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British Columbia Amends International Commercial Arbitration Act

The Monthly Wrap: News, insights, and analysis from Arent Fox's International Arbitration team.

British Columbia Amends International Commercial Arbitration Act

On May 17, British Columbia’s amended International Commercial Arbitration Act was brought into force by Royal Assent. The Act modernizes the International Commercial Arbitration Act of 1996 by bringing it closer to the current version of the UNCITRAL Model Law of 2006 (the prior Act was based on the 1985 version of the UNCITRAL Model Law). The stated goal of the amended law is to make British Columbia more attractive for international commercial disputes. According to a news release by British Columbia’s Attorney General, David Eby, “[w]e have a responsibility to ensure that our legislation is modern, meets the standards of the bar and judiciary, and has the confidence of domestic and international clients. These amendments will do that, while also attracting more business to the province and enhancing our reputation as a desirable venue for arbitration.”

Read more about the legislation.

The amended law includes a new section on interim measures and preliminary orders, a new privacy and confidentiality provision limiting the scope of common law confidentiality as it applies to international commercial arbitration, a new immunity provision to protect arbitrators, and clarifies the standards for bringing challenges to arbitrators. The amended law also states that third party funding for arbitration is not contrary to public policy in British Columbia.

The text of the amendments to the law can be found here.

Want more information?
Contact Sylvia Costelloe

Proposed Dutch Model Bilateral Investment Treaty Includes Significant Reforms

The Dutch Ministry of Foreign Affairs recently unveiled a new draft model Bilateral Investment Treaty (BIT) with plans to deploy it as the basis for the re-negotiation and modernization of its many non-EU BITs.

The draft model contains significant substantive changes. For example, the draft model no longer permits a Dutch subsidiary to qualify as an investor unless it has “substantial business activities” in The Netherlands, it limits the scope of protected investments to those with certain enumerated characteristics, including the commitment of capital or other resources and the assumption of risk, and it defines indirect expropriation more restrictively by requiring that “fundamental attributes of property” to be taken before an investor is eligible for compensation. The draft model also includes procedural reforms, including new arbitrator appointment procedures that guarantee party input, time limits for the rendering of a final award, a presumption against bifurcated proceedings, and provisions for the consolidation of common claims.

In many respects, the draft model represents a significant shift in the Dutch government’s policy toward investment treaties, which until now had produced some of the most investor-friendly treaties in the world.

The draft model is now the subject of an online consultation and can be found here.

Want more information?
Contact Lee Caplan

New German Law to Compensate ICSID Claimant Nuclear Utility

Germany has reportedly approved a draft lawto compensate two utilities, RWE and Vattenfall, for losses resulting from Germany’s decision in 2011 to phase out nuclear power. The new law was approved amid an ongoing ICSID proceeding against Germany by Vattenfall, a Swedish company, and others relating to such losses. Vattenfall reportedly claimed approximately $5.5 billion in damages.
 
As reported in the press, after the Fukushima disaster in 2011, Germany began phasing out its nuclear power plants, including two plants operated by Vattenfall that were closed immediately. Vattenfall’s ICSID case was then initiated in May 2012, and hearings on jurisdiction, merits, and quantum were held in October 2016. The new law, which was approved last week, will reportedly only provide for around one fifth of the amount claimed by Vattenfall, although precise amounts are yet to be calculated. The ICSID proceeding therefore appears likely to continue, at least for the time being.

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