Jan Kleinheisterkamp

Jan Kleinheisterkamp

Email: J.Kleinheisterkamp@lse.ac.uk
Administrative support: Rebecca Newman
Room: New Academic Building 7.09
Tel. 020-7955-7256

Jan Kleinheisterkamp (Dr. iur., Hamburg) is an Associate Professor of Law at LSE, where he teaches international commercial arbitration and contracts. He is a qualified German lawyer and is admitted to the bar in Hamburg. Prior to joining LSE, he worked as a research fellow at the Max-Planck-Institute for Comparative and International Private Law in Hamburg (1998-2004) and was appointed as an assistant professor at the HEC School of Management, Paris (2004-2008). He is an experienced consultant in comparative law and conflict of laws and has served various times as an arbitrator in ICC and LCIA proceedings.

 
Research Interests

Dr. Kleinheisterkamp co-heads the LSE Transnational Law Project and his research focuses mainly on international contracts, with special emphasis on arbitration, conflict of laws, and comparative law. He is generally interested in the legal problems relating to the international dimension of trade, such as investment treaty law and issues of law and development with special focus on Latin America. Furthermore, he has worked on European state aids.

 
External Activities
 
Books  

Commentary on the UNIDROIT Principles of International Commercial Contracts (Oxford University Press, 2009) (editor together with S. Vogenauer)

Commentary onf the UNIDROIT Principles - coverThis book is an article-by-article commentary of the UNIDROIT Principles on International Commercial Contracts (2004), the global standard in the law for international contracts. The UNIDROIT Principles have been the model for numerous national codifications. Moreover, they are becoming increasingly indispensible in arbitrations of disputes arising out of international contracts, either as directly applicable law or as a source for the interpretation of other laws governing the contracts, such as especially the Vienna Sales Convention. Even their application by state courts has been seriously taken into consideration in the negotiations of the Rome I Regulation.

The Commentary provides a comprehensive analysis of each provision of the Principles in the light of existing authorities and the larger comparative perspective. Thereby, it offers both practitioners and scholars from different legal backgrounds an easy and profound access to the Principles and therefore greatly enhances their use in practice of international arbitration as well as for research and teaching related to international contracts.

International Commercial Arbitration in Latin America – Regulation and Practice in the MERCOSUR and the Associated Countries (Oxford University Press/Oceana, 2005) 691pp

This work provides practitioners and scholars alike with quick access to and in-depth comparative analysis of the laws of Argentina, Bolivia, Brazil, Chile (including the new law on international commercial arbitration of September 2004), Paraguay, and Uruguay, as well as of the relevant international treaties, such as especially the MERCOSUR-Agreements of 1998.

The book follows the structure of the UNCITRAL Model Law on International Commercial Arbitration, which guarantees easy access to the sometimes complicated national laws. The direct topical comparative analysis provides for a deeper insight than mere country reports. Interviews with nearly 100 judges, lawyers, and scholars assure that the practical reality is well reflected in the analysis. A bilingual annex contains the English translations of all relevant legislation.

 
Selected articles
and chapters in books
 

'Who is Afraid of Investor-State Arbitration? Or Comparative Law?'  LSE Law: Policy Briefing Papers 4/2014

The Trans-Atlantic Trade and Investment Partnership has been creating expectations and stirring fears ever since it was announced by EU Commission President Barroso and US President Obama in mid-2013. The promise to boost trans-Atlantic economic exchange in the world’s largest free-trade area came along with the aim to “include investment… protection provisions based on the… highest standards of protection that both sides have negotiated to date”. But the reasons given by the EU Commission in favour of including investor state dispute settlement in the TTIP are weak and almost self-defeating. For the EU to sign investment agreements framed along the lines of existing BITs and without proper safeguards would fundamentally change the current law of the Union as regards state liability, especially for legislative acts.

'Financial Responsibility in European International Investment Policy', (2014) 63:2 International and Comparative Law Quarterly pp.449-476

EU Financial responsibility resulting from investor-state arbitration is a politically sensitive topic that is currently shaping the emerging European international investment policy. What level of protection can foreign investors be granted in future EU investment treaties without compromising EU ‘policy space’? How much review of its regulatory powers by arbitral tribunals, rather than by the CJEU, is the EU willing to accept? Taking the Commission's recent draft Regulation on managing financial responsibility as the starting point, this article analyses the implications that future EU investment agreements may have for the existing safeguards balancing private and public interests in EU law. It discusses the different policy choices in the light of fears that investment treaties may affect the EU policy space. A more scientific and sustainable approach is then suggested for ensuring that future EU agreements provide sufficient clarity regarding the outer bounds of financial responsibility and criteria for liability with the aim of maximizing legal certainty for both investors and host states.

'European policy space in international investment law' ICSID Review 2012, 27(2), 416-431

Discusses the implications of the EU's requirement for future international investment policy to align with EU public policy objectives. Reflects on the scope of the "European policy space" and explores the conflict between EU policy and investment treaty law. Considers the impact of the Treaty of Lisbon 2007 on bilateral investment treaty (BIT) obligations, and speculates on what form future EU BITs might take 

'Lord Mustill and the courts of tennis - Dallah v Pakistan in England, France and Utopia' M.L.R. 2012, 75(4), 639-654.

Discusses the conflicting judgments reached by English and French courts in proceedings to enforce an arbitral award in Dallah Real Estate & Tourism Holding Co v Pakistan, based on whether the arbitral tribunal had jurisdiction to determine a dispute concerning a trust set up by the Pakistan Government, despite the Pakistan Government's assertion that it was not a party to the contract or the arbitration agreement. Considers the power of the English courts under the Arbitration Act 1996 s.103(2). Asks whether the French or the English courts arrived at the right result, or whether neither did.

‘Investment Protection and EU Law: The Intra- and Extra-EU Dimension of the Energy Charter Treaty’ (2012) 15(1) Journal of International Economic Law 85-109

The interaction of investment treaty law with European Union (EU) law is a growing concern not only for policy makers but also for investors and arbitral tribunals, especially in the energy sector. This article sketches the existing and potential legal problems between the regimes with the aim of drawing conclusions on the impact of those tensions on the future of the Energy Charter Treaty (ECT). In the first part, the article discusses the problem of the compatibility of investment treaty law with EU law in general that may require EU member states to renegotiate their existing agreements. The second part is dedicated to the more controversial issues of the continuing applicability of intra-EU investment treaties, discussing their far-reaching overlap with the protection afforded by EU law and the resulting complications. Most of these problems also arise under the ECT, in addition to the specific complications that are analysed in the third part. The article also outlines the consequences of the entry into force of the Lisbon Treaty and finishes with a summary and outlook of the general importance of these European developments for the future of the ECT.

'The Review of Arbitrator’s Interpretation of International Contracts – Transnational Law as a Dangerous Short-Cut. Note regarding Swiss Federal Supreme Court Decision 4A_240/2009' (2011) 29:2 ASA Bulletin 145-158

Discusses the Swiss Federal Supreme Court judgment in Bundesgericht (4A_240/2009) on whether an arbitral award should be set aside on the ground that the tribunal had wrongly used the UN Convention on Contracts for the International Sale of Goods 1980 art.25 to define a "material breach" in an international sales contract where the parties had expressly opted out of the Convention's regime. Considers whether the challenge was merely an attempt to obtain a full review of the merits from the court, and was therefore barred by the Swiss Private International Law Act 1987 art.190.

'Les sanctions pour non exécution du contrat dans les Principes UNIDROIT' in: G. Keutgen (ed.), Les Principes UNIDROIT relatifs aux contrats de commerce international et l'arbitrage (Bruylant 2011) pp.125-143

'The Future of the BITs of the European Member States After Lisbon' (2011) 29:1 ASA Bulletin 212-223

'The Impact of Internationally Mandatory Laws on the Enforceability of Arbitration Agreements' (2009) 3 World Arbitration and Mediation Review 91-120

This article treats the impact that internationally mandatory rules of the forum state may have on the effectiveness of arbitration agreements. This question arises when claims are based on such internationally mandatory rules, but the parties submitted their contract to a foreign law. The specific problems of conflicts of economic regulation are illustrated and discussed on the basis of Belgian and German court decisions relating to commercial distribution and agency agreements. European courts have adopted a restrictive practice of denying the efficacy of such tandems of choice-of-law and arbitration clauses if there is a strong probability that their internationally mandatory rules will not be applied in foreign procedures. This article shows that neither this approach nor the much more pro-arbitration biased solutions proposed by critics are convincing. It elaborates a third solution, which allows national courts to reconcile their legislator’s intention to enforce a given public policy with the parties’ original intention to arbitrate and to optimize the effectiveness of both public interests and arbitration.

'Anerkennung und Vollstreckung ausländischer Schiedssprüche'; 'Ausstrahlung des europäischen Privatrechts in lateinamerikanische Rechtsordnungen'; 'UNIDROIT Principles of International Commercial Contracts' in: J. Basedow / K. Hopt / R. Zimmermann (eds) Handwörterbuch des Europäischen Privatrechts (Mohr Siebeck 2009)

These three contributions to the Encyclopaedia of European Private Law give historic and systematic overviews for the topics ‘Recognition & Enforcement of Foreign Arbitral Awards’, ‘Impact of European Private Law on Latin American Legal Systems’, and ‘UNIDROIT Principles of International Commercial Arbitration’.

'Eingriffsnormen und Schiedsgerichtsbarkeit: Ein praktischer Versuch' (2009) 73 Rabels Zeitschrift für Ausländisches und Internationales Privatrecht 818-841

This is the original German version of the article on ‘The Impact of Internationally Mandatory Laws on the Enforceability of Arbitration Agreements’ published later in the World Arbitration and Mediation Review (see above).

'Recognition and Enforcement of Foreign Arbitral Awards', in: R. Wolfrum (ed.), Max-Planck Encyclopedia of Public International Law (2nd edn, Oxford University Press, forthcoming)

This contribution to the Encyclopedia traces the historical development of the recognition and enforcement of foreign arbitral awards and provides a global overview of the topic, with special focus on the UN Convention signed in 1958 in New York.

'Interdependência entre os Procedimentos de Anulação e de Execução (II): Proposta de reforma da Lei de Arbitragem' [Interdependency between setting aside and enforcement procedures (II): A reform proposal for the Brazilian law on arbitration], (2009) 19 Revista Brasileira de Arbitragem (forthcoming)

This article builds on the earlier (2004) comparative study on the subject (see below) and makes specific proposals for amendment of the Brazilian Arbitration Act 9307 of 1996.

'Development of Comparative Law in Latin America', in: M. Reimann & R. Zimmermann (eds.), Oxford Handbook of Comparative Law (Oxford University Press 2006) 261-301

Latin American law has largely been neglected by mainstream comparative law. Common wisdom has been that Latin American law is largely an offspring and, at best, a variation of French law, due to its reception of the Code Napoléon. Accordingly, Latin-American law has been put in the box of the "French" or "Romanistic" legal family - and left there without much more attention. Latin American law as the object of comparative law as well as comparative law as a subject in Latin American jurisprudence have developed as a niche topic, whose shadow has all too often been used as a battle-ground for influence and dominion.

This article analyses the development of comparative law in Latin America and its significance for, and impact on, the legal systems of the Latin American countries today. In a first part, it shows how the necessity of legal comparative analysis reached the new continent as a consequence of the implementation of the Spanish and Portuguese legal order. The second part is dedicated to the young Latin American nations' independence and their efforts of codification under the influence European laws, especially Roman, French, and German law in the 19th Century. The third part analyses the growing influence of the common law, especially U.S. American law, on the development of commercial and economic law in the Latin American countries in the 20th Century, as well as the state of art of comparative law up to the present.

'The UN Security Council's Incapacity of Coping with Conflict-Related Economic Interests', (2005) 37 Studies in Transnational Legal Policy 108-123

War fuelled by conflict-related economic interests is an ancient phenomenon whose topicality remains unchanged, giving rise to the problem of how to cope with trade that feeds upon the existence of violent conflict. Especially in Africa, violent rivalry over huge economic profits in regions with extremely fragile government structures creates human suffering on a scale that the international community cannot ignore. This article concentrates on the role of sanctions imposed by the United Nations Security Council in this context. The reviewed material suggests that the attempts at establishing an international legal framework that could contain the negative effects of conflicted-related trade – the "dark side" of trade – is to date highly disappointing, not just from a humanitarian point of view. The article shows how the Security Council proves to be incapable of providing security and stability in peripheral areas of the world where the economic interests of its permanent members are at stake.

'O Brasil e as disputas com investidores estrangeiros' [Brazil and the disputes with foreign investors], in: R. Di Sena Jr. & M.T. Costa Souza Cherem (eds.), Comércio Internacional e Desenvolvimento - Uma Perspectiva Brasileira (São Paulo/Brazil, Saraiva 2004) 156-187

This article in Portuguese language (shorter French version in: S. Monclaire / J.F. Deluchey (eds.), Gouverner l'intégration : les politiques nationale et internationale du Brésil de Lula (Paris, Pepper 2006)) traces the roots of resistance of Latin American States against international arbitration between foreign investors and host countries. It sketches how all bilateral treaties on the protection of foreign investments signed by the Brazilian government have been systematically rejected by the Brazilian Parliament. This rejection was based on arguments that were thought buried long time ago, i.e. the arguments of the notorious Calvo doctrine.

The author argues that the foundations of this doctrine can hardly be ignored. Brazil's resistance and the persistence of the Calvo doctrine give valuable insight on how the present investment dispute settlement mechanisms contained bilateral and multilateral investment treaties would have to be adapted in order to remove their "imperialist" image and gain broad global acceptability.

'Interdependência entre os Processos de Anulação e de Execução: Estudo Comparativo com Foco na Legislação Brasileira e Alemã' [Interdependency between setting aside and enforcement proceedings: A comparative study focusing on Brazilian and German law], (2004) 1 Revista Brasileira de Arbitragem 96-104

This comparative case study unveils a serious technical flaw of the UNCITRAL Model Law on International Commercial Arbitration regarding the time limit for invoking defects of an international arbitral award: due to an inconsistent equation of foreign awards and awards made inland, the rules on enforcement cancel the limitation period of three months for requesting setting aside, thus allowing the party that lost arbitration to just await enforcement procedures before reacting. This structural defect is reproduced in jurisdictions that have been influenced by the Model Law, such as the Brazilian arbitration law of 1996 and the Paraguayan law of 2002. The comparison with the adoption of the Model Law by the German legislator shows how this defect can be avoided. Finally, the practical consequences of the question are evaluated.

'Evolution of Corporate Law: A Cross Country Comparison' (with K. Pistor, Y. Keenan, M. West), (2002) 23 University of Pennsylvania Journal of International Economic Law 791-871

Corporate law as it exists in any given country today is the result of roughly 200 years of legal change and legal adaptation. Provisions that today are hailed as indicators for good corporate governance did not exist when the first statutory corporate laws were put in place. This simple insight raises the question about the evolution of corporate law. In this paper we analyze ten jurisdictions representing the three major legal families as well as transplant countries and origin countries to explore the patterns of legal change over time. We find origin countries from common law and civil law families have experienced substantial legal change and adaptation over time. By contrast, legal transplants from both legal families have often retained the transplanted law for decades despite substantial economic change. The area of corporate law where we find the most significant change over time are corporate finance provisions. Provisions concerning corporate governance structures and entry and exit rules are also investigated.