22 Sep Massimo Benedettelli rendered an expert opinion on the relationship between the European Convention on Human Rights and the investor’s right to challenge negative jurisdictional awards
As made public by Global Arbitration Review, our partner Prof. Massimo Benedettelli has given an expert opinion in proceedings pending in The Netherlands before the Hague Court of Appeal for the setting aside of an award rendered in an investor-state arbitration arising out of the Spain-Venezuela Bilateral Investment Treaty.
The opinion supports the right of the investor to challenge a decision whereby the arbitral tribunal declined jurisdiction, notwithstanding Dutch arbitration law seems prima facie to allow challenges only of awards whereby the tribunal’s jurisdiction is affirmed. It holds that such interpretation of Dutch law would trigger the breach by The Netherlands of its obligations under the European Convention on Human Rights, being at odds with the fundamental right to access-to-justice protected by Article 6(1), giving rise to an unequal treatment of the claimant and the respondent in violation of Article 14, and being prejudicial to the equal protection of the laws commanded by Article 1 of Protocol 12 to the Convention, particularly in light of the fact that international arbitral tribunals are the juge naturel for investment claims and that domestic courts are in most cases not available to grant the relief sought by the investor.
To read the article published by Global Arbitration Review: https://globalarbitrationreview.com/article/dutch-courts-diverge-over-review-of-jurisdiction-decisions.