REUTERS | Brendan McDermid
April 21, 2020

States of exception: UNCITRAL Working Group III releases its latest report

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 →

REUTERS | Ueslei Marcelino
April 16, 2020

COVID-19 and arbitration in the Middle East: a cloud with a silver lining?

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 →

REUTERS | Gleb Granich
April 15, 2020

The emergency arbitrator is officially a teenager

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 →

REUTERS |
April 8, 2020

How COVID-19 might affect international arbitration

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 →

REUTERS | Carlos Jasso
April 2, 2020

Environmental claims by states in investment treaty arbitration

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 →

REUTERS |
April 1, 2020

COVID-19: arbitrating in the midst of a pandemic

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 →

REUTERS |
March 31, 2020

Using the Paris Agreement in arbitrations

In a recent judgment, the UK Court of Appeal ruled, in the planning decision regarding the expansion of Heathrow airport with a third runway, that the UK government failed to take into account its own firm policy commitments on climate change under the Paris Agreement. Consequently, the Court of Appeal ordered the UK government to reconsider its planning decision by fully taking into account the Paris Agreement obligations. Continue reading →

REUTERS |
March 18, 2020

An appealing reform? UNCITRAL Working Group III releases its latest report

The UNCITRAL Working Group III, tasked with examining potential reforms of investor-state dispute settlement (ISDS), recently released its report on the outcome of its resumed 38th session, which took place in Vienna from 20 to 24 January 2020. Continue reading →

REUTERS |
March 13, 2020

Article 19 of the UAE Federal Arbitration Law: a first test

In a case of earlier this year (see Case No. 32/2019, Dubai Court of Appeal, ruling of 5 February 2020), the UAE courts had a first opportunity to test their supervisory powers under Article 19(2) of the UAE Federal Arbitration Law (FAL), which entered into force with effect from 16 June 2018. More specifically, the Dubai Court of Appeal found against the proper jurisdiction of the DIAC tribunal, deciding to annul the tribunal’s affirmative award on jurisdiction. Continue reading →

REUTERS |
March 6, 2020

Micula v Romania: rematch clause activated?

The Micula v Romania world tour continues. In a judgment handed down by the UK Supreme Court on 19 February 2020, the court held that the Miculas were entitled to enforce their ICSID award of approximately US $331 million against Romania, despite the fact that the award remains subject to an ongoing state aid investigation by the European Commission. Continue reading →