REUTERS |
March 3, 2020

UK Supreme Court paves the way for enforcement of the Micula award

On 19 February 2020, the UK Supreme Court rendered its judgment in Micula and others v Romania. In a unanimous ruling, the court lifted a stay of enforcement of an ICSID arbitral award despite an extant state aid investigation by the European Commission. This decision is the latest stage in the claimants’ long-running attempts to enforce their award against Romania in numerous jurisdictions. The judgment concluded that while the English courts have the power to stay execution of ICSID awards in limited circumstances, the stay in this case exceeded the proper limits of that power. In particular, the EU treaties did not displace the UK’s obligations under the ICSID Convention (pursuant to which the UK had a prior (pre-EU-accession) obligation to enforce the award). Continue reading →

REUTERS | David Mercado
March 2, 2020

Building a case: controlling time and cost in construction arbitrations

One must only look to the ICC’s annual case load statistics to see the ever-growing prevalence of construction and engineering disputes in international arbitration. Construction, engineering and energy disputes made up approximately 40% of the ICC’s new caseload in the most recent statistics from 2018, with 224 new cases arising from the construction sector. This trend is expected to continue, particularly as a multitude of disputes will inevitably arise on the large-scale energy, road, rail, and telecommunications infrastructure projects coming to fruition under China’s Belt and Road Initiative. Continue reading →

REUTERS | Dennis Owen
February 24, 2020

What lies beneath: gas-pricing disputes and recent events in Southern Europe

While it would be premature to predict the end of the wave of European gas pricing arbitrations with the issue in January of the latest arbitration award in the ten year saga between Greece’s public gas corporation (DEPA) and Turkey’s BOTAŞ Petroleum Pipeline Corporation (BOTAŞ), the award does seem to straddle the end of one era and the opening of a new (and more contentious) one in the Mediterranean. The contract between the disputing parties, reported to be coming to an end in 2021 by mutual agreement, is one of many troublesome long term gas supply contracts which have been the subject of scrutiny and disputes following the global financial crisis. Continue reading →

REUTERS | Ilya Naymushin
February 20, 2020

The proposed amendment of Nigeria’s Federal Arbitration Law could see the arbitration landscape in Nigeria improve significantly

The past decade witnessed remarkable developments in the law and practice of arbitration in Africa (jurisdictions like Ghana and South Africa enacted new arbitration laws in 2010 and 2017 respectively; courts across the African continent have increasingly shown willingness to enforce validly made arbitration agreements and awards; various arbitration initiatives have sprung up and have been designed to encourage the growth and practice of arbitration on the continent, including the Africa Arbitration Academy, Africa Arbitration and the African Arbitration Association). In view of current happenings across the continent, there are already indications that this new decade will not be any different, with a number of African countries, including Tanzania and Nigeria already in the process of enacting new arbitration laws. (The Tanzanian government submitted the proposed law to the Tanzanian Parliament on 28 January 2020. The new bill will replace the existing arbitration law, which was enacted in 1931. On 1 February 2018, the Nigerian Senate passed the 2017 Amendment Bill to the Nigerian Arbitration and Conciliation Act. The existing Act, which was based on the UNCITRAL Model Law 1985, was introduced by the Nigerian Federal Military Government in March 1988. The Bill still awaits the ratification of the Federal House of Representatives and the subsequent assent of the President of Nigeria.) Continue reading →

REUTERS | Ahmed Jadallah
February 14, 2020

Article 7 JAL: de-fining and re-fining its scope of application

In a ruling of 17 November 2019 (see YYY Limited v ZZZ Limited [DIFC] 2017 ARB 005, as per Justice Sir Richard Field), the DIFC Court of First Instance (DIFCCFI) had an opportunity to re-consider the proper scope of application of Article 7 of the Judicial Authority Law (see DIFC Law No. 12 of 2004 as amended by DIFC Law No. 16 of 2011) (JAL). Continue reading →

REUTERS | Mohamed Abd El Ghany
February 13, 2020

Nom nom nom: recent Court of Appeal decision gives food for thought on no oral modification (NOM) clause in arbitration dispute

In the recent decision of Kabab-Ji v Kout Food Group, the English Court of Appeal addressed the question of what law governs an arbitration agreement in the absence of an express provision. It went on to refuse the enforcement of an arbitral award on the basis that the party against whom the award was to be enforced was not a party to the underlying contract in the absence of a written agreement to that effect, due to the contract containing a no oral modification (NOM) clause. Continue reading →

REUTERS |
February 10, 2020

Hague Rules on Business and Human Rights Arbitration and the challenges facing the rules

On 12 December 2019, the Hague Rules on Business and Human Rights Arbitration were launched at the Peace Palace in the Hague. With human rights billed as the “oxygen of humanity” by the keynote speaker, Dr Bahia Tahzib-Lie (the Netherlands’ Human Rights Ambassador), the Rules offer a dispute resolution mechanism which could significantly improve the engagement of businesses with human rights. Continue reading →