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Who received an Alexa for Christmas? It seems that more and more of us are comfortable with, perhaps even reliant upon, artificial intelligence in our day to day lives. But how comfortable would we be if robots could be appointed as arbitrators? Although this would involve a significant cultural shift, we are perhaps closer to it than we realise. Continue reading

REUTERS | Fabian Bimmer

By now, the readers of this blog will be familiar with the issues brought about by the ruling of the Court of Justice of the European Union (CJEU) in Slovak Republic v Achmea BV. In essence, that ruling declared unenforceable the arbitration mechanism contained in the bilateral investment treaty (BIT) between The Netherlands and the Czech and Slovak Federative Republic, the Dutch-Slovak BIT, for being incompatible with EU law. The CJEU stated the main reasons for this incompatibility to be as follows: Continue reading

REUTERS | Jean-Paul Pelissier

Introduction

There are no clear rules on privilege in international arbitration. There remains a lacuna for some consolidated guidance. In the absence of clear or express privilege rules, arbitral tribunals consider the:

  • Lex arbitri.
  • Law of the jurisdiction where the disclosure is sought.
  • Governing law of the agreement.
  • General principles of equality and fairness.
  • Expectation of the parties and lawyers at the time the issue or privilege is engaged.

Continue reading

REUTERS | Fadi Al-Assaad

We often tell clients about the best features of international arbitration: enforceability of awards, avoiding national courts, flexibility, and the ability of parties to select arbitrators. But what about the worst features? According to the 2018 Queen Mary/White & Case International Arbitration Survey, users of international arbitration complain most strongly about costs, lack of effective sanctions, lack of power relating to third parties, and speed. Continue reading

REUTERS | Dominic Ebenbichler

Further to a request for a preliminary ruling from the German Federal Court of Justice, the Court of Justice of the European Union (CJEU) rendered its decision in Slovak Republic v Achmea BV on 6 March 2018. The CJEU ruled that the arbitration clause included in the bilateral investment treaty (BIT) between the Netherlands and Slovakia is incompatible with EU law. Surprisingly, the CJEU did not follow the earlier opinion of Advocate General (AG) Wathelet. In his opinion, AG Wathelet suggested that EU law does not preclude the application of an investor-state dispute settlement (ISDS) mechanism established by a BIT. Continue reading

REUTERS | Leonhard Foeger

At the 12th arbitration, the panel gave to me: 12 investors investing, 11 funders funding, 10 pledgers pledging, nine arbitration clauses, eight arbitral seats, seven Yukos awards, six revised rule sets, five BITs, four NAFTA fall-outs, three arbitrators, two Brexit parties, and the Achmea controversy.*

As 2018 draws to a close, so the Practical Law Arbitration blog must hibernate over the Christmas break. We will be back rejuvenated in early January to kick-start what will undoubtedly be another bumper year.

Until that auspicious occasion, if Morecambe and Wise don’t tickle your fancy, why not kick back with some light reading material? Namely, our review of the ten most significant arbitration-related decisions from the English courts in 2018.

So, as we bid farewell to another year, all that remains is to thank our contributors for their excellent posts over the past 12 months. That and, of course, to wish all of them, and you, a very Merry Christmas and best wishes for 2019.

*With apologies to Frederic Austin. Also worth noting that the numbers in question are not necessarily accurate.

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2018 has been a tumultuous year in the world of arbitration. The European Court of Justice (ECJ) has dealt a blow to European investment arbitration, trade policy under Donald Trump’s administration has rattled investors the world over, long-standing legal sagas have continued, and developments in arbitral rules and legislation have seen a continued focus on transparency, diversity and third party funding.

We summarise the major stories of 2018 and do our best to read the tea leaves to divine what arbitration practitioners can expect next year. Continue reading

REUTERS | Aziz Taher

Feeding back to arbitrators?

On 20 November 2018, about 50 participants attended Quadrant Chambers’ biannual international arbitration seminar. The topic for discussion and debate was “Feeding back to arbitrators”. The panel event was chaired by Simon Rainey QC of Quadrant Chambers and the speakers were Paula Hodges QC, head of global arbitration at Herbert Smith Freehills and future LCIA President, Damian Honey, Head of International Arbitration and Disputes at Holman Fenwick Willan, and Ruth Hosking of Quadrant Chambers. Continue reading

REUTERS | Pilar Olivares

As I anticipated in Part 1 of this blog, recent case law precedent of the Dubai International Financial Centre (DIFC) Court of First Instance (the CFI) has revived the DIFC Courts’ role as a conduit jurisdiction for the recognition and enforcement of a domestic non-DIFC award for onward execution onshore. By way of reminder, in Isai v Isabelle, the CFI already confirmed the concurrent jurisdiction of the onshore Dubai and the offshore DIFC Courts for recognition and enforcement of a DIFC-LCIA award rendered in onshore Dubai (as the seat of the arbitration) even in the absence of any assets of the award debtor offshore. Continue reading

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Introduction

It is generally accepted that Brexit will not affect the conduct of arbitration claims in London as much as other areas of law. The legal framework of arbitration in the UK is not governed by EU law and it has the benefit of the New York Convention ensuring ongoing enforceability of arbitral awards. Continue reading