For over ten years, BCLP have conducted an annual survey on issues affecting the arbitration process. This year’s survey focuses on the reform of the English Arbitration Act 1996, a topic chosen to coincide with the Law Commission’s ongoing consultation on reform of the legislation.
On 30 November 2021, the Law Commission announced that it would be conducting a review of the English Arbitration Act 1996 (AA 1996). The aim of the review is to maintain the attractiveness of England and Wales as a “destination” for dispute resolution and the pre-eminence of English Law as a choice of law. The … Continue reading Reform of the Arbitration Act: should disclosure of third-party funding be on the agenda?
It is common for commercial contracts to contain a dispute resolution clause specifying pre-conditions or escalation mechanisms that parties must comply with before being able to refer a dispute to arbitration. From this arises an often-debated question of whether failure to comply with enforceable pre-conditions affects the jurisdiction of the relevant tribunal to hear a … Continue reading Pre-conditions to arbitration: admissibility v jurisdiction approaches from England and Hong Kong
The recent Privy Council decision in Flashbird Ltd v Compagnie de Sécurité Privée et Industrielle SARL has highlighted some of the problems that can arise from the use of hybrid arbitration clauses. This blog considers the issues that arose in that case and how parties can avoid them.
LIBOR, once ubiquitous as the interest rate benchmark in financial transactions around the world, is on its way out. In July 2017, the Financial Conduct Authority (FCA) announced that LIBOR would be phased out by the end of 2021 and, in March 2021, the FCA and the Bank of England jointly announced that as of … Continue reading Deep impact? End of LIBOR and its impact on arbitration
Over the last 11 years, BCLP have conducted an annual survey on issues affecting the arbitration process. This year’s survey focuses on the role of the party-appointed expert in international arbitration, a topic that has been the subject of debate for a number of years.
Procedural flexibility is one of the pillars of international arbitration. In the past year and a half, we have seen how procedural flexibility enables international arbitration to meet and rise above the challenges of a global pandemic. Arbitration practitioners around the world seamlessly and efficiently extended the existing use of video conferencing from case management … Continue reading Composite requests: one step forward or two steps back?
It is no secret that for the past 20 years, international arbitration has been a popular method of dispute resolution for Russian parties and companies ultimately controlled by them.
Security, required by employers and funders in the form of bonds or guarantees to secure a contractor’s performance, are a common feature of international construction projects. If a dispute arises under the construction contracts, it is common to see applications for interim injunctive relief to restrain demands being made on bonds or to restrain the … Continue reading Protecting precautionary attachments in UAE: how far can you go without breaching an arbitration agreement?
Arbitration is favoured for flexibility of process, and the seamless transition to virtual hearings in the otherwise disruptive COVID-19 era has proved testament to such. A year on, with a significant number of arbitration users having participated in virtual hearings held over videoconference, it is timely to reflect on the way we conduct arbitration hearings … Continue reading Rethinking arbitration hearings: A shift towards asynchronous hearing timetables?
One of the many uncertainties of Brexit is the impact it will have on the enforcement of English court jurisdiction clauses and English court judgments across the EU. Despite the hopes of the legal community, the Trade and Cooperation Agreement does not contain any provisions on civil judicial cooperation, so there remains uncertainty over what … Continue reading Drafting arbitration clauses: lessons learned in 2020
“The 1996 Act is not a complete code of the law of arbitration, but allows judges to develop the common law in areas which the Act does not address.” So said Lord Hodge in his lead judgment in the widely reported UK Supreme Court decision in Halliburton v Chubb.
Everybody makes mistakes and arbitral tribunals are no exception. Awards may contain typographical or arithmetical errors that require correction. In some cases, the wording of the award may be ambiguous and the parties may require additional clarification from the tribunal in order to be able to give effect to the award.
On 11 August 2020, the LCIA published the first update to its arbitration rules since 2014. The 2020 Rules are not a wholesale rewrite of the 2014 Rules, but rather a set of amendments designed to address gaps in the 2014 Rules, and to ensure that the rules remain up to date and fit for … Continue reading Mind the gap: ex parte applications to the court an unwelcome lacuna in the new LCIA Rules
The recent English case of Obrascon Huarte Lain SA (trading as OHL Internacional) v Qatar Foundation for Education, Science and Community Development has highlighted the purpose and the limits of the slip rule in international arbitration.
Since governments started imposing lockdowns and stay-at-home orders in countries around the world, remote working has become the “new normal”. Boardrooms, power suits and (thankfully) the commute to work are a thing of the past; we’re now in the era of the business-casual and “virtually” brilliant. Could this shift in mindset be used as a … Continue reading Harnessing the “new normal” to improve diversity in international arbitration
In the recent case of A Company v X, the English Technology and Construction Court granted an injunction to prevent an expert witness from acting for a party in arbitration proceedings in circumstances where a colleague of the expert at the same global consultancy firm was already acting for the other party in separate arbitration … Continue reading Walking the line: independence and the party-appointed expert
Although procedures for court challenge of an award on the basis of procedural irregularity or jurisdictional error are widely available across jurisdictions, the ability to bring an appeal against the tribunal’s decision on the substantive issues in dispute is not. The principle of finality is enshrined in the rules of major arbitral institutions, and in … Continue reading BCLP international arbitration survey 2020: A right of appeal in international arbitration: second bite of the cherry: sweet or sour?
More than 13 years ago, in May 2006, the International Centre for Dispute Resolution (ICDR) introduced a new procedure into its arbitration rules whereby parties could seek emergency interim relief from an emergency arbitrator before the constitution of the arbitral tribunal. Since then, most of the major arbitral institutions, including SCC (2010), SIAC (2010), ICC (2012), … Continue reading The emergency arbitrator is officially a teenager
8 March is International Women’s Day, a global day celebrating the social, economic, cultural and political achievements of women whilst at the same time marking a call to action to accelerate gender equality.
On 12 December 2019, the Hague Rules on Business and Human Rights Arbitration were launched at the Peace Palace in the Hague. With human rights billed as the “oxygen of humanity” by the keynote speaker, Dr Bahia Tahzib-Lie (the Netherlands’ Human Rights Ambassador), the Rules offer a dispute resolution mechanism which could significantly improve the … Continue reading Hague Rules on Business and Human Rights Arbitration and the challenges facing the rules
With thanks to Olivia Turner, trainee solicitor in the International Arbitration and Construction Disputes Group at Bryan Cave Leighton Paisner LLP for co-authoring this blog. The way we communicate is changing. Just as email replaced the letter, social media and instant message platforms are increasingly being used for work-related, as well as social, communications. In … Continue reading WhatsApp-missible: are social media messages discoverable and admissible in international arbitration?
There is an important distinction between an arbitral award and other decisions made by an arbitral tribunal during the course of an arbitration. A decision that has the status of an award can be challenged or appealed to a national court and can be enforced under the relevant international conventions. In contrast, a decision that … Continue reading Decisions, decisions: order or award?
With thanks to Varnika Chawla, trainee solicitor (India Qualified) in the International Arbitration and Construction Disputes Group at Bryan Cave Leighton Paisner LLP for co-authoring this blog. On 9 August 2019, the Indian Arbitration and Conciliation (Amendment) Act 2019 was published. This will come into force as and when the central government notifies by way of Official … Continue reading The Arbitration and Conciliation (Amendment) Act 2019: improving institutional arbitration in India
Sanctions have been described as the new economic battlefield and, in recent years, there has been a sharp increase in the imposition of sanctions as a foreign policy tool for effecting political change. This blog post considers some of the practical implications of sanctions for those drafting arbitration clauses. Whilst there is no perfect solution … Continue reading Sanctions and arbitration clauses
The New York Convention is regarded as one of the key drivers behind the success of international arbitration. More than 60 years after the adoption of the New York Convention, will the Singapore Mediation Convention make similar strides for mediation?
In September 2016, new Russian arbitration legislation came into force addressing the arbitrability of corporate disputes in relation to Russian companies. Before this, there had been a number of Russian court decisions that had cast doubt over the arbitrability of corporate disputes so the new legislation was seen as a good thing, even if some … Continue reading Arbitrating corporate disputes in Russia: the conditions and what they mean for arbitration clauses
It is said that cash flow is the lifeblood of business and this could not be more true for contractors and suppliers in the construction industry. The UAE’s new Arbitration Law and recent guidance on payment terms look set to improve crucial cash flow for contractors and suppliers.
One of the main reasons that parties choose to arbitrate is the ability to select their own arbitrators. Parties are able to choose arbitrators that, they believe, will have the requisite expertise to resolve their arbitration effectively. This ability has now evolved somewhat and parties are increasingly carving out discrete issues to be resolved by … Continue reading Expert determination: a dangerous creature?
Technology has a thorny reputation in arbitration circles. Practitioners distrust it, clients don’t want to pay for it and tribunals often prefer paper. All of this adds up to many hours at the photocopier and late-night bundle-checking for the more junior members of the team.
It’s fair to say that the “rational businessman”, as described by Lord Hoffmann in the Fiona Trust case, has been pretty busy over the last few years.
This year, BCLP’s annual arbitration survey focuses on the issue of cybersecurity in international arbitration.
On 1 February 2019, just before the start of the Chinese New Year Celebrations to welcome the Year of the Pig, the final pieces in the third party funding (TPF) puzzle slot into place for Hong Kong leaving parties free to obtain funding for arbitration.
Introduction It is generally accepted that Brexit will not affect the conduct of arbitration claims in London as much as other areas of law. The legal framework of arbitration in the UK is not governed by EU law and it has the benefit of the New York Convention ensuring ongoing enforceability of arbitral awards.
There is no shortage of (mostly?) apocryphal stories about clauses that are put into draft agreements as a joke at an early stage of negotiations and, due to oversight, are never removed. My personal favourite is the so-called “End of the World” clause which goes something like this:
Roughly translated as “remember to dot your i’s and cross your t’s”, the phrase “Rasstavit tocki nad i” is quite an apt description for some of the lessons learnt from recent judgments of the Russian courts on the enforcement of arbitration agreements and awards in Russia.
In a recent address at an international arbitration conference in Mauritius, Sir Rupert Jackson, famous for his wide ranging reforms to English civil procedure, invited people to consider the benefits of introducing costs budgeting and costs management into arbitrations, at least for lower value claims.
Since its launch in 2013, China’s high-profile Belt and Road Initiative has gained considerable momentum. This blog considers the types of disputes likely to emerge from the initiative and the extent to which the recent efforts to “internationalise” its domestic dispute resolution mechanisms will help China capitalise on dispute resolution work arising from the Belt … Continue reading Dispute resolution along the Belt and Road: what does the future hold?
The Singapore High Court decision in China Machine New Energy Corp v Jaguar Energy Guatemala LLC and another raises a number of points of wider significance for the arbitration community. This post focuses on the procedural implications of the parties’ agreement to the expedited arbitration of a complex dispute (in a particularly short time frame) and … Continue reading Policing due process in expedited arbitration
You’ve arbitrated the dispute. At long last, you present the successful award to your client. Immediately they ask: “What Next?” “How do we get the money?” “When will we get paid?”
Expert “hot-tubbing” (or witness conferencing), is the practice of expert witnesses providing evidence concurrently, so that they might engage in discussion and address questions in parallel (instead of being cross-examined individually by counsel).
In Joseph Heller’s novel, Catch 22, the main character feigns madness in order to avoid dangerous combat missions, but his desire to avoid them is taken to prove his sanity. Whilst not quite causing madness, for a number of years now parties and the courts have been grappling with the problematic inter-relationship between sections 57 and … Continue reading Daewoo Shipbuilding v Songa: clarification of Catch 22?
Usually, the first formal step in an arbitration is the service of a notice or request for arbitration. The parties are generally free to agree how arbitration proceedings are to be commenced and, historically, the courts have tended to have a robust approach to the construction of notices of arbitration. However, it would be wrong … Continue reading Validity of notices and requests for arbitration: when context and rules are key factors
When parties decide to arbitrate, one of the key decisions they have to make is choosing a seat of arbitration. But what factors should parties take into account when choosing a seat of arbitration and are these factors actually reflected in the choices that are made?
One of the great attractions of arbitration over litigation is that it gives the parties the opportunity to participate in the selection of an arbitrator who will resolve their disputes. The choice of arbitrator can be critical to the outcome, which may be why 38% of respondents to School of International Arbitration at Queen Mary, … Continue reading Not qualified: the lessons of TonicStar v Allianz
In Kingdom of Lesotho v Swissbourgh Diamond Mines (Pty) Ltd, Judge Ramesh, sitting in the Singapore High Court, set aside an investment treaty award in a dispute between the Kingdom of Lesotho and a group of South African mining investors headed by Josias Van Zyl and comprising of his company (Swissborough Diamond Mines) and various … Continue reading Singapore court sets aside investment treaty award on merits for the first time
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, 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.
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
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
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 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).
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.
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.
The issues A perceived lack of diversity among arbitrators is forever captured in the oft-quoted description “pale, male and stale”.
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.
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?
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?
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?
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.
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 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?
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
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.
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
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 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?
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.