The judgment of Sir Michael Burton in P v D provides a salutary warning to those appearing as advocates in London seated arbitrations of the dangers of failing to cross-examine key witnesses on essential issues. In addition, it provides a salutary warning to arbitrators of the dangers of failing to ensure that “proper” cross-examination is conducted or of rejecting evidence on essential issues which has not been the subject of “proper” cross-examination. Continue reading
The Technology and Construction Court (TCC) recently considered the question on whether it could and, properly, should adjourn its decision on the recognition or enforcement of a New York Convention award, in the case of AIC Limited v The Federal Airports Authority of Nigeria. Continue reading
In an ongoing NAFTA Chapter 11 investor-state dispute (Tennant Energy v Canada), the claimant raised the rather novel question about whether the EU General Data Protection Regulation (GDPR) was applicable to arbitration proceedings. Tennant Energy had, amongst other things, referred to the fact that one of the arbitrators, Sir Daniel Bethlehem QC, was a UK national with offices in London and thus fell under the GDPR. Since arbitration proceedings typically involve a huge amount of data (including personal data), which the arbitrators receive from the parties and which they must process, it is not far-fetched to argue for the applicability of the GDPR in arbitration proceedings. Continue reading
Claims for costs are a key ingredient of any arbitration proceeding, in particular in circumstances where alternative recourse to the local courts does not allow the prevailing party to recover its costs on a full indemnity basis. This is, for instance, the case in the United Arab Emirates (UAE), whose courts, although awarding full court fees to the prevailing party, only provide for nominal recovery of party costs and, in particular, counsel fees. This can create some discouragement for parties with small value claims, given that legal fees can be significant even in smaller cases. In such circumstances, parties will hope to find a greater degree of flexibility in arbitration.
International arbitration has been gaining popularity as an alternative to litigation. Despite its popularity, there are still some grey areas of international arbitration which are highly debated amongst the courts and scholars. Despite being one of the most fundamental issues of international arbitration, the enforcement of annulled arbitral awards is one of those grey areas. Continue reading
Under major institutional rules, there is a clear obligation on the parties to pay advance deposits towards the costs of the arbitration in equal proportions. However, there are times when a wayward respondent, as a frustration tactic, refuses to pay its share of advance deposits. If the respondent fails to pay advance deposits, the arbitral institution, after sending various reminders to the respondent, will eventually request the claimant to pay the respondent’s share. If the claimant does not pay the respondent’s share, then the tribunal may suspend its work and the institution may suspend administration of the arbitration. Continue reading
An (exhausted) award creditor, who prevailed in the arbitration and in any subsequent (Swiss or foreign) setting aside proceedings and who initiated enforcement proceedings in Switzerland, may not be over its troubles just yet. Continue reading
Sanctions have been described as the new economic battlefield and, in recent years, there has been a sharp increase in the imposition of sanctions as a foreign policy tool for effecting political change. This blog post considers some of the practical implications of sanctions for those drafting arbitration clauses. Whilst there is no perfect solution to the problems that arise as a result of the imposition of sanctions, this post highlights some of the key issues to consider and how the choices made by the parties can, in some cases, minimise the impact of sanctions on the conduct of an international arbitration. Whilst this blog focuses on the impact of EU and US sanctions on Russian entities, the points discussed are of general application. Continue reading
The extent to which confidentiality debars disclosure or inspection of documents, or an award or associated document, in arbitration proceedings has long fuelled debate within the law reports. Continue reading
There are few arbitration cases which, whilst starting off as a contractual dispute, over time morph into a symbol of something else entirely. The case of The Iranian Ministry of Defence and Support for Armed Forces Logistics (MODSAF) v International Military Services is one such case. Continue reading