Privilege is a tortuous subject in international arbitration. Parties must not only contend with the factual issues surrounding whether a communication is privileged, they must also confront the prior legal issue of what privilege rules the tribunal should use to decide those claims of privilege. Should they use the law of the seat? The substantive … Continue reading In-house foreign lawyers benefit from legal advice privilege even if not regulated or qualified in home jurisdiction
Successful appeals under section 69 of the Arbitration Act 1996 (AA 1996) are like buses; none come along for a while and then you get two in quick succession.
In these troubling times, there is some good news for arbitration practitioners: according to its annual report, the International Court of Arbitration has experienced its second highest caseload of newly registered cases in 2019, with 869 new cases filed in a record breaking 147 countries and independent territories worldwide.
In the recent decision of Filatona Trading Ltd and another v Navigator Equities Ltd and others, the Court of Appeal acknowledged the possibility that a disclosed but unnamed principal could be excluded from relying on an arbitration agreement in a contract concluded by its agent.
On 5 May 2020, over two years after the fateful Achmea ruling, 23 EU member states signed an agreement to terminate all intra-EU bilateral investment treaties (BITs) (termination agreement). This step does not come as a surprise, in light of the fact that the vast majority of EU member states issued a joint declaration, on … Continue reading Better get EU-sed to it: the “new normal” for investors navigating intra-EU dispute resolution
Where an investment involves a long-term contract with a state or state-owned counter-party, the investor is exposed to the risk that the state has the power at any time to change the legal regime applicable to the contract. How can an investor protect against that risk?
The 2019 novel coronavirus disease (COVID-19) pandemic has affected all aspects of our lives in ways unimaginable. Dispute resolution is no exception. Several arbitration institutions, organisations and practitioners have identified tools for adapting the dispute resolution process to the new reality, including through the use of technology that offers to replace physical hearings with virtual … Continue reading Follow the guidance: the ICC Court’s plan to mitigate the impact of COVID-19
One must only look to the ICC’s annual case load statistics to see the ever-growing prevalence of construction and engineering disputes in international arbitration. Construction, engineering and energy disputes made up approximately 40% of the ICC’s new caseload in the most recent statistics from 2018, with 224 new cases arising from the construction sector. This … Continue reading Building a case: controlling time and cost in construction arbitrations
Arbitration has not been at the top of the agenda when it comes to the discussion around data privacy. Much of the focus has gone on corporate hacks, breaches and the implementation of the General Data Protection Regulation (GDPR), which came into force almost two years ago.
US courts have long grappled with the issue of whether the doctrine of forum non conveniens applies in proceedings to confirm a foreign arbitration award.
As discussions around Brexit, US-China and transatlantic trade continue, the question of the best mechanism for settling investor state disputes remains.
Under English law, it has long been held that “exemplary damages ought not to be, and are not according to any true principle of law, recoverable” for claims in breach of contract. The injured party in a contractual claim is entitled to “adequate compensation in money for the loss of that which he would have … Continue reading Exemplary damage limitation? Award for potentially punitive damages upheld despite public policy concerns
Under major institutional rules, there is a clear obligation on the parties to pay advance deposits towards the costs of the arbitration in equal proportions. However, there are times when a wayward respondent, as a frustration tactic, refuses to pay its share of advance deposits. If the respondent fails to pay advance deposits, the arbitral … Continue reading Partial award on advance deposits: what happens if there is a jurisdictional challenge?
In the era of big data, parties need to ensure their digital approach to arbitration is diligent.
A procedural order can strike the killing blow in arbitration. Are there potential avenues for challenge?
Construction disputes are inherently complex, document-heavy and time-intensive. They often require the preparation of multifaceted technical fact and expert evidence, accompanied by multiple rounds of lengthy pleadings and submissions. It is therefore no surprise that the nature of construction disputes makes them expensive to run. This is a key factor for all players in an … Continue reading To litigate or to arbitrate? Choosing a forum for construction disputes
On 3 August 2018, the International Centre for Settlement of Investment Disputes (ICSID) published its working paper on potential rule amendments, citing its desire to incorporate the case experience gained and lessons learnt from over 650 ICSID cases into the rules. One of the key new proposed rules requires compulsory disclosure (or notice) of third-party … Continue reading So tell me what you want, what you really really want (but we’ll ignore it anyway): third-party funding and the proposed ICSID amendments
Earlier this month the International Arbitration Centre (IAC), a welcome addition to London’s arbitration infrastructure, opened its doors on Fleet Street. The opening of the IAC is a natural corollary of increasing competition in the “market for justice” in international dispute resolution. This competition has long existed between different arbitral seats and has encouraged jurisdictions … Continue reading Destination arbitration: competition in the market for justice
Enforcing an international arbitration award is a matter of utilising the New York Convention in the domestic courts. Discontinuing arbitration claims, however, is getting complicated.
In July 2018, the International Chamber of Commerce (ICC) published a full report of its dispute resolution statistics for 2017. This blog compares the trends identified in the ICC figures with those released by the London Court of International Arbitration (LCIA) and Singapore International Arbitration Centre (SIAC) earlier in 2018.
Thomson Reuters Legal Business published a report in July entitled, The impact of Brexit on dispute resolution clauses, setting out the results of its survey which asked 94 respondents about their current and future plans for jurisdiction and choice of law clauses. Notably for London arbitration practitioners, the study found that 10% of respondents were … Continue reading London calling or cooling? Post-Brexit dispute resolution and arbitration research round-up
In a ruling that sent shockwaves across Europe and beyond, the European Union’s (EU) highest court, the European Court of Justice (ECJ), struck down an arbitration agreement contained within a bilateral investment treaty (BIT) between two EU member states, the Netherlands and Slovakia. Whilst the ramifications of this decision are yet to be fully realised, … Continue reading Achmea: European Court of Justice rules that arbitration agreement in intra-EU bilateral investment treaty violates EU law
A common discussion held at seminars and working groups is whether there needs to be greater positive discrimination in favour of women in arbitration. Invariably, the discussions result in no definitive answer.
Earlier this year, the Arbitration Centre at the Institute of Modern Arbitration in Russia (ACIMA) announced that it had obtained a government licence to operate as a “permanent arbitral institution” under the new Russian arbitration legislation. The ACIMA is the new kid on the block, having been established only a little over a year ago, … Continue reading New arbitration centres in Russia and Kazakhstan: starting from a good base, but more work ahead
We are all consumers and, on occasion, we face disputes with traders who provide us with goods or services. Most consumer disputes, if not resolved amicably, will end up in court. However, the last two decades saw the growth of consumer arbitration in the US, with an increasing number of consumer contracts originating in the … Continue reading Consumer class arbitration in the UK: where we are and what next?
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