Dispute Resolution International - October 2010
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Judgment Enforcement in the United States Against Sovereign States: Some Interesting Procedural Questions
Tyler B Robinson and Erin Bradrick
As the prospect of sovereign debt defaults looms larger, basic questions remain over the enforcement of sovereign debt obligations in the United States. The legal framework involves the intersection of federal law, through the Foreign Sovereign Immunities Act ('FSIA'), and the law of each of the 50 individual states, which supply the remedies and procedures for judgment enforcement, including in federal court. The FSIA narrowly limits the scope of foreign sovereign property that may be attached or executed upon to satisfy a judgment, including when a foreign sovereign defendant has waived immunity from the jurisdiction in a US court. State law, by contrast, generally provides expansive remedies designed to assist creditors in locating assets of their debtor and enforcing their judgments. When federal and state law converge on the enforcement of sovereign debt obligations, the interplay gives rise to some interesting procedural questions that remain to be fully explored by the US courts. This article provides an overview and commentary on some of those questions.
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Overview of the 2009 ASEAN Comprehensive Investment Treaty
Kim M Rooney
This paper's focus is on the foreign investment protection elements of the 2009 ACIA. After briefly outlining the background to the establishment of ASEAN, and the expansion of ASEAN's focus from peace and security to promotion, facilitation, liberalisation and protection of investment, this paper discusses the protections afforded to foreign investors under the 2009 ACIA, both substantively and procedurally, compared with those afforded by the 1987 ASEAN Treaty. While, compared to the 1987 ASEAN Treaty, the 2009 ACIA has provided a number of additional protections to foreign investors, it will be asserted in this paper that in balancing the protection of foreign investors' interests against those of the ASEAN Member States, the balance has moved in favour of the latter, as illustrated by the restriction on a number of investor protections embodied in the 2009 ACIA, and by the more limited range of disputes that may be submitted to international arbitration.
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Anti-suit Injunctions in International Arbitration: Protecting the Procedure or Pushing to Settlement?
Flavia Foz Mange
There has been a trend over the past few years to give more power to arbitrators to grant interim measures of protection. Major institutional rules have expanded the power of the arbitrators to issue provisional measures, some even including optional rules for emergency measures of protection. Several national arbitration laws also have adopted provisions allowing the arbitrators to grant such a measure. The revised version of Article 17 – Interim Measures and Preliminary Orders – of the UNCITRAL Model Law also extends the power of the arbitrators to issue interim measures. Nowadays the existence of an arbitral tribunal power to order an interim measure of protection is becoming less debated, especially when there are specific provisions on institutional rules or national law giving them such power.
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The International Dimension of the Attachment of Debts
Alexander Hansebout
International business often results in attempts to recover debts across borders. This article examines the current status of the discussions about the location of a debt and the international scope of attachments. It reviews the latest relevant decisions by the Dutch, UK, French and Belgian Supreme Courts and concludes that the Supreme Courts in Continental Europe do not seem to be on the same wavelength as the House of Lords in the UK. However, the solutions suggested by the Continental European Courts are often comparable with those of the House of Lords in practice. In any event, the discussions about this subject are likely to continue as long as the European Commission has not introduced a European order for the attachment of bank accounts.
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Book reviews
Redfern & Hunter on International Arbitration – Fifth Edition, Edited by Nigel Blackaby, Constantine Partasides, Alan Redfern, and Martin Hunter
Review by Dr Colin Ong
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International Commercial Arbitration by Gary B Born
Review by Dr Colin Ong
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