REUTERS | David W Cerny
November 8, 2018

The Prague Rules: is the happy partnership between the common law and civil law evidentiary tradition in arbitration really a fiction?

Any introductory lecture on international commercial arbitration will at some point address the balance that has been struck, or has sought to be struck, between the common and civil law procedural traditions. The “soft law” IBA Rules on the Taking of Evidence in International Arbitration will be referred to as an example of how this compromise has been reached in the standard approach to evidence, and much will be made of their use and acceptance within the global arbitral community. Continue reading →

REUTERS | Jorge Cabrera
November 1, 2018

Don’t be a Midnight Cowboy: avoiding common pitfalls when drafting and negotiating arbitration clauses

There is no shortage of (mostly?) apocryphal stories about clauses that are put into draft agreements as a joke at an early stage of negotiations and, due to oversight, are never removed. My personal favourite is the so-called “End of the World” clause which goes something like this: Continue reading →

REUTERS | Chris Wattie
October 26, 2018

Blade runner: new developments in Pechstein’s judicial marathon

On 2 October 2018, the European Court of Human Rights (ECtHR) released its long-awaited decision in the Pechstein case. This is the final development in a case that has run through various courts in Switzerland and Germany for almost a decade. Continue reading →

REUTERS | Ana Carolina Fernandes
October 25, 2018

Achmea: how far does it reach?

No doubt, the European Court of Justice (ECJ) ruling in Slovak Republic v Achmea BV of earlier this year has caused reasoned concern amongst the international investment arbitration community that its reach may be much wider than intra-EU bi-lateral investment treaties (BITs). The proposition is, and the ruling in Achmea most certainly will extend to BITs concluded between an EU member state and a third country from outside the EU. This is because the reasoning developed by the ECJ to conclude that arbitration clauses in intra-EU BITs are unenforceable within an EU context applies with equal force to a situation where an investor brings a claim under a BIT between an EU member state and a third country. To the extent that a dispute arising from an EU-third country BIT is seated in an EU member state, or a resultant award requires enforcement before an EU member state court, it is more likely than not that the Achmea ruling would unfold its full legal effect. Similar considerations may also apply to corresponding situations within the context of disputes arising from multilateral investment treaties (MITs) to which an EU member state is a party, such as the Energy Charter Treaty (ECT). Continue reading →

REUTERS | Jonathan Bachman
October 22, 2018

The long reach of US discovery: English Commercial Court allows enforcement of 28 USC §1782 discovery order

In recent years, US federal procedural law has emerged as a powerful weapon in cross-border disputes. In particular, section 1782 of Title 28 of the United States Code (28 USC §1782) allows district courts in the US to order the discovery of evidence for use in foreign and international proceedings, including, according to several courts, foreign-seated arbitrations. Continue reading →

REUTERS | David W Cerny
October 11, 2018

Why the Prague Rules may be needed?

The so-called Prague Rules were published in draft form very early on. Since then, there have been a number of revisions with updated drafts being published. This was perhaps one of the reasons why they attracted so much attention (primarily in the form of criticism) from the arbitration community. With one final revision of the text to go and with the launch of the Prague Rules scheduled for 14 December 2018 in Prague, it may be a good time to look at why they may be needed. Continue reading →

REUTERS | Rickey Rogers
October 4, 2018

New York Appellate Division, First Department, reverses Supreme Court decision vacating ICC arbitration award for “Manifest Disregard of the Law”

In Daesang Corp. v NutraSweet Co., the Appellate Division, First Department reversed the decision of a New York Supreme Court Commercial Division Justice (the court of first instance) that had vacated an international arbitration award under the Federal Arbitration Act (FAA). Continue reading →

REUTERS | Gleb Garanich
October 2, 2018

Rasstavit tocki nad i: the lessons learnt from recent judgments of the Russian courts on the enforcement of arbitration agreements and awards

Roughly translated as “remember to dot your i’s and cross your t’s”, the phrase “Rasstavit tocki nad i” is quite an apt description for some of the lessons learnt from recent judgments of the Russian courts on the enforcement of arbitration agreements and awards in Russia. Continue reading →

REUTERS | Denis Balibouse
October 1, 2018

Déjà vu all over again: second bites of the cherry under section 67 of the Arbitration Act 1996

The English Arbitration Act 1996 (AA 1996) proceeds on the basis that it is for the tribunal, not the court, to rule on its own jurisdiction, at least in the first instance. The Departmental Advisory Committee (DAC) hoped that legislative endorsement of the principle of kompetenz-kompetenz would “avoid delays and difficulties when a question is raised as the jurisdiction of the tribunal”. Continue reading →