In a recent Permanent Court of Arbitration (PCA) case, China Heilongjiang International Economic & Technical Cooperative Corp. and others v Mongolia, the tribunal wielded the power of effet utile to strike down the investors’ claim against Mongolia. The occult science of treaty interpretation by international tribunals has produced a somewhat unexpected result that risks creating … Continue reading Crouching bear, hidden dragon: interpreting the “amount and method” provisions in older Chinese and Russian BITs
The Singapore International Arbitration Centre (SIAC) has recently announced that it entered into a cooperation agreement with Arbitrator Intelligence, a Penn State Law-affiliated initiative, to promote the use of the Arbitrator Intelligence Questionnaire amongst SIAC’s users.
How to speed up arbitration and save costs? At the risk of stating the obvious, most practitioners know the answer: focus on the real issues, use common sense and cooperate with the other side on procedural issues. Much waste and delay can be saved where the parties avoid pressing hopeless points, refrain from procedural posturing … Continue reading Controlling time and cost: if you don’t do it, no one will
Two recent lectures by prominent arbitration practitioners revisited the issue of due process in international arbitration. In her Freshfields lecture, Professor Lucy Reed noted a recent trend to use due process as a sword rather than a shield. She gave a number of examples where a party sought to elevate a mere procedural complaint to … Continue reading Due process: of swords, shields and warriors
You have won an award, and you are now facing the prospect of enforcing it. Perhaps the award debtor is a special purpose company, with no assets of its own, or it is located in a “difficult” jurisdiction. It might be that the award debtor is a sovereign state that refuses to pay for political or similar … Continue reading Assignment of arbitral awards
The question of arbitrability of Russian corporate disputes is an old chestnut. For a few years, it was the subject of lively debate, and a number of academics and practitioners robustly criticised the state courts’ approach to the issue. The central question concerned the proper interpretation of section 33 of the Arbitrazh Procedure Code (APC), … Continue reading New Russian rules on corporate disputes: a view from London
It is a truism that amicable negotiations without recourse to litigation or arbitration have many advantages and should generally be encouraged as a preferred method of dispute resolution. In this context, conciliation procedures (which include mediation), whereby a third party facilitates settlement negotiations without the power to impose any particular resolution on the parties, provide … Continue reading “Settlement farm”: should some settlement agreements be more equal than others? The UNCITRAL’s proposed new instrument on the enforcement of international commercial settlement agreements resulting from conciliation
It should not be a controversial proposition that an international arbitration tribunal should have the power to dismiss hopeless claims and defences without having to incur the time and expense of a full-blown arbitration. There has been some doubt about the tribunals’ jurisdiction to adopt a summary procedure and calls have been made to clarify … Continue reading Summary procedures in international arbitration: a case for flexibility
It is a well-known social phenomenon when everyone in a community agrees that a particular development would benefit everyone, but no one wants to be (or can be) the person doing whatever is necessary to achieve it. It is sometimes referred to (somewhat pejoratively) as the “not in my backyard” approach. This challenge is particularly … Continue reading Paths to the common good: reconciling transparency and confidentiality in international arbitration
Much attention is often given to the rise of regional arbitration centres and the competition that they provide to the established arbitration centres in Europe and North America. Perhaps less is said about the relationship between the “generalist” (for want of a better word) centres, such as the International Chamber of Commerce (ICC) and the … Continue reading Thoughts on specialist arbitration: centres, rules and arbitrators
In this year’s Bailii Lecture, Lord Thomas, the Lord Chief Justice of England and Wales, expressed the view that the success of commercial arbitration in London has had an adverse effect on the development of the common law, as many cases that would otherwise have gone to courts instead were resolved through arbitration. He called … Continue reading Replenishing the courts’ diet: is section 45 of the Arbitration Act 1996 an answer?
Securing oral evidence and obtaining documents from non-party witnesses in an arbitration may seem a tough task. Compelling a non-party to give evidence in an arbitration is clearly not the jurisdiction of a tribunal so a party has to turn to powers contained in sections 43 and 44 of the Arbitration Act 1996.
In recent years, following the recommendations of the Jackson Review, the English courts have made significant efforts aimed at reducing the costs of litigation. One of the tools adopted by the English courts is a standard costs budgeting tool, catchily named “Precedent H”, that the parties are required to exchange and file with the court … Continue reading A “Precedent H” for arbitration?
Article 20.1(a) of the UNCITRAL Model Law on Cross-Border Insolvency (the Insolvency Model Law) provides for an automatic stay of proceedings in England where a foreign proceeding is recognised as a foreign main proceeding for the purposes of the Model Law. In practical terms, this means that an arbitration seated in England will be automatically … Continue reading Limits of the automatic stay in arbitration under Article 20.1 of the Model Law on Cross-Border Insolvency