Annulment Decisions Research Articles

Enforcement of Annulled Awards: A Balanced Approach

The enforcement of annulled awards has been an extensively debated topic in international commercial arbitration. The drafting history of Article V of the New York Convention (NYC) indicates that discretion was granted to Member States to refuse enforcement of annulled awards. However, most jurisdictions have either adopted a territorial approach or an internationalist or delocalized approach when it comes to annulled awards. In this paper, we argue that there are many flaws in the delocalized approach adopted by various jurisdictions. The territorial approach is also not feasible due to differing standards of enforcement in different jurisdictions. We bring forth a more balanced approach to the enforcement of annulled awards, which borrows from the stance of William W. Park on this issue. We argue that annulment decisions should be seen as akin to decisions of foreign jurisdictions. Further, we argue that the public policy ground could be used to create sufficient grounds for refusal of enforcement when necessary.

Current developments regarding the disciplinary procedures of academic staff in the Higher Education Law No. 2547 within the framework of the Constitutional Court’s annulment decisions

Current developments regarding the disciplinary procedures of academic staff in the Higher Education Law No. 2547 within the framework of the Constitutional Court’s annulment decisions

Anayasa Mahkemesinin İptal Kararı Çerçevesinde Hükmün Açıklanmasının Geri Bırakılması Müessesesine İlişkin Bir İnceleme

Ceza uyuşmazlığının sona erdirilmesinde özel bir yöntem olan hükmün açıklanmasının geri bırakılması (HAGB) müessesesi, Anayasa Mahkemesi’nin (AYM), 1.8.2023 tarihli Resmi Gazete’de yayımlanan kararıyla iptal edilmiştir. Bu karar, çeşitli gerekçelerle ve hem maddi hem de usuli açılardan tartışmaya açıktır. Keza yasama organının, iptal sonrası ortaya çıkan kanun boşluğuna ilişkin herhangi bir tasarrufta bulunup bulunmayacağı, şayet yeni bir düzenleme yoluna gidilecekse bunun mahiyetinin ne olacağı ve bu tür bir düzenlemenin zaman bakımından uygulamaya ilişkin sonuçları da başlı başına tartışma konusudur. Çalışmada, sözü edilen konular, HAGB’nin fonksiyonu ve bu çerçevede olumlu ve olumsuz yönleri dikkate alınarak incelenmiştir. Kanun koyucunun iptal edilenin yerine başka bir kural sevk etmesi olasılığında, ilgili kanunda, zaman bakımından uygulama sorunlarını giderecek tarzda geçici bir hüküm ile müsadere uygulamasında TCK m. 75’tekine benzer bir düzenlemeye yer verilmesi önerilmiş olup kamu görevlilerinin işledikleri işkence suçlarında HAGB uygulamasına yönelik AYM’nin iptal gerekçesinin ise yerinde olmadığı değerlendirilmiştir.

Latest Twist in the Komstroy Saga The Definition of “Investment” under the ECT as Interpreted by the Paris Court of Appeal in Its Second Annulment Decision

This case note provides an analysis of the Paris Court of Appeal’s (the Court of Appeal) second annulment (the Second Annulment), dated 10 January 2023, of an arbitration award rendered in favour of Energoalliance ltd (Energoalliance) under the Energy Charter Treaty (ect) in 2013. The case note focuses on the interpretation of the term “Investment”. The Second Annulment follows a first Court of Appeal annulment that was set aside by the French Supreme Court (Supreme Court) due to its incorrect interpretation of the term “Investment”. The Second Annulment, which applied a preliminary ruling of the Court of Justice of the European Union (cjeu), is instructive with regard to the factual circumstances which courts in EU Member States (Member States) will consider in determining whether a debt can qualify as an “Investment”. More specifically, the Second Annulment addresses the qualities which define an asset as “commercial” and, therefore, preclude it from being an “Investment”. Some ambiguity, however, remains in the Second Annulment with regard to the term “commercial” due, in the opinion of the authors, to the inconsistency between certain findings in the Supreme Court’s annulment of the first Court of Appeal annulment, and the cjeu’s preliminary ruling.

ICSID 중재상 중재인의 공정성과 고지의무에 관한 고찰

Purpose – The purpose of this study is to suggest implications after analyzing Eiser v. Spain, and the impartiality and duty of disclosure of arbitrators in ICSID arbitration. Design/Methodology/Approach – In this study, in analyzing Eiser v. Spain, the literature analysis was mainly conducted using domestic and foreign related literature and Internet data. Findings – In 2017, Spain was ordered to pay Eiser €128 million on account of its failure to afford fair and equitable treatment. This award was subsequently annulled because the claimant-appointed arbitrator failed to disclose a professional relationship with the claimants’ damages expert, which led to, inter alia, the tribunal being improperly constituted. The full costs of the proceedings, including Spain’s legal fees and expenses, were shifted to Eiser. Research Implications – The Eiser Annulment Decision also casts doubt on the effectiveness of disclosure duties. Undisputedly, arbitrators must be neutral and must disclose facts or circumstances that may cloud their judgment. Many codes and rules specify that this duty is continuous. Yet, the vast majority of these instruments envisage no consequence for non-disclosure. This, coupled with the fact that arbitrators enjoy immunity from legal process pursuant to Article 21 of the ICSID Convention, leaves room for nonchalance when disclosing potential conflicts.

Legal Impossibility in Practice Due to the Obligation to Implement Annulment Decisions and the Principle of Legal Security

Hukuk devleti ilkesinin en önemli gerekliliklerinden biri, yargı kararlarının uygulanması zorunluluğudur. Gerek Anayasa gerekse 2577 sayılı İdari Yargılama Usulü Kanunu’nda da bu zorunluluğa işaret edilmiştir. İdari yargıya başvuru sonucunda verilen iptal kararları ise bu bağlamda özellik arz eder. Bu kararların bazı hallerde tam geçmişe etkili olarak uygulanması mümkün olamamakta ve bu durum fiili ve hukuki imkansızlık kavramlarıyla açıklanmaktadır. Hukuki imkansızlığa sebebiyet veren bir durum da iptal kararlarının tam olarak geçmişe etkili uygulanmasının hukuki güvenlik ilkesine zarar vermesi ihtimalidir. İptal edilen işlemle bağlantılı diğer işlemler ve iptal edilen işleme dayalı olarak birtakım kazanımlar elde etmiş olanların varlığı, bu konuda ileri sürülen temel argümanları oluşturmaktadır. Türkiye örneklerinde söz konusu halde, yasa koyucu veya idareler tarafından hukuki düzenlemeler yapılmakta veya böyle bir düzenleme bulunmaksızın hukuki imkansızlık gerekçesiyle karar uygulanmamaktadır. Bu çalışmada Danıştay kararları eksen alınarak söz konusu durumda, kararın uygulanmasında hukuki bir imkansızlığın söz konusu olup olamayacağı incelenmiş ve böyle bir sonucun doğmasını engelleyecek yargısal ve idari mekanizmalar araştırılmıştır.

Víctor Pey Casado and President Allende Foundation v Republic of Chile: Assignment of Investment Treaty Claims and Jus Standi of the Assignee

In a Resubmission Award dated 13 September 2016 (Second Award), the Tribunal in Víctor Pey Casado and President Allende Foundation v Chile (Resubmission Tribunal) examined whether a post-award assignment may entitle an assignee to appear as a co-claimant alongside the original investor (ie assignor) in resubmission proceedings. The Resubmission Tribunal held that the resubmission proceedings were a continuation of the original arbitration proceedings and the parties to these proceedings must therefore remain the same as in the original proceedings. Moreover, the Resubmission Tribunal observed that even if the assignee were to replace the assignor, the assignee would still need to establish jurisdiction in its own right. The Resubmission Tribunal’s decision was later confirmed by an ad hoc Committee (Second Committee) in an annulment decision issued on 8 January 2020 (Second Decision on Annulment).4 The question of whether an assignee of the original investor may acquire treaty rights along...

PONIŠTAJ ARBITRAŽNE ODLUKE DONETE OD STRANE AGENCIJE ZA MIRNO REŠAVANjE RADNIH SPOROVA

Word of the dispute is primarily associated with the intervention of the court. This is a traditional way of resolving labor disputes. The tendency in the world is to get as many of these disputes resolved peacefully, fast and fair manner at low cost. Avoiding court decision increases the chance of finding a favorable solution to the two opposing sides. The content of an arbitration agreement is of great importance to the parties in the arbitration proceedings. An arbitration agreement express the contractual freedom of the parties and list of facultative elements of an arbitration. Main benefits from peaceful solving labor disputes are expediency and cheap costs of the arbitration process. The arbitratior represents quasi – judicial instance and him may be wrong in his decision. The decision process is single and there is no possibility of appeal. This option would slow down the process of resolving issues. But, it can not be situation that would not be any way to void the wrong decision of the arbitratior. It could be chance to avoid this situation. Exactly because of that case, it must be provided for the possibility of annulment decision from peaceful settlment labor disputes agency. Reasons for cancellation must be a procedural character. Courts should not enter into the merits because it would further slow the troubleshooting. This would replicate the slowness of the trial in arbitration deciding. This length of proceedings before the courts is contary to the idea of arbitration as a quick, cheap, efficient and above all peacefull methods of resolving labor disputes. Court in relation to arbitration should have only a supervisory function. Blending the merits of arbitartion decisions would be deprived of independence and efficiency.

Revisiting the risk of undesired appeal in investment treaty arbitration: is deference to the tribunal’s award still less likely in the ICSID context?

Abstract Although they are generally not subject to appeal the way court decisions typically are, investor-State arbitration awards can be reviewed—and potentially set aside—in a number of ways and on various bases. In this respect, investor-State arbitration under the auspices of ICSID is notable in that it provides a self-contained system for the review of arbitral awards by ICSID-appointed ad hoc committees. In the period 2000–2010, this feature of the ICSID system attracted criticism as ad hoc committees appeared to be overreaching in their review of arbitral awards, exercising less deference to the tribunal’s decisions than what would be expected given the narrow bases for setting aside an award under the ICSID Convention. This article revisits the issue 10 years later, exploring whether ICSID practice has evolved in these areas and whether there remains a greater risk of unexpected de novo review by ICSID ad hoc committees. Looking at recent ICSID annulment decisions as well as the case law of arbitration-friendly jurisdictions, the article concludes that although the ICSID ad hoc committees have recently shown more restraint, they continue to interfere more with the tribunal’s reasoning and decisions than many courts exercising the same function.

ICSID Hakem Kararlarının Iptali

The legal remedies against an award granted by an arbitral tribunal in international investment arbitration pursuant the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID”) are regulated in the fifth section of the mentioned Convention. Annulment procedure against an award is stated as one of these legal remedies. During this study, firstly, general information about annulment procedure of an award will be presented. In this part, the application process for annulment of an award will be explained. The grounds for annulment will be analyzed in the second part of the study. While analyzing the grounds for annulment, focus will be given to manifest excess of powers, serious departure from a fundamental rule of procedure and failure to state reasons by examining the precedent annulment decisions and commentaries of scholars. Regarding this part, the study will attempt to puzzle out the meaning of the terms of “manifest”, “serious”, “fundamental” and “failure”. The subheading for the ground of the improper constitution of the tribunal will include information about the proper constitution of an arbitral tribunal, thus making it clear how to abstain from giving cause for annulment due to this ground. The remaining ground for annulment, i.e. corruption by a member of the tribunal, due to lack of case law, will mainly give attention to the term corruption. Lastly, the corollaries of an application for annulment will be stated in the final part of the study.

Boşanmış Anne-Babaların Müşterek Çocuklarının Soyadı Sorunu: Bir Karar İncelemesi ve İdare Hukukuna Yansımaları

The subject of this study is; the question of which surname the child carrying the father’s surname within the marriage union will take after divorce, given under custody of the mother. The fact that the child does not hold the same last name as his/her mother causes trouble for both the child and the mother at different stages of community life. In this present case, the mother filed a lawsuit in a family court to give her surname to their children claiming that her custody right should include giving her surname to their children on the basis of “Annulment decision of the Constitutional Court in 2011 regarding the article of surname law which states that the child must use father’s surname even if the parents are divorced even if the mother keeps the custody”. The case has been rejected on the grounds that tangible provisions concerning this issue have not been made yet. An individual application was lodged to the Constitutional Court against the decision approved by the Court of Cassation. The Constitutional Court has stated that there are international norms on the subject and it is not necessary to make a new arrangement in place of the revoked provision of the Surname Law in accordance with the article 90/5 of the Constitution which the international treaties have in force of law. In this present case, the Constitutional Court ruled that there had been a violation of the prohibition of discrimination in respect of Articles 20 and 10 of the Constitution.

The Defence of Necessity in International Law and Investor Versus State Dispute Settlement

Abstract The ability of foreign investors to sue host states without reliance on diplomatic protection is one of the most important developments in international investment law in the post-World War II era. The rise of investor-state dispute settlement under international regimes like the Convention Establishing the International Centre for the Settlement of Investment Disputes (ICSID Convention) raises some concerns from states regarding loss of sovereignty. However, there are defences available to states when they intervene in their economies for purposes like public utility or the need to safeguard an essential interest. Thus in spite of treaty commitments that bind states to protect the investments of foreign investors within their domains, there are available defences for their intervention in their economies even if such interventions become inimical to the interests of foreign investors and could, prima facie, raise the possibility of infringements of the rights of foreign investors. One of such defences available to states is the principle of necessity. This article explores the principle of necessity in international law and how it operates as a defence for states in investor-state dispute settlement. It also conducts analysis of the Annulment Decision in the CMS v Argentina case to shed light on the principle of necessity.

ОСПОРЮВАННЯ РІШЕНЬ МІЖНАРОДНОГО КОМЕРЦІЙНОГО АРБІТРАЖУ ЯК ФОРМА СУДОВОГО КОНТРОЛЮ НАЦІОНАЛЬНИМИ СУДАМИ

The appeal of the international commercial arbitration awards is a major issue in the dispute settlement mechanism for arbitration governed by multilateral conventions, bilateral treaties and national laws, as well as by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. Notwithstanding the importance of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, it restricts to a certain extent the scope of legal protection of arbitral awards, as it leaves national courts to challenge them by the way of possible annulment, and national courts when considering petitions for annulment decisions are vested in the power to revoke such decisions. In this respect, the resolution of these issues may raise the issue of the correlation between the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 and domestic legislation of the countries in which the relevant decision may be challenged. The specific of the international commercial arbitration decision is that it cannot be appealed to any higher court. However, the absence of any form of control over the arbitral award could lead to the enforcement of such decisions, which, if rendered within the judicial system, would be overturned or modified by a higher court. Therefore, there is an institution for challenging arbitral awards in national courts. Due to the fact that the arbitration award is a form of control by national courts, the regulation of this institution is defined in the legislation of each individual country, and at the international legal level only certain aspects are regulated. These are the European Convention of 1961 and the New York Convention of 1958.

Orman Alanlarında Maden Arama-İşletme Ruhsatları-İzinleri ve İptallerinin Yargısal Denetimi

Aim of study:
 The aim of this study is to identify issues pertaining to the justifications of
 the annulment decisions of the administrative judiciary in the cases of actions
 for annulment brought against the revocations of mining licenses and permits
 for mining activities granted by the administration due to reasons specified by
 the legislation.
 
 Area of study:
 This study addresses licenses and permits granted for mining activities in
 Turkey and judicial review of the revocations of these licenses and permits.
 
 Material and Method:
 The main material of the study is the current legislation on mining activities
 and the judicial decisions for the cancellation of mining licenses / permits.
 The method of study is to evaluate the materials together and to determine the
 reasons for the cancellation and rejection decisions of the judiciary.
 
 Main results:
 Sanctions in the Mining Law should take into account future generations, stop
 improper practices and ensure that mining activities are compatible with the
 environment and human rights.
 
 Research highlights:
 Revocation of mining exploration-exploitation licenses in forest areas is an
 issue that warrants further research and careful evaluation. Judicial decisions
 play key role in filling the legal gaps in mining exploration and exploitation.

ICSID Arbitration Reform: Mapping Concerns of Users and How to Address Them

This paper summarises key practical concerns of some members of the Investment Treaty Forum related to ICSID arbitration, as well as a wider community of experts, how the ICSID reform proposals address these concerns and makes suggestions for further improvement. The paper looks at key concerns of ICSID arbitration users such as timely appointment of arbitrators and challenges to it, over-committed arbitrators and their conflicts of interest, access to emergency arbitrators and fast-track arbitration procedure, procedure for summary rejection of claims and amicable settlement of disputes, consolidation of proceedings, allocation of costs and security for costs, timely rendering of awards and consistency of ICSID annulment decisions. The paper also includes a comparison between the ICSID Arbitration Rules and other major arbitration rules designed for investment arbitration proceedings: the UNCITRAL Arbitration Rules, the Arbitration Institute of the Stockholm Chamber of Commerce Arbitration Rules (SCC Rules), and the 2017 EU-Canada Comprehensive Economic and Trade Agreement (CETA).

Enforcement in England and Wales of arbitral awards set aside in their country of origin

ABSTRACTIn the decision of Nikolay Viktorovich Maximov v Open Joint Stock Company ‘Novolipetsky Metallurgichesky Kombinat’, the English High Court dismissed the claimant's application to enforce a Russian arbitral award that had been set aside in Russia. The High Court held that in order to refuse recognition of the annulment decision, ‘[t]he decision of the foreign court must be deliberately wrong, not simply wrong by incompetence’. The High Court found that the claimant had failed to discharge this heavy burden, notwithstanding its ‘severe criticism’ of the Russian annulment decision. The case serves as a reminder of the difficulties that a party will face in seeking to enforce an arbitral award in England if it has been set aside in the country of origin.

Constitutional Courts Securing Their Legitimacy - An Institutional-Procedural Analysis

It is imperative for constitutional courts and their judgments to enjoy respect to allow them to make good on the intended objective of providing solid constitutional guardianship. At the same time, judicial legitimacy is a precious commodity that once lost is hard to replace. It should be realised that threats to the legitimacy of constitutional courts are often not self-manufactured, in the sense of gratuitous judicial overreaching or a callous disregard by the court for what the other organs of State or the country’s population deem important. They are, rather, a corollary of two distinct though related factors. First, the extent to which the procedural framework, as designed by the political branches of government, allows for the referral of any and all constitutional questions to the court. This chapter explains how quasi-comprehensive portfolios of responsibility, coupled with lenient rules on access, enhances the probability that social or politically sensitive issues will enter the judicial arena for resolution. The second factor concerns a country’s political and economic climate. A government faced with a poorly performing economy or other financial constraints, and an electorate demanding effective and rapid action, may be enticed to respond with rules that give short shrift to constitutional values. In such situations, remedial approaches other than annulment decisions are particularly attractive for courts faced with constitutional defective statutes, as they mitigate the risk of an inter-institutional confrontation and any ramifications such may have for the enforcement of judgments. These could further ameliorate perceptions of judges as sympathetic to the plight of governments in regulating society, rather than legalistic troublemakers who do not know or care about socio-political realities. This chapter critically discusses the most significant of these decisional techniques as applied by Europe’s Kelsenian constitutional courts: constitution-conform interpretation, rendering rulings of temporary constitutionality or severing the link between a finding of unconstitutionality and annulment. It is interesting to note that in many countries, several of these techniques have been fashioned by the courts themselves in direct response to the precarious reality of their political environment. This suggests that courts are keenly aware of the delicate balancing act that they must perform in protecting constitutional integrity and alert to using ‘prudential’ remedial techniques to attenuate political or public discontentment.

Contractual waiver of Article 52 ICSID: a solution to the concerns with annulment?

The ability for parties to contractually waive the right to bring annulment proceedings under the ICSID Convention remains as yet untested, creating uncertainty as to whether parties have this tool at their disposal. Given recent focus on the expansive costs and length of investment arbitration as well as examples of expansive annulment decisions, this article looks at whether parties may agree to contractually waive the right to bring annulment proceedings. Alternately it looks at whether certain grounds of annulment may be waived. The conclusion to this inquiry is that total or expansive waiver would most likely be held to be ineffective. However, the article also concludes that there remains a limited possibility that parties could agree to waive or place interpretative limitation on certain grounds, including arguably the most problematic ground, Article 52(1)(b) ICSID. A potential argument may be that parties may not be able to waive the annulment ground entirely but could control, to a certain extent, how ‘the tribunal manifestly exceeds its power’ is to be interpreted. Despite the potential for this limited exception, the primary finding is that whilst party autonomy should be respected as far as possible, the availability of the remedy of annulment is a mandatory rule that must prevail. The right to bring annulment proceedings should be considered beyond the control of the parties, with the consequences of waiver being systemic not merely inter partes , given the role of annulment in promoting the legitimacy of ICSID arbitration under its multilateral treaty regime.

Annulment of ICSID and Non-ICSID Investment Awards: Differences in the Extent of Review

Annulment of investment awards is a safeguard mechanism and a threat to the enforcement of awards. It is an interesting and important topic from the point of view of comparison between awards rendered under the Arbitration Rules of the International Centre for Settlement of Investment Disputes (ICSID) and non-ICSID investment awards. The purpose of this article is to analyse how the annulment of ICSID awards compares with the annulment of non-ICSID investment awards. In the author’s opinion, the choice between the two systems should be equally informed in terms of rules and applicable standard of review. The article discusses the key distinctive features of the two mechanisms, the practice of annulment, and the differences in the scope and standard of review by ICSID annulment committees and the national courts. It aims to analyse whether the extent of review is more expansive in one system compared to the other, as well as the reasons for the differences. While describing the evolution of the standard of review, closer attention is paid to the more recent annulment decisions.

An Imperfect Success – The Guatemalan Genocide Trial and the Struggle against Impunity for International Crimes

On 10 May 2013, a Guatemalan trial court rendered a historic judgment, convicting former President José Efraín Ríos Montt to an 80-year prison sentence for genocide and war crimes. On 20 May 2013, in a 3–2 majority decision, Guatemala’s Constitutional Court annulled the trial judgment on procedural grounds. The Constitutional Court’s annulment decision, decried by international observers as a defeat of justice, seems to reaffirm the impossibility of successful domestic prosecution of powerful leaders for international crimes and reinforce the need for international prosecutions. However, such a conclusion does not do justice to the profound meaning the genocide trial against Ríos Montt has had for Guatemalan society. This article aims to give a more complete picture. It discusses how the trial could come about, in spite of the apparent inability and unwillingness of the Guatemalan state to prosecute the serious crimes of the civil war era. It looks at the role that the international community and international law played in the trial. Finally, it assesses the trial’s significance, in the face of the Constitutional Court’s annulment decision, for both Guatemalan society and the international community.