Judicial analytics have long been used to assist parties to litigation in developing case strategies. Due to the largely confidential nature of commercial arbitration, however, similarly valuable analytics for arbitrators have been largely elusive. Due to its secretive nature, international arbitration is perhaps the only $2 trillion industry that still operates in the analogue age, largely dependent on ad hoc research and telephone calls to learn about arbitrators.
Everybody makes mistakes and arbitral tribunals are no exception. Awards may contain typographical or arithmetical errors that require correction. In some cases, the wording of the award may be ambiguous and the parties may require additional clarification from the tribunal in order to be able to give effect to the award.
Issue estoppel may bar a party from amending their claim submissions to raise new claims after the determination of a preliminary issue which meant the end of their original claim.
It is now six months since the COVID-19 pandemic took hold outside China and brought legal proceedings to a grinding halt. What is remarkable, in retrospect, is how quickly courts reopened their doors , not physically, but electronically, through ‘remote’ hearings. Arbitrations, too, have continued in many cases, and the LCIA has just issued a new version of their rules, for example, taking the pandemic fully into account. So dispute resolution rolls on, but what lessons can to be learned for the benefit of arbitration in the longer term, once the pandemic is over?
This is Part 2 of a blog that discusses the belated formal adoption of the 2017 DIAC Rules, which, at the time of writing remains pending. Part 1 discussed the positive contribution made by the 2017 Rules to the provisions on the seat and venue of the arbitration, the wide definition and the blanket use of electronic communication to facilitate the virtual conduct of the arbitration and remote service, and the novel provisions on the arbitral award deemed issued at the seat. On each of these, Part 1 also highlighted the extent to which it would assist the promotion of core provisions of the UAE Federal Arbitration Law (FAL), which entered into force with effect from 16 June 2018.
The Supreme Court’s much-anticipated judgment in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb addresses the correct approach under English law to determining the governing law of an arbitration agreement. The judgment seeks to promote certainty and enforceability of arbitration agreements, by providing that:
A treaty is defined as “a written agreement between two or more countries”. This is not necessarily correct. Non-sovereign autonomous regions like Hong Kong can enter into bilateral investment treaties (BITs) too. Pre-1997, Hong Kong did so with the authorisation of UK, the then-colonial power. Presently, in line with Hong Kong’s constitutional arrangements, the central Chinese government may empower the Hong Kong authorities to do so.
Most recently, Jersey has joined Hong Kong as another non-sovereign entity that negotiates its own BITs. Jersey is set to sign its first BIT with the UAE later this year.
Last month, Sir Ross Cranston handed down the judgment in The Federal Republic of Nigeria v Process & Industrial Developments, marking the latest stage in what has proved a notoriously long-running dispute since arbitration between the parties was first commenced in 2012.
In Riverrock Securities Ltd v International Bank of St Petersburg, the English Commercial Court granted an interim anti-suit injunction (ASI) restraining proceedings brought in Russia by the liquidator of an insolvent company in breach of an arbitration agreement. The judgment addresses interesting issues regarding the arbitrability under English law of claims brought by liquidators pursuant to foreign insolvency laws and related public policy considerations.
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 law? The law of the place where the lawyer is qualified or where the advice is given? Or perhaps an international standard like the IBA Rules on the Taking of Evidence?