REUTERS | Piroschka van de Wouw
February 26, 2021

From genesis to apocalypse: As Belgium heralds the end of the uncertainty on intra-EU BITs, has the UK missed an opportunity in a post-Brexit world?

REUTERS | Piroschka van de Wouw
February 26, 2021

From genesis to apocalypse: As Belgium heralds the end of the uncertainty on intra-EU BITs, has the UK missed an opportunity in a post-Brexit world?

The saga of the intra-EU bilateral investment treaties (intra-EU BITs) has taken many forms on different battlegrounds and its relevance goes beyond the borders of the European Union. From its genesis in Achmea v Slovak Republic, passing through many enforcement attempts outside the EU (as previously covered here and here), to its potential apocalypse with the termination of all intra-EU BITs (and an unlikely but not impossible withdrawal of the EU member states from the Energy Charter Treaty (ECT)), the legal discourse on this topic looks far from over.

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REUTERS | David W Cerny
February 25, 2021

English Court of Appeal provides novel guidance on experts’ duties to clients

On 11 January 2021, the English Court of Appeal handed down its decision in Secretariat Consulting PTE Ltd v A Company, which considered the novel issue of whether expert witnesses owe fiduciary duties to their clients. Although this case stemmed from a construction arbitration, it is of general application to the users of experts in any type of dispute. Following a brief summary of the case, this post notes the practical points that arbitration practitioners can takeaway from the decision.

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REUTERS | John Sibley
February 22, 2021

Clifford Chance Unilateral Option Clauses Survey 2021

Unilateral option clauses are a common feature in many transaction documents. A unilateral option clause grants one party (or a group of parties, but not all parties to the agreement) the exclusive right to decide between arbitration or litigation to resolve a dispute. This means one side can choose the forum for their dispute at the time the dispute arises, rather than at the time of negotiating the agreement.

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REUTERS | Ints Kalnins
February 16, 2021

Rethinking arbitration hearings: A shift towards asynchronous hearing timetables?

Arbitration is favoured for flexibility of process, and the seamless transition to virtual hearings in the otherwise disruptive COVID-19 era has proved testament to such. A year on, with a significant number of arbitration users having participated in virtual hearings held over videoconference, it is timely to reflect on the way we conduct arbitration hearings and the possibilities for transformation.

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REUTERS | John Sibley
February 9, 2021

M/T Prestige litigation and arbitration: key takeaways

The latest two decisions arising out of the aftermath of the Prestige oil spill in 2002 have shed some light on three major areas of the English law of arbitration. The Commercial Court’s two decisions in London Steam-Ship Owners’ Mutual Insurance Association Ltd v  The Kingdom of Spain ([2020] (EWHC 1582) and The London Steam-Ship Owners’ Mutual Insurance Association Ltd v The Kingdom of Spain [2020] (EWHC 1920)  provide an insightful analysis into the scope of the so-called “conditional benefit” principle, the powers of an arbitrator to grant injunctive relief and the court’s interpretation of the arbitration exception in the Brussels Recast Regulation.

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REUTERS | Yuya Shino
January 29, 2021

The arbitration vaccine: immunity of arbitrators

“A judge, for anything done by him as judge, by the authority which the King hath committed to him, and as sitting in the seat of the King (concerning his justice) shall not be drawn in question before any other judge”.

Preconceived wisdom holds that because judges and arbitrators are in the same business, namely the administration of justice, both should be granted immunity as a guard of independence. This article considers a comparative view on the extent to which arbitrators may be immune from any scrutiny of their actions in the course of their mandate.

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REUTERS | Yuya Shino
January 25, 2021

Witness recollection and international arbitration

A recently published report from the International Chamber of Commerce (ICC), The Accuracy of Fact Witness Memory in International Arbitration, covers the work undertaken by the ICC Task Force on Maximising the Probative Value of Witness Evidence. This blog post reviews the ICC Report’s salient findings and suggestions, and asks whether it advances matters.

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REUTERS | Smith Lee
January 19, 2021

Drafting arbitration clauses: lessons learned in 2020

One of the many uncertainties of Brexit is the impact it will have on the enforcement of English court jurisdiction clauses and English court judgments across the EU. Despite the hopes of the legal community, the Trade and Cooperation Agreement does not contain any provisions on civil judicial cooperation, so there remains uncertainty over what will replace the previous regime as set out in the Brussels Recast Regulation and the Lugano Convention. The EU may agree to the UK acceding to the Lugano Convention but, for now, jurisdiction and enforcement of judgments will be determined by the Hague Convention on Choice of Court Agreements or national laws.

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REUTERS | Jason Lee
January 7, 2021

Arbitration Act 1996: is it time for an update?

“The 1996 Act is not a complete code of the law of arbitration, but allows judges to develop the common law in areas which the Act does not address.”

So said Lord Hodge in his lead judgment in the widely reported UK Supreme Court decision in Halliburton v Chubb.

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