The US Supreme Court recently issued its decision in Henry Schein v Archer & White. The court’s decision abolishes the “wholly groundless” doctrine, which served as a judge-made exception to the general rule that delegated gateway issues of arbitrability are properly resolved first in arbitration. In this respect, the court’s unanimous opinion is an uncontroversial … Continue reading The US Supreme Court’s decision in Henry Schein v Archer & White: an affirmation of first principles and of the need for clarity over delegated gateway issues
It is not very fashionable in investment arbitration circles to suggest that investment treaty arbitration could learn a thing or two from court proceedings, but two recent judgments of the English High Court, PAO Tatneft v Ukraine and GPF GP S.à.r.l. v Republic of Poland, give some credence to the suggestion. In particular, the judges’ decisions … Continue reading Are English courts showing the way forward for investment treaty tribunals?
There has been vociferous public debate around the inclusion of investor-state dispute settlement (ISDS) provisions in international investment treaties over the past few years. The increasing level of public awareness of, and opposition to ISDS provisions, has been reflected in the rising number of “anti-ISDS” groups and governmental policies around the world.
Falling foul of a limitation period can stop a treaty claim in its tracks. For claimants, how you frame an alleged treaty breach may, for the purposes of computing time, determine whether the claim is barred in whole or in part. For respondents, successfully proving the expiry of a limitation period may be an entire … Continue reading For whom the treaty tolls?
Mining of natural resources such as water, minerals and precious metals in space is close to becoming a reality. With it comes a potential new field of disputes ideally suited for resolution by international arbitration.
Arbitral tribunals are increasingly required to consider the relevance and applicability of international human rights norms to investment protection and arbitration. While opinions are divided on this issue, there is an inescapably “complex relationship” between investment protection and human rights. This post considers the potential significance of human rights impact assessments (HRIAs) in investor-state arbitration. … Continue reading Closing the gap between human rights and investment protection: what role for human rights impact assessments?
The Singapore High Court recently set aside an arbitral award for breach of natural justice in JVL Agro Industries Ltd v Agritrade Int’l Pte Ltd. The tribunal majority decided the case on the basis of a point raised for the first time and in passing by the tribunal in the final minutes of closing arguments, … Continue reading Permissible robustness and unreasonable initiative: a trio of recent Singapore set-aside decisions illustrate the boundaries of arbitral decision-making
Summary Arbitration practitioners tend to think that tolerance of late and untimely submissions is a slightly embarrassing quirk of arbitral procedure. There is an assumption that their colleagues who also practice before domestic courts do not flout procedural timetables so readily (for example, by making last minute submissions after the close of a hearing). The … Continue reading Dealing with late submissions in arbitration: what lessons from the English courts?
On 1 February 2016, the Singapore International Arbitration Centre (SIAC) announced the upcoming launch of a set of arbitration rules designed specifically for investor-state disputes, and published a first draft for consultation. Produced by a panel of eminent experts, the draft Investment Arbitration Rules 2016 (draft Rules) aim to offer an alternative to the procedural rules … Continue reading SIAC to launch Investment Arbitration Rules
Critics have lamented that the English courts have not kept pace with trends in the world of arbitration. Any lingering doubts, however, should be quashed by the Privy Council’s decision in Anzen Limited and others v Hermes One Ltd. In Anzen, the court interpreted an optional arbitration clause with the word “may” liberally; granting a … Continue reading When a “may” is (almost) a “must” in an arbitration agreement