Month: October 2016

By José María de la Jara¹

Discovery and document production allow parties in international arbitration to obtain new information. It is presumed that the newly obtained documents should lead them to become aware of their own weaknesses and strengths and therefore encourage a settlement. That rarely happens. In fact, if the extent of the disclosure is not tailored to the particular dispute, it may only cause a waste of time and money to the parties.
Continue reading The irrationality of document production in international arbitration

By Plamen Yotov, Associate at Kambourov & Partners (Sofia, Bulgaria)

“Let any one of you who is without sin be the first to throw a stone at her”, replied Jesus to the teachers of the law and the Pharisees who asked Him whether to stone a woman caught in adultery (John 8:1-8). Nowadays investors in foreign countries somehow appear to be in the unfaithful woman’s situation when facing corruption allegations in the context of investment arbitration.
While a lot of highly qualified publicists (some of whom probably close to a 38(1)(d) status as per the Statute of the ICJ – “the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law”) have shared their thoughts on the various aspects of this mine field, many issues remain unresolved or inadequately addressed, often leaving claimants and intellectually rigorous bystanders with a sense of injustice. The ever-growing lack of consistency between arbitral awards does not make the situation any better.
Continue reading Corruption and the Hardly Innocent Respondent State