The role of pre-contractual negotiations in contractual disputes is a much debated topic. Every English lawyer knows that, as a general rule, these materials, usually comprising of previous drafts and discussions, are not relevant to matters of interpretation (see for example Chartbrook Ltd v Persimmon Homes Ltd). There are limited exceptions to this rule, such … Continue reading Pre-contractual negotiations: strategic use in international arbitration
The Arbitration Act 1996 (AA 1996) provides a limited role for English courts to supervise the arbitral process. Amongst the few provisions relating to court intervention under the AA 1996, an award rendered in an English-seated arbitration can be challenged on the basis of serious irregularity under section 68. In Celtic Bioenergy Ltd v Knowles … Continue reading Can one be so reckless as to be fraudulent? An analysis of the obiter comments in Celtic Bioenergy Ltd v Knowles Ltd
In recent years, the international arbitration community has witnessed widespread debate about the nature of investor-state dispute settlement (ISDS) mechanism.
In November 2009, President Obama formally announced the intention of the US to participate in the negotiations of the Trans-Pacific Partnership Agreement (TPP), a free-trade agreement tracing its origins to a 2005 pact between New Zealand, Brunei, Chile and Singapore. Negotiations were completed six years later on 5 October 2015. On 4 February 2016, 12 … Continue reading Trump and the TPP: un-writing history?
The relationship between international investment law and international human rights law has become increasingly relevant in recent years. How and to what extent a state should be permitted to rely on its human rights obligations to defend claims that it has breached its investment treaty obligations has, in particular, received significant attention. Less discussed, however, … Continue reading Holding investors to account for human rights violations through counterclaims in investment treaty arbitration
It is no secret that regular users of arbitration are dissatisfied about costs and delay. Despite choosing arbitration as their preferred dispute resolution process, respondents to last year’s Queen Mary University of London survey identified “costs, lack of effective sanctions during the arbitral process, lack of insight into arbitrators’ efficiency, and lack of speed” as … Continue reading Is it time for arbitration to face its Woolf reforms?
What standard of review is appropriate when a court is seised with a challenge to an award on jurisdiction? Should the answer be any different when the court is addressing an investment treaty award rather than a commercial award? This blog post addresses two recent decisions by the courts in Singapore and Switzerland, which have … Continue reading Challenges to treaty awards on jurisdiction in the national courts: what is the appropriate standard of review?
The six challenges against L Yves Fortier QC, brought by Venezuela over the past five years in the case of ConocoPhillips Petrozuata BV and others v Bolivarian Republic of Venezuela as a result of his association with Norton Rose, are well known, as is the fact that they have all been dismissed. Apart from their … Continue reading Arbitrator conflicts in a global era: some reflections on the challenges in ConocoPhillips v Venezuela, as the quantum phase of the case nears its conclusion
The Energy Charter Treaty (ECT) is entering a new era. That is, who is being sued and what types of energy sources those claims relate to, has evolved from what was originally contemplated by its drafters in the early 1990s. That trajectory is set to continue as the significant amount of renewable ECT claims registered … Continue reading The Energy Charter Treaty: new energy, new era
In the past 20 years, offshore firms and investors have piled into emerging markets. In many cases, these offshore investors enter into a partnership or joint venture with a local entity for regulatory or commercial reasons, and the relevant partnership or investment agreements often contain arbitration clauses, particularly in Asia Pacific, because of concerns with the … Continue reading What to do when your offshore investment or joint venture goes bad?
Arbitration is often lauded as the most popular method for resolving international commercial disputes, no doubt thanks to the success and near-universal coverage of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Hague Convention on Choice of Court Agreements (the Hague Convention), concluded in June 2005, attempts to recreate … Continue reading On the rise or on the rack? The potential impact of the Hague Convention on Choice of Court Agreements on the use of international arbitration
Users’ complaints about the cost and inefficiency of arbitration are nothing new. The most recent Queen Mary University of London (QMUL) International Arbitration Survey, 2015 (Survey) has yet again highlighted that cost is perceived to be the worst feature of arbitration, closely followed by a lack of speed. In this regard, 92% of respondents favoured … Continue reading Whose arbitration is it anyway?
Over the past few decades, we have seen the emergence of a multitude of domestic and regional arbitration centres, set to rival the historical dominance of Europe and the US (and particularly the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA)) as the global hubs for international commercial arbitration. This … Continue reading Regionalisation of arbitration: a new challenge?
Two recent cases considered by the English High Court remind us that state immunity issues are critical in arbitration-related enforcement proceedings. In both cases, the court had the opportunity to clarify the scope of certain provisions of the State Immunity Act 1978 (SIA) and the procedure to follow when filing an application without notice seeking … Continue reading Arbitration and state immunity: a minefield of issues in recent High Court judgments
A team at Allen & Overy LLP (including myself) was involved in reviewing the Myanmar Arbitration Bill and suggested revisions and commentaries with the aim of bringing the Bill in line with the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration 1985 (as amended in 2006) (the Model Law) and … Continue reading A new arbitration law for Myanmar
Against the background of the on-going negotiations between the EU and the US on the Transatlantic Trade and Investment Partnership (TTIP), which include proposals for an “investment court”, the investor-state dispute settlement (ISDS) mechanism offered by investment treaty arbitration has, once again, been pushed into the spotlight. The critics target what are seen as fundamental … Continue reading Has the time come for the establishment of a permanent investment court? The ‘ayes’ have it