Now that the dust has settled following the Achmea, Komstroy, Micula and PL Holdings judgments of the Court of Justice of the EU (CJEU), in which it banned intra-EU investor-state arbitration disputes (ISDS) based on bilateral investment treaties (BITs) and the Energy Charter Treaty (ECT) within the EU, the wider, decentralised implementation of this ISDS ban is becoming increasingly visible.
The Saudi Center for Commercial Arbitration (SCCA) recently published its annual report for 2021, highlighting the progress made by Kingdom of Saudi Arabia (KSA) on its path towards becoming a globally recognised arbitration seat. Since the current Saudi Arbitration Law (Royal Decree No. M/34) came into force on 7 July 2012, efforts have continued to ensure that arbitration is a catalyst for improving the business environment and enforceability of contracts that Saudi Arabia is promoting as part of its Vision 2030.
There were a number of discussion points identified in the report but of particular interest were the results of an SCCA study, which produced statistics illustrating the low rate at which local and foreign arbitral awards are nullified in Saudi Arabia.
At the height of the pandemic, in or around the first quarter of 2021, the Abu Dhabi Global Market (ADGM) Arbitration Centre (ADGMAC) published a set of guidelines to provide procedural and logistical assistance on the conduct of remote and semi-remote hearings in international arbitration, known as the “ADGMAC Protocol for Remote Hearings ”. Being a soft law instrument, this Protocol is not binding and as such is subject to party autonomy. The Protocol may be used for guidance in merits hearings or be adapted for use in procedural case management conferences depending on the parties’ and the tribunal’s needs. It further lends itself for application in combination with the ADGMAC’s so-called “Smart Arbitration” services, which have been designed to promote a reality of fully remote arbitral proceedings. Given the continued relevance of remote hearings in daily arbitration practice around the globe, it is timely to take a closer look at the main provisions of the Protocol and how they may assist in the conduct of virtual arbitral proceedings.
Not every case begins with the declaration that “this is an odd case”. An application under section 67 of the English Arbitration Act 1996 to contest the jurisdiction of the tribunal is normally brought against claims by one’s opponents. However, Sea Master v Arab Bank concerned a section 67 application by the claimants (together “Sea Master”) that claims which they themselves had brought were outside the jurisdiction of the tribunal.
It is also odd for a second reason. That is because the claimant’s case was that the claims they were seeking to challenge fell outside the ambit of the relevant arbitration agreement. However, neither party had addressed the tribunal on this issue.
In the recent case of NDK Ltd v HUO Holding Ltd, the Commercial Court considered whether claims that come under both the terms of the articles of association of a foreign company and a shareholders agreement fall within an arbitration agreement and are arbitrable.
The actions of states relating to the introduction, withdrawal or amendment of policy measures explicitly developed to meet climate goals has caused investment treaty arbitration to become a battleground for the settlement of international climate-related disputes. Against this backdrop, on 24 June 2022, the Energy Charter Conference confirmed that, after five years of negotiations, its member states had reached an agreement in principle regarding revisions to the Energy Charter Treaty (ECT).
The draft text will be shared with the ECT Contracting Parties by 22 August 2022 for adoption by the Energy Charter Conference on 22 November 2022. In the meantime, here are three things every arbitration practitioner needs to know about the proposed changes to the ECT.
The Law Commission currently intends to publish its consultation paper on proposed reform of the English Arbitration Act 1996 (AA 1996) in September 2022. However, at a COMBAR lecture on the Law Commission’s project and proposals on 27 June 2022, Professor Sarah Green and Dr Nathan Tamblyn gave a preview of the eight areas that have made the current shortlist for inclusion in the consultation paper.
On 30 November 2021, the Law Commission announced that it would be conducting a review of the English Arbitration Act 1996 (AA 1996). The aim of the review is to maintain the attractiveness of England and Wales as a “destination” for dispute resolution and the pre-eminence of English Law as a choice of law.
The Law Commission has identified a number of potential areas for review, including summary disposal, the courts’ powers exercisable in support of arbitration proceedings, the availability of appeals on points of law and confidentiality.
However, there is one notable omission from the list and that is third-party funding (TPF) and, specifically disclosure obligations surrounding TPF.
The new ICSID Rules came into force recently on 1 July 2022 making the disclosure of TPF mandatory. This blog considers whether the AA 1996 should include express provisions setting out the rules on disclosure of TPF for arbitrations seated in England.
In most complex litigation, the exchange of documentary evidence is essential to the fact-finding process. The same is true of document production in arbitration, which, while not mandatory, is frequently used. A common ground for withholding a document requested by a counterparty is that the document is protected by legal privilege. However, several challenges may arise concerning privilege claims.
In the recently issued Green Power Partners K/S, SCE Solar Don Benito APS v. Kingdom of Spain award, for the first time ever, an SCC arbitral tribunal established under the Energy Charter Treaty (ECT) declined jurisdiction by accepting the Achmea jurisdictional objection.