EU Merger Control Commitments and Arbitration: Reti Televisive Italiane v. Sky Italia

The PCA Secretary-General’s role to designate or act as an appointing authority has been the sole institutional mechanism in the otherwise ad hoc UNCITRAL Arbitration Rules since their adoption in 1976.While the UNCITRAL Arbitration Rules provide that jurisdictional objections shall be decided by the arbitral tribunal once constituted, they say nothing about what the PCA should do when faced with a jurisdictional objection prior to tribunal constitution. In practice, the PCA has applied a prima facie standard for arbitral jurisdiction in deciding whether an arbitral tribunal should be constituted. The cases described in this article offer examples of how the PCA conducts this prima facie review and its consequences for subsequent decisions on arbitral jurisdiction by arbitral tribunals and national courts.

SWITZERLAND IS undoubtedly known as an arbitration-friendly country. However, since the recent Peruvian case decided by the Federal Tribunal in the matter Compania Minera Condesa SA and Compania de Minas Buenaventura SA v. BRGM-Perou SAS ,1 one may hold a different opinion. True, the motion to set aside the arbitral tribunal's interim award affirming its jurisdiction was rejected by the Federal Tribunal; however, the legal implication of that decision may affect the liberal conception of the Swiss arbitration law, which is one of its characteristic features. Prior to discussing the Federal Tribunal's decision in the Peruvian case, some preliminary considerations should be made. In his introduction, Professor Schlosser gave a brilliant outline of what is meant by the concept of the ‘competence-competence’ of the arbitrators. This concept has a positive effect which empowers the arbitral tribunal to decide on its jurisdiction, and in certain systems of law, such as French law, also a negative effect which obliges a state court to decline its jurisdiction where an arbitration agreement exists. This rule results expressly from Article 1458 of the New Code of Civil Procedure, which applies to both domestic and international arbitration.2 True, under French law, as under most other national laws, the state court will have the last word on the arbitral tribunal's jurisdiction, since the decision of the arbitrators in this respect can be reviewed and, as the case may be, set aside by the state jurisdiction. However, the arbitral tribunal has the priority to decide on the issue of its jurisdiction. For the leading trend of the Swiss doctrine, mere is no such negative effect under Swiss law; indeed, according to Article 186 of the Swiss Statute on Private International Law (PIL Statute), the arbitral tribunal is competent to decide on its own jurisdiction. However, this …

ARBITRATORS AS THE CENTER OF A HETERARCHICAL SYSTEM International arbitration is a particularly good example of confronting complexity in modern international law and dispute settlement. One-off arbitral tribunals, constituted under different arbitral rules and without a uniform supervisory mechanism, resolve individual cases based on different national and international standards and thus create a tremendous risk of inconsistent decisions. This leaves many observers with the perception that international arbitration resembles a chaos of unconnected episodes of dispute settlement rather than a structured system. This perception reflects the absence of hierarchical ordering structures usually associated with systems of dispute settlement in the domestic context where a supreme court ensures convergence and unity. International arbitration, by contrast, operates in predominantly heterarchical structures. In them, the system's unity cannot be forged through hierarchy but requires auto-convergence of independent actors. For once, elements of convergence exist in the wide adherence of states to important international conventions and due to the harmonizing effect of model laws. Yet every arbitral tribunal remains king in its own empire. Still, one can observe considerable convergence, and hence order, in the practice of arbitral decisionmaking. Convergence is reflected less in legal sources but crystallizes in the sociological structures and linguistic practices of international arbitration. Just as one requires highly elaborate methods of fractal geometry to uncover ordering structures in Jackson Pollock's seemingly chaotic drip paintings, (1) one can uncover order in international arbitration by analyzing the discourse in and about international arbitration rather than concentrating on formal sources. To understand arbitration as a system thus means understanding the importance and power of arbitrators. They are the center that can forge international arbitration into a system or dissolve it in infinite fragmentation. Similar to courts in the domestic context, arbitrators as a group are the key institution for the emergence, persistence, transformation, and hence existence, of international arbitration as a system. (2) After all, uniform substantive and procedural rules only translate into a system if arbitrators apply them accordingly; likewise, arbitrators can even forge divergent legal rules into a convergent and structured whole. Arbitrators therefore determine the gestalt of international arbitration. INTERNATIONAL ARBITRATION AS GLOBAL GOVERNANCE The idea that arbitrators determine whether international arbitration constitutes a proper system is closely linked to understanding the function of arbitration not only as a mechanism to settle individual disputes, but as an instrument of global governance. (3) After all, the concept of a system implies that there is an overarching structure connecting individual instances of dispute settlement. This overarching structure develops chiefly on the basis of arbitral precedent. (4) Building on the increasingly widespread publication of arbitral awards, in investment treaty but also in commercial arbitrations, both the decisionmaking of international arbitrators and the argumentation of parties appearing before them are highly precedent-driven. Although it is non-binding, arbitral precedent becomes the primary sources for guiding the resolution of international disputes. It is the use of, and reference to, arbitral precedent that lets arbitrators transform international arbitration into an independent system. Not all arbitrators, however, accept that they operate in a system of governance. They stress that arbitration is a party-controlled and party-owned process in which arbitrators function as agents of the parties. (5) Such a position, however, is not particularly convincing, considering how crucial arbitral precedent has become in forging normative expectations of actual and future parties about how international disputes should be resolved and how parties to international transactions should conduct themselves in the shadow of rulings of arbitral tribunals on matters of substantive and procedural law. …

This chapter discusses the composition, functions and jurisdiction of European Courts. It discusses indirect actions (preliminary rulings) and direct actions, i.e. actions brought by or against the European Institutions and the Member States, and between the Member States. The Courts are the CJEU which includes the Court of Justice, the General Court and specialised courts. The chapter discusses rules of procedure, judicial activism, preliminary rulings, the jurisdiction of national courts, discretionary and mandatory references, when national courts should refer, whether, interim measures, effects of preliminary rules, and the future of preliminary rulings.

This chapter discusses the composition, functions and jurisdiction of the European Courts. It discusses indirect actions (preliminary rulings) and direct actions, i.e. actions brought by or against the European Institutions and the Member States, and between the Member States. The Courts are the CJEU, which includes the Court of Justice, the General Court, and specialised courts. The chapter explains the role of the Advocate General (AG), and further discusses rules of procedure, judicial activism, preliminary rulings, the jurisdiction of national courts, discretionary and mandatory references, when national courts should refer, interim measures, effect of preliminary rulings, and the future of preliminary rulings. The chapter also explains the role of the EFTA Court.

ABSTRACT: The paper discusses the change of view in what concerns the jurisdiction of national courts to entertain requests of interim reliefs in aid of foreign arbitral proceedings. In the past, national courts would assert jurisdiction only after the relevant cause of action had been established to fall strictly within its jurisdictional scope. The simple fact that a case would relate, prima facie, to assets or evidence located, territorially, within the jurisdictional reach of a given court would not suffice to establish said court's jurisdiction over the request. In current practice, the seat of arbitration proceedings is often established in view of the perceived neutrality of the lieu. However, more often than not, the relevant parties, assets and evidence are located elsewhere. Against this background, national courts (following the lead of a 1979 precedent of the House of Lords, United Kingdom), have sought to avail themselves of a more lenient jurisdictional standard, to assert jurisdiction in exceptional circumstances. In several jurisdictions, new legislation has even been adopted in order to meet the current adjudicative needs of disputes relating to international commerce and trade, a change of approach that will be discussed by this paper. Moreover, this paper seeks to determine how desirable the developing paradigm actually is, so as to ultimately propose how its implementation could be carried out in different jurisdictions within the framework of the New York Convention, and without the need of necessarily amending legislation.

Armed Forces — Immunities of — Armed Forces of Occupant — Liability to Punishment for War Crimes.Belligerent Occupation — Armed Forces of Occupant — Immunities of — Liability to Punishment for War Crimes.War Crimes — Punishment of — Jurisdiction of Occupied State over Armed Forces of Occupant — Prosecution for War Crimes following Liberation of National Territory — Special Courts for Trial of Political Offences on the Basis of National Criminal Law — Trial of War Crimes on the Basis of International Law — Jurisdiction of National Courts — Jurisdiction over former Nationals, Members of the Enemy Army.

У статті досліджуються питання ефективності між-народного комерційного арбітражу та ефективного пра-вового захисту. У світлі практики Європейського суду з прав людини автор досліджує сучасні підходи до розу-міння ефективності в праві. Встановлено, що ефектив-ність засобу юридичного захисту зазвичай пов’язуєть-ся з такими його характеристиками, як доступність, достатність, визначеність. При цьому під час оцінки ефективності враховуються також загальний правовий та політичний контексти, в яких вони функціонують, та конкретні обставини справи заявника, незалежність таких заходів захисту від дій держави тощо. На основі аналізу автором зроблено висновок, що міжнародний арбітраж як раз і є тим ефективним засобом правово-го захисту, до якого звертаються сторони, підписую-чи арбітражну угоду. Його ефективність як способу вирішення комерційних спорів та захисту прав учас-ників міжнародних відносин залежить не лише від «ефективного» арбітражного розгляду, який зазвичай врегульовується Регламентом. У розумінні ефектив-ної арбітражної процедури варто виділяти збалансо-ваність і ефективність використовуваного сторонами Регламенту і те, наскільки передбачені ним процедури та процесуальні дії є розумними з позиції їх доступно-сті сторонам, достатні для потреб захисту порушених прав, визначені та ефективні з точки зору витрат часу і коштів сторін. При цьому автором обґрунтовано, що ефективність арбітражу залежить від поведінки самих сторін спору та їх юридичних радників, складу арбіт-ражу, а також характеру і складності самої справи та положень права, застосовуваного до арбітражного розгляду (lex arbitri). Адже, які б ефективні процеду-ри не були закладені в Регламенти, незнання їх Сто-ронами спору та їх представниками, чи небажання їх використовувати з метою затягування процесу, або ж з метою формування доказів для подальших юрисдик-ційних заперечень у судах місця арбітражу, так само як і оцінка складом арбітражу наданих доказів, юрис-дикційних заперечень тощо, можуть суттєво впливати як на швидкість арбітражного розгляду, так і на ефек-тивність захисту стороною своїх прав.

This article considers whether national courts may act as catalyst of normalization of Common Foreign and Security Policy, in cases on the merits of which prima facie the Court of Justice of the European Union (CJEU) does not have jurisdiction. First, regardless of the exact scope of the CJEU’s jurisdiction, this contribution surveys arguments in favour (the principle of conferral and of effective judicial protection, expression of the value of the rule of law) and against (the notion of autonomy and consistency of EU law) the jurisdiction of national courts. It concludes in favour of the former option. Second, it considers whether national courts may act as agents of ‘normalization’ of CFSP, where this word means the application of general rules of EU law to this policy even in the absence of express literal provision in the Treaty. It argues that national courts may act as catalyst for the normalization of this policy in so far as they can, through the preliminary ruling procedure, give an opportunity to the CJEU to rule on (at least some) CFSP acts.

The interaction between immunities and jurisdiction is complex. One lacuna is whether the international legal principle of state immunity is a rule or principle in its own right or an exception to a pre-existing jurisdiction. In the context of international arbitration disputes, this distinction is significant. States have been relying on immunity to exclude the jurisdiction of national courts to support the international arbitral process. This Article argues there is now a growing set of common and consistent practice according to which state immunity operates as a rule or principle lex specialis to a more general set of rules or principles governing the enforcement jurisdiction of national courts.

It happens in arbitration that the respondent refuses to pay its share of the advance on costs, be it to obstruct the proceedings, to force the claimant to finance the arbitration alone, or for other reasons. In this context, the question arises whether the claimant, who substituted the respondent's share of the advance on costs, has any remedies to claim immediate reimbursement for the substituted payment. This article will demonstrate that the respondent has a contractual obligation under the arbitration agreement to pay the required advance on costs. If the respondent fails to do so without having justified reasons, it is in breach of its contractual obligation towards the claimant, who is forced to pay the entire advance on costs to allow the proceedings go forward. Since disputes regarding the non-payment of the advance on costs fall within the scope of the arbitration agreement, the arbitral tribunal has the power to render a decision on the immediate reimbursement of the substituted advance on costs. This article submits that for enforcement purposes, the arbitral tribunal's decision on the reimbursement should be rendered in the form of a partial award. Finally, this article also provides a list of various arbitral awards dealing with this topic.

Article 28: Joinder 28.1 At any time following the Chamber’s notice of the commencement of the arbitration pursuant to Article 3, and before the appointment of the arbitral tribunal, a party wishing to join an additional party to the arbitration shall submit to the Chamber, and at the same time to all other parties to the arbitration and to the additional party, a written request for arbitration against the additional party (the ‘Request for Joinder’), including or accompanied by all the items prescribed for a Request in accordance with Article 2.2. 28.2 The additional party shall submit a response to the Request for Joinder (the ‘Response to Request for Joinder’), the time limit, form and content of which shall be as prescribed for a Response in accordance with Article 4. 28.3 The Chamber shall join the additional party to the existing arbitration, provided that no additional party shall be joined pursuant to Article 28.1 unless the Chamber is prima facie satisfied that an arbitration agreement conforming to Article 1.1 may exist between all the parties, including the additional party. 28.4 At any time following the appointment of the arbitral tribunal, a party wishing to join an additional party to the arbitration shall proceed in the manner prescribed by Article 28.1, provided always that: (a) the additional party shall not be joined after the appointment of the arbitral tribunal unless all parties to the arbitration and the additional party so agree in writing, and further agree that the additional party shall waive any right to participate in the selection of the arbitral tribunal that it would or might have had, had it been joined prior to the appointment of the arbitral tribunal; (b) the arbitral tribunal shall, after consultation with the parties, determine in its sole discretion whether the additional party should be joined, taking into account the stage of the arbitration, whether joinder would serve the interests of justice and efficiency, and such other matters as it considers appropriate in the circumstances of the case; and (c) the arbitral tribunal, if it permits joinder, shall determine the time, form and content of any Response to Request for Joinder. 28.5 If joined, the additional party shall be a party to the arbitration for all purposes. 28.6 A Request for Joinder and a Response to Request for Joinder may, but need not, be submitted to the Chamber using the Chamber’s online filing form located at www.bcdr-aaa.org. Article 29: Consolidation 29.1 If two or more arbitrations subject to these Rules are commenced pursuant to the same arbitration agreement and between the same parties, the Chamber may, in its discretion and after consultation with the parties, consolidate the arbitrations into a single arbitration subject to these Rules, provided that no arbitral tribunal has yet been appointed in any of the arbitrations to be consolidated. 29.2 Following the appointment of the arbitral tribunal, the arbitral tribunal shall, on the application of any party, and having consulted all the parties, have the power to consolidate two or more arbitrations commenced under these Rules into a single arbitration, provided that no arbitral tribunal has been appointed in the other arbitration or arbitrations, or, if appointed, is the same arbitral tribunal as the arbitral tribunal appointed in the arbitration that commenced first; and (a) all parties to the arbitrations to be consolidated have agreed in writing to consolidation; or (b) all claims and counterclaims in the arbitrations are made under the same arbitration agreement; or (c) if the claims and counterclaims in the arbitrations are made under more than one arbitration agreement, the arbitrations involve the same parties, the disputes in the arbitrations arise in connection with the same legal relationship and the arbitral tribunal determines that the arbitration agreements are compatible. 29.3 In determining whether to consolidate two or more arbitrations, the arbitral tribunal shall take into account the stage of the arbitrations, whether the consolidation of the arbitrations would serve the interests of justice and efficiency, and such other matters as it considers appropriate in the circumstances of the case. 29.4 When arbitrations are consolidated, they shall be consolidated into the arbitration that commenced first, unless otherwise agreed in writing by all parties or the arbitral tribunal determines otherwise.

Practice has shown that the western democratic legal systems have developed several alternative dispute ways for resolving disagreements between the parties other that national courts. The article aims to explore and highlight the differences between peaceful means of conflict resolution and to provide a clear framework of the necessity of their promotion and further development. Depending on the different jurisdictions of the states, the opinion regarding the duties, rights and obligations of the parties in the process of ADR is different between each of this means and different regarding the domestic courts. In most legal systems the role of the conciliator, arbitrator or mediator it is simply to try to bring the parties together. For example, the proposed possibility of arbitration to withdraw the disputes from the jurisdiction of national courts is extremely beneficial to investment attractiveness. All this led to the exponential growth of bilateral and regional agreements for the protection and promotion of foreign investment, where one of the main provisions is the possibility of transmitting disputes between investors and the state of international arbitration. The sources of the law of ADR lie in a number of international conventions, international model laws and model rules, and institutional rules. To these may be added domestic legislation, reports of awards and academic writings. An arbitrator or mediator is described as ‘a disinterested person, to whose judgment and decision matters in dispute are referred and must act in accordance with the rules of natural justice. Mediation practitioners point to a number of advantages which the mediation process has over the domestic court. In fact, it must be acknowledged that ADR usually takes place when at least one of the parties is unreasonable. Helping the parties to see the reason is a useful social role. The difference between this methods of resolving disputes would be so that the purpose of a conciliator, mediator or arbiter, would be to encourage the parties themselves to understand what benefits they can get from resolving the case out of court in which way they deem most appropriate. Historical scientific methods are used in this research. The theory part it is presented with concrete cases from practice of both judicial and non-judicial ways of resolving conflicts, logical system, method of analysis and synthesis. In this paper as well are used formal-legal and comparative-legal methods. The writing is guided by the provisions of the conceptual theory of international arbitration law and domestic law. Research methods were used, of simple presentation of facts to argue the concrete point of view and the characteristics of the clarification of this research.

PurposeThe applicable jurisdiction for insolvency proceedings, as provided by the Regulation (EC) No 1346/2000 on insolvency proceedings, is the court of the Member State where the debtor's center of main interest (COMI) is located (Article 3(1)). The Regulation, however, does not provide a comprehensive definition of the COMI. This paper seeks to explore the meaning and developments behind the meaning of COMI as influenced by judicial reasoning and conflicts across Member States.Design/methodology/approachThe study centres around the emerging jurisprudence and analyses case law across Member States in order to draw conclusions on the meaning of COMI and the emerging concepts. Extensive consideration of statutory interpretation, case reports and judicial comment is present in order to inform and develop conclusions.FindingsIn the absence of a definition it appears that the only relevant European guidance emerges from recital 13 and Article 3 (1). With little guidance in the Regulation, it has therefore been left to national courts to decide how the notion of COMI should be interpreted. Determining the COMI has emerged as one of the most controversial aspect and the principle point of legal conflict, with some highly debated cases within member states’ courts. On the basis of the case law, it is suggested that the interpretation of COMI is more flexible in UK and Italian courts. The approach adopted in continental Europe is referred to as the “centre of operations approach”, i.e. the debtor's COMI has to be determined by the place where he is “ascertainable by third parties”. The Anglo Saxon approach, on the other hand, is known as the “mind of management approach”, i.e. the debtor's COMI must be situated where decisions are actually made. The latter seems to enjoy a more practical and accessible approach.Originality/valueNot only will the findings assist those seeking to understand the process and COMI requirements across member states but it will also assist those researchers seeking to understanding the comparative and conflict of law barriers to pan‐European insolvency proceedings.

Immunity rules belong to the traditional standard rules of international organizations. It has long been accepted that international organizations and their staff need to enjoy immunity from the jurisdiction of national courts. This understanding is generally founded on the principle of functional necessity: international organizations need immunity in order to be able to perform their functions. However, the principle of the immunity of international organizations is increasingly criticized: if national courts cannot exercise jurisdiction over international organizations, who can? After outlining the intentions behind convening this Forum, this paper will discuss the origin of the immunity rules of international organizations. Next, it will give a brief overview of the codification of such rules, both in the 1940s and in recent years. Finally, it will present some observations on the question of whether there is a need to ‘update’ or revise the current immunity rules of international organizations.