Intra-EU Investment Arbitration: Frankfurt Court of Appeals Finds BIT-Based Arbitration Inadmissible

An Austrian and a Croatian bank commenced arbitral proceedings against the Republic of Croatia seeking damages on the basis of the 1999 Agreement between the Republic of Austria and the Republic of Croatia for the Promotion and Protection on Investments (BIT); the arbitral tribunal was to be seated in Frankfurt am Main. Croatia applied to the Frankfurt Court of Appeals (Oberlandesgericht) to find that the arbitral proceedings were inadmissible (Sec. 1032 para. 2 German Code of Civil Procedure, ZPO). Croatia relied on the 2018 Achmea decision of the European Court of Justice (ECJ) – the well-known case which also originated in the Frankfurt Court of Appeals and came to the ECJ via a reference from the German Federal Supreme Court (Bundesgerichtshof). Continue reading

Goethe University, Frankfurt: German & International Arbitration Course, Summer Term 2021

Goethe University’s Law School has just announced the details for this year’s course in German and International Arbitration. As you would expect, this year’s edition will be completely virtual, so it might be of interest to students outside Frankfurt as well. Here is the course announcement: Continue reading

Brexit: Council Decision on Members of the EU-UK Arbitration Panel

While the Brexit Deal continues to make headlines, the EU and the UK carry on with the implementation of the institutional Brexit arrangements. The Withdrawal Agreement provides for an EU-UK Arbitration panel to decide disputes between the parties. Yesterday, the Council Decision appointing the members of the panel was published. The title of the document is quite a mouthful, but then it tells you all there is to know about the document, the remainder really is just a list of names: Continue reading

The Emergency Arbitrator – Getting Interim Relief Before a Tribunal is Constituted

In today’s guest post, Jakob Horn summarizes his doctoral thesis on key legal issues around emergency arbitration, Der Emergency Arbitrator und die ZPO, published by Mohr Siebeck. Jakob primarily discusses the emergency arbitrator in the context of German law. Despite this focus, his findings are easily transferrable to other jurisdictions, as Germany has adopted the UNCITRAL Model Law on International Commercial Arbitration

In commercial life, from time to time conflicts arise that require prompt action to avoid irrevocable harm. For instance, imagine a scenario where a business agreed on a non-compete clause with a former business partner. A violation of this non-compete clause would pose an immediate danger to the business, requiring prompt enforcement.

Traditionally, most state courts offer injunctions in such circumstances. However, in the commercial world today, parties often opt for an arbitration clause for reasons such as confidentiality. How does one uphold these arbitration agreements as well as seek urgent relief?

The answer is the emergency arbitrator. In the last 14 years, most large arbitral institutions around the world, such as the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), and the Hong Kong International Arbitration Centre (HKIAC) have introduced the emergency arbitrator as a tool in their toolbox to deal with such urgent cases. Continue reading