Posts from Herbert Smith Freehills

The Prague Rules: is the happy partnership between the common law and civil law evidentiary tradition in arbitration really a fiction?

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?

A new approach to investment protection? Recent developments in Africa

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

English court deals firmly with the spectre of the “fourth arbitrator”

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”

An Investment Court system or an Appeals mechanism? The EU’s 2017 consultation on multilateral reform of ISDS

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

Emergency arbitrators at the expense of urgent relief from the English courts: a trade-off worth making?

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.

Out of step with the market? The English court’s decision that third party funding can be awarded as “costs” to a successful claimant

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.

How should the tribunal handle a “bad” expert?

“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.

Brexit: Implications for London as a seat of arbitration?

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?

The end of the blanket application of the IBA Guidelines on Conflicts of Interest? A wake up call for arbitration practitioners

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