Posts from Berwin Leighton Paisner

Lagging behind: is there a clear set of rules for the treatment of illegally obtained evidence in international arbitrations?

Introduction Rightly or wrongly, applications to admit illegally or improperly obtained evidence (including evidence obtained by hacking) are on the rise in commercial disputes between private parties. The release of WikiLeaks diplomatic cables starting in 2010 resulted in parties seeking to introduce the confidential cables as evidence in investment treaty arbitrations, including the well-known RosInvestCo … Continue reading Lagging behind: is there a clear set of rules for the treatment of illegally obtained evidence in international arbitrations?

Time and tide: a timely reminder of the time limit for challenging awards

Time and tide, it is said, wait for no man. The recent decision in Rollitt v Ballard certainly highlights the importance of time limits, particularly when it comes to challenging an arbitral award.

Fast track arbitration for insurance disputes: ARIAS rules under the spotlight

In a drive to improve the efficiency of arbitration, many of the major arbitral institutions including, most recently, the International Chamber of Commerce (ICC), have introduced procedures for expedited or fast track arbitration. However, the major arbitral institutions are not alone in having considered expedited procedures. As of 3 October 2013, parties have been able … Continue reading Fast track arbitration for insurance disputes: ARIAS rules under the spotlight

Third party funding and the pitfalls of privilege

Introduction Since first emerging in its modern form in Australia about 20 years ago, third party funding has become widespread, first in investment arbitration, later expanding to international commercial arbitration in the common law world, as well as in a number of civil law jurisdictions. Recent changes in the law in both Hong Kong and … Continue reading Third party funding and the pitfalls of privilege

Keeping it under wraps: the limits on confidentiality in arbitration

Three recent judgments of the English High Court show contrasting approaches to the publication of judgments in arbitration claims. In Tony Pulis v Crystal Palace and Symbion Power LLC v Venco Imtiaz Construction Company, both concerning challenges under section 68 of the Arbitration Act 1996 (AA 1996), the court declined to withhold publication or anonymise … Continue reading Keeping it under wraps: the limits on confidentiality in arbitration

The Dubai and DIFC Judicial Tribunal: the Emirate strikes back

The United Arab Emirates (UAE) is unique in that two of its seven emirates operate parallel court systems. In Abu Dhabi and Dubai, local civil law courts sit alongside common law courts in the nascent Abu Dhabi Global Market (ADGM) and the better-known Dubai International Finance Centre (DIFC).

Publish and be damned: should we embrace the systematic publication of arbitral awards?

The issue The debate over whether there should be a systematic publication of arbitral awards is not new, but it has received increased attention over the last couple of years.

Advocacy in international arbitration: a young practitioner’s perspective

At the end of last year, I had my first experience of conducting the advocacy in an international commercial arbitration. For the first time, I was up there in front of the tribunal, not just listening to what was being said and helping to locate documents, but making submissions and cross-examining witnesses.

Diversity on arbitral tribunals: are we getting there? BLP international arbitration survey 2016

The issues A perceived lack of diversity among arbitrators is forever captured in the oft-quoted description “pale, male and stale”.

Expedited arbitration: Paris v Stockholm: full steam ahead

As part of the drive to achieve faster, more cost efficient arbitrations, a number of arbitral institutions offer an expedited arbitration procedure, designed to deliver an award within a fixed timeframe.

Witness preparation in international arbitration: where to start and where to stop?

There is now a broad consensus across the common and civil law divide that it is permissible in international arbitration for counsel to prepare a fact witness for the purpose of giving evidence to the arbitral tribunal. However, considerable differences still exist as to what constitutes permissible “witness preparation”, under arbitration laws and within ethical … Continue reading Witness preparation in international arbitration: where to start and where to stop?

Effective incorporation of arbitration clauses: are you making it clear?

Introduction The question of whether an arbitration agreement is incorporated into a contract is fundamental, determining whether the parties are required to resolve their disputes by arbitration. However, whilst section 6 of the Arbitration Act 1996 clearly defines what is meant by an “arbitration agreement”, the provision leaves open the question of what is required … Continue reading Effective incorporation of arbitration clauses: are you making it clear?

Are arbitrators thinking fast or slow?

Surveys conducted by Queen Mary University of London have confirmed that international arbitration remains the preferred method for resolving cross border disputes. One of the key attractions of arbitration is the ability of the parties to participate in the selection of the arbitrators who will determine the issues in dispute and the quality of arbitration … Continue reading Are arbitrators thinking fast or slow?

The curious case of state immunity: how to avoid a Pyrrhic victory

It is well-known that problems frequently arise when a non-state winning party attempts to enforce and execute an arbitral award against a state or state entity.

Time limits for awards: the danger of deadlines

Cost and delay remain the two areas of greatest concern to parties in arbitration. Data released last year by the London Court of International Arbitration (LCIA) indicated that the median and mean durations of an LCIA arbitration are 16 and 20 months respectively.

The appointment and confirmation of arbitrators and adjudicators: why the secrecy?

The implications of repeat appointments of arbitrators and adjudicators are very much in the zeitgeist. The Royal Institute of Chartered Surveyors (RICS) announced recently that of its 110 adjudicators, 85% got at least one referral every six months. In Cofely v Bingham, we learned that over three years, 18% of Mr Bingham’s appointments and 25% of … Continue reading The appointment and confirmation of arbitrators and adjudicators: why the secrecy?

The need for speed: why expedited arbitration may not be the answer

One of the worst characteristics of international arbitration (according to the respondents to the 2015 International Arbitration Survey conducted by the School of International Arbitration at Queen Mary University of London (QMUL survey)) is lack of speed. This is a rather worrying finding, given the continuing attempts of most of the major arbitral institutions to … Continue reading The need for speed: why expedited arbitration may not be the answer

HKIAC establishes specialist intellectual property arbitration panel: promoting IP arbitration in the Asia-Pacific region

The Hong Kong International Arbitration Centre (HKIAC) and the Hong Kong Government are focused on building Hong Kong as an arbitral centre for the resolution of intellectual property disputes, proposing new legislation and creating a specialist IP panel of arbitrators.

If you aim at the king, don’t miss: the challenge of arbitrator challenges

One of the characteristics that makes arbitration so popular is the ability of the parties to choose their arbitrators, but with that comes the right to challenge the other side’s chosen arbitrator. In some cases, the challenging party may have genuine concerns over the independence and impartiality of the chosen arbitrator. In others, the challenge … Continue reading If you aim at the king, don’t miss: the challenge of arbitrator challenges

Through the looking glass: where will the current drive for transparency in international commercial arbitration end?

In investment treaty arbitration there is a perceived public interest due to the involvement of states and state entities, so openness (including as to party names, publication of decisions, and even pleadings) is the norm. This approach extends to publishing awards on the merits. This is not the case in international commercial arbitration (a dispute … Continue reading Through the looking glass: where will the current drive for transparency in international commercial arbitration end?

The Fourth Arbitrator: BLP arbitration survey on the use of tribunal secretaries in international arbitration

The Fourth Arbitrator As illustrated by the Yukos arbitrations, the use of tribunal secretaries in international commercial arbitration is under scrutiny. Should a tribunal secretary be permitted to become ‘the Fourth Arbitrator’ because the work he or she carries out has the potential to influence the outcome? What can be done to guard against this?

Reducing the cost of arbitration: could cost allocation be the answer?

We all know that legal costs are a significant issue for clients and, whilst arbitration remains an extremely popular form of dispute resolution, “cost” is often seen as one of its worst features.