Arbitration practitioners are well aware of the inherent difficulties that can arise where important evidence is required from reluctant third parties. Where the evidence in question is pivotal to a party’s case and the witness refuses to give evidence, it can be difficult for that party to make their case either comprehensively or convincingly. Continue reading
Where an investment involves a long-term contract with a state or state-owned counter-party, the investor is exposed to the risk that the state has the power at any time to change the legal regime applicable to the contract. How can an investor protect against that risk? Continue reading
Most commercial disputes lawyers will have at least a passing familiarity with the unfair prejudice remedy, or the “oppression remedy”, to which it is often referred. Continue reading
The 2019 novel coronavirus disease (COVID-19) pandemic has affected all aspects of our lives in ways unimaginable. Dispute resolution is no exception. Several arbitration institutions, organisations and practitioners have identified tools for adapting the dispute resolution process to the new reality, including through the use of technology that offers to replace physical hearings with virtual ones. Continue reading
As mentioned in our previous contribution, in its report on the outcome of its 38th session in Vienna, the UNCITRAL Working Group III explored areas of potential reforms to the current system of investor-state dispute settlement (ISDS). We have already explored the report’s main findings related to the potential adoption of a standalone appellate mechanism. In this post, we examine the main takeaways of the report in relation to the two other issues discussed therein, namely the adoption of a standing multilateral investment court, and potential reforms to the process for the selection and appointment of arbitrators and adjudicators. Continue reading
The 2019 novel coronavirus disease (COVID-19) pandemic has paralysed the world economy and the majority of industry and service sectors in most parts of the world, including the Middle East. The systematic lockdown now in place across the Middle East has changed the way we interact with each other and the way we do business today. Naturally, it has also had a profound impact on the way we conduct arbitrations. Continue reading
More than 13 years ago, in May 2006, the International Centre for Dispute Resolution (ICDR) introduced a new procedure into its arbitration rules whereby parties could seek emergency interim relief from an emergency arbitrator before the constitution of the arbitral tribunal. Since then, most of the major arbitral institutions, including SCC (2010), SIAC (2010), ICC (2012), HKIAC (2013) and the LCIA (2014), have incorporated emergency arbitrator procedures into their arbitration rules. Most regional centres and recently created arbitral institutions have adopted similar provisions (including CIETAC (2015) and KLRCA (2013)). Continue reading
The worry currently at the forefront of everyone’s mind is understandably the 2019 novel coronavirus disease (COVID-19) outbreak. On 12 March 2020, the World Health Organization (WHO) officially declared the outbreak a pandemic, meaning drastic measures have been taken across the globe to prevent its further spread. At the time of publication, there have been over 1.4 million confirmed cases and over 82,000 deaths worldwide as a direct result of the virus. Lockdown and social distancing measures are in place in many countries across the world, with the aim of stemming the rapid increase in cases. As it has affected our personal and working lives in one way or another, it has also disturbed the arbitration world. Continue reading
With environmental concerns and the attendant existential threat they pose at the forefront of the public consciousness, it is perhaps unsurprising that investment arbitration tribunals increasingly find themselves asked to determine claims and counterclaims by states against investors and other operators whose business activities have an environmental impact. Continue reading
The 2019 novel coronavirus disease (COVID-19) pandemic has resulted in a period of exceptional uncertainty as well as substantial market instability worldwide. As previous crises have shown, commercial pressures on parties can lead to an increase in disputes and recourse to national courts and other forms of dispute resolution, including arbitration. With a quarter of the world’s population living under lockdown conditions, parties, their advisors, and judicial and arbitral bodies worldwide now find themselves in a unique situation. The wide-ranging effects of the pandemic are not just creating exceptionally difficult commercial circumstances, but are having an impact on the normal operation of the bodies that are there to assist parties in adjudicating those disputes. Courts and arbitral institutions have been making changes to their operations to respond to the effects of the pandemic in order to reduce risks to their employees and their users, so as to do their part in reducing the burden on healthcare systems. Continue reading