REUTERS | Jon Nazca
December 6, 2019

The first arbitration-related cases of the ADGM courts (Part 1): [2019] ADGMCFI 0004

As the readers of this blog will be aware, the Abu Dhabi Global Market (ADGM) is a judicial free zone in the heart of the emirate of Abu Dhabi. It administers its own system of common law courts, the ADGM courts, which are competent to hear arbitration-related actions brought before them in their capacity as curial or enforcement courts under the 2015 ADGM Arbitration Regulations. The ADGM Arbitration Regulations apply as the procedural law to arbitrations seated in the ADGM or to actions for enforcement of arbitral awards (whether domestic or foreign) before the ADGM courts. Being common law courts, the ADGM courts source their judiciary from common law jurisdictions, including in particular the UK. Continue reading →

REUTERS | Eric Gaillard
December 5, 2019

Game over for intra-EU BITs

On 24 October 2019, the European Commission announced that EU member states have reached agreement on a plurilateral treaty for the termination of all of the approximately 190 intra-EU bilateral investment treaties (BITs). The agreement follows the political declarations of member states, issued in January this year, in which they recognised the consequences from the Achmea judgment of the Court of Justice of the European Union (CJEU). Continue reading →

REUTERS | Andrea Comas
December 3, 2019

Is Spain offering a settlement to foreign investors? Absolutely not, the new Royal Decree Law 17/2019 of 22 November 2019 is just another retaliatory measure

On 23 November 2019, the Official Gazette of Spain (BOE) published the Royal Decree Law 17/2019 of 22 November 2019, adopting urgent measures in response to the need to adapt the remuneration parameters affecting its electrical system and addressing the process for shutting down thermal generation power plants. It entered into force on 24 November 2019 and the Spanish Parliament ratified its content as of 27 November 2019. This is therefore new law. Continue reading →

REUTERS | Mark Blinch
November 28, 2019

Data, data everywhere…

Mark Twain may or may not have had the GDPR  in mind when he observed, “Data is like garbage: you’d better know what you are going to do with it before you collect it.” More recently, the decision in Tennant Energy LLC v Government of Canada has again raised the vexed question of the effect of data protection legislation, and specifically the GDPR, on international arbitration. Tennant was a PCA arbitration in which one of the arbitrators was based within the EU, in chambers in London. The claimant investor argued that this sufficed to engage the provisions of the GDPR, with knock-on effects for the approach to confidentiality in the arbitration.

Continue reading →

REUTERS | Jose Luis Gonzalez
November 22, 2019

LATAP’s London launch event hosted by Volterra Fietta: Investment treaty arbitration as a norm-generating system in Latin America

Latin American Arbitration Practitioners EU (LATAP) is a project initiated by seven Latin American lawyers specialised in international arbitration and working in top tier law firms across Europe. These law firms include: Volterra Fietta, Shearman & Sterling, Lalive, Hanotiau & van den Berg, Latham & Watkins, Dechert and Schellenberg Wittmer. Continue reading →

REUTERS | Stefan Wermuth
November 14, 2019

Mr Freeze: enforcing arbitral awards in Switzerland (Chapter 4)

Prevailing in arbitration as well as in subsequent enforcement proceedings in Switzerland will be all for naught if the award debtor is able to frustrate the enforcement of the award (for example, by transferring its assets outside of Switzerland) before the award creditor can satisfy its claim(s). Continue reading →

REUTERS | Darrin Zammit Lupi
November 8, 2019

The ADGM Arbitration Centre Arbitration Guidelines: soft law hardcore…

The Abu Dhabi Global Market Arbitration Centre (ADGMAC) has recently launched its Arbitration Guidelines to the great acclaim of the local arbitration community. The Arbitration Guidelines are published in English and seek to provide best practice procedural guidance on the conduct of an arbitration process to arbitrators and parties alike. The Arbitration Guidelines are a soft-law instrument that does not produce any binding effect, neither on the parties nor on the arbitral tribunal, unless agreed otherwise. In this sense, the parties are free to contract into the provisions of the Guidelines wholesale or only in part. In a further alternative, the parties may agree to the application of the Guidelines or portions thereof by way of guidance to the tribunal only. In this sense, the overarching objective of the Guidelines is to “provide parties and tribunals with a set of innovative best practice procedures to assist in bringing greater certainty and efficiency to the arbitral process, while ensuring fairness, equality and due process” (see Introduction to the Guidelines). Continue reading →

REUTERS | Hannah McKay
November 7, 2019

Decisions, decisions: order or award?

There is an important distinction between an arbitral award and other decisions made by an arbitral tribunal during the course of an arbitration. A decision that has the status of an award can be challenged or appealed to a national court and can be enforced under the relevant international conventions. In contrast, a decision that has the status of a procedural order cannot. Continue reading →

REUTERS | Dinuka Liyanawatte
October 31, 2019

Arbitration under unilateral documents: how to avoid enforcement risk

The problem in a nutshell: consent

Documents executed by only one party in favour of a non-signatory are commonplace in commercial transactions, for example in the financial services and construction sectors where guarantees and bonds are often issued in this way. However, when parties are trying to resolve disputes arising under what are, for convenience, referred to as “unilateral documents” in this blog, they may encounter a number of legal hurdles. Continue reading →

REUTERS | Maxim Shemetov
October 25, 2019

Federal Government of Nigeria granted stay of enforcement and leave to appeal in key arbitration case

Quantum of suffering

The English High Court recently provided the Federal Government of Nigeria (FGN) some respite in its ongoing dispute with the British Virgin Islands company, Process & Industrial Developments Ltd (P&ID) by granting FGN leave to appeal and a stay on enforcement of the arbitral award made against it in January 2017. Having seen the arbitral award converted to an English High Court judgment in August 2019, P&ID had set about attempting to enforce the judgment against FGN’s foreign assets. This was no small matter for FGN, as the amount of the arbitral award (initially US $6.6 billion, now US $9.6 billion, given the eye-watering interest of US $1.3 million per day) would have a significant impact on Nigerian reserves and the Nigerian economy in general. US $9.6 billion represents around 20% of FGN’s total foreign reserves, one third of FGN’s 2019 fiscal budget, 2.5% of its total GDP and more than 50% of its earnings from crude oil in 2018. FGN unsuccessfully contested the award in August 2019 on several grounds, including that the award was “manifestly excessive” and, therefore, contrary to public policy. But a question that many readers will be wondering is: how did we even get here? Continue reading →