Arbitration Involving States - Chapter 5 - Essays on International Arbitration

Kaj Hobér is a Partner of Mannheimer Swartling, resident Stockholm office and Professor of East European Commercial Law at Uppsala University, Uppsala. His practice areas include: international arbitration, East European law, international investment and trade, international business transactions. He has been heavily involved in the legal aspects of doing business in Eastern Europe and the former Soviet Union for the last 20 years. His arbitration experience includes representing both eastern and western European, American and Russian parties as well as parties from developing countries in international arbitrations taking place in Stockholm, Moscow, London, Paris, New York, Vienna and elsewhere. Mr. Hobér has also been involved in numerous oil arbitrations, relating primarily to northern Africa, the Middle East and the former Soviet Union and has acted as arbitrator in more than 150 international arbitrations (including chairmanships) and as counsel in approximately 150 international arbitrations.

Professional memberships include: member of the Swedish Bar Association; member of the American Bar Association; member of the Board of the Swedish Scientific Institute of Arbitration Law, the Board of the Arbitration Institute of the Stockholm Chamber of Commerce, the International Arbitration Club (London) and member of the ICC Institute of International Business and Law (corresponding member). He has been listed as arbitrator on the panels of the Austrian Federal Chamber of Commerce, Vienna, the Chamber of Commerce and Industry of the Russian Federation, Moscow, the Ukrainian Chamber of Commerce, Kiev, the American Arbitration Association and of the ICSID Arbitration Center, Washington DC. He is also a Commissioner at the United Nations Compensation Commission in Geneva.

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Originally from Essays on International Arbitration

Even though arbitrations between States and commercial enterprises is a relatively new phenomenon in the history of international arbitration, such arbitrations have taken place for a long time. Generally speaking, arbitrations between States and companies started to become prominent after the Second World War. Since then all aspects of modern life have gone through a remarkable globalization, including the areas of trade, finance and investment. The practical importance of such arbitrations is beyond any doubt today. In many former socialist countries, foreign trade was a State monopoly, thus by definition engaging the State and/or State enterprises in commercial activities. In other countries, developing and developed, the State and State enterprises have to varying degrees been engaged in international trade and finance. Such participation has occasionally led to disputes which are often settled through arbitration.

During the last 5–8 years there has been a dramatic increase in the number of State arbitrations. No official statistics are available to confirm this statement, but this is certainly the general perception of arbitration lawyers in most parts of the world. As I see it, this is the result of two overlapping and interdependent developments, viz., the transformation of the political and economic systems in Eastern Europe, including the former Soviet Union, and the significant increase in so-called investment arbitrations.

Table of Contents:

5. Arbitration involving states

5.1 Introduction

5.2 State Immunity -- old Wine in new Bottles?

5.3 Confidentiality v. Publicity

5.4 The growing Importance of Public International Law