Practical Law

One of the most interesting aspects of international arbitration are the applicable laws. For me, what makes international arbitration stand out as its own system of law, much like the law of contract, torts or criminal law, is the method employed to determine which laws apply and how they operate together in harmony, or at … Continue reading International Commercial Arbitration: The Applicable Laws Theorem →

Arbitrators are inevitably bound by a duty of impartiality, whether that arises from of article 12 of the UNCITRAL Model Law, article 11 of the ICC Rules 2021, rule 11 of the CIArb Code of Professional and Ethical Conduct, the IBA Guidelines of Conflicts of Interest 2014 or any other applicable rule.  What is sure … Continue reading Unconscious Bias in International Arbitration →

The latest two decisions arising out of the aftermath of the Prestige oil spill in 2002 have shed some light on three major areas of the English law of arbitration. The Commercial Court’s two decisions in London Steam-Ship Owners’ Mutual Insurance Association Ltd v  The Kingdom of Spain ([2020] (EWHC 1582) and The London Steam-Ship Owners’ Mutual … Continue reading M/T Prestige litigation and arbitration: key takeaways →

There are two obvious differences between the Brazilian and English disclosure regimes. First, we have no codified duty to disclose in England. We only have grounds upon which a party can challenge the arbitrator, which much be read in the context of the justifiable doubts test from section 24(1)(a) of the English Arbitration Act 1996 (AA … Continue reading A firmer view on conflicts of interest (Part 2) →

On 5 January 2018, Practical Law Arbitration Blog published an article I wrote on the Abengoa case in Brazil “A firm view on conflicts of interest”. It was a rare case where the Brazilian Superior Court of Justice (STJ) refused to enforce a foreign judgment, for reasons of lack impartiality of the arbitrator.

When considering virtual hearings in arbitration, there are a number of matters which require discreet consideration beyond that of an ordinary face-to-face hearing. For ease, I would put those into five categories, the first and second of which I addressed in Part 1, with an analysis of the remaining categories in this second blog: Hearing … Continue reading The hitchhiker’s guide to virtual hearings (Part 2) →

As COVID-19 swept the world, and face-to-face meetings have diminished, the legal profession was forced to adapt. For arbitration, this has resulted in a new way of virtually conducting oral hearings.

If modern international arbitration is considered to stand on two fundamental pillars (the New York Convention 1958 and UNCITRAL Model Law 1985), then its success is relatively recent.

The right to fair and equitable treatment (FET) by a host state is one of the most widely invoked standards of investment protection. The principle derives from customary international law and is a common feature of bilateral investment treaties (BITs), found at Article 2(2) of the UK’s Model BIT. Although the standard remains general, tribunals … Continue reading Is Brexit a breach of the UK’s BITs? →

Introduction There are no clear rules on privilege in international arbitration. There remains a lacuna for some consolidated guidance. In the absence of clear or express privilege rules, arbitral tribunals consider the: Lex arbitri. Law of the jurisdiction where the disclosure is sought. Governing law of the agreement. General principles of equality and fairness. Expectation … Continue reading Is legal professional privilege waived by communications exchanged between lawyers, clients and third-party funders? →

Unless you have been living under a rock for the last three years, you will have heard something about the corruption case in Brazil that has led to the impeachment of the last president, the conviction of the one before and an investigation of the current one.

As one of the few barristers at the English bar with an international arbitration practice relating to Latin America, I am often asked how difficult it is to enforce foreign arbitral awards in Brazil. Until recently, my response has been that it is relatively straightforward. However, on 19 April 2017, the Superior Court of Justice … Continue reading A firm view on conflicts of interest →

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 … Continue reading Don’t air your shareholders’ dirty laundry →

The enforcement of international arbitration awards that have been set aside or annulled at the seat of arbitration has always been a contentious subject. Primarily it is the New York Convention 1958 that applies. Other provisions may be applicable on a case-by-case basis, such as Article IX of the European Convention on International Arbitration 1961.