In International Chamber of Commerce (“ICC”) arbitrations, new claims that are subsequent to the terms of reference are subject to the arbitral tribunal’s authorization. Article 23(4) of the ICC Arbitration Rules (“Rules”) give discretion to the arbitral tribunal by setting forth that the arbitral tribunal shall consider the nature of new claims, the stage of the arbitration, and other relevant circumstances.
The issue of new claims in ICC arbitrations and the application of Article 23(4) in these matters are analyzed in this article.
The Supreme Court of Canada recently reviewed the law of recognition and enforcement in Canada of foreign judgments in a decision called Chevron Corp. v. Yaiguaje. The decision has implications for large multi-national corporations with subsidiaries in Canada, as the effect of the decision is to open the door to ignoring the separate legal personality of the local subsidiaries and putting at risk the assets of those subsidiaries in order to satisfy a judgment obtained against a foreign parent corporation in a foreign jurisdiction. The decision is therefore a victory for foreign plaintiffs who are being thwarted in their enforcement efforts by complex corporate structures that shield assets from them under the legal fiction of separate corporate personalities.
The importance of interim and conservatory measures ordered by arbitrators has been widely recognized in international arbitration, since the important sets of rules regulating arbitrations set forth provisions enabling the arbitral tribunal to rule on these measures. Interim and conservatory measures are more commonly used in practice, with the adoption of fast-track proceedings by the important set of rules regulating arbitration. As there is a possibility that the parties will not abide by these measures in all of the cases, there is an emerging need to enforce these measures outside of the seat of the arbitration.
In July 2013 the United Nations Commission on International Trade Law (“UNCITRAL”) adopted rules for Treaty-based Investor- State arbitration to provide transparency (“Rules”). The rules came into force on April 1, 2014. The Rules are considered as an important step taken in the evolving field of investment arbitration considering that previous versions of UNCITRAL Arbitration Rules do not refer to issues of transparency even in cases of strong public policy.
Contact: Theresa E. Loscalzo and Rachel A.H. Horton; Schnader Harrison Segal & Lewis LLP (Delaware & Pennsylvania, USA)
This week, the Third Circuit altered the legal landscape for civil Racketeer Influenced and Corrupt Organizations Act (RICO) claims against pharmaceutical companies. The ruling in In re Avandia Marketing, Sales Practices & Product Liability Litigation allows the plaintiffs’ RICO claims to proceed; in their suit, the plaintiffs allege that GlaxoSmithKline LLC (GSK) engaged in a marketing campaign to minimize the side effects of Avandia, a drug prescribed to treat Type II diabetes, and thereby increase sales at a higher price than it otherwise would have been sold.
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