All English arbitration lawyers are familiar with the long-standing principle of the separability of an arbitration agreement as enshrined in section 7 of the English Arbitration Act 1996 (AA 1996). That section provides: “Unless otherwise agreed by the parties, an arbitration agreement which forms or was intended to form part of another agreement (whether or … Continue reading DHL Project and Chartering v Gemini Ocean Shipping: a case “separable” from the rest?
It is a long established principle of English common law that arbitrations are private and confidential. This means that arbitration hearings are not open to third parties, and both the parties and the tribunal have an implied duty to maintain the confidentiality of the hearing and documents generated in the arbitration, including the award. Many … Continue reading Privacy and confidentiality of arbitration-related court proceedings: a culture clash
Much ink has already been spilled on the witness evidence reforms, which came into effect in April 2021 and will have a far-reaching effect on how witness evidence is approached in litigation in the English Commercial Court. Judicial concern about the inappropriate use of witness statements in court proceedings has led to the new Practice Direction … Continue reading A new direction for witness evidence in arbitration?
In October 2020, the ICC released the new ICC Rules 2021 in draft. The rules could still be subject to editorial changes, but, once finalised in December, will come into force on 1 January 2021. This current draft of the new rules leaves the fundamental framework introduced in 2012 largely unchanged and this is unsurprising. … Continue reading Draft ICC Rules 2021: drawing a line under some issues of debate in arbitration?
On 11 August 2020, the London Court of International Arbitration (LCIA) released its new rules, which will come into force on 1 October 2020. The last update to the LCIA Rules took place in 2014. Like many of its competitor institutions, at that time, the LCIA introduced some new and innovative elements. In particular, the … Continue reading New LCIA Rules 2020: a measured “update” not a radical redraft
Arbitration practitioners are well aware of the inherent difficulties that can arise where important evidence is required from reluctant third parties. Where the evidence in question is pivotal to a party’s case and the witness refuses to give evidence, it can be difficult for that party to make their case either comprehensively or convincingly.
The problem in a nutshell: consent Documents executed by only one party in favour of a non-signatory are commonplace in commercial transactions, for example in the financial services and construction sectors where guarantees and bonds are often issued in this way. However, when parties are trying to resolve disputes arising under what are, for convenience, … Continue reading Arbitration under unilateral documents: how to avoid enforcement risk
On 20 December 2018, the International Court of Arbitration of the International Chamber of Commerce (ICC) released a revised Note to parties and arbitral tribunals on the conduct of the arbitration under the ICC Rules of Arbitration (the note to parties). The revised text, which came into effect from 1 January 2019, adopts a new … Continue reading The transparency conundrum: will the ICC’s new pro-publication approach to arbitral awards win over the majority? (Part 2)
On 20 December 2018, the International Court of Arbitration of the International Chamber of Commerce (ICC) released a revised Note to parties and arbitral tribunals on the conduct of the arbitration under the ICC Rules of Arbitration (the note to parties). The revised text, which came into effect from 1 January 2019, adopts a new … Continue reading The transparency conundrum: will the ICC’s new pro-publication approach to arbitral awards win over the majority? (Part 1)
Samuel Johnson famously said that change should be avoided unless there was “reason sufficient to balance the inconvenience”. The prevailing climate today is rather more innovation-minded and it is often assumed that change is for the better, perhaps not always with much analysis of the potential downside.
Any introductory lecture on international commercial arbitration will at some point address the balance that has been struck, or has sought to be struck, between the common and civil law procedural traditions. The “soft law” IBA Rules on the Taking of Evidence in International Arbitration will be referred to as an example of how this compromise … Continue reading The Prague Rules: is the happy partnership between the common law and civil law evidentiary tradition in arbitration really a fiction?
Investor-state dispute resolution (ISDS) has been the subject of intense global scrutiny in recent years. In Europe, the EU Commission has been driving forward a proposal for the creation of a multilateral investment court system to replace ad hoc arbitration in existing bilateral and multilateral treaties. In July of this year, the UN Commission on … Continue reading A new approach to investment protection? Recent developments in Africa
The spectre of the “fourth arbitrator” has been discussed in numerous articles and at many a conference. Guidance notes, guidelines and training schemes abound. However, judicial consideration of the use of tribunal secretaries has been relatively limited. The arbitration market may be grateful, therefore, that an email sent in error to the wrong person gave … Continue reading English court deals firmly with the spectre of the “fourth arbitrator”
In May 2014, against the backdrop of vociferous debate about the nature of investor-state dispute settlement (ISDS) and investment protection, the EU launched a consultation on its approach to substantive investment protections and ISDS in the Trans-Atlantic Trade and Investment Partnership (TTIP). Notably, the European Commission’s consultation document focused on the balance between the right … Continue reading An Investment Court system or an Appeals mechanism? The EU’s 2017 consultation on multilateral reform of ISDS
In the recent case of Gerald Metals SA v Timis, the English High Court held that it did not have power to grant urgent relief in support of arbitration in circumstances where timely and effective relief could be obtained through the arbitral process; for example, by appointing an emergency arbitrator.
As discussed in Robert Rothkopf’s recent blog post, the English court in Essar v Norscot has refused a challenge under section 68(2)(b) of the Arbitration Act 1996 (AA 1996) and held that a tribunal did not exceed its powers by including the costs of third party funding within a costs award.
“Bad” experts come in many shapes and sizes. You may recognise one or more of them: The partisan expert (or “hired gun”). The “badly-prepared” expert (either where the expert is at fault or where counsel has withheld certain evidence). The “under-qualified” expert. The expert who strays outside his or her area of true expertise.
The UK’s referendum on its future in the European Union is now only weeks away. The referendum comes at a time when arbitration in England is already facing both external and internal pressures. London continues to face competition from other successful arbitral seats. Its closest neighbour, Paris, has always had a strong offering, and Zurich, … Continue reading Brexit: Implications for London as a seat of arbitration?
For arbitration practitioners around the globe, the International Bar Association Guidelines on Conflicts of Interest in International Arbitration (IBA Guidelines) have become an important tool for ascertaining a potential conflict for an arbitrator. In response to the QMUL 2015 Survey some 71% of arbitrators and practitioners confirmed that they had seen the IBA Guidelines used … Continue reading The end of the blanket application of the IBA Guidelines on Conflicts of Interest? A wake up call for arbitration practitioners