In December 2017, the Law Commission launched its Thirteenth Programme of Law Reform. In it, the Law Commission suggests that it might be time to reform the English Arbitration Act 1996 (AA 1996). Continue reading
REUTERS | Clodagh Kilcoyne
REUTERS | Denis Balibouse
On 6 March 2018, the Court of Justice of the European Union (CJEU) rendered its much-awaited decision in Slovak Republic v Achmea BV, in which it held that the arbitration clause contained in Article 8 of the Netherlands-Slovakia bilateral investment treaty (BIT), and those contained in other intra-EU BITs in general, was incompatible with EU law because it would threaten the “full effectiveness of EU law.” Continue reading
REUTERS | David Mdzinarishvili
April 9, 2018
What is the future for women in arbitration?
A common discussion held at seminars and working groups is whether there needs to be greater positive discrimination in favour of women in arbitration. Invariably, the discussions result in no definitive answer. Continue reading
REUTERS | Amir Cohen
April 5, 2018
The DIFC as a conduit: resurrected from the dead?
A recent order of the Dubai International Financial Centre (DIFC) Court of First Instance (see Isai v Isabelle) gives hope that the DIFC Courts’ status as a conduit jurisdiction has been resurrected from the dead and been granted a new lease of life. Readers of this blog will recall previous reporting to the effect that the Dubai-DIFC Joint Judicial Tribunal (the JT) (see Cassation No. 1/2017 – Gulf Navigation Holding PJSC v Jinhai Heavy Industry Co Ltd; and Cassation No. 3/2017 – Ramadan Mousa Mishmish v Sweet Homes Real Estate) and the Dubai Court of First Instance (see Commercial Case No. 1619/2016, ruling of the Dubai Court of First Instance of 15 February 2017) had, in one sense or another, pronounced a death sentence over the DIFC Courts’ competence to hear actions for recognition and enforcement of domestic awards for onward execution against assets of an award creditor in onshore Dubai. Continue reading
REUTERS | Kacper Pempe
April 3, 2018
A clash of national and international law? Examining the approach of the English High Court in GPF v Poland
In what appears to be a first for the English courts, the decision in GPF Gp S.á.r.l v Republic of Poland overturned parts of an award on jurisdiction in an investment treaty arbitration, finding the tribunal had erred in finding no jurisdiction. The claims have been sent back to the same tribunal for continuation towards the liability phase.
This post examines the English Commercial Court’s application of international law principles on the domestic plane, as well as the de novo standard of review adopted by the court to analyse the claimant’s jurisdictional objections. Continue reading
REUTERS | Scott Audette
March 29, 2018
The GDPR and disclosure of documents in arbitration
Data security is a hot topic at the moment. Putting to one side the lurid details of the Cambridge Analytica/Facebook debacle, many lawyers are focused on the (perhaps less thrilling but nonetheless important) provisions of the EU General Data Protection Regulation (GDPR), which comes into force in May of this year. Much has been written about the GDPR and its potential consequences (and costs) for companies and individuals. The extensive duties placed on data controllers and processors, and the potential for significant penalties, has given rise to a burgeoning consultancy industry aimed at managing and reducing risk. One aspect that has perhaps received less attention, however, is the extent to which EU data protection rules might affect disclosure of documents in arbitration proceedings. Continue reading
REUTERS | Dado Ruvic
March 26, 2018
Interim court assistance in arbitral proceedings under section 44 of the Arbitration Act 1996: a reducing or expanding jurisdiction?
The English courts have traditionally followed the principle of non-intervention in arbitral proceedings. This non-interventionist stance was given statutory force under section 1(c) of the English Arbitration Act 1996 (AA 1996), which provides that “the court should not intervene except as provided by [the Arbitration Act 1996]”. Continue reading
REUTERS | Juan Carlos Ulate
March 23, 2018
Daewoo Shipbuilding v Songa: clarification of Catch 22?
In Joseph Heller’s novel, Catch 22, the main character feigns madness in order to avoid dangerous combat missions, but his desire to avoid them is taken to prove his sanity.
Whilst not quite causing madness, for a number of years now parties and the courts have been grappling with the problematic inter-relationship between sections 57 and 70 of the English Arbitration Act 1996 (AA 1996).
The decision of Bryan J in Daewoo Shipbuilding & Marine Engineering Company Ltd v Songa Offshore Endurance Ltd appears to resolve that problem. Continue reading
REUTERS | Maxim Shemetov
In a recent article, Constantine Partasides QC and Simon Maynard argued that the presumption of confidentiality in the English Arbitration Act 1996 (AA 1996) should be reversed. According to the authors, this would not prevent parties who wish to opt for confidentiality from doing so, but would hopefully address the concerns which the public at large has about arbitration (in particular, investment arbitration at the time of writing). Frankly, I do not believe that this would be the case. Continue reading
REUTERS | John Sibley
March 15, 2018
Jurisdiction issues in arbitration
On 20 February 2018, about 80 participants attended Quadrant Chambers’ biannual international arbitration seminar. The topic for discussion and debate was “Jurisdiction Issues in Arbitration”. The panel event was chaired by Simon Rainey QC of Quadrant Chambers and the speakers were Louis Flannery (now QC), Head of International Arbitration at Stephenson Harwood, Philippa Charles, Head of International Arbitration at Stewarts, and former High Court judge, now full time arbitrator, Sir David Steel of Arbitrators at 10 Fleet Street. Continue reading