Over the last 11 years, BCLP have conducted an annual survey on issues affecting the arbitration process. This year’s survey focuses on the role of the party-appointedexpert in international arbitration, a topic that has been the subject of debate for a number of years.
As has been widely reported, the recent Komstroy judgment of the Court of Justice of the EU (CJEU) in which it extended the application of its previous Achmea judgment to the Energy Charter Treaty (ECT) by determining thatinvestor-state arbitration within the EU is incompatible with EU law, raises the fundamental question whether there is still a reason d’etre (reason for being) for the ECT?
In a recent ruling of the Dubai International Financial Centre (DIFC) Court of Appeal (CA) in Lahela v Lameez, the DIFCCA overturned the DIFC Court of First Instance (CFI)’s ruling in Pearl Petroleum Company Limited & Others v The Kurdistan Regional Government of Iraq. It found that Justice Sir Jeremy Cooke, rendering the ruling of the DIFCCFI, wrongly concluded in favour of the strict mandatory application of the service regime under article 6 of the Riyadh Convention. The DIFCCA also confirmed that obligations, whether of service or otherwise, under the Riyadh Convention and by extension under international agreements between the United Arab Emirates(UAE) and third-party countries more generally, did not form part of DIFC law to the extent that these dealt with civil and commercial matters and had not expressly been adopted into the domestic body of DIFC law (even despite their wholesale adoption into UAE law). As a result, in circumstances where the courts of a Riyadh Convention country (here the Erbil Court of Republic of Iraq, which like the UAE is a signatory of the Riyadh Convention) fail to effect service on an award debtor in that country in the terms prescribed under the Riyadh Convention, alternative and possibly more effective service options available under the DIFC Court Rules (RDC) (and possibly even dispensation with service altogether) are open to award creditors in order to secure enforcement of their ratified DIFC award.
This is the second part of a two-part blog post that considers the key features ofexpedited arbitration and what balance they achieve between efficiency, autonomy and due process. Part one addressed appointmentof arbitrators and the arbitral procedure. Part two looks at hearings in expedited arbitrations.
This two-part blog post considers the key features ofexpedited arbitration and how they modulate the balance between efficiency, autonomy and due process. Part one addresses appointmentof arbitrators and the arbitral procedure, and part two addresses hearings in expedited arbitrations.
Imagine this. You are an English company. You enter into a contract with a government of another state, say Libya. You agree to provide the goods. The government agrees to provide the money. The goods are sent, but the government fails to pay. Aghast, you bring anarbitration, pursuant to the terms of the contract. You obtain an award ordering the government to pay up. Success! However, unless the government is willing to pay (unlikely), that award isn’t worth the paper it’s written on without an order of a domestic court permitting enforcement. So, you apply to the High Court, which grants the order ex parte. All that is left is for you to serve the order on the government and then proceed to enforce (assuming no challenge is brought). As English practitioners will be well aware, this invariably requires a trip down to the Foreign, Commonwealth and Development Office (FCDO), which will serve the government through diplomatic channels.
In the recent case of Vale SA and others v Steinmetz and others, the Court of Appeal was asked to determine whether an arbitration award issued in respect of an arbitration between Vale SA (Vale) and BSG Resources Ltd (BSGR) was binding on Vale in respect of Commercial Court proceedings brought by it against Nysco (owners of BSGR) and Balda (owners of Nysco).
Over the last few years, there has been increasing public awareness and concern over the ability of private investors to sue democratically elected governments before privately constitutedtribunals which operate “in secret” outside the sphere of domestic courts.