REUTERS | Denis Balibouse

A few months ago, Naomi Briercliffe (a talented former colleague of mine) and Stephanie Grace Hawes posted on this blog a very interesting and thought-provoking analysis of what they consider to be the most appropriate standard of review when jurisdictional challenges to investment treaty awards on  are filed before national courts. Continue reading

REUTERS | Maxim Shemetov

On 27-29 November 2017, the United Nations Forum on Business and Human Rights will convene in Geneva. Its central theme: Access to Effective Remedy. In line with this shifting focus by the international community on the third pillar of the UN Guiding Principles on Business and Human Rights (UNGPs), a working group of international law specialists published a proposal to use arbitration to resolve disputes that arise out of human rights abuses involving businesses (BHR disputes). Continue reading

REUTERS | Dylan Martinez

We are all consumers and, on occasion, we face disputes with traders who provide us with goods or services. Most consumer disputes, if not resolved amicably, will end up in court. However, the last two decades saw the growth of consumer arbitration in the US, with an increasing number of consumer contracts originating in the US containing arbitration clauses. The question is whether consumer arbitration will take hold outside the US, and in particular in the UK. Continue reading

REUTERS | Bazuki Muhammad

Hej! I have just returned from the International Congress of Maritime Arbitrators (ICMA), held last week in wonderful Copenhagen and hosted over five days by the Danish Institute of Arbitration. ICMA is held every two to three years and provides a forum for maritime arbitrators, lawyers and others in the shipping industry to exchange views and news. Continue reading

REUTERS |

Third party funding (TPF) has become an established feature of the arbitral landscape. It is now not uncommon for parties to consider TPF when commencing or responding to an arbitration, choosing their counsel, or even when negotiating an arbitration agreement.

This raises the question whether such arrangements should be disclosed, and if so, the scope of such disclosure. Continue reading

REUTERS |

The long-awaited Opinion of Advocate General (AG) Wathelet in the Achmea case has resulted in an unexpected and rather surprising Opinion.

Many observers (including the present writer) had expected that the AG would hammer the final nail on the coffin of intra-EU BITs and arbitral tribunals based on these treaties. After all, the pressure by the European Commission on intra-EU bilateral investment treaties (BITs)/ECT arbitral tribunals to reject their jurisdiction because the intra-EU BITs and arbitration are supposedly incompatible with EU law has been high for many years. Similarly, the European Commission has been pressurising the EU member states to terminate their intra-EU BITs. Indeed, several member states have done so, or are in the process of doing so.

In light of these developments, it came as a surprise that the AG concluded that intra-EU BITs and international arbitration based on such BITs, is entirely compatible with EU law. The AG fully rejected the arguments raised by the European Commission and several EU member states.

Continue reading

REUTERS | Nacho Doce

Shareholder disputes normally fall within two categories. The first is where a shareholder is outvoted by a majority which is acting against the interest of the company. The second is where a rogue director is “on a frolic of their own”; that is, they are acting for their own benefit or that of third parties. In such circumstances, minority shareholders can issue either a derivative claim or a claim for unfair prejudice.

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REUTERS | David Mercado

For whom the treaty tolls?

Falling foul of a limitation period can stop a treaty claim in its tracks. For claimants, how you frame an alleged treaty breach may, for the purposes of computing time, determine whether the claim is barred in whole or in part. For respondents, successfully proving the expiry of a limitation period may be an entire defence. Whilst a number of international investment treaties (notably, the North American Free Trade Agreement (NAFTA)) contain limitation periods, tribunals have not often addressed this topic in detail, and there is no uniform jurisprudence on how limitation periods should apply. Ultimately, each case must be analysed in its own context. An overly strict approach may, for instance, improperly punish investors that delay filing their notices of arbitration in hopes of finding an amicable solution, particularly where states have represented that, given time, they will provide a remedy. In any event, regardless of how limitation periods are interpreted, investors would be well served by negotiating an agreement with the state that suspends or tolls the limitation period to remove any doubts. This blog post therefore discusses the enforceability of such agreements and flags some practical issues for consideration. Continue reading

REUTERS | Dado Ruvic

On 1 September 2017, the joint ICCA-Queen Mary Taskforce issued its draft report on third party funding in international arbitration. The Taskforce was composed of experienced practitioners and academics from over 20 different jurisdictions. Continue reading