Back in 2016, Lord Thomas suggested that arbitration, and its inherent privacy, was seriously impeding the development of common law, particularly within the sphere of commercial law. In 2017, he went on to describe the courts as “complementary” to arbitration, with the courts providing “maximum support, minimum interference,” where necessary. Continue reading
On 30 April 2019, the Court of Justice of the EU (CJEU) issued its long-awaited Opinion 1/17 regarding the question raised by Belgium of whether the investment court system (ICS), which encompasses a tribunal and appellate tribunal, is compatible with EU law. The approval of the CJEU not only removes the remaining obstacle for the entering into force of the whole Comprehensive Economic and Trade Agreement (CETA), but, moreover, gives the European Commission a green light for its efforts to create a permanent multilateral investment court (MIC), which is currently being negotiated within UNCITRAL working group III. Continue reading
In the context of a challenge under section 67 of the Arbitration Act 1996 (AA 1996), in Filatona Trading Ltd and another v Navigator Equities Ltd and others, the English Commercial Court considered the circumstances in which an undisclosed principal may be sued under an arbitration agreement. The English Commercial Court also heard a challenge under sections 67 and 68 of the AA 1996 on the basis that an arbitral tribunal had awarded relief from shareholder oppression that is not available in the English courts, namely, a buy-out of a foreign company’s shares pursuant to Cypriot statute (the law of the place of incorporation of the company whose shares were being purchased). Continue reading
Construction disputes are inherently complex, document-heavy and time-intensive. They often require the preparation of multifaceted technical fact and expert evidence, accompanied by multiple rounds of lengthy pleadings and submissions. It is therefore no surprise that the nature of construction disputes makes them expensive to run. This is a key factor for all players in an industry where there are high stakes, with many clients facing serious cash-flow pressure in the aftermath of projects that have experienced massive cost and time overruns. Continue reading
It is said that cash flow is the lifeblood of business and this could not be more true for contractors and suppliers in the construction industry. The UAE’s new Arbitration Law and recent guidance on payment terms look set to improve crucial cash flow for contractors and suppliers. Continue reading
Determining the scope of an arbitration clause is a key question for users of international arbitration, as it fixes the boundaries of the tribunal’s jurisdiction. In English and Australian law, this is a question of contractual interpretation, though it is approached differently in each case, with English law operating a presumption in favour of commerciality, while Australia takes a more technical approach. While in many cases the outcome will be the same, the distinction is important and has recently been re-entrenched by a decision of the High Court of Australia, Rinehart v Hancock Prospecting Pty Ltd. Continue reading
The news that Singapore is consulting on the possible introduction of appeals from arbitration awards on points of law raises once more the question of whether rights of appeal are valued by users of arbitration. Most jurisdictions do not allow any right of appeal on the merits to the court of the seat: England is one of the few jurisdictions where this is possible. When the Arbitration Act 1996 (AA 1996) was being drafted, there were several calls for rights of appeal to be abolished, but ultimately the drafters decided against this. They reasoned that parties, who have often chosen the applicable law, must be taken to have intended that the law would be properly applied by the tribunal. However, the drafters sought to minimise court intervention by pragmatic means, for example, by continuing to require the grant of leave to appeal and by making the test for the grant of leave more stringent by the introduction of a requirement that it be “just and proper” for the court to rule on the question of law, despite the parties’ agreement to arbitrate. Continue reading
The bilateral investment treaty (BIT) between Turkey and Uzbekistan (Turkey-Uzbekistan BIT) that was signed on 28 April 1992, which aimed to promote investment in the contracting states and provide protection to the investments of international investors in Turkey as well as Turkish investors in Uzbekistan against non-commercial risks in the framework of international law, is one of the 98 BITs that Turkey signed with other countries. It has been in force since 18 May 1995. Continue reading
The modern approach of English law to arbitration (as reflected in the English Arbitration Act 1996 (AA 1996)) reflects the core principle of party autonomy: see the Departmental Advisory Committee on Arbitration Law Report on the Arbitration Bill (DAC Report) at paragraphs 19-22. Continue reading
Cyber criminals, such as hackers, pose an increasing threat to the security of our virtual world and have claimed a long list of victims from celebrities to governments. In a post-WikiLeaks world, participants in international arbitration have not been spared. In 2015, in the course of an arbitration between China and the Philippines over disputed territory in the South China Sea, the website of the Permanent Court of Arbitration in the Hague, the Philippines’ Department of Justice and the law firm representing the Philippines were hacked. This incident underscores the fact that every participant in an arbitration needs to consider these risks, and that data associated with any arbitration is only as secure as the weakest link in the chain through which that information passes. Continue reading