Section 57 of the Arbitration Act: an under-valued tool in the arbitration toolbox
Faced with an unsatisfactory arbitral award, a party may turn its mind to the potential recourse available under the Arbitration Act 1996 (AA 1996). That may include sections 67 to 69 of the AA 1996, which allow a challenge to be brought to an award based on, respectively, a lack of substantive jurisdiction, a serious procedural … Continue reading Section 57 of the Arbitration Act: an under-valued tool in the arbitration toolbox
Three things you need to know about the modernisation of the ECT
The actions of states relating to the introduction, withdrawal or amendment of policy measures explicitly developed to meet climate goals has caused investment treaty arbitration to become a battleground for the settlement of international climate-related disputes. Against this backdrop, on 24 June 2022, the Energy Charter Conference confirmed that, after five years of negotiations, its … Continue reading Three things you need to know about the modernisation of the ECT
Trick and treaty: The ECT’s role in climate change
On 15 March 2022, the Stockholm-based think tank Climate Change Counsel (CCC) released its report on the role of the Energy Charter Treaty in climate change and clean energy transition policy.
What is the future of investor state dispute resolution under the African Continental Free Trade Agreement?
On 1 January 2021, a significant milestone under the African Continental Free Trade Agreement (AfCTA) was achieved as trading began in the African Continental Free Trade Area. This portends exciting investment opportunities in Africa, for both local and foreign investors. However, it is imperative for investors to know and understand how disputes between states and private … Continue reading What is the future of investor state dispute resolution under the African Continental Free Trade Agreement?
Power of London: LCIA stats reveal bumper year
The recent publication of the 2020 Annual Casework Report by the London Court of International Arbitration (LCIA) sets the scene for what was a remarkably successful year for the court. Last year, the LCIA received a robust and all-time high of 444 referrals, including 407 arbitrations pursuant to the LCIA Rules (an 18% increase from … Continue reading Power of London: LCIA stats reveal bumper year
The 2020 SIAC Annual Report: Trends & Questions
One day short of April Fool’s Day this year saw the Singapore International Arbitration Centre (SIAC) release its 2020 Annual Report (SIAC Report). Far from being a joke, the report presented some phenomenal figures that appear to cement deeper SIAC’s reputation as one of the leading international arbitration institutions, and Singapore’s reputation as a favoured … Continue reading The 2020 SIAC Annual Report: Trends & Questions
The reign in Spain: Courts clarify scope of arbitration
Arbitrary, illogical, absurd and irrational are powerful words, especially so when handed down by the Spanish Constitutional Court in a recent landmark ruling assessing the standard for the review of arbitral awards on public policy grounds.
Dice or no dice? Jurisdictional challenges under section 67 of Arbitration Act 1996
Two recent decisions of the English High Court have shed welcome light on the applicability and operation of section 67 of the Arbitration Act 1996 (AA 1996), which permits a party to apply to the court to challenge the substantive jurisdiction of an arbitral tribunal.
DIFC court grants first ever anti-suit injunction as arbitration cases continue to rise
In a landmark decision recently handed down in Multiplex Constructions LLC v Elemec Electromechanical Contracting LLC, the Dubai International Financial Centre (DIFC) court has sent a clear message that arbitration agreements providing for a DIFC seat must be respected.
Adamakopoulos v Cyprus may provide a blueprint for “mass claims” in investment arbitration
Claims brought by more than one investor are not unusual in the investor-state context, even where the claims are brought by claimants of different nationalities under several treaties. However, such claims have typically emanated from one investment operation, such as where a single claim is brought by joint venture partners in relation to their respective … Continue reading Adamakopoulos v Cyprus may provide a blueprint for “mass claims” in investment arbitration
In-house foreign lawyers benefit from legal advice privilege even if not regulated or qualified in home jurisdiction
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
Appeal on a point of law under section 69 of the Arbitration Act 1996: is there any reversal of trend?
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.
i-witness testimony: handling witness interviews in a digital age
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.
It’s the principal of the thing! Filatona Trading Ltd v Navigator Equities Ltd
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.
Better get EU-sed to it: the “new normal” for investors navigating intra-EU dispute resolution
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
Riding with stabilisers: using stabilisation clauses to hedge sovereign risk
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?
Follow the guidance: the ICC Court’s plan to mitigate the impact of COVID-19
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
Building a case: controlling time and cost in construction arbitrations
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
Once more into the breach? GDPR and international arbitration
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.
Forum non conveniens before the DC District Court: Entes Industrial v Kyrgyzstan
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.
ISDS: the worst, except for all the others
As discussions around Brexit, US-China and transatlantic trade continue, the question of the best mechanism for settling investor state disputes remains.
Exemplary damage limitation? Award for potentially punitive damages upheld despite public policy concerns
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
Partial award on advance deposits: what happens if there is a jurisdictional challenge?
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?
Holding back the tide: the rise of the machines in arbitration
In the era of big data, parties need to ensure their digital approach to arbitration is diligent.
Challenging procedural decisions
A procedural order can strike the killing blow in arbitration. Are there potential avenues for challenge?
To litigate or to arbitrate? Choosing a forum for construction disputes
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
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
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
Destination arbitration: competition in the market for justice
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
I’ve started, so I’ll finish: discontinuing arbitration claims
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.
2017 facts and figures: ICC, LCIA, SIAC
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.
London calling or cooling? Post-Brexit dispute resolution and arbitration research round-up
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
Achmea: European Court of Justice rules that arbitration agreement in intra-EU bilateral investment treaty violates EU law
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
What is the future for women in arbitration?
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.
New arbitration centres in Russia and Kazakhstan: starting from a good base, but more work ahead
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
Consumer class arbitration in the UK: where we are and what next?
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?
Crouching bear, hidden dragon: interpreting the “amount and method” provisions in older Chinese and Russian BITs
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
SIAC to invite users to provide feedback to Arbitrator Intelligence, but is confidentiality a concern?
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.
Controlling time and cost: if you don’t do it, no one will
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
Due process: of swords, shields and warriors
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
Assignment of arbitral awards
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
New Russian rules on corporate disputes: a view from London
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
“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 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
Summary procedures in international arbitration: a case for flexibility
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
Paths to the common good: reconciling transparency and confidentiality in international arbitration
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
Thoughts on specialist arbitration: centres, rules and arbitrators
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
Replenishing the courts’ diet: is section 45 of the Arbitration Act 1996 an answer?
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?
Welcome to the non-party: obtaining evidence from non-parties
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.
A “Precedent H” for arbitration?
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?
Limits of the automatic stay in arbitration under Article 20.1 of the Model Law on Cross-Border Insolvency
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
