Many litigators have been faced with determining the appropriate course of action to take when they have encountered a sophisticated contract containing two diametrically opposed forms of dispute resolution, final and binding arbitration on the one hand and exclusive jurisdiction of a national court on the other. Continue reading
Users of international arbitration are familiar with the common criticism that arbitral tribunals in international arbitration tend to be old, male and stale. Further to this, there have been growing concerns and discussions around the subject of diversity in international arbitration. On 10 September 2021, during its Annual Congress, the Singapore International Arbitration Center held a lunchtime roundtable discussion on the subject ‘Shifting Paradigms in International Arbitration: Arbitral Tribunals, Party-Nominated Arbitrators and Diversity’. The roundtable discussion which was moderated by Kabir Singh, featured Foo Yuet Min, Ashish Kabra, Zhulkarnain Abdul Rahim, John Liu, Gitta Satryani and Myung-Ahn Kim. The panel addressed the meaning, scope, importance and type of diversity needed in international arbitration, the hallmarks of a diverse tribunal and the stakeholder with the responsibility of ensuring diversity in international arbitration.
An arbitration clause, by definition, seeks something other than litigation in a boardroom. Parties choose to arbitrate because they see value in its distinguishing features and wish to capitalise on the flexibility it offers as a means to resolve disputes.
The final panel session of the SIAC Virtual Congress 2021 addressed the long-standing issue of the role of arbitral institutions in controlling the time and costs of arbitral proceedings. The session was moderated by Mr Toby Landau QC (Vice President, SIAC Court of Arbitration; Barrister and Arbitrator, Duxton Hill Chambers (Singapore Group Practice)). Joining the discussions were Prof. Dr. Mohamed Abdel Wahab (Founding Partner and Head of International Arbitration, Construction and Energy, Zulficar & Partners Law Firm), Ms Chiann Bao (Arbitrator, Arbitration Chambers), Mr Dmitry Dyakin (Member, SIAC Court of Arbitration; Partner and Co-Head, Dispute Resolution Practice, Rybalkin, Gortsunyan & Partners), Ms Koh Swee Yen (Partner, WongPartnership LLP), and Ms Yoshimi Ohara (Partner, Nagashima Ohno & Tsunematsu).
Oil and gas production sharing contracts (PSCs or PSAs) are high-value, high-stakes agreements which often give rise to disputes between contractors and state-owned entities such as national oil companies (NOCs). Many of these disputes are resolved by means of international arbitration and the resulting arbitral awards often enter the public domain, for example as a result of subsequent enforcement or annulment proceedings before national courts. This article briefly discusses some key recurring types of PSC disputes.
The UK Supreme Court recently issued a welcome judgment in Kabab-Ji v Kout, confirming that the principles set out in Enka v Chubb extend to the assessment of governing law of the arbitration clause at the enforcement stage. The decision is helpful clarification that there is only one approach that will be taken by the English courts to this question, whenever it arises in the arbitration life cycle and this certainty can only be good news for arbitration users. While this was a summary judgment blocking enforcement, those looking to enforce awards will also be pleased to see confirmation from the Supreme Court that a full evidential hearing and trial of challenges to enforcement will not necessarily be required. When proportionate, a summary judgment process can be used to deal with such issues. Despite the deceptively simple scheme laid out in the judgments, there may however be something of a gap left by the decisions in Enka v Chubb and Kabab-Ji v Kout. Given this, we can expect to continue to see some volume of future litigation in relation to the validity of arbitration agreements where there is no express governing law set out in the arbitration clause.
On 1 January 2021, a significant milestone under the African Continental Free Trade Agreement (AfCTA) was achieved as trading began in the African Continental Free Trade Area. This portends exciting investment opportunities in Africa, for both local and foreign investors. However, it is imperative for investors to know and understand how disputes between states and private investors will be treated and resolved under AfCTA. AfCTA includes a protocol on dispute settlement which only applies to disputes between states, and not private investors. The AfCTA signatories plan to hold negotiations in the near future to outline a protocol on investment, addressing both foreign direct investment as well as intra-African investment (Investment Protocol). Although the precise contours of the Investment Protocol are as yet unknown, this Protocol presents an opportunity for the harmonisation and development of investment principles and dispute resolution in Africa.
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-appointed expert in international arbitration, a topic that has been the subject of debate for a number of years.
One well-known reason for commercial parties to choose arbitration is the reassurance that such proceedings are confidential. For various reasons, parties prefer not to air “dirty linen” in public.
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 that investor-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?