REUTERS | Ralph Orlowski
REUTERS | Ralph Orlowski

This is Part 2 of a blog that discusses the belated formal adoption of the 2017 DIAC Rules, which, at the time of writing remains pending. Part 1 discussed the positive contribution made by the 2017 Rules to the provisions on the seat and venue of the arbitration, the wide definition and the blanket use of electronic communication to facilitate the virtual conduct of the arbitration and remote service, and the novel provisions on the arbitral award deemed issued at the seat. On each of these, Part 1 also highlighted the extent to which it would assist the promotion of core provisions of the UAE Federal Arbitration Law (FAL), which entered into force with effect from 16 June 2018.

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REUTERS | Ina Fassbender

The Supreme Court’s much-anticipated judgment in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb addresses the correct approach under English law to determining the governing law of an arbitration agreement. The judgment seeks to promote certainty and enforceability of arbitration agreements, by providing that:

  • The parties’ choice of law in the governing law clause should generally also be interpreted as an express choice of law governing their arbitration agreement.
  • Parties should generally, as a matter of implied choice, be taken to have chosen a system of law to govern their arbitration agreement under which it would be valid.
  • In the absence of any express or implied choice by the parties, the governing law of an arbitration agreement will generally be that of the seat of the arbitration.

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REUTERS | Baz Ratner

A treaty is defined as “a written agreement between two or more countries”. This is not necessarily correct. Non-sovereign autonomous regions like Hong Kong can enter into bilateral investment treaties (BITs) too. Pre-1997, Hong Kong did so with the authorisation of UK, the then-colonial power. Presently, in line with Hong Kong’s constitutional arrangements, the central Chinese government may empower the Hong Kong authorities to do so.

Most recently, Jersey has joined Hong Kong as another non-sovereign entity that negotiates its own BITs. Jersey is set to sign its first BIT with the UAE later this year.

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REUTERS | Fabrizio Bensch

Last month, Sir Ross Cranston handed down the judgment in The Federal Republic of Nigeria v Process & Industrial Developments, marking the latest stage in what has proved a notoriously long-running dispute since arbitration between the parties was first commenced in 2012.

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REUTERS | Maxim Shemetov

In Riverrock Securities Ltd v International Bank of St Petersburg,  the English Commercial Court granted an interim anti-suit injunction (ASI) restraining proceedings brought in Russia by the liquidator of an insolvent company in breach of an arbitration agreement. The judgment addresses interesting issues regarding the arbitrability under English law of claims brought by liquidators pursuant to foreign insolvency laws and related public policy considerations.

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REUTERS | Gleb Garanich

Privilege is a tortuous subject in international arbitration. Parties must not only contend with the factual issues surrounding whether a communication is privileged, they must also confront the prior legal issue of what privilege rules the tribunal should use to decide those claims of privilege. Should they use the law of the seat? The substantive law? The law of the place where the lawyer is qualified or where the advice is given? Or perhaps an international standard like the IBA Rules on the Taking of Evidence?

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REUTERS | Kim Kyung-Hoon

The pending adoption of the 2017 Dubai International Arbitration (DIAC) Rules feels like a scene from Samuel Backett’s Waiting for Godot: having been announced and in essence launched at DIAC Arbitration Week in November 2017, the 2017 DIAC Rules are presently still awaiting assent from the Ruler of Dubai and have therefore not yet formally been adopted. As a result, the DIAC Rules 2007 continue to apply.

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REUTERS | Lucy Nicholson

Following the now infamous Achmea judgment of the Court of Justice of the European Union (CJEU) in March 2018, which declared the use of the investor-state arbitration clause in the Netherlands-Czechoslovakia bilateral investment treaty (BIT) (as it then was) incompatible with EU law, the EU member states quickly issued political declarations in which they announced their intention to terminate all their intra-EU BITs.

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REUTERS | Arben Celi

As we discussed in our previous contributions, arbitration can be an interesting dispute resolution mechanism in the context of insolvency proceedings, in particular given the facilitated enforcement of international awards. That said, insolvency proceedings often involve mandatory provisions and the active participation of state courts and public authorities. The state will therefore not necessarily allow all aspects of insolvency proceedings to be settled by arbitration but, on the contrary, reserve a considerable part of the process to the exclusive jurisdiction of state courts.

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REUTERS | Thomas Peter

On 11 August 2020, the LCIA published the first update to its arbitration rules since 2014. The 2020 Rules are not a wholesale rewrite of the 2014 Rules, but rather a set of amendments designed to address gaps in the 2014 Rules, and to ensure that the rules remain up to date and fit for purpose in an increasingly virtual era of arbitration. Continue reading