not only appropriate for the legitimacy of the ISDS system but also feasible. The whole idea is that the appellate body would have the authority to correct manifest errors in treaty interpretation and consequently, contribute to achieve coherence and consistency in investor-state arbitration.
The finality of awards would be also guaranteed by the mechanism we have pro- posed. As we conceive the appeals facility, the decisions of the appellate body shall es- cape the review of local courts. By being part of the appeals facility protocol, the home state would provide its investors with the opportunity to initiate appeals for manifest errors in treaty interpretation.
This is by far a win-win situation in benefit of the ISDS system as a whole. Incluso, hay ejemplos de decisiones judiciales que aplican conjuntamente los arts. Son dos cuestiones absolutamente independientes e indiferentes. Por un lado, encontramos tribunales que se sirven de la condena contenida en el laudo arbitral.
En efecto, se solicita la nulidad de un laudo que condena a la hoy actora a pagar La cuenta del procurador expresa como derechos: La parte condenada al pago de las costas impugna las dos tasaciones de costas por incluir derechos del Procurador y honorarios del Letrado indebidos. Es doctrina reiterada y constante de esta Sala, que en este aspecto se limita a recoger la jurisprudencia sentada tanto por el Tribunal Constitucional como por el Tribunal Supremo por todas, Ss. Si las partes no han utilizado los mecanismos procesales a su alcance sufren las consecuencias de tal pasividad.
Durante el desarrollo argumental de la vista centra el impugnante, al amparo del art. In other decisions, however, discussion has arisen on what are effective sources of expectations that may be protected by investment treaties. Before entering into the issue of the protection of legitimate expectations arising from legislation and general regulations Section II, below , investment-treaty practice has provided for two other possible sources of expectations worthy of protection under the fair and equitable treatment standard and that will be subject of a brief overview: In particular, this happens where large investments in infrastructure are concerned.
When investors rely on 2 R. For a critical review of the protection of legitimate expectations under investment treaty practice see C. Campbell, House of Cards: Award, 29 May , para. Potesta, Legitimate expectations in investment treaty law: International Thunderbird Gaming Corporation v. As a general rule, investors must be able to rely on the representations pro- vided by host states and a breach of such representations will entail a breach of the fair and equitable treatment standard.
However, a construction permit was eventually denied by local authorities, leading the tribunal to decide that: In its find- ings, although finding that Chile was not responsible for unwise business deci- sions by the claimant, the tribunal noted that: The tribunal reached a similar conclusion in deciding on indirect expropriation, where it found the decision in Biloune et al.
Ghana Investment Centre, et. In particular, tribunals have found that investors may not invoke expectations arising from broad unspecific assertions. Contractual undertakings Some arbitral tribunals have included under the protection of legitimate ex- pectations those created by contractual undertakings entered into by the state, a breach of which may lead to a breach of the fair and equitable treatment stand- ard. It might well be that these representations contributed to inducing potential inves- tors to invest in the sectors concerned, as many of them —including El Paso— actually did.
Tribunals and practitioners have tended to exclude claims for breach of contract from the concept of fair and equitable treatment, as this would amount to equating this standard to the protection under the umbrella clause. Indeed, more recent cases have found that a mere breach of contract would not trigger a breach of the fair and equitable treatment standard. According to the tribunal in the Waste Management II case: See also Ceskoslovenska Obchodni Banka, A. Apart from specific representations either by contract or by unilateral dec- larations, investors have claimed that legitimate expectations arise from the general regulatory framework taken into account when making an investment, the modification of which would lead to a denial of fair and equitable treatment.
The determination of this issue, however, is not undisputed between arbitral tribunals in investment treaty practice. An issue that does appear to be of no discussion is the legislation that must be taken into account when determining the existence, or not, of legitimate expecta- tions and the moment in which such expectations may be understood to arise. As a general rule, investors cannot claim on the basis of the application of legislation in force at the moment of investment. NAFTA arbitrators have no mandate to evaluate laws and regulations that predate the decision of a foreigner to invest.
This was the conclusion reached by the tribunal in Parkerings, which decided that: A State has the right to enact, modify or cancel a law at its own discretion. Save for the existence of an agreement, in the form of a stabilisation clause or otherwise, there is nothing objectionable about the amendment brought to the regulatory framework existing at the time an investor made its investment. As a matter of fact, any businessman or investor knows that laws will evolve over time. This can be seen in particular in relation to measures adopted by Argentina during its crisis.
The understanding in this cases is that when an investor plans an investment it does so based primarily taking into account the regulatory and business environment, reason why compensation for damages caused by a change in this environment that directly affects the investment can be requested. These decisions often take into consideration the preamble of the applicable BIT, that sometimes contain a general statement in favour of stability. These tribunals have repeatedly concluded based on the specific language concerning fair and equitable treatment, and in the context of the stated objectives of the various treaties, that the stability of the legal and business framework in the State party is an essential element in the standard of what is fair and equitable treatment.
As such, the Tribunal considers this interpretation to be an emerging standard of fair and equitable treat- ment in international law. The dispute revolved around the revoking of certain practices regard- ing tax refunds that were relied upon by the investor in making his investment As a consequence, the tribunal held that: It was earlier concluded that there is not a VAT refund obligation under international law, except in the specific case of the Andean Community law, which provides for the option of either compensation or refund, but there is certainly an obliga- tion not to alter the legal and business environment in which the investment has been made.
A modification of such regulations could negatively affect the investment and this should be taken into consideration by host states when amending legislation. As established in EDF v. Not every piece of legislation should thus be considered capable of generating legitimate expec- tations; the influence of the amended regulations in the making of the invest- ment should be assessed. Although the tribunal in Parkerings found generally against expectations cre- ated by legislation, the circumstances under the light of which the reasonable- May This proposition can be inferred from numerous other decisions, included some of which finally ruled that the investor had no expectations worthy of protection on this basis.
This would allow, as stated above, for the consideration as breaches of the fair and equitable treatment standard of changes to legislation when the same was essential to the making of the investment. Argentina, Award, 21 June The level of expectation in the stability of the legal system may not be the same, for exam- ple, in developed or in developing countries. The Tribunal acknowledges that such expectations are an important ele- ment of fair and equitable treatment.
At the same time, it is mindful of their limitations.
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The assessment of the reasonableness or legitimacy must take into account all circumstances, including not only the facts surrounding the investment, but also the political, socioeconomic, cultural and historical conditions prevailing in the host State. When such conditions exist, an investor may not be protected from changes that although unpredictable should have been accounted for. In conclusion, legitimate expectations, as such may be understood to be pro- tected by investment treaties under the fair and equitable treatment standard, may arise from general regulations, even absent specific commitments by host states ensuring that such regulations shall not change.
All circumstances surrounding the investment should be examined, having tribunals taken into consideration issues such as the long-term particularities of the investment, the weight given by investors to specific pieces of legislation when deciding to invest, the economic, political and social climate at the time of the investment or the overall effect of legislative modifications.
Driven by the need to encourage investment in the production of energy using renewable resources for the production of energy, a very favourable regulatory climate was established, providing important economic incentives aimed at ensuring a return on investment. This led to an exponential growth of the installation of this kind of energy infrastructure, leaving Spain at the top of the table in the production of energy from renewable sources.
According to the criteria established at the time by art. The owners of installations were entitled to choose between selling the electricity they produced to the power distribution company, at a tariff expressed as a per- centage of the average reference tariff per year, or selling it on the daily market, at a market price plus an incentive and, if applicable, a premium. In particular, for solar energy, which covers the greater part of the claims filed against the Kingdom of Spain, the following feed-in tariffs and premiums were established: Such tariffs and premiums were mainly intended to encourage investment in renewable energy to comply with the Spanish Renewable Energy Plan.
For the electric energy pro- duced principally using solar energy, it established the following: By means of a Reso- 65 Euro cents per kilowatt-hour.
Commercial arbitration in Spain - Dos Aguas Consulting
In , the tariffs and premiums established underwent substantial changes. The operations carried out by such installations in excess of the hourly limit were equivalent to transferring electric energy at the normal market price, without a premium or regulated tariff. However, there have been further changes to the legisla- tion governing the financial framework of renewable energy that have affected previous investments, giving rise to new claims also based on such legislative reforms.
In short, the following can be mentioned: Although maintaining the remuneration regime for installations that were already functioning and registered ac- cordingly, it eliminated all the premiums, regulated tariffs and efficiency supplements for the rest, in addition to the remuneration pre-assignation procedures. In order to limit ex- cessive remuneration of electric energy produced under a special regime, the Royal Decree eliminated the premium, establishing a financial regime based exclusively on the regulated feed-in tariff, notwithstanding the pos- sibility for the owners of installations to sell the electricity on the market without a premium.
The re- turn is calculated according to the average interest rate for a 10 year Public Bond in the secondary market plus a differential which, for the first regulatory period, has been determined at basic points. The application of this regime will cause further damages to al- ready difficult investments.
Claims initiated against the Kingdom of Spain The numerous regulatory changes mentioned above, in particular their appli- cation to investments made under previous laws that provided for very favour- able feed-in tariffs and premiums for long periods of time but that have now been repealed, have caused the initiation of several investment-treaty claims against the Kingdom of Spain. Although originally envisaged as an European initiative, with the Energy Charter, made in the Hague on 17 December , the ECT has been ratified by 47 countries as well as the European Community and Euratom now part of the European Union.
The ECT regulates, mainly, issues on commerce and international trade of energy as well as the promotion and protection of investments related to the energy industry. Furthermore, it provides for issues related to energy efficiency and methods for the resolution of disputes. Of specific interest in this regard is art. The ECT guarantees a basic standard of treatment to foreign investors by the host state. This contract includes the following aspects: The importance of this contract being supervised by Dos Aguas Consulting lies in the fact that this will prevent from having legal problems during the entire time that the companies are united.
Next, we are going to break down the advantages and disadvantages of creating a Joint Venture in Spain. This allows them to be more competent, cover more different markets and increase their economic power. In addition, the joint venture allows them to share the know-how and thus manage more information. The main disadvantages of a Joint Venture are the possible conflicts of interest between the two contracting parties, as well as the dependence of the other partner to make the important decisions. This is coupled with the necessary adaptation to a different culture as it is the Spanish, as well as its market which might be unknown to the company outside of Spain.
Therefore, there is a possibility that the integration and communication are poor between both partners. However, these disadvantages can be easily solved with the participation of Dos Aguas , that act as a mediator and is in charge of taking corrective measures and correct strategic decisions, so that the relationship is excellent for the interests of both companies. Establishing a company in Spain is simple. The types of companies are in line with those existing in the OECD countries and there is also a wide range of possibilities to pick from.
Each type of company responds to the needs of the different types of investors wishing to invest in Spain. In this post, we are going to explain three of these modalities that we believe are the most common and useful ones. A representative office can carry out all those activities that are not directly involved in the realization of the activity of the company.
That is to say, it can carry out auxiliary tasks, such as market studies, advertising, promotional activities, information compilation, preparing all kind of activities for the company, etc. A representative office has no legal personality separate from its parent company.
It does not need to be included in the Commercial Register neither it needs to issue of a public deed of the constitution before a notary. Furthermore, a representative office does not have a minimum share capital. If you choose to open a representative office in Spain, Dos Aguas could represent your company and carry out all the activities aforementioned. In this case, your company would not have an administrative body in Spain since we would only act according to the powers granted by your company.
Therefore, it is important to mention that these representative offices cannot conduct economic operations issue an invoice. In fact, they are usually the first step before making the decision to settle permanently. The creation of a branch is the most common way to bring a foreign company to Spain. A branch has autonomy and can exercise economic activity. It is a secondary establishment that develops the activities of the parent company.
However, it does not have its own legal personality. If you pick this alternative, Dos Aguas could not only do the things described in the representative office but also carry out the following procedures: This method means the integration of a foreign company in the Spanish market to the greatest possible extent. The main difference between a subsidiary and a branch company is that the subsidiary does have its own legal personality. Subsidiary companies are constituted with foreign capital but for practical purposes are considered Spanish companies. This means that to open a subsidiary company, the process is very similar to creating a new company in Spain.
If you pick this alternative, Dos Aguas could implement the scenarios seen in the other two type of companies plus the following procedures: An answer against trade protectionism. An ambitious trade agreement between the European Union and Japan was signed in July The negotiations began in , when the EU governments commissioned the European Commission to start negotiations with the Japanese country.
Negotiations have been delayed during 18 rounds, the last one was held in April However, an analysis of the content of the Agreement in figures shows much more since EU companies export more than 58, million euros in goods and 28, million euros in services every year to Japan. This instrument will eliminate most of the 1, million euros of rights paid annually by EU companies that export to Japan, as well as a series of long-standing regulatory barriers. At the same time, this agreement will open the Japanese market of million consumers to the main agricultural exports of the EU and increase the opportunities for EU exports in a range of other sectors.
Moreover, it allows the EU to increase its exports of beef to Japan. This is the body in charge of administering the commercial arbitrations that are entrusted to it. The Spanish Court of Arbitration is also dean of the Spanish arbitration institutions, operating as an independent service attached to the Chamber of Commerce of Spain. In addition, in Spain there is a large number of institutions that perform this work, such as: All these institutions are progessively getting more companies and lawyers that look for arbitration as a tool for conflict resolution. This institution had a record number of arbitration cases in The number of new arbitrations in the International Chamber of Commerce has increased slowly but steadily over the past two decades, becoming the preferred method for the resolution of certain commercial disputes.
Going to an arbitration court must be a thoughtful decision. However, the important thing when choosing this option is that the Arbitration Court is renown and creditworthiness. This will guarantee their impartiality. If you have any doubts about going to commercial arbitration or writing a commercial clause correctly, do not hesitate to contact Dos Aguas team.
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