The English Arbitration Act 1996 (AA 1996) proceeds on the basis that it is for the tribunal, not the court, to rule on its own jurisdiction, at least in the first instance. The Departmental Advisory Committee (DAC) hoped that legislative endorsement of the principle of kompetenz-kompetenz would “avoid delays and difficulties when a question is … Continue reading Déjà vu all over again: second bites of the cherry under section 67 of the Arbitration Act 1996
Diversity in arbitral appointments has been in the news again, following the publication of the latest Queen Mary, University of London (QMUL)/ White & Case International Arbitration Survey. The responses to the survey suggest that, to date, the most visible efforts to improve diversity have been seen in the field of gender diversity: almost 60% … Continue reading Diversity in arbitration: what would Don Draper do?
Data security is a hot topic at the moment. Putting to one side the lurid details of the Cambridge Analytica/Facebook debacle, many lawyers are focused on the (perhaps less thrilling but nonetheless important) provisions of the EU General Data Protection Regulation (GDPR), which comes into force in May of this year. Much has been written … Continue reading The GDPR and disclosure of documents in arbitration
Recent years have seen the launch of several so-called “data analytics” tools, designed to help litigators to predict the outcome of their disputes. I think the first one I read about was “Lex Machina”, launched in around 2010 as a spin-off from a Stanford Law School public interest project. At that time, the product was … Continue reading Computer says no: data analytics in arbitration
Can a New York Convention defence to enforcement of an award be waived or contracted out of in advance of any dispute arising? And if so, might institutional arbitration rules incorporate provisions which (intentionally or otherwise) have the effect of precluding reliance on the New York Convention defences to enforcement? For example, Article 35(6) of … Continue reading Breaking the waivers? Defences to enforcement
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 … Continue reading ICMA: valuable insights into maritime arbitration
It’s statistics season again. Over the last few months, the arbitral institutions have been adding up and releasing their annual stats for 2016, generally accompanied by a flourish in the form of a glowing press release. What can we learn from these? Are there any trends or developments worth noting?
The London Maritime Arbitrators Association (LMAA) Terms 2017 come into force on 1 May 2017 and apply to all LMAA arbitrations commenced on or after that date. In truth, the new terms introduce very limited changes to the well-established and familiar LMAA procedures, and can probably be seen as more of a fine-tuning exercise than … Continue reading If it ain’t broke, don’t fix it: the LMAA Terms 2017
It’s that time of year again…dry January, healthy eating, gym, early nights. None of that will last forever (thank goodness) but there are some new year’s resolutions that may yield more enduring beneficial results. Drafting arbitration clauses is something that tends to be left until the last minute and performed at speed: it is hardly … Continue reading New Year’s resolutions: drafting arbitration clauses
In the current economic climate, insolvent defendants are more and more common. Cross-border insolvency raises some particularly tricky conflict of law issues. These are likely to become even more complex when (if?) Brexit is implemented, at least to the extent that the UK is no longer bound by the EC Insolvency Regulation. Disclaimer: I’m not an … Continue reading Arbitrating insolvency disputes: an imperfect solution?
A whole host of legal, practical and ethical issues potentially arise from the funding of arbitration claims. Those that have attracted most discussion so far include disclosure of funding arrangements to the tribunal or counterparties, funders’ potential liability for costs and security for costs, confidentiality issues, conflict of interest as between tribunal and funder, and … Continue reading Third party funding: opening up the Asian markets
The decision of the International Centre for Settlement of Investment Disputes (ICSID) tribunal in the RREEF v Spain energy dispute has recently been published, and with it, a yet further analysis of the relationship between the EU and intra-EU investment treaties (specifically, the Energy Charter Treaty). The RREEF proceedings represent one of around 30 arbitrations … Continue reading The “intra-EU objection” and the ECT: a “consistent pattern of decision-making”?
The Lord Chief Justice’s BAILII lecture in March of this year again raised the old chestnut of whether English arbitration law has got it right in terms of appeals from arbitration awards. This has been an ongoing topic of debate for decades, and one which tends (in the words of Colman J in his 2006 … Continue reading Feeding the minotaur: the debate continues
You’ve lost the arbitration…now what? Most arbitration awards are voluntarily complied with, and (according to the latest QMUL international arbitration survey) enforceability of awards is the most valued aspect of arbitration. Nevertheless, the law reports are littered with decisions on enforcement (or non-enforcement) of arbitration awards, and enforcement sagas such as those in the Sedelmayer, … Continue reading How to come out fighting when you’re up against the ropes: thoughts for losing parties
Back in the mid-1990s, when the Departmental Advisory Committee (DAC) was drafting the Arbitration Act 1996, there was no such thing as an emergency arbitrator. The only way of securing urgent interim relief was to go to court. This was justified by the theory that court-ordered interim relief was not incompatible with the agreement to … Continue reading How “effective” are emergency arbitrators?