With environmental concerns and the attendant existential threat they pose at the forefront of the public consciousness, it is perhaps unsurprising that investment arbitration tribunals increasingly find themselves asked to determine claims and counterclaims by states against investors and other operators whose business activities have an environmental impact. Continue reading
The 2019 novel coronavirus disease (COVID-19) pandemic has resulted in a period of exceptional uncertainty as well as substantial market instability worldwide. As previous crises have shown, commercial pressures on parties can lead to an increase in disputes and recourse to national courts and other forms of dispute resolution, including arbitration. With a quarter of the world’s population living under lockdown conditions, parties, their advisors, and judicial and arbitral bodies worldwide now find themselves in a unique situation. The wide-ranging effects of the pandemic are not just creating exceptionally difficult commercial circumstances, but are having an impact on the normal operation of the bodies that are there to assist parties in adjudicating those disputes. Courts and arbitral institutions have been making changes to their operations to respond to the effects of the pandemic in order to reduce risks to their employees and their users, so as to do their part in reducing the burden on healthcare systems. Continue reading
In a recent judgment, the UK Court of Appeal ruled, in the planning decision regarding the expansion of Heathrow airport with a third runway, that the UK government failed to take into account its own firm policy commitments on climate change under the Paris Agreement. Consequently, the Court of Appeal ordered the UK government to reconsider its planning decision by fully taking into account the Paris Agreement obligations. Continue reading
The UNCITRAL Working Group III, tasked with examining potential reforms of investor-state dispute settlement (ISDS), recently released its report on the outcome of its resumed 38th session, which took place in Vienna from 20 to 24 January 2020. Continue reading
In a case of earlier this year (see Case No. 32/2019, Dubai Court of Appeal, ruling of 5 February 2020), the UAE courts had a first opportunity to test their supervisory powers under Article 19(2) of the UAE Federal Arbitration Law (FAL), which entered into force with effect from 16 June 2018. More specifically, the Dubai Court of Appeal found against the proper jurisdiction of the DIAC tribunal, deciding to annul the tribunal’s affirmative award on jurisdiction. Continue reading
The Micula v Romania world tour continues. In a judgment handed down by the UK Supreme Court on 19 February 2020, the court held that the Miculas were entitled to enforce their ICSID award of approximately US $331 million against Romania, despite the fact that the award remains subject to an ongoing state aid investigation by the European Commission. Continue reading
8 March is International Women’s Day, a global day celebrating the social, economic, cultural and political achievements of women whilst at the same time marking a call to action to accelerate gender equality. Continue reading
On 19 February 2020, the UK Supreme Court rendered its judgment in Micula and others v Romania. In a unanimous ruling, the court lifted a stay of enforcement of an ICSID arbitral award despite an extant state aid investigation by the European Commission. This decision is the latest stage in the claimants’ long-running attempts to enforce their award against Romania in numerous jurisdictions. The judgment concluded that while the English courts have the power to stay execution of ICSID awards in limited circumstances, the stay in this case exceeded the proper limits of that power. In particular, the EU treaties did not displace the UK’s obligations under the ICSID Convention (pursuant to which the UK had a prior (pre-EU-accession) obligation to enforce the award). Continue reading
One must only look to the ICC’s annual case load statistics to see the ever-growing prevalence of construction and engineering disputes in international arbitration. Construction, engineering and energy disputes made up approximately 40% of the ICC’s new caseload in the most recent statistics from 2018, with 224 new cases arising from the construction sector. This trend is expected to continue, particularly as a multitude of disputes will inevitably arise on the large-scale energy, road, rail, and telecommunications infrastructure projects coming to fruition under China’s Belt and Road Initiative. Continue reading
While it would be premature to predict the end of the wave of European gas pricing arbitrations with the issue in January of the latest arbitration award in the ten year saga between Greece’s public gas corporation (DEPA) and Turkey’s BOTAŞ Petroleum Pipeline Corporation (BOTAŞ), the award does seem to straddle the end of one era and the opening of a new (and more contentious) one in the Mediterranean. The contract between the disputing parties, reported to be coming to an end in 2021 by mutual agreement, is one of many troublesome long term gas supply contracts which have been the subject of scrutiny and disputes following the global financial crisis. Continue reading