The term “pathological clauses”, coined by Frédéric Eisemann, is widely used to describe arbitration clauses with apparent defect(s) liable to disrupt the smooth progress of the arbitration. Such clauses may be a source of strife for the whole duration of the dispute – from jurisdictional battles to challenges at the enforcement stage.
In Stati and others v Kazakhstan, having obtained a favourable award in a Swedish-seated arbitration against Kazakhstan (K), the claimants (S) sought to enforce in a number of jurisdictions, including England. S successfully applied for an order to enforce the award in England and K then sought to set the order aside, alleging that the … Continue reading Discontinuing enforcement proceedings in the context of fraud allegations: when can the notice of discontinuance be set aside?
On 27 July 2018, the Court of Appeal delivered its judgment in Viorel Micula and others v Romania and European Commission (Intervener). It maintained the stay of enforcement granted by Blair J in the High Court, but overturned his decision on security, ordering that Romania should provide £150 million as a term of the stay … Continue reading Micula enforcement before the Court of Appeal: striking a balance between the UK’s obligations under the ICSID Convention on the one hand, and its duties under EU law on the other?
In Nori Holdings Ltd v Public Joint-Stock Co Bank Otkritie Financial Corporation, the claimants’ application for a final anti-suit injunction to restrain proceedings in Russia and Cyprus met with mixed success. While the court was willing to grant the anti-suit injunction to restrain Russian court proceedings, it refused to do the same in relation to … Continue reading Nori Holdings: Commercial Court rules on anti-suit injunctions, gives guidance on arbitrability and upholds West Tankers as good law
Climate change has emerged as a (if not “the”) relevant factor in a number of high-profile litigation disputes in recent years. Those disputes range from the commercial to the personal, to the public interest: from disputes arising out of option agreements for the trade of the old system of “emission reduction units”, to cases dealing with … Continue reading What role will arbitration have in future disputes involving climate change?
The High Court has dismissed yet another challenge to an arbitration award under section 68 of the Arbitration Act (AA 1996) brought on the ground of serious irregularity. In this instance, a decision by a tribunal not to defer its award until further evidence was available did not amount to a breach of its general … Continue reading Section 68 challenge rejected again: a predictable, pragmatic and positive decision on the duty of fairness
The recent decision of an emergency arbitrator in Mohammed Munshi v The State of Mongolia demonstrates the careful exercise that must be undertaken by a tribunal presented with an imprisoned claimant who seeks release by way of provisional measures. The outcome in this case (that it was not necessary or proportionate to order the claimant’s … Continue reading Protecting the procedural integrity of arbitral proceedings: are claimants entitled to a temporary “get out of jail free” card?
In what appears to be a first for the English courts, the decision in GPF Gp S.á.r.l v Republic of Poland overturned parts of an award on jurisdiction in an investment treaty arbitration, finding the tribunal had erred in finding no jurisdiction. The claims have been sent back to the same tribunal for continuation towards the … Continue reading A clash of national and international law? Examining the approach of the English High Court in GPF v Poland
On 12 February 2018, the London Court of International Arbitration (LCIA) Secretariat made available anonymised excerpts from 32 arbitrator challenge decisions on its website. Together with the previous collection of summaries of 28 challenge decisions published in 2011 for the period 1996-2010, this release provides useful insight into the practice of the LCIA Court between … Continue reading A rare insight into practice of arbitral institutions: LCIA’s published decisions on arbitrator challenges
Several recent judgments provide guidance on the powerful tools available to parties seeking enforcement of arbitral awards in England and Wales, including worldwide freezing orders (WFOs) and third party debt orders (TPDOs). Recent decisions bolster the traditional pro-arbitration approach of the English courts and illustrate the advantages of seeking orders from them, whether or not … Continue reading Hitting where it hurts most: in the wallet – the English courts’ toolbox in support of arbitration
Brazil’s experience with investment agreements stands in sharp contrast to that of other countries. At a time when most states were promoting them, Brazil declined to do so. For this reason, the government’s recent promotion of cooperation and facilitation investment agreements (CFIAs) is of some interest. This blog post discusses the context in which CFIAs … Continue reading Trends in investment treaty arbitration: a perspective on Brazil
Third party funding (TPF) has become an established feature of the arbitral landscape. It is now not uncommon for parties to consider TPF when commencing or responding to an arbitration, choosing their counsel, or even when negotiating an arbitration agreement. This raises the question whether such arrangements should be disclosed, and if so, the scope … Continue reading Disclosure of third party funding: Hong Kong and Singapore setting the trend?
There is sometimes an uneasy relationship between the courts of the seat of an arbitration and the courts of the place of enforcement of the resulting arbitral award. The relationship is perhaps under the greatest strain when the latter are asked to decide whether to enforce an award that has been set aside by the … Continue reading Enforcing awards that have been set aside at the seat: the English and Dutch courts remind parties of the high hurdle that must be overcome
To mark International Women’s Day on 8 March 2017, Practical Law Arbitration has been carrying out a series of interviews with prominent women in arbitration. In this, the fourth in the series, we interview Judith Gill QC, a partner in Allen and Overy’s arbitration team. Judith acts as both advocate and arbitrator and is currently the … Continue reading Women in arbitration: Judith Gill QC: part 2/2: women in arbitration and the future
To mark International Women’s Day on 8 March 2017, Practical Law Arbitration has been carrying out a series of interviews with prominent women in arbitration. In this, the fourth in the series, we interview Judith Gill QC, a partner in Allen and Overy’s arbitration team. Judith acts as both advocate and arbitrator and is currently the … Continue reading Women in arbitration: Judith Gill QC: part 1/2: arbitration over litigation, practice and procedure
In 2016, the Law Commission of England and Wales announced that it was considering reform of the English Arbitration Act 1996 (AA 1996) as part of its 13th Programme of Law Reform. Such reform was said to be driven by a desire to ensure that English law keeps up to date with modern arbitral practice … Continue reading Reform of the English Arbitration Act 1996: a nudge towards reversing the presumption of confidentiality
Recent weeks have brought oil right back into a bear market, with both WTI and Brent trading well below US $50 a barrel. This is despite renewed pledges by the Organization of the Petroleum Exporting Countries (OPEC) to curtail oil production. Since the 2014 price collapse, the cartel has lost its ability to dictate crude … Continue reading What does a future of low oil prices hold for investor-state arbitration?
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