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Publications
Publications (21)
This article explores two developments that have led to an extension of the sphere of application of the Salini test, a set of ‘objective’ requirements for the existence of an investment established by the Salini tribunal under Article 25 ICSID Convention. The first such trend consists of the formal incorporation of Salini -type criteria or ‘charac...
This article shows that the English case law on the enforceability of mediation clauses presents a number of flaws. First, and most importantly, English courts generally fail to distinguish between the positive and the negative obligations created by such clauses. As a result, they wrongly apply the certainty requirement to the former, rather than...
This article critically discusses the recourse to the principle of restrictive interpretation (in dubio mitius) by treaty-based investor-state arbitral tribunals. Although its status as a rule of international law is at best controversial, in dubio mitius has been applied by a number of arbitral tribunals interpreting umbrella clauses and most-favo...
Consumer protection constitutes a major policy objective in both the European Union (EU) (and its Member States taken individually) and China. Adequate protection of consumers requires the adoption of specific legislation in a variety of substantive and procedural (i.e., dispute resolution) areas. This chapter focuses on the latter aspect and deals...
The choice-of-law rules applied by arbitral tribunals differ in several respects from the approaches followed by domestic courts. Those differences arise in connection with three distinct choice-of-law problems: (i) the determination of the law applicable absent a choice of law by the parties, (ii) the interpretation and supplementation of the law...
This article advocates the application of transnational law (lex mercatoria) by domestic courts. The first part of this article discusses the current legal regime (choice-of-law norms pertaining to arbitration and litigation) under which transnational law can only be applied by arbitral tribunals, not by state courts. The second part of this study...
This article constitutes an attempt to assess the practical significance of punitive damages in the context of international commercial arbitration. It shows that, although punitive damages are regularly awarded in domestic arbitrations in the US, such awards are quasi-inexistent in the international arena. As this article explains, this limited pr...
This article constitutes an attempt to assess the practical significance of punitive damages in the context of international commercial arbitration. It shows that, although punitive damages are regularly awarded in domestic arbitrations in the US, such awards are quasi-inexistent in the international arena. As this article explains, this limited pr...
This article examines the conflict of laws issues (with an emphasis on choice of law) arising in the context of punitive damages claims in international commercial arbitration. It explains that the appropriate choice of law methodology is based on a distinction between the 'power' of arbitrators to grant punitive relief (governed by the applicable...