In a ruling of 17 November 2019 (see YYY Limited v ZZZ Limited [DIFC] 2017 ARB 005, as per Justice Sir Richard Field), the DIFC Court of First Instance (DIFCCFI) had an opportunity to re-consider the proper scope of application of Article 7 of the Judicial Authority Law (see DIFC Law No. 12 of 2004 as amended by DIFC Law No. 16 of 2011) (JAL). Continue reading
In the recent decision of Kabab-Ji v Kout Food Group, the English Court of Appeal addressed the question of what law governs an arbitration agreement in the absence of an express provision. It went on to refuse the enforcement of an arbitral award on the basis that the party against whom the award was to be enforced was not a party to the underlying contract in the absence of a written agreement to that effect, due to the contract containing a no oral modification (NOM) clause. Continue reading
As is public knowledge, Emergency Decree No. 020-2020 (ED) has just modified seven articles and incorporated a new one to the Peruvian Arbitration Law (PAL), which apply to those arbitrations in which the state is a party. Continue reading
On 12 December 2019, the Hague Rules on Business and Human Rights Arbitration were launched at the Peace Palace in the Hague. With human rights billed as the “oxygen of humanity” by the keynote speaker, Dr Bahia Tahzib-Lie (the Netherlands’ Human Rights Ambassador), the Rules offer a dispute resolution mechanism which could significantly improve the engagement of businesses with human rights. Continue reading
Arbitration has not been at the top of the agenda when it comes to the discussion around data privacy. Much of the focus has gone on corporate hacks, breaches and the implementation of the General Data Protection Regulation (GDPR), which came into force almost two years ago. Continue reading
The Angelic Grace was decided over 25 years ago, and the general principles governing the grant of anti-suit relief are well-established. Where foreign proceedings are brought in breach of an arbitration agreement, the court may intervene by granting injunctive relief unless there is good reason otherwise. The court’s power to do so is not an aspect of its supervisory jurisdiction over arbitrations seated within the jurisdiction, but arises as part of its general power to grant injunctive relief under section 37 of the Senior Courts Act 1981. Continue reading
On 26 November 2019, the Court of Appeal handed down judgment in Minister of Finance (Inc) and another v International Petroleum Investment Company and another. The appeal addressed the ambit of the supportive powers of the English courts over English seated arbitrations, and the proper approach when issues of fact arise for determination both in a court claim invoking that supervisory jurisdiction and a new arbitration. Continue reading
States and state enterprises are frequent users of international arbitration. Their involvement is by no means restricted to arbitration under public international law. Indeed, as the ICC Commission on Arbitration and ADR reported in 2017, approximately 10% of ICC arbitrations involve a state or a state entity. That being said, and regardless of the nature of the proceedings (commercial or treaty-based arbitration), an award creditor seeking to enforce an award against a state holding assets in Switzerland will be subject to requirements different than those applicable if its debtor was a private entity. This is because, under Swiss law, foreign states benefit from immunity which protects them and their assets. Continue reading
On 12 November 2019, Quadrant Chambers held its biannual international arbitration seminar. The topic for discussion and debate was “ICSID arbitration in the age of populism: the case for reform”. The panel event was chaired by Ruth Hosking of Quadrant Chambers and the speakers were Emma Johnson, partner at Ashurst; Guy Blackwood QC of Quadrant Chambers and Timothy Foden, partner at Lalive. Continue reading
If modern international arbitration is considered to stand on two fundamental pillars (the New York Convention 1958 and UNCITRAL Model Law 1985), then its success is relatively recent. Continue reading