Posts from Kirkland & Ellis

How will an arbitration agreement influence the court’s approach in relation to a winding up petition?

A recent judgment handed down by Sir Geoffrey Vos, Chancellor of the High Court, considered the approach the court should take when a winding up petition is presented with regard to a debt that is not admitted and where the debt is subject to an arbitration agreement.

Impact of restructuring and insolvency on arbitration (Part 2)

Where the impact of restructuring and insolvency on arbitration is concerned, we have identified three distinct stages: Arbitrations commencing after an insolvency process (post insolvency). Insolvency processes occurring prior to an award but after the arbitration proceedings have commenced or where an arbitration and insolvency process run in tandem (mid-arbitration). Arbitrations which have commenced prior … Continue reading Impact of restructuring and insolvency on arbitration (Part 2)

Impact of restructuring and insolvency on arbitration (Part 1)

Increasing global pressures on businesses have and will for the foreseeable future lead to an increase in corporate restructurings, as businesses attempt to weather the current economic and commercial storm. With corporations relying increasingly on arbitration to resolve their disputes, particularly those engaging in cross-border trade, it is only a matter of time before parties … Continue reading Impact of restructuring and insolvency on arbitration (Part 1)

Arbitrating oppression: Fulham, Dickson and the unfair prejudice remedy

Most commercial disputes lawyers will have at least a passing familiarity with the unfair prejudice remedy, or the “oppression remedy”, to which it is often referred.

COVID-19: arbitrating in the midst of a pandemic

The 2019 novel coronavirus disease (COVID-19) pandemic has resulted in a period of exceptional uncertainty as well as substantial market instability worldwide. As previous crises have shown, commercial pressures on parties can lead to an increase in disputes and recourse to national courts and other forms of dispute resolution, including arbitration. With a quarter of … Continue reading COVID-19: arbitrating in the midst of a pandemic

What lies beneath: gas-pricing disputes and recent events in Southern Europe

While it would be premature to predict the end of the wave of European gas pricing arbitrations with the issue in January of the latest arbitration award in the ten year saga between Greece’s public gas corporation (DEPA) and Turkey’s BOTAŞ Petroleum Pipeline Corporation (BOTAŞ), the award does seem to straddle the end of one … Continue reading What lies beneath: gas-pricing disputes and recent events in Southern Europe

2019 arbitration year in review

2019 proved another busy year for arbitration lawyers, with the biggest story (again) being the European Commission’s drive to reshape the international system for the settlement of investment disputes (ISDS). We summarise the major stories of 2019 and set out what we can look forward to in 2020.

Disclosure of third party interests: the SCC and beyond

On 11 September 2019, the Stockholm Chamber of Commerce (SCC) adopted a policy encouraging the disclosure of the identity of “any third party with a significant interest in the outcome” of an SCC arbitration. This new policy is effective. Such disclosure will likely initially be contained within the parties’ first written submissions, although parties are … Continue reading Disclosure of third party interests: the SCC and beyond

When arbitration, politics and sanctions collide: The Iranian Ministry of Defence and Support for Armed Forces Logistics v International Military Services

There are few arbitration cases which, whilst starting off as a contractual dispute, over time morph into a symbol of something else entirely. The case of The Iranian Ministry of Defence and Support for Armed Forces Logistics (MODSAF) v International Military Services is one such case.

The courts and arbitration: the Eleni P Case, an example of “maximum support, minimum interference”

Back in 2016, Lord Thomas suggested that arbitration, and its inherent privacy, was seriously impeding the development of common law, particularly within the sphere of commercial law. In 2017, he went on to describe the courts as “complementary” to arbitration, with the courts providing “maximum support, minimum interference,” where necessary.

Memorials v pleadings: how to pick the winning approach for your arbitration

So you’ve settled your jurisdictional turf war, stayed court proceedings in favour of arbitration and finally have a conflicts-free tribunal. The next major tussle is likely to be over the procedure to be followed in the arbitration. Of the various issues to be determined, there is probably no more consequential decision than that of whether … Continue reading Memorials v pleadings: how to pick the winning approach for your arbitration

EU member states agree to terminate their intra-EU BITs: is this the end of intra-EU BIT arbitrations and what about Brexit?

In mid-January this year, all 28 EU member states signed declarations committing to terminate their intra-EU bilateral investment treaties (BITs). 21 EU member states (including the United Kingdom), went further and stated that the Achmea decision (described further below) also applies to intra-EU disputes pursuant to the Energy Charter Treaty (ECT).

2018 arbitration year in review

2018 has been a tumultuous year in the world of arbitration. The European Court of Justice (ECJ) has dealt a blow to European investment arbitration, trade policy under Donald Trump’s administration has rattled investors the world over, long-standing legal sagas have continued, and developments in arbitral rules and legislation have seen a continued focus on … Continue reading 2018 arbitration year in review

Lawyers can be experienced too (you know)

It is rare that an arbitrator’s qualifications are challenged in court and even rarer for such a challenge to be taken up on appeal. However, Allianz Insurance Plc and another v Tonicstar Ltd was one such case.

Implications of economic sanctions on international arbitration

Introduction Since the end of the Cold War, economic sanctions have become one of the primary foreign policy tools employed by governments to force change in a regime’s policies and practices, particularly as governments seek to avoid the high cost of military conflict. Sanctions are now commonly used to prevent or punish proliferation of nuclear … Continue reading Implications of economic sanctions on international arbitration

Confirmed: foreign act of state doctrine applies in English arbitrations

Reliance Industries Ltd v Union of India concerned nine challenges brought under the English Arbitration Act 1996 (AA 1996) to an arbitral award, issued by a London seated UNCITRAL panel, in a dispute between two energy companies and the government of India over contracts for the exploitation of oil and gas. The claimants, who had roundly … Continue reading Confirmed: foreign act of state doctrine applies in English arbitrations

Great Station Properties v UMS Holding Limited: a continuation of the English courts’ pro arbitration approach

The decision of the English Commercial Court in Great Station Properties v UMS Holding Limited on 20 December 2017 was notable for arbitration practitioners on two counts. First, it showed the court’s willingness to order a worldwide freezing order (WFO) to aid the enforcement of an arbitral award and judgment of the court, and second … Continue reading Great Station Properties v UMS Holding Limited: a continuation of the English courts’ pro arbitration approach

2017 arbitration year in review

2017 proved a boisterous year in the world of arbitration. The Yukos saga continued, with the recipients of the largest arbitration award ever, set aside in 2016 by the Hague District Court (the jurisdiction where the arbitration was seated), dropping enforcement actions in the French and Belgian courts to focus on the Dutch appeal. Headline … Continue reading 2017 arbitration year in review

LCIA’s changes to its tribunal secretary process: about time to make it more transparent

The use of tribunal secretaries in international arbitration has been the subject of much criticism and debate in recent times. Much of the concern has focused on the idea of the tribunal secretary effectively performing the functions of a “second”, “fourth” or “shadow” arbitrator.

Update on the European Commission’s drive for investment courts

The European Commission has emerged as one of the biggest drivers for reform of investor-state dispute settlement (ISDS). Arguing that the current ISDS system lacks legitimacy, consistency and transparency, the EU has taken a two-pronged approach in its push for reform. First, it has sought to replace traditional investor-state arbitration with a system of standing … Continue reading Update on the European Commission’s drive for investment courts

Tailoring the international commercial arbitration process for parties traditionally reluctant to enter into formal dispute resolution proceedings

Parties who provide for arbitration as a means for resolving commercial disputes generally do so because of the oft-cited perceived benefits of arbitration. These include confidentiality, potential time and cost savings, more limited disclosure, the ability to enforce awards in any of the New York Convention signatory countries and, notably, the ability to tailor the … Continue reading Tailoring the international commercial arbitration process for parties traditionally reluctant to enter into formal dispute resolution proceedings

Developments in international commercial arbitration involving Chinese parties

It has been well reported over the past few years that Asian arbitration centres are growing in popularity and are administering a larger share of arbitrations. This is reflected in the Singapore International Arbitration Centre’s (SIAC’s) annual report for 2016, published earlier this year. This report shows that in 2016, SIAC had its highest ever … Continue reading Developments in international commercial arbitration involving Chinese parties

Intra-EU BITs: time to reconsider European investment structures?

The EU’s quest to reshape European investment policy and dispute settlement is well documented, and has been the subject of much debate. One key element of that strategy is to eradicate bilateral investment treaties (BITs) concluded amongst EU member states – so-called “intra-EU BITs” (as opposed to BITs between EU member states and non-member states, … Continue reading Intra-EU BITs: time to reconsider European investment structures?

Arbitrability of minority shareholder disputes: extending the reach

On 9 January 2017, the Singapore Court of Appeal handed down judgment in L Capital Jones Ltd and another v Maniach Pte Ltd. The case concerned a shareholder dispute and raised a number of legal issues. However, of most interest for the international arbitration community was the court’s ruling on the arbitrability of the respondent’s … Continue reading Arbitrability of minority shareholder disputes: extending the reach

Standard Chartered Bank v TANESCO: contractual ICSID case calls finality of ICSID decisions into question

Whilst the International Centre for Settlement of Investment Disputes (ICSID) Convention specifically provides for the revision of a final award in cases of “discovery of some fact of such a nature as decisively to affect the award”, it does not expressly address the question of whether, and on what basis, a tribunal may reconsider and possibly … Continue reading Standard Chartered Bank v TANESCO: contractual ICSID case calls finality of ICSID decisions into question

The IBA Guidelines on Conflicts of Interest: evolution not revolution

In 2004, in response to an increasing number of challenges based on conflicts of interest on the part of arbitrators, the International Bar Association published Guidelines on Conflicts Interest which were subsequently updated in 2014 (IBA Guidelines). More than a decade after their first publication, the widespread acceptance of the IBA Guidelines by the international … Continue reading The IBA Guidelines on Conflicts of Interest: evolution not revolution

Investment structuring in the context of investment treaty protections

Whilst strategic tax advice is by now an integral part of any international investment transaction, strategic nationality planning, so as to maximise investment protections with effective access to investor-state dispute settlement (ISDS), still very much remains the exception to the rule.

Confidentiality of arbitration in third-party proceedings: the law remains uncertain

The confidentiality of arbitration proceedings has long been recognised, and indeed this confidentiality is often cited as one of the key advantages of arbitration over litigation in circumstances where parties are keen to keep details of their dispute private. However, there are cases in which confidential materials generated during the course of an arbitration can … Continue reading Confidentiality of arbitration in third-party proceedings: the law remains uncertain

The EU flexes its muscles: update on EU foreign investment disputes

On 4 February 2016, the European Commission filed an amicus brief with the US Court of Appeals for the Second Circuit, opposing the enforcement of the controversial International Centre for Settlement of Investment Disputes (ICSID) award against Romania in the Micula case. In its amicus brief, the Commission argued that the award was rendered under … Continue reading The EU flexes its muscles: update on EU foreign investment disputes