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International Arbitration

Prof Kryvoi is an expert on international arbitration, both commercial and investor-state disputes.

As an arbitration practitioner working in London, Washington, D.C. and St Petersburg he was involved in dozens of disputes under ICC, LCIA, SCC, UNCITRAL, ICSID and other arbitration rules. Most of the disputes were governed by English, New York, Russian law or laws of Eastern European and Central Asian States. Some were governed only by international law instruments, such as the United Nations Convention on Contracts for the International Sale of Goods.

In the area of international arbitration he has represented a broad range of clients, including:

  • Advising the Government of Romania on ICSID arbitration arising out of a privatisation project and alleged breach of an international investment treaty, preparing counterclaims against the investor.
  • Advising a major United States oil company in a multimillion dollar dispute under UNCITRAL arbitration rules against the Russian Federation arising out of a product-sharing agreement
  • Consulting a consortium of international energy companies in a multimillion dollar tax dispute against the Republic of Kazakhstan under UNCITRAL Arbitration Rules.
  • Advising a leading Russian retail chain in London LCIA proceedings arising out of post-acquisition disputes
  • Acting for a United States university on various international contract law issues arising out of INCOTERMS standard contract terms
  • Representing a Mexican phosphoric acid distribution company in a supply-contract dispute with a Moroccan company filed in the ICC International Court of Arbitration in Paris governed by the United Nations Convention on Contracts for the International Sale of Goods
  • Advising an international telecoms company on jurisdictional issues of arbitration against a joint venture partner in North Africa
  • Acting as a member of a working group of the Chamber of Commerce and Industry of the Republic of Uzbekistan on improving the legal framework and practice of international commercial arbitration in Uzbekistan.

Prof Kryvoi is also a leading academic in the field. He has taught arbitration in many jurisdictions, at the Chartered Institute of Arbitrators and online and advises States on international arbitration reform. As the Senior Fellow in International Investment Law, he is responsible for international arbitration at the British Institute of International and Comparative Law.

He convenes the Annual Review of UK Arbitration Act, which gathers leading practitioners, arbitrators, judges to discuss the most recent developments in international arbitration. Prof. Kryvoi also founded the CIS Arbitration Forum, a leading online resource for disputes in the former Soviet Union republics.

His academic publications on international arbitration include:

  • ‘The Path of Investor-State Disputes: from Compensation Commissions to Arbitral Institutions’, ICSID Review - Foreign Investment Law Journal (forthcoming 2019) || + Abstract || Download ||

    Protection of aliens under international law has progressed from them being clanless individuals or outlaws completely at mercy of the local lord, with no entitlement to the peace and protection of the locality in the earliest times to the modern sophisticated investor-State dispute settlement mechanisms.

    Several fundamental changes have occurred since the constitution of the early compensation commissions of the 18th century leading to the modern system of resolution of investor-State disputes. First, a growing number of multinational enterprises operating globally have become major actors on the international public law plain, in areas in the past reserved only for States. Second, international organisations and other nonstate actors have dramatically strengthened their influence with efficient international arbitration institutions dominating the system of investor-State dispute resolution after the end of the Cold War.

    The methods for resolving investor-State disputes have evolved primarily along the lines of creating specialised institutionalised forms. While early commissioners relied on their subjective understanding of justice and fairness, today the expectation is applying agreed set of rules, so that failure to do so may result in annulment of the award.

    The evolution of various methods of international dispute settlement and the emergence of new methods, such as international investment courts, does not necessarily mean that the older forms of dispute resolution will die like the dinosaurs. They will continue to function, albeit with modifications and will inform the future models of international dispute settlement.

  • ‘ICSID Arbitration Reform: Mapping Concerns of Users and How to Address Them’, British Institute of International and Comparative Law (2018) || + Abstract || Download ||
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    This paper summarises key practical concerns of some members of the Investment Treaty Forum related to ICSID arbitration, as well as a wider community of experts, how the ICSID reform proposals address these concerns and makes suggestions for further improvement.

    The paper looks at key concerns of ICSID arbitration users such as timely appointment of arbitrators and challenges to it, over-committed arbitrators and their conflicts of interest, access to emergency arbitrators and fast-track arbitration procedure, procedure for summary rejection of claims and amicable settlement of disputes, consolidation of proceedings, allocation of costs and security for costs, timely rendering of awards and consistency of ICSID annulment decisions.

    The paper also includes a comparison between the ICSID Arbitration Rules and other major arbitration rules designed for investment arbitration proceedings: the UNCITRAL Arbitration Rules, the Arbitration Institute of the Stockholm Chamber of Commerce Arbitration Rules (SCC Rules), and the 2017 EU-Canada Comprehensive Economic and Trade Agreement (CETA).

  • ‘Economic Crimes in International Investment Law’, International and Comparative Law Quarterly, Volume 67, Issue 3, pp. 577-605 (2018) || + Abstract || Download ||.

    The protection of foreign investment by treaties often clashes with the State's sovereign right to investigate economic crimes committed by investors. This article examines the different approaches taken by tribunals to questions concerning admissibility and jurisdiction, applicable law, the standard of review, the burden and standard of proof and deference to actions taken by domestic courts and regulators related to economic crimes.

    It concludes that investors should not automatically be deprived of treaty protections and their access to investment arbitration blocked. The arbitration agreement, being autonomous from the main contract (or the relevant treaty), should, as a rule, remain valid even if the conduct of investors is tainted by economic crimes.

    The article calls on investment tribunals to reflect in their awards on the contributory fault of the parties when representatives of States and investors are both complicit in economic crimes. To achieve greater legal certainty and procedural efficiency, a new generation of investment treaties and the practice of investment tribunals should draw on not only applicable domestic law but also existing sources of international law concerning economic crimes or national best practice.

  • Law and Practice of International Arbitration in the CIS Region (co-edited with Kaj Hobér) (Wolters Kluwer, 2017). || + Abstract || Buy ||.

    Law and Practice of International Arbitration in the CIS Region offers the first comprehensive overview of commercial arbitration in the Commonwealth of Independent States (CIS) region. After the collapse of the Soviet Union over a dozen new states emerged with their individual systems of international commercial arbitration.

    Today, the former Soviet republics such as Russia, Ukraine, Kazakhstan, and others generate a significant and growing amount of work for the major Western and CIS regional, international arbitral institutions.

    This book, a country-by-country analysis of regulation and practice of international arbitration in ten CIS jurisdictions, examines notable developments in the use of arbitration mechanisms contained in bilateral and multilateral investment treaties affecting the region.

  • ‘Improving Arbitration Climate in Japan: Report and Recommendations’ (2017). || + Abstract || Download ||.

    Japan is the third largest economy in the world, strongly oriented on high levels of foreign investment and with large enterprises engaged in international commercial transactions. Yet despite a strong rule of law and a favourable legislative framework based on the UNCITRAL Model Law on International Commercial Arbitration it has one of the least utilised arbitration systems in Asia.

    This report and recommendations resulted from a project supported by Daiwa Anglo Japanese Foundation, which brought together arbitration experts from Japan and the United Kingdom to analyse and make recommendations on how to make Japan a more attractive destination for arbitration.

    The project included a seminar at the Institute of Advanced Legal Studies in London in May 2016 and a conference at Nagoya University in June 2016. This report analyses key issues related to development of international arbitration in Japan and propose recommendations on the basis of analysis and discussion at these two events.

  • The International Centre for Settlement of Investment Disputes (Kluwer Law International, 2016, third edition). || + Abstract || Buy ||

    Derived from the renowned multi-volume International Encyclopaedia of Laws, this practical analysis of the structure, competence, and management of International Centre for Settlement of Investment Disputes (ICSID) provides substantial and readily accessible information for lawyers, academics, and policymakers likely to have dealings with its activities and data. No other book gives such a clear, uncomplicated description of the organization's role, its rules and how they are applied, its place in the framework of international law, or its relations with other organizations.

    The monograph proceeds logically from the organization's genesis and historical development to the structure of its membership, its various organs and their mandates, its role in intergovernmental cooperation, and its interaction with decisions taken at the national level. Its competence, its financial management, and the nature and applicability of its data and publications are fully described.

    Systematic in presentation, this valuable time-saving resource offers the quickest, easiest way to acquire a sound understanding of the workings of International Centre for Settlement of Investment Disputes (ICSID) for all interested parties. Students and teachers of international law will find it especially valuable as an essential component of the rapidly growing and changing global legal milieu.

  • ‘Consent Awards in International Arbitration: From Settlement to Enforcement’, Brooklyn Journal of International Law, Volume 40, pp.827-686 (2015). || + Abstract || Download ||.

    Although over a third of all arbitration proceedings result in settlement agreements very little has been written on the legal status of consent awards in international arbitration.

    Drawing on a comparative analysis of procedural rules and practice of major arbitration tribunals, domestic law of common and civil law jurisdictions, this Article presents the first major study of consent awards in international arbitration.

    Consent awards, being effectively settlement agreements recorded by arbitration tribunals as awards, raise a number of difficult legal questions, ranging from the right of arbitrators to refuse recoding the settlement as a consent award to the possible use of consent awards to cover illegal activities.

    Understanding what makes consent awards different from “normal” arbitration awards will help successfully navigate from settlement to enforcement.

  • ‘Counterclaims in Investor-State Disputes’, Minnesota Journal of International Law, Volume 21, pp. 216-252 (2012), London School of Economics Legal Studies Working Paper No. 8/2011 (2011). || + Abstract || Download ||.

    Although nearly all arbitration rules provide for the right to assert counterclaims in investor-state disputes, many tribunals are reluctant to allow such counterclaims. The two key issues, which tribunals and this Article examine, are investor consent to counterclaims and determination of investor obligations towards the host State.

    This Article examined jurisprudence of the Iran-U.S. Claims Tribunal, International Center for Settlement of Investment Disputes tribunals, and UNCITRAL tribunals. The examination suggests that if the relevant treaty contains an offer of jurisdiction only in relation to disputes arising out of State obligations, tribunals are reluctant to extend their jurisdiction over counterclaims. However, if the relevant dispute resolution provision is broad or the parties subsequently alter the jurisdictional offer either explicitly or implicitly tribunals are more likely to allow counterclaims.

    The Article shows that in the absence of investor obligations provisions in international treaties, general principles of law appear to be an appropriate source of international law to determine such obligations. The State may also assert counterclaims if the investor breached its obligations under the investment contract concluded with the State. The State, however, cannot assert counterclaims in investor-state arbitration based on purely domestic law obligations of investors.

  • ‘Piercing the Corporate Veil in International Arbitration’, Global Business Law Review, Volume 1, pp.169-186 (2011). || Download ||.

    This article examines the application of the piercing the corporate veil concept in international arbitration. Interpretation of this concept is inconsistent even within one domestic legal system, and it is even less predictable in international arbitration when several legal systems come into play.

    Domestic courts are likely not to recognize and enforce an arbitration award piercing the corporate veil in the absence of a written arbitration agreement. Piercing the corporate veil may help to give a concrete practical meaning to the purpose of an arbitration agreement or a bilateral investment treaty. However, there are downsides of such piercing because it negates many of the benefits, which the corporate form offers.

    Jurisprudence under the International Centre for Settlement of Investment Disputes (“ICSID”) Convention allows one to avoid the enforcement problem. However, the approaches of ICSID tribunals are inconsistent. This article identifies several major conceptual approaches ICSID tribunals took in the past towards piercing the corporate veil. Some tribunals declined jurisdiction in the absence of an explicit arbitration agreement. Other tribunals pierced the corporate veil by looking into the issue of foreign control. ICSID tribunals also pierced the veil on the basis of interpretation of the concept of “investment” in accordance with the intent of parties to the arbitration agreement or purpose of an international treaty.

    The practical advice offered by this article is to make written arbitration clauses as inclusive as possible, to avoid dealing with piercing the corporate veil altogether.


 
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