REUTERS | Edgar Su

The term “pathological clauses”, coined by Frédéric Eisemann, is widely used to describe arbitration clauses with apparent defect(s) liable to disrupt the smooth progress of the arbitration. Such clauses may be a source of strife for the whole duration of the dispute – from jurisdictional battles to challenges at the enforcement stage. Continue reading

REUTERS | Oswaldo Rivas

It is a not uncommon feature of arbitration that an arbitral tribunal will from time to time take “judicial notice” of notorious facts without requiring the parties to adduce specific evidence to prove those facts. Furthermore, arbitrators are almost always appointed because of their particular expertise or experience of particular types of disputes. Continue reading

REUTERS | Larry Downing

The US Supreme Court recently issued its decision in Henry Schein v Archer & White. The court’s decision abolishes the “wholly groundless” doctrine, which served as a judge-made exception to the general rule that delegated gateway issues of arbitrability are properly resolved first in arbitration. In this respect, the court’s unanimous opinion is an uncontroversial affirmation of the principle that arbitration agreements are enforced according to their terms. On closer examination, however, Schein also reserves the question about the proper allocation of decision-making authority between courts and arbitral tribunals in circumstances where parties have agreed in their arbitration clauses to the application of a set of arbitration rules. Continue reading

REUTERS | Gleb Garanich

What standard of review should the Swiss Supreme Court apply when seised with a challenge to an award on jurisdiction in an investment treaty dispute and, more specifically, when it has to review the findings of the arbitral tribunal regarding the definition of an investment? Continue reading

REUTERS |

Who received an Alexa for Christmas? It seems that more and more of us are comfortable with, perhaps even reliant upon, artificial intelligence in our day to day lives. But how comfortable would we be if robots could be appointed as arbitrators? Although this would involve a significant cultural shift, we are perhaps closer to it than we realise. Continue reading

REUTERS | Fabian Bimmer

By now, the readers of this blog will be familiar with the issues brought about by the ruling of the Court of Justice of the European Union (CJEU) in Slovak Republic v Achmea BV. In essence, that ruling declared unenforceable the arbitration mechanism contained in the bilateral investment treaty (BIT) between The Netherlands and the Czech and Slovak Federative Republic, the Dutch-Slovak BIT, for being incompatible with EU law. The CJEU stated the main reasons for this incompatibility to be as follows: Continue reading

REUTERS | Jean-Paul Pelissier

Introduction

There are no clear rules on privilege in international arbitration. There remains a lacuna for some consolidated guidance. In the absence of clear or express privilege rules, arbitral tribunals consider the:

  • Lex arbitri.
  • Law of the jurisdiction where the disclosure is sought.
  • Governing law of the agreement.
  • General principles of equality and fairness.
  • Expectation of the parties and lawyers at the time the issue or privilege is engaged.

Continue reading

REUTERS | Fadi Al-Assaad

We often tell clients about the best features of international arbitration: enforceability of awards, avoiding national courts, flexibility, and the ability of parties to select arbitrators. But what about the worst features? According to the 2018 Queen Mary/White & Case International Arbitration Survey, users of international arbitration complain most strongly about costs, lack of effective sanctions, lack of power relating to third parties, and speed. Continue reading

REUTERS | Dominic Ebenbichler

Further to a request for a preliminary ruling from the German Federal Court of Justice, the Court of Justice of the European Union (CJEU) rendered its decision in Slovak Republic v Achmea BV on 6 March 2018. The CJEU ruled that the arbitration clause included in the bilateral investment treaty (BIT) between the Netherlands and Slovakia is incompatible with EU law. Surprisingly, the CJEU did not follow the earlier opinion of Advocate General (AG) Wathelet. In his opinion, AG Wathelet suggested that EU law does not preclude the application of an investor-state dispute settlement (ISDS) mechanism established by a BIT. Continue reading