Posts from Kirkland & Ellis

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