Posts from 20 Essex Street

Breaking the waivers? Defences to enforcement

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

ICMA: valuable insights into maritime arbitration

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

Arbitration statistics: and the winner is…

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?

If it ain’t broke, don’t fix it: the LMAA Terms 2017

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

New Year’s resolutions: drafting arbitration clauses

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

Arbitrating insolvency disputes: an imperfect solution?

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?

Third party funding: opening up the Asian markets

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 “intra-EU objection” and the ECT: a “consistent pattern of decision-making”?

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”?

Feeding the minotaur: the debate continues

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

How to come out fighting when you’re up against the ropes: thoughts for losing parties

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

How “effective” are emergency arbitrators?

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?