Shareholder disputes normally fall within two categories. The first is where a shareholder is outvoted by a majority which is acting against the interest of the company. The second is where a rogue director is “on a frolic of their own”; that is, they are acting for their own benefit or that of third parties. In such circumstances, minority shareholders can issue either a derivative claim or a claim for unfair prejudice.
Falling foul of a limitation period can stop a treaty claim in its tracks. For claimants, how you frame an alleged treaty breach may, for the purposes of computing time, determine whether the claim is barred in whole or in part. For respondents, successfully proving the expiry of a limitation period may be an entire defence. Whilst a number of international investment treaties (notably, the North American Free Trade Agreement (NAFTA)) contain limitation periods, tribunals have not often addressed this topic in detail, and there is no uniform jurisprudence on how limitation periods should apply. Ultimately, each case must be analysed in its own context. An overly strict approach may, for instance, improperly punish investors that delay filing their notices of arbitration in hopes of finding an amicable solution, particularly where states have represented that, given time, they will provide a remedy. In any event, regardless of how limitation periods are interpreted, investors would be well served by negotiating an agreement with the state that suspends or tolls the limitation period to remove any doubts. This blog post therefore discusses the enforceability of such agreements and flags some practical issues for consideration. Continue reading
On 1 September 2017, the joint ICCA-Queen Mary Taskforce issued its draft report on third party funding in international arbitration. The Taskforce was composed of experienced practitioners and academics from over 20 different jurisdictions. Continue reading
This is the third and final part of a series of three blogs that have discussed in some detail the provisions of the new United Arab Emirates (UAE) Federal Arbitration Law and their prevailing similarities to the existing provisions of the UAE Arbitration Chapter. The comparison so far has shown that the provisions of the new law are in their majority old wine in a new bottle, giving rise to the proposition that the entry into force of that law later this year will not bring about the sea change that the local and international arbitration community was anticipating. That said the UAE Arbitration Chapter is not in as bad a shape as international commentators usually seek to make out. The provisions of the Chapter have received an arbitration-friendly interpretation over the past twenty years or so, having given rise to a jurisprudence constante. The resulting case law precedent lends support to the provisions on arbitration procedure and the powers of the arbitral tribunal, discussed in part 1 and part 2 in the series. As discussed in the further course of this blog, the provisions of the new law in relation to issuing, enforcing and challenging the award equally codify – in relevant part – the existing status quo under the UAE Arbitration Chapter. Continue reading
Parties who provide for arbitration as a means for resolving commercial disputes generally do so because of the oft-cited perceived benefits of arbitration. These include confidentiality, potential time and cost savings, more limited disclosure, the ability to enforce awards in any of the New York Convention signatory countries and, notably, the ability to tailor the process. Continue reading
There is sometimes an uneasy relationship between the courts of the seat of an arbitration and the courts of the place of enforcement of the resulting arbitral award. The relationship is perhaps under the greatest strain when the latter are asked to decide whether to enforce an award that has been set aside by the former. The recent judgment of the English Commercial Court in Nikolay Viktorovich Maximov v Open Joint Stock Company “Novolipetsky Metallurgichesky Kombinat” provides a reminder to parties of the English courts’ deference to an annulment decision at the arbitral seat and the different approaches taken by the courts of other New York Convention states to enforcing annulled awards. Continue reading
To mark International Women’s Day which took place in March 2017, Practical Law Arbitration has been carrying out a series of interviews with women in arbitration.
In this, the fifth in the series, we interview Jean Kalicki, an independent arbitrator in New York and Washington DC, specialising in investor-state, international and complex commercial disputes. She was previously a partner and counsel in Arnold & Porter LLP for 17 years. Among her many professional activities, she is a Vice-President of the London Court of International Arbitration (LCIA) Court, a member of the International Council for Commercial Arbitration (ICCA) Governing Board, a member of the International Chamber of Commerce (ICC) Commission on Arbitration and the Board of Directors of SICANA, Inc. (ICC North America), and a former member of the American Arbitration Association (AAA) Board of Directors.
In part 1 of the interview, Jean discussed how she came to specialise in arbitration and her journey from private practice to life as an independent arbitrator, and comments on arbitration practice and procedure and her role on the ICCA Governing Board. In part 2, she talks about ICCA Sydney 2018 and the future, and gives some tips for women in arbitration and would-be arbitrators. Continue reading
Introduction
Rightly or wrongly, applications to admit illegally or improperly obtained evidence (including evidence obtained by hacking) are on the rise in commercial disputes between private parties. The release of WikiLeaks diplomatic cables starting in 2010 resulted in parties seeking to introduce the confidential cables as evidence in investment treaty arbitrations, including the well-known RosInvestCo UK v Russian Federation case (Yukos awards). Unsurprisingly, these practices have now trickled down to international arbitration proceedings not involving state entities, where the leaked material has some bearing upon a private party’s commercial dispute with another private party. Continue reading
To mark International Women’s Day which took place in March 2017, Practical Law Arbitration has been carrying out a series of interviews with women in arbitration.
In this, the fifth in the series, we interview Jean Kalicki, an independent arbitrator in New York and Washington DC, specialising in investor-state, international and complex commercial disputes. She was previously a partner and counsel in Arnold & Porter LLP for 17 years. Among her many professional activities, she is a Vice-President of the London Court of International Arbitration (LCIA) Court, a member of the International Council for Commercial Arbitration (ICCA) Governing Board, a member of the International Chamber of Commerce (ICC) Commission on Arbitration and the Board of Directors of SICANA, Inc. (ICC North America), and a former member of the American Arbitration Association (AAA) Board of Directors.
In part 1 of the interview, Jean discusses how she came to specialise in arbitration and her journey from private practice to life as an independent arbitrator, and comments on arbitration practice and procedure and her role on the ICCA Governing Board. In part 2, she talks about ICCA Sydney 2018 and the future, and gives some tips for women in arbitration and would-be arbitrators. Continue reading
The use of international arbitration has expanded over the years to encompass a wide array of sectors. For example, while the majority of financial services disputes still end up in court, many of them are submitted to arbitration. Of the London Court of International Arbitration’s (LCIA’s) caseload in 2016, 20% comprised of such disputes. This was more than either construction or shipping. Continue reading