REUTERS | Gary Hershorn
October 11, 2022

The international legal framework for space mining is becoming less of an alien concept

The first mission of NASA’s Artemis Program, Artemis 1, is scheduled to launch at 12.07am EST on Monday 14 November. The Artemis Program seeks, among other things, to re-establish a human presence on the moon for the first time since the Apollo 17 mission in 1972, as well as to establish sustainable exploration of the moon with both commercial and international partners by 2028. We may be at the beginning of what has been called the “lunar gold rush”, where natural resources in outer space will be explored and extracted. This, however, poses a legal dilemma. Who will have the property rights to these natural resources? Without an answer to that question, it will be difficult to assert legal rights over the assets derived from space. Once that question is answered, it will pave the way for a new field of disputes ideally suited for resolution by international arbitration.

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REUTERS | Alexandre Meneghini
September 28, 2022

Refinement rather than reform: The Law Commission’s consultation paper on the English Arbitration Act

Last week, the Law Commission published its first consultation paper as part of its review of the Arbitration Act 1996 (the “Act”). The stated aim of the review has been to ensure that the Act remains “best in class”: an approach based upon fine-tuning, rather than root and branch reform. This is borne out by the consultation paper, which proposes relatively few changes. Nonetheless, the paper contains some notable and very welcome proposals for change and clarification, which we outline and comment on below. Continue reading →

REUTERS | Phil Noble
September 26, 2022

The decentralised implementation of the ISDS ban by EU domestic courts

Now that the dust has settled following the Achmea, Komstroy, Micula and PL Holdings judgments of the Court of Justice of the EU (CJEU), in which it banned intra-EU investor-state arbitration disputes (ISDS) based on bilateral investment treaties (BITs) and the Energy Charter Treaty (ECT) within the EU, the wider, decentralised implementation of this ISDS ban is becoming increasingly visible.

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REUTERS | Christian Charisius
September 16, 2022

Enforcement of local and foreign arbitral awards in Saudi Arabia

The Saudi Center for Commercial Arbitration (SCCA) recently published its annual report for 2021, highlighting the progress made by Kingdom of Saudi Arabia (KSA) on its path towards becoming a globally recognised arbitration seat. Since the current Saudi Arbitration Law (Royal Decree No. M/34) came into force on 7 July 2012, efforts have continued to ensure that arbitration is a catalyst for improving the business environment and enforceability of contracts that Saudi Arabia is promoting as part of its Vision 2030.

There were a number of discussion points identified in the report but of particular interest were the results of an SCCA study, which produced statistics illustrating the low rate at which local and foreign arbitral awards are nullified in Saudi Arabia.

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REUTERS | Peter Andrews
September 8, 2022

ADGMAC Protocol for Remote Hearings: stay tuned…

At the height of the pandemic, in or around the first quarter of 2021, the Abu Dhabi Global Market (ADGM) Arbitration Centre (ADGMAC) published a set of guidelines to provide procedural and logistical assistance on the conduct of remote and semi-remote hearings in international arbitration, known as the “ADGMAC Protocol for Remote Hearings ”. Being a soft law instrument, this Protocol is not binding and as such is subject to party autonomy. The Protocol may be used for guidance in merits hearings or be adapted for use in procedural case management conferences depending on the parties’ and the tribunal’s needs. It further lends itself for application in combination with the ADGMAC’s so-called “Smart Arbitration” services, which have been designed to promote a reality of fully remote arbitral proceedings. Given the continued relevance of remote hearings in daily arbitration practice around the globe, it is timely to take a closer look at the main provisions of the Protocol and how they may assist in the conduct of virtual arbitral proceedings.

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REUTERS | Dani Cardona
September 1, 2022

Sea Master v Arab Bank: when “challenging yourself” goes too far

Not every case begins with the declaration that “this is an odd case”. An application under section 67 of the English Arbitration Act 1996 to contest the jurisdiction of the tribunal is normally brought against claims by one’s opponents. However, Sea Master v Arab Bank concerned a section 67 application by the claimants (together “Sea Master”) that claims which they themselves had brought were outside the jurisdiction of the tribunal.

It is also odd for a second reason. That is because the claimant’s case was that the claims they were seeking to challenge fell outside the ambit of the relevant arbitration agreement. However, neither party had addressed the tribunal on this issue.

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REUTERS | Jason Redmond
August 11, 2022

Commercial Court honours its name: taking a commercial approach to a section 67 challenge

In the recent case of NDK Ltd v HUO Holding Ltd, the Commercial Court considered whether claims that come under both the terms of the articles of association of a foreign company and a shareholders agreement fall within an arbitration agreement and are arbitrable.

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REUTERS | Ognen Teofilvovski
August 3, 2022

Three things you need to know about the modernisation of the ECT

The actions of states relating to the introduction, withdrawal or amendment of policy measures explicitly developed to meet climate goals has caused investment treaty arbitration to become a battleground for the settlement of international climate-related disputes. Against this backdrop, on 24 June 2022, the Energy Charter Conference confirmed that, after five years of negotiations, its member states had reached an agreement in principle regarding revisions to the Energy Charter Treaty (ECT).

The draft text will be shared with the ECT Contracting Parties by 22 August 2022 for adoption by the Energy Charter Conference on 22 November 2022. In the meantime, here are three things every arbitration practitioner needs to know about the proposed changes to the ECT.

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REUTERS | Denis Balibouse
July 28, 2022

Arbitration Act 1996: your voice matters!

The Law Commission currently intends to publish its consultation paper on proposed reform of the English Arbitration Act 1996 (AA 1996) in September 2022. However, at a COMBAR lecture on the Law Commission’s project and proposals on 27 June 2022, Professor Sarah Green and Dr Nathan Tamblyn gave a preview of the eight areas that have made the current shortlist for inclusion in the consultation paper.

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REUTERS |
July 18, 2022

Reform of the Arbitration Act: should disclosure of third-party funding be on the agenda?

On 30 November 2021, the Law Commission announced that it would be conducting a review of the English Arbitration Act 1996 (AA 1996). The aim of the review is to maintain the attractiveness of England and Wales as a “destination” for dispute resolution and the pre-eminence of English Law as a choice of law.

The Law Commission has identified a number of potential areas for review, including summary disposal, the courts’ powers exercisable in support of arbitration proceedings, the availability of appeals on points of law and confidentiality.

However, there is one notable omission from the list and that is third-party funding (TPF) and, specifically disclosure obligations surrounding TPF.

The new ICSID Rules came into force recently on 1 July 2022 making the disclosure of TPF mandatory. This blog considers whether the AA 1996 should include express provisions setting out the rules on disclosure of TPF for arbitrations seated in England.

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