REUTERS | Shamil Zhumatov
September 6, 2018

Discontinuing enforcement proceedings in the context of fraud allegations: when can the notice of discontinuance be set aside?

In Stati and others v Kazakhstan, having obtained a favourable award in a Swedish-seated arbitration against Kazakhstan (K), the claimants (S) sought to enforce in a number of jurisdictions, including England. S successfully applied for an order to enforce the award in England and K then sought to set the order aside, alleging that the award had been obtained by fraud. Knowles J, sitting at first instance, directed that the fraud issue should be tried as an issue in the enforcement proceedings. Continue reading →

REUTERS | Dado Ruvic
August 31, 2018

Does arbitration need costs budgeting?

In a recent address at an international arbitration conference in Mauritius, Sir Rupert Jackson, famous for his wide ranging reforms to English civil procedure, invited people to consider the benefits of introducing costs budgeting and costs management into arbitrations, at least for lower value claims. Continue reading →

REUTERS | Goran Tomasevic
August 30, 2018

Arbitrating business and human rights disputes: uncharted territory

Last October, we wrote about the proposal by a working group of international law specialists to use arbitration to resolve disputes that arise out of human rights abuses involving businesses. Since then, the proposal has evolved into a project led by The Hague Institute for Global Justice to draft a set of international arbitration rules (The Hague International Business and Human Rights Arbitration Rules) for use in business and human rights disputes. Once drafted, the plan is for the rules to be offered to the Permanent Court of Arbitration and other international arbitration institutions, for use in arbitration proceedings to be administered by these institutions. The rules could also be voluntarily adopted by parties in ad hoc arbitration proceedings. Continue reading →

REUTERS | Danish Siddiqui
August 24, 2018

Micula enforcement before the Court of Appeal: striking a balance between the UK’s obligations under the ICSID Convention on the one hand, and its duties under EU law on the other?

On 27 July 2018, the Court of Appeal delivered its judgment in Viorel Micula and others v Romania and European Commission (Intervener). It maintained the stay of enforcement granted by Blair J in the High Court, but overturned his decision on security, ordering that Romania should provide £150 million as a term of the stay (but not making compliance with the order on security a condition of the stay). The decision reveals a delicate balancing act by the court between the UK’s obligations under the ICSID Convention and its duties under EU law. Continue reading →

REUTERS | Mario Anzuoni
August 16, 2018

California: a golden opportunity for international arbitration?

On 18 July 2018 the State of California passed a new law which expressly enables foreign qualified lawyers to appear in international commercial arbitrations in the state. The new legislation, which takes effect from 1 January 2019, provides that members of a “recognized legal profession in a foreign jurisdiction” and who are “admitted or otherwise authorized to practice as attorneys or counselors at law or the equivalent” can provide legal services in an international commercial arbitration or related dispute resolution mechanism if certain conditions are satisfied. This is welcome news to the international arbitration community. Until now, following the decision of the California Supreme Court in Birbrower, Montalbano, Condon & Frank, PC v Superior Court, there had been strict restrictions on foreign lawyers (and in fact any non-Californian lawyers) in providing arbitration services in California. Continue reading →

REUTERS | Stephanie Mcgehee
August 14, 2018

Investment arbitration in the Middle East: basic trends and developments (Part 1)

Investment protection has become a linchpin of investment policies adopted by both developing and developed Middle Eastern jurisdictions over the past two to three decades. In the light of steadily diminishing oil reserves, the oil-rich nations in particular have become acutely aware of the need to attract foreign direct investment (FDI) for their sustained economic development in a post-oil era. As a result, most Middle Eastern countries have concluded both bilateral and multilateral investment treaties (BITs and MITs), as well as free trade agreements (FTAs) of regional and international reach. Some, in particular Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates (UAE) have adopted foreign investment laws. Investment laws typically afford foreign investors a number of:

  • Basic, yet fundamental, investment guarantees, such as protection from expropriation, free transfer of the investment and repatriation of income.
  • Investment incentives, such as tax exemptions and exemptions from custom duties.

Continue reading →

REUTERS | Toby Melville
August 9, 2018

London calling or cooling? Post-Brexit dispute resolution and arbitration research round-up

Thomson Reuters Legal Business published a report in July entitled, The impact of Brexit on dispute resolution clauses, setting out the results of its survey which asked 94 respondents about their current and future plans for jurisdiction and choice of law clauses. Notably for London arbitration practitioners, the study found that 10% of respondents were now providing for arbitration rather than court litigation in their contracts following the Brexit referendum result and, of this number, 63% favoured arbitration in England. In addition, 20% of the group of respondents that are yet to make any changes to their contracts but may look to do so in the near future also stated that they may opt for arbitration over litigation in their contracts. Again, England was the preferred seat. Continue reading →