Programme:
| 09.00-09.45 |
The framework: Arbitration law and the New York Convention as limits to party autonomy – Professor Giuditta Cordero-Moss, University of Oslo Ongoing research on property law as a limit to party autonomy in arbitration – Research Assistant Siri Hafeld, University of Oslo Ongoing research on investment law as a limit to party autonomy in arbitration – Research Assistant Tone Wetteland, University of Oslo |
| 09.45-10.00 | Break |
| 10.00-11.30 | Panel discussion on property law as a limit to party autonomy and to the effectiveness of arbitral awards |
| 11.30-12.00 | Extended discussion (questions and comments from all participants) |
| 12.00-13.00 | Lunch |
| 13.00-14.30 | Panel discussion on investment law as a limit to party autonomy and to the effectiveness of arbitral awards |
| 14.30-15.00 | Extended discussion (questions and comments from all participants) |
Panel Participants:
Dr Ivar Alvik, Thommessen, Oslo
Gary Born, WilmerHale, London
Prof Giuditta Cordero-Moss, University of Oslo
Dr Marius Emberland, State Attorney Office, Oslo
Prof Michele Graziadei, University of Turin
Kai-Uwe Karl, General Electric Oil & Gas
Prof Kåre Lilleholt, University of Oslo
Finola O’Sullivan, Cambridge University Press
Prof Luca Radicati di Brozolo, Catholic Univeristy, Milan
Prof Jerney Sekolec, UNCITRAL
The participation is limited and by invitation only – please contact Professor Giuditta Cordero-Moss (giuditta.cordero-moss@jus.uio.no) if you are interested in participating.
List of topics for discussion – first draft
Property:
Assumptions:
• Parties are free to choose the law governing their contracts;
• Contracts may have implications beyond the area of contract law. These legal effects will be subject not to the law chosen by the parties, but to the law applicable according to the relevant choice-of-law rule;
• Arbitral tribunals are bound to follow the will of the parties;
• Arbitral awards must be recognised and enforced without review of the merits or of the application of law;
• If the arbitral tribunal applies the law chosen by the parties instead of the applicable law, it is an error of law that does not affect the validity or enforceability of the award;
• Under certain circumstances, an award may be declared invalid or unenforceable (i.a., If the award is in contrast with the public policy of the court);
• Under certain circumstances, disregard of the applicable law may lead to conflict with public policy (if the award conflicts with some rules of company law, competition law) or other grounds for invalidity or unenforceability (non-compliance with rules on legal capacity).
Thesis:
Within the law of property and insolvency some rules protect so important interests, that an award following the parties' choice and disregarding these applicable rules will risk being declared invalid or unenforceable.
Discussion to demonstrate the thesis:
• Examples (not necessarily involving Norwegian law) of contracts with property/insolvency law implications, where the parties try to circumvent the applicable law by choosing a more liberal law: pledge, retention of title, collateral, assignment, close-out netting or set-off, acceleration, sale contracts as far as the effects on ownership of the goods are concerned, etc.)
• Explanation of the applicable choice of law rules (not necessarily only in Norwegian private international law)
• Explanation of what interests are affected by applying a foreign law
• Explanation of which infringements of these interests may be considered as a violation of public policy
• Explanation of the effects that an arbitral award infringing these interests may have in insolvency proceedings
Investment protection:
Assumptions:
• Foreign investors enjoy public international law protection, particularly if a Bilateral Investment Treaty or a Multinational Treaty applies;
• Foreign investors may initiate arbitration proceedings against the host country for breach of the public international law obligations to protect the investment;
• Awards rendered in an investment arbitration are enforceable as if they were final judgements (ICSID) or as if they were commercial arbitral awards;
• Under certain circumstances, a commercial arbitral award may be declared invalid or unenforceable (i.a., if the award is in contrast with the public policy of the court);
• “Internationalization” of the host country’s law does not mean that the host country’s law is not applicable, but that it is applicable to the extent that is in compliance with applicable rules of international law.
Thesis:
Irrespective of the choice of law contained in the contract, foreign investments are subject to the administrative/public law of the host country. Investment arbitration permits to enforce public international law protection against abuses of sovereignty by the host country, but does not permit to disregard the host country’s administrative/public law.
Discussion to demonstrate the thesis:
• Criteria for investment protection: is there any criterion that affects application of the host country’s law even if it is not abusive?
• Sovereign activity that affects foreign investment but is not abusive: examples (non-discriminatory tax law that does not have expropriatory effects, regulations protecting the environment, safety regulations, etc.)
• Is it possible to contractually limit the applicability of the host country’s law (apart from choice of law within the area of private law)? Stabilisation clauses, internationalisation clauses, other mechanisms
Assuming that these contractual limitations violate principles of the host country’s constitutional law, will the host country be infringing public international law on investment protection if it disregards them to implement its non-discriminatory and non-expropriatory activity?