In the recent case of A Company v X, the English Technology and Construction Court granted an injunction to prevent an expert witness from acting for a party in arbitration proceedings in circumstances where a colleague of the expert at the same global consultancy firm was already acting for the other party in separate arbitration proceedings. Continue reading
A while ago, I wrote a summary of the decision in Cofely Limited v Bingham and another. That decision concerned the costs position following the removal of an arbitrator under section 24 of the Arbitration Act 1996 (AA 1996) and, in particular, the following question: is the arbitrator potentially liable for the costs of the application to remove him or her?
Parties to arbitration agreements often find that their counterparty nonetheless seeks to pursue proceedings in a foreign court (in many cases their home court). The foremost weapon in order to restrain such abuses is the anti-suit injunction, and the existence of this type of remedy under English law is well known internationally. Injunctive relief is available in some cases under section 37 of the Supreme Court Act 1981, even where no arbitral proceedings are current or contemplated (Ust-Kamenogorsk v AES). Continue reading
In the recent decision of Enka v Chubb, the English Court of Appeal affirmed the English courts’ jurisdiction to determine anti-suit injunctions in support of arbitrations seated in London, even when the courts would need to apply foreign law to decide the issue. The Court of Appeal also clarified that absent an explicit choice of law, it should be strongly presumed that an arbitration agreement is governed by the law of the chosen arbitration seat, and not by the law governing the main contract. Continue reading
On 28 February 2020, ICSID released its fourth working paper on the amendment of its rules for investor-state proceedings. This forms part of the most extensive review of ICSID’s rules since their adoption in 1967 (the Additional Facility Rules were adopted in 1978). ICSID describes the overarching goals of the present review as “to modernize, simplify, and streamline the rules, while also leveraging information technology to reduce the environmental footprint of ICSID proceedings.” One of the focal points of the proposed amendments has been an increase in the transparency of ICSID proceedings, and the fourth working paper undoubtedly continues that theme. Continue reading
Since 11 December 2019, the World Trade Organization’s (WTO) appellate body has been at a standstill. Due to an insufficient number of members, the appellate body has been unable to hear appeals. Continue reading
The Equal Representation in Arbitration Pledge (the ERA Pledge), launched in 2016 to address the under-representation of women on international arbitration tribunals, recently surpassed a milestone 4,000 signatories in January 2020. The past year has also seen the launch of the Corporate and Africa Pledge subcommittees (which now sit alongside the very successful Latin America and India subcommittees), and the First Pledge Award presented at the 2019 GAR Awards in Paris. Continue reading
Much has been written about the effect of the COVID-19 crisis on pending and future court proceedings across the world. There has been a wide range of responses across the globe. In some jurisdictions, courts have closed completely or almost completely. In England, by contrast, the civil courts have reacted rapidly to allow as much business to proceed as possible and to minimise disruption. New practice directions, including in particular PD 51Y (published back in March) allow for remote hearings and trials, and judges have been quick to move to the new online platforms. The first remote full trial in the Commercial Court took place in March (National Bank of Kazakhstan v The Bank of New York Mellon), and the Supreme Court has now started remote hearings. Many practitioners (and judges too, no doubt) find themselves scaling a steep learning curve, grappling with electronic bundles, negotiating the different demands and style of online advocacy, and learning to use new technologies. This is not to mention the concurrent demands of presenting submissions from a home office, with children or pets ready to intervene at any given moment. Given these new, and not altogether conducive, working conditions, it is encouraging to see that practitioners and courts have been swift to share best practice: see, for example, the Remote Courts Online hub (established by the Society for Computers and Law, funded by UK Law Tech Delivery panel, and supported by HMCTS) where practitioners and court users can share experiences and advice. Continue reading
Earlier this month, the International Centre for Settlement of Investment Disputes (ICSID) and the United Nations Commission on International Trade Law (UNCITRAL) jointly published a draft code of conduct for adjudicators in investor-state dispute settlement. The draft code is designed to address important issues in relation to the conduct of adjudicators in investor-state dispute settlement (ISDS). It is part of the wider effort of UNCITRAL’s Working Group III (WG III) to introduce ISDS reforms and of ICSID’s amendment of its rules of procedure. Continue reading
This is the second part of a two part blog regarding the emergence in recent years of specialised arbitral institutions/courts which provide industry specific rules, procedures and decision makers. The first part looked at the worlds of art, sport and finance, while this second part will look at the sectors of energy, construction, aviation/aerospace and maritime. Continue reading