In a landmark decision recently handed down in Multiplex Constructions LLC v Elemec Electromechanical Contracting LLC, the Dubai International Financial Centre (DIFC) court has sent a clear message that arbitration agreements providing for a DIFC seat must be respected.
Article 45 of the UAE Federal Arbitration Law (FAL), which entered into force on 16 June 2018, addresses the question of how arbitration proceedings conducted under the FAL are terminated. Despite taking inspiration from the UNCITRAL Model Law, the FAL contains a number of provisions, including article 45, that are not of Model Law origin. Given the importance of the question of termination to the proceedings and its comparatively unprecedented nature in both the Model Law and most domestic arbitration legislation, article 45 of the FAL deserves further scrutiny.
In October 2020, the ICC released the new ICC Rules 2021 in draft. The rules could still be subject to editorial changes, but, once finalised in December, will come into force on 1 January 2021. This current draft of the new rules leaves the fundamental framework introduced in 2012 largely unchanged and this is unsurprising. Few were expecting a seismic shift in approach only eight years after the 2012 revisions, given how fundamentally they changed the shape of arbitral procedure for the community and arbitral institutions globally.
A recent New York Supreme Court Commercial Division decision precluded the petitioner from seeking to vacate an arbitral award because, although he objected to the jurisdiction of the arbitrators, he participated in the arbitration proceedings. This post-award challenge to the jurisdiction of the arbitrators would have come out differently had the case been decided under the Federal Arbitration Act (FAA) rather than under article 75 of New York’s Civil Practice Law and Rules, under which the parties briefed and the court ruled on the issue.
Claims brought by more than one investor are not unusual in the investor-state context, even where the claims are brought by claimants of different nationalities under several treaties. However, such claims have typically emanated from one investment operation, such as where a single claim is brought by joint venture partners in relation to their respective shareholdings in the same special purpose vehicle.
Judicial analytics have long been used to assist parties to litigation in developing case strategies. Due to the largely confidential nature of commercial arbitration, however, similarly valuable analytics for arbitrators have been largely elusive. Due to its secretive nature, international arbitration is perhaps the only $2 trillion industry that still operates in the analogue age, largely dependent on ad hoc research and telephone calls to learn about arbitrators.
Everybody makes mistakes and arbitral tribunals are no exception. Awards may contain typographical or arithmetical errors that require correction. In some cases, the wording of the award may be ambiguous and the parties may require additional clarification from the tribunal in order to be able to give effect to the award.
Issue estoppel may bar a party from amending their claim submissions to raise new claims after the determination of a preliminary issue which meant the end of their original claim.
It is now six months since the COVID-19 pandemic took hold outside China and brought legal proceedings to a grinding halt. What is remarkable, in retrospect, is how quickly courts reopened their doors , not physically, but electronically, through ‘remote’ hearings. Arbitrations, too, have continued in many cases, and the LCIA has just issued a new version of their rules, for example, taking the pandemic fully into account. So dispute resolution rolls on, but what lessons can to be learned for the benefit of arbitration in the longer term, once the pandemic is over?
This is Part 2 of a blog that discusses the belated formal adoption of the 2017 DIAC Rules, which, at the time of writing remains pending. Part 1 discussed the positive contribution made by the 2017 Rules to the provisions on the seat and venue of the arbitration, the wide definition and the blanket use of electronic communication to facilitate the virtual conduct of the arbitration and remote service, and the novel provisions on the arbitral award deemed issued at the seat. On each of these, Part 1 also highlighted the extent to which it would assist the promotion of core provisions of the UAE Federal Arbitration Law (FAL), which entered into force with effect from 16 June 2018.