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In an award in MAKAE Europe SARL v Kingdom of Saudi Arabia rendered under the ICSID Convention, and the agreement between the Government of the Kingdom of Saudi Arabia (KSA) and the Government of the French Republic concerning the encouragement and reciprocal protection of investments, which entered into force with effect from 18 March 2004 (KSA-France BIT), a three-member tribunal constituted by ICSID found that it did not have jurisdiction on the basis that the claimant failed to demonstrate the requirements of a protected investment under article 1(1) of the KSA-France BIT. This award shows that the gateways for a tribunal’s jurisdiction under bilateral investment treaties (BITs) tend to be strict and require presentation of sufficient evidence for a foreign investor to pass successfully.

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REUTERS | Thomas Peter

As of 2022, 46 African countries have signed a memorandum of understanding to be part of the Belt and Road Initiative (BRI), which is China’s infrastructural investment push involving much of the developing world. The BRI’s influence on the continent is doubtless and involves technically complex, high-value, long-term and capital-intensive undertakings, which frequently involve substantial public and state interests. Energy generators, long-distance pipelines, ports, and railways are but a few examples. As such, BRI projects are a fertile environment for cross-border, multiparty and complex disputes.

This blog explores the evolution in the articulations of dispute resolution provisions in bilateral investment treaties (BITs) between China and African states. Continue reading

REUTERS | Alexandre Meneghini

All English arbitration lawyers are familiar with the long-standing principle of the separability of an arbitration agreement as enshrined in section 7 of the English Arbitration Act 1996 (AA 1996).  That section provides:

Unless otherwise agreed by the parties, an arbitration agreement which forms or was intended to form part of another agreement (whether or not in writing) shall not be regarded as invalid, non-existent or ineffective because that other agreement is invalid, or did  not come into existence or has become ineffective, and it shall for that purpose be treated as a distinct agreement.

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REUTERS | Smith Lee

A topical and interesting decision from the Commercial Court last month, PJSC National Bank Trust v Boris Mints, looks at the circumstances in which an arbitration decision can bind non-parties. Topical, for me at least, not just because it was yet another case where Russian litigants were using English courts to resolve their disputes, but also because I have had a couple of cases recently where a related point has arisen.

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REUTERS | Hazir Reka

As reported in the first part of this blog, the new  Rules of Arbitration of the Dubai International Arbitration Centre 2022 (DIAC Rules 2022) have entered into force with effect from 21 March 2022. Part 1 discussed in some detail the virtual conduct, the revision of time-limits and the introduction of expedited proceedings, as well as party representation under the DIAC Rules 2022. This part continues the discussion, focusing on the balance of procedural novelties introduced by the new Rules.

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REUTERS | Kate Munsch

On 21 March 2022, member states of the ICSID Convention approved amendments to the ICSID Regulations and Rules, which will enter into force on 1 July 2022.

The approval of the revised rules follows an extensive process spanning over five years, involving public consultations, meetings with state experts, and the publication of six working papers. The new modernised rules include valuable provisions directed at reducing time and costs, including new mandatory timeframes for rendering orders and awards and new “opt-in” expedited arbitration rules. The new rules also embrace the use of technology and, for the first time, address the disclosure of third-party funding.

We are delighted to welcome Meg Kinnear, Secretary-General of the International Centre for Settlement of Investment Disputes (ICSID) at the World Bank Group since 2009. Meg is in her third term as ICSID Secretary-General, prior to which she served as Director General of the Trade Law Bureau of Canada, where she was responsible for the conduct of international investment and trade litigation involving Canada. Meg has therefore seen investment disputes from different perspectives, and we are delighted that she has agreed to answer some of our questions about the new ICSID arbitration rules.

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REUTERS | Lucy Nicholson

Following a gestation period of well over five years (predecessors of the 2022 version of the Rules having surfaced for the first time in 2017, reported in Part 1 and Part 2 of a previous blog), the new Rules of Arbitration of the Dubai International Arbitration Centre (DIAC) have, at long last, been published in their 2022 version. This, no doubt, has been facilitated by the reinvention of the DIAC following the adoption of Dubai Government Decree No. 34 of 2021 concerning the Dubai International Arbitration Centre (Decree No. 34/2021).

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REUTERS | Tyrone Siu

It is common for commercial contracts to contain a dispute resolution clause specifying pre-conditions or escalation mechanisms that parties must comply with before being able to refer a dispute to arbitration.  From this arises an often-debated question of whether failure to comply with enforceable pre-conditions affects the jurisdiction of the relevant tribunal to hear a claim arising out of the arbitration agreement, or it is simply a matter of the admissibility of the claims.

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