Arbitration specialists in solicitors’ firms are familiar with the evening phone call from transactional colleagues: “Can you look at our arbitration clause? We need to sign the contract tonight”. Frustrating as such entreaties can be, it is preferable to be asked in advance than to encounter a problematic clause for the first time after a dispute has arisen. Continue reading
The Equal Representation in Arbitration Pledge (the Pledge), conceived as a call to action to address the historical under-representation of women in international arbitration, is celebrating reaching a milestone 3,000 signatories since its launch in May 2016. This blog post discusses the breakdown of these signatories, marks the Pledge’s progress to date and looks ahead to what more needs to be done. Continue reading
The Swiss Government published on 24 October 2018 the draft bill regarding the revision of its arbitration law, that is, Chapter 12 of the Private International Law Act (PILA). The revision’s stated objectives are to codify the case law of the Swiss Supreme Court, clarify open issues, increase party autonomy, and improve the wording of the PILA so as to make it more user-friendly. Continue reading
In a meticulous lesson on the doctrine of “Functus Officio” the New York Appellate Division, First Department has given the arbitration world an erudite explanation of when an arbitration decision is final and not subject to change in American International Specialty Lines Insurance Company (AISLIC) v Allied Capital Corp.
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Any introductory lecture on international commercial arbitration will at some point address the balance that has been struck, or has sought to be struck, between the common and civil law procedural traditions. The “soft law” IBA Rules on the Taking of Evidence in International Arbitration will be referred to as an example of how this compromise has been reached in the standard approach to evidence, and much will be made of their use and acceptance within the global arbitral community. Continue reading
There is no shortage of (mostly?) apocryphal stories about clauses that are put into draft agreements as a joke at an early stage of negotiations and, due to oversight, are never removed. My personal favourite is the so-called “End of the World” clause which goes something like this: Continue reading
On 2 October 2018, the European Court of Human Rights (ECtHR) released its long-awaited decision in the Pechstein case. This is the final development in a case that has run through various courts in Switzerland and Germany for almost a decade. Continue reading
No doubt, the European Court of Justice (ECJ) ruling in Slovak Republic v Achmea BV of earlier this year has caused reasoned concern amongst the international investment arbitration community that its reach may be much wider than intra-EU bi-lateral investment treaties (BITs). The proposition is, and the ruling in Achmea most certainly will extend to BITs concluded between an EU member state and a third country from outside the EU. This is because the reasoning developed by the ECJ to conclude that arbitration clauses in intra-EU BITs are unenforceable within an EU context applies with equal force to a situation where an investor brings a claim under a BIT between an EU member state and a third country. To the extent that a dispute arising from an EU-third country BIT is seated in an EU member state, or a resultant award requires enforcement before an EU member state court, it is more likely than not that the Achmea ruling would unfold its full legal effect. Similar considerations may also apply to corresponding situations within the context of disputes arising from multilateral investment treaties (MITs) to which an EU member state is a party, such as the Energy Charter Treaty (ECT). Continue reading
In recent years, US federal procedural law has emerged as a powerful weapon in cross-border disputes. In particular, section 1782 of Title 28 of the United States Code (28 USC §1782) allows district courts in the US to order the discovery of evidence for use in foreign and international proceedings, including, according to several courts, foreign-seated arbitrations. Continue reading
The so-called Prague Rules were published in draft form very early on. Since then, there have been a number of revisions with updated drafts being published. This was perhaps one of the reasons why they attracted so much attention (primarily in the form of criticism) from the arbitration community. With one final revision of the text to go and with the launch of the Prague Rules scheduled for 14 December 2018 in Prague, it may be a good time to look at why they may be needed. Continue reading