REUTERS | Darrin Zammit
July 11, 2017

Expect the unexpected: what lies ahead in the arbitration world?

“Expect the best, plan for the worst, and prepare to be surprised” (Denis Waitley)

At the start of 2017, we predicted a lively time in the arbitration arena, and the first six months have certainly not disappointed. At the half-way mark, we find ourselves in a similar position, for example, with the continued uncertainty surrounding the effects of Brexit on arbitration in the UK, as well as the future of investor-state dispute settlement (ISDS) and its potential reform. Add to the mix the relatively untested waters around the effect of emergency arbitrator provisions in many institutional rules, and it’s effectively all as clear as mud. Luckily the arbitral institutions are on hand to offer some tangible developments through ongoing revisions to rules, while the reform of national arbitral legislation around the world also gives us the conviction to foresee several developments. Continue reading →

REUTERS | Arnd Wiegmann
July 4, 2017

Fast track arbitration for insurance disputes: ARIAS rules under the spotlight

In a drive to improve the efficiency of arbitration, many of the major arbitral institutions including, most recently, the International Chamber of Commerce (ICC), have introduced procedures for expedited or fast track arbitration. However, the major arbitral institutions are not alone in having considered expedited procedures. As of 3 October 2013, parties have been able to arbitrate using the ARIAS Fast Track Arbitration Rules (AFTAR). Continue reading →

REUTERS | Nir Elias
June 29, 2017

Developments in international commercial arbitration involving Chinese parties

It has been well reported over the past few years that Asian arbitration centres are growing in popularity and are administering a larger share of arbitrations. This is reflected in the Singapore International Arbitration Centre’s (SIAC’s) annual report for 2016, published earlier this year. This report shows that in 2016, SIAC had its highest ever number of administered cases (343 new cases in 2016, a 27% increase on the 2015 figures), and administered its largest aggregate sum in dispute (of US$ 11.72 billion). The Hong Kong International Arbitration Centre’s (HKIAC) 2016 case statistics show a slight dip in total new cases (460 in 2016, as compared to 520 in 2015), but this is not significant enough to dispute the fact that the trend over the past five years or so has been towards improvement, growth and increased popularity of these centres (see, for example, the Queen Mary and White & Case 2015 International Arbitration Survey, which found that the most improved arbitral seat over the past five years was Singapore followed by Hong Kong, the most improved arbitral institution over the past five years was the HKIAC followed by the SIAC, and the five most preferred arbitral institutions are the International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), HKIAC, SIAC and the Stockholm Chamber of Commerce (SCC)). Continue reading →

REUTERS | Mal Langsdon
June 28, 2017

What does a future of low oil prices hold for investor-state arbitration?

Recent weeks have brought oil right back into a bear market, with both WTI and Brent trading well below US $50 a barrel. This is despite renewed pledges by the Organization of the Petroleum Exporting Countries (OPEC) to curtail oil production. Since the 2014 price collapse, the cartel has lost its ability to dictate crude prices, for the most part due to US shale output which can quickly be scaled up and down depending on where the oil prices are. Continue reading →

REUTERS | Dani Cardona
June 19, 2017

Maritime arbitration and mediation in the UAE: EMAC

Background

The Emirates Maritime Arbitration Centre (EMAC) was officially launched in November 2016. It signifies an important push by the United Arab Emirates (UAE) to promote a specialised regional maritime dispute resolution institution. Due to growing maritime activity, EMAC aims to provide the finest arbitration services in the region with arbitrations seated in the Dubai International Financial Centre (DIFC), unless otherwise agreed, under the (pro-arbitration) DIFC Courts’ supervisory jurisdiction. In addition, EMAC’s role extends to supervision and promotion of other dispute resolution mechanisms, including mediation. EMAC enjoys financial and administrative independence and its governance structure is composed of a Board of Trustees, an Executive Committee and a Secretariat. Continue reading →

REUTERS | Edgar Su
June 15, 2017

EU-Singapore Free Trade Agreement: did the European Court of Justice put the final nail in the coffin of ISDS?

The European Union (EU) and Singapore concluded negotiations for a free trade agreement (FTA) in June 2015. This agreement is one of the first “new-generation” FTAs, that is to say, a trade agreement which contains, in addition to the classical provisions on the reduction of customs duties and non-tariff barriers to trade in goods and services, provisions on various matters related to trade. These can include intellectual property protection, investment, public procurement, competition and sustainable development. Continue reading →

REUTERS | Dominic Ebenbichler
June 12, 2017

Dubai courts v DIFC courts: just a jurisdictional stand-off or an outright declaration of war?

In light of the most recent case law precedent, the development of the relationship between the onshore Dubai and the offshore Dubai International Financial Centre (DIFC) courts has taken a very unfortunate turn. Since 2004, the DIFC courts have been evolving into a common law forum of choice as an alternative to the onshore civil law Dubai courts. Part of this evolution meant that the DIFC courts gradually acquired – through their own judge-made law – the status of a conduit jurisdiction that was competent to hear applications for the recognition and enforcement of domestic non-DIFC awards for onward execution in onshore Dubai (that is, outside the DIFC, and the wider United Arab Emirates (UAE)). The status of the DIFC as a conduit jurisdiction within this domestic context was championed by the DIFC courts’ rulings in the landmark Banyan Tree line of cases and has since been extended to the recognition and enforcement of foreign awards. Continue reading →

REUTERS | B Mathur
June 9, 2017

SIAC to invite users to provide feedback to Arbitrator Intelligence, but is confidentiality a concern?

The Singapore International Arbitration Centre (SIAC) has recently announced that it entered into a cooperation agreement with Arbitrator Intelligence, a Penn State Law-affiliated initiative, to promote the use of the Arbitrator Intelligence Questionnaire amongst SIAC’s users. Continue reading →

REUTERS | Edgar Su
June 8, 2017

Pre-contractual negotiations: strategic use in international arbitration

The role of pre-contractual negotiations in contractual disputes is a much debated topic. Every English lawyer knows that, as a general rule, these materials, usually comprising of previous drafts and discussions, are not relevant to matters of interpretation (see for example Chartbrook Ltd v Persimmon Homes Ltd). There are limited exceptions to this rule, such as the “private dictionary” scenario where the parties are alleged to have attached a special meaning to their words (that is, the words should not be understood in their plain and ordinary sense). There are also other scenarios, outside the scope of pure contractual interpretation, where pre-contractual negotiations are relevant, for example where rectification is sought or fraud/misrepresentation is alleged. However, beyond these narrow exceptions or non-contractual claims, pre-contractual negotiations remain relevant to contractual disputes, especially in international arbitrations. Continue reading →