It is not very fashionable in investment arbitration circles to suggest that investment treaty arbitration could learn a thing or two from court proceedings, but two recent judgments of the English High Court, PAO Tatneft v Ukraine and GPF GP S.à.r.l. v Republic of Poland, give some credence to the suggestion. In particular, the judges’ decisions provided a rigorous analysis of two doctrines of international investment law which merit reflection. Continue reading
The Swiss Association of Engineers and Architects (SIA) has issued new arbitration rules, replacing the predecessor rules from 1977. The new rules entered into force on 1 January 2018 and apply to all arbitration proceedings under the SIA Rules initiated after 1 January 2018, irrespective of when the parties entered into their arbitration agreement. Continue reading
This is the second part of a blog on basic trends and developments in investment arbitration in the Middle East. Part 1 discussed in some detail the procedural framework for bringing investor claims against a Middle Eastern host state, highlighting in particular potential avenues of redress under national investment laws, bilateral investment treaties (BITs), multilateral investment treaties (MITs) and free trade agreements (FTAs). Of particular interest is recourse under two MITs that are specific to the Middle Eastern region: Continue reading
Roy Cohn, the well-known US lawyer, said, “I don’t want to know what the law is, I want to know who the judge is”. One of the advantages of arbitration over court litigation is that the parties know from the outset the arbitrator(s) who will be making the decisions in their case. As international arbitration practitioners, we believe that by knowing the identity of the arbitrator(s) at an early stage, we can better predict how a case may play out: how a tribunal is likely to respond to particular interlocutory applications; what their view of the “merits” might be; how long it might take to get a decision. In disputes where arbitrators are party appointed, parties want as much knowledge of potential arbitrators as possible before appointing them. In disputes where arbitrators are appointed by arbitral institutions, parties want to better understand the arbitral selection process and have as much information about the arbitrators once appointed. Continue reading
It is rare that an arbitrator’s qualifications are challenged in court and even rarer for such a challenge to be taken up on appeal. However, Allianz Insurance Plc and another v Tonicstar Ltd was one such case. Continue reading
In Stati and others v Kazakhstan, having obtained a favourable award in a Swedish-seated arbitration against Kazakhstan (K), the claimants (S) sought to enforce in a number of jurisdictions, including England. S successfully applied for an order to enforce the award in England and K then sought to set the order aside, alleging that the award had been obtained by fraud. Knowles J, sitting at first instance, directed that the fraud issue should be tried as an issue in the enforcement proceedings. Continue reading
In a recent address at an international arbitration conference in Mauritius, Sir Rupert Jackson, famous for his wide ranging reforms to English civil procedure, invited people to consider the benefits of introducing costs budgeting and costs management into arbitrations, at least for lower value claims. Continue reading
Last October, we wrote about the proposal by a working group of international law specialists to use arbitration to resolve disputes that arise out of human rights abuses involving businesses. Since then, the proposal has evolved into a project led by The Hague Institute for Global Justice to draft a set of international arbitration rules (The Hague International Business and Human Rights Arbitration Rules) for use in business and human rights disputes. Once drafted, the plan is for the rules to be offered to the Permanent Court of Arbitration and other international arbitration institutions, for use in arbitration proceedings to be administered by these institutions. The rules could also be voluntarily adopted by parties in ad hoc arbitration proceedings. Continue reading
Recently, an UNCITRAL Working Group has concluded its work by proposing a “Convention on international settlement agreements resulting from mediation” (A/CN.9/942) with the aim of enabling the enforcement of such settlements via domestic courts. Continue reading
On 27 July 2018, the Court of Appeal delivered its judgment in Viorel Micula and others v Romania and European Commission (Intervener). It maintained the stay of enforcement granted by Blair J in the High Court, but overturned his decision on security, ordering that Romania should provide £150 million as a term of the stay (but not making compliance with the order on security a condition of the stay). The decision reveals a delicate balancing act by the court between the UK’s obligations under the ICSID Convention and its duties under EU law. Continue reading