There are two obvious differences between the Brazilian and English disclosure regimes. First, we have no codified duty to disclose in England. We only have grounds upon which a party can challenge the arbitrator, which much be read in the context of the justifiable doubts test from section 24(1)(a) of the English Arbitration Act 1996 (AA … Continue reading A firmer view on conflicts of interest (Part 2)
On 5 January 2018, Practical Law Arbitration Blog published an article I wrote on the Abengoa case in Brazil “A firm view on conflicts of interest”. It was a rare case where the Brazilian Superior Court of Justice (STJ) refused to enforce a foreign judgment, for reasons of lack impartiality of the arbitrator.
Last month, Sir Ross Cranston handed down the judgment in The Federal Republic of Nigeria v Process & Industrial Developments, marking the latest stage in what has proved a notoriously long-running dispute since arbitration between the parties was first commenced in 2012.
It began with the wallpaper, or, rather, trying to find a camera angle that didn’t feature our feature wall. When that failed (the only other spot providing a clear view of our staircase where my non-A level studying son was likely to emerge at any point post 1.00 pm wearing very little), I then realised … Continue reading Surviving a virtual arbitration: it’s all about the preparation (and the wallpaper)
When considering virtual hearings in arbitration, there are a number of matters which require discreet consideration beyond that of an ordinary face-to-face hearing. For ease, I would put those into five categories, the first and second of which I addressed in Part 1, with an analysis of the remaining categories in this second blog: Hearing … Continue reading The hitchhiker’s guide to virtual hearings (Part 2)
As COVID-19 swept the world, and face-to-face meetings have diminished, the legal profession was forced to adapt. For arbitration, this has resulted in a new way of virtually conducting oral hearings.
It is always tempting for a party to a dispute to reach for a freezing injunction in order to protect assets, whether the matter is being arbitrated or is before the courts. However, as illustrated in Petrochemical v PSB Alpha, the risk of dissipation must be unjustified and there must be a sufficient link to … Continue reading Freezing injunctions in relation to arbitral proceedings
If modern international arbitration is considered to stand on two fundamental pillars (the New York Convention 1958 and UNCITRAL Model Law 1985), then its success is relatively recent.
Judgment was recently handed down in Islamic Republic of Pakistan and another v Broadsheet LLC. In this case, Moulder J considered two competing and irreconcilable lines of authority in respect of whether failure of reasoning can ground a challenge against an arbitral award pursuant to section 68 of the Arbitration Act 1996 (AA 1996). The … Continue reading Arbitral awards: is the reasoning good enough?
The short answer is yes, although the exact process by which compliance may be enforced is a little more complicated.
The right to fair and equitable treatment (FET) by a host state is one of the most widely invoked standards of investment protection. The principle derives from customary international law and is a common feature of bilateral investment treaties (BITs), found at Article 2(2) of the UK’s Model BIT. Although the standard remains general, tribunals … Continue reading Is Brexit a breach of the UK’s BITs?
Introduction There are no clear rules on privilege in international arbitration. There remains a lacuna for some consolidated guidance. In the absence of clear or express privilege rules, arbitral tribunals consider the: Lex arbitri. Law of the jurisdiction where the disclosure is sought. Governing law of the agreement. General principles of equality and fairness. Expectation … Continue reading Is legal professional privilege waived by communications exchanged between lawyers, clients and third-party funders?
Unless you have been living under a rock for the last three years, you will have heard something about the corruption case in Brazil that has led to the impeachment of the last president, the conviction of the one before and an investigation of the current one.
As one of the few barristers at the English bar with an international arbitration practice relating to Latin America, I am often asked how difficult it is to enforce foreign arbitral awards in Brazil. Until recently, my response has been that it is relatively straightforward. However, on 19 April 2017, the Superior Court of Justice … Continue reading A firm view on conflicts of interest
In the majority of, if not all cases, a notice of arbitration will be preceded by negotiation or correspondence between employees or agents of the parties. The trap for the unwary, as illustrated by the recent decisions in Sino Channel Asia Limited v Dana Shipping and Trading Pte and Glencore Agriculture BV v Conqueror Holdings … Continue reading Arbitration notices: are you being served?
Shareholder disputes normally fall within two categories. The first is where a shareholder is outvoted by a majority which is acting against the interest of the company. The second is where a rogue director is “on a frolic of their own”; that is, they are acting for their own benefit or that of third parties. In … Continue reading Don’t air your shareholders’ dirty laundry
The enforcement of international arbitration awards that have been set aside or annulled at the seat of arbitration has always been a contentious subject. Primarily it is the New York Convention 1958 that applies. Other provisions may be applicable on a case-by-case basis, such as Article IX of the European Convention on International Arbitration 1961.
The calling of a snap general election to take place on 8 June has raised any number of issues, not least of which is Brexit. Will our Brexit be hard or soft? Will our Brexit menu (as recently indicated in one major party’s manifesto) include an option not to Brexit at all?
In light of the recent decision of Mr Justice Marcus Smith in Microsoft Mobile OY (Ltd) v Sony Europe Limited and others, the “one stop shop” approach to arbitration clauses may now be relied on in relation to claims pleaded only in tort if a related contractual claim would have been pleadable. If that is … Continue reading Staying competition claims: a consideration of Microsoft v Sony
Whatever your opinion on the ethical implications of third party funding in international arbitration, the past six months have seen two firm nods in its favour. These have signaled that, as a method of financing arbitration, it is here to stay.
The question Can a successful claimant recover the costs of a funding agreement from the defendant? No in litigation but yes in arbitration, according to the Commercial Court in Essar Oilfields Services Limited v Norscot Rig Management PVT Limited. This decision has sent shockwaves through the arbitration community.
Section 1(c) of the Arbitration Act 1996 (AA 1996) makes clear that in matters governed by Part I of the AA 1996, “the court should not intervene” except to the extent provided in the AA 1996 itself.
In the recent case of Barrier Ltd v Redhall Marine Ltd the court re-visited the rules for deciding whether or not an arbitration clause had been incorporated into the contract, and how the rules differ when you are trying to incorporate a term from a different contract altogether.
Finding the framework A great attraction of arbitration is that parties have the choice not to litigate their disputes under the document disclosure/production regimes of a particular domestic court. Instead, they can agree (or empower an arbitrator to select) the process. In contrast to processes they are used to, the regime chosen might be narrower … Continue reading Disclosure and production in arbitration: finding the right framework