REUTERS | David Gray
May 31, 2019

Framing your arbitration clause: the differing approaches of English and Australian law to interpretation

Determining the scope of an arbitration clause is a key question for users of international arbitration, as it fixes the boundaries of the tribunal’s jurisdiction. In English and Australian law, this is a question of contractual interpretation, though it is approached differently in each case, with English law operating a presumption in favour of commerciality, while Australia takes a more technical approach. While in many cases the outcome will be the same, the distinction is important and has recently been re-entrenched by a decision of the High Court of Australia, Rinehart v Hancock Prospecting Pty Ltd. Continue reading →

REUTERS | Vivek Prakash
May 30, 2019

Section 69: more appealing than we thought?

The news that Singapore is consulting on the possible introduction of appeals from arbitration awards on points of law raises once more the question of whether rights of appeal are valued by users of arbitration. Most jurisdictions do not allow any right of appeal on the merits to the court of the seat: England is one of the few jurisdictions where this is possible. When the Arbitration Act 1996 (AA 1996) was being drafted, there were several calls for rights of appeal to be abolished, but ultimately the drafters decided against this. They reasoned that parties, who have often chosen the applicable law, must be taken to have intended that the law would be properly applied by the tribunal. However, the drafters sought to minimise court intervention by pragmatic means, for example, by continuing to require the grant of leave to appeal and by making the test for the grant of leave more stringent by the introduction of a requirement that it be “just and proper” for the court to rule on the question of law, despite the parties’ agreement to arbitrate. Continue reading →

REUTERS | Murad Sezer
May 23, 2019

The fate of the Turkey-Uzbekistan bilateral investment treaty after 20 years

The bilateral investment treaty (BIT) between Turkey and Uzbekistan (Turkey-Uzbekistan BIT) that was signed on 28 April 1992, which aimed to promote investment in the contracting states and provide protection to the investments of international investors in Turkey as well as Turkish investors in Uzbekistan against non-commercial risks in the framework of international law, is one of the 98 BITs that Turkey signed with other countries. It has been in force since 18 May 1995. Continue reading →

REUTERS | Brendan McDermid
May 17, 2019

Addressing emerging cyber risks: reflections on the ICCA Cybersecurity Protocol for International Arbitration

Cyber criminals, such as hackers, pose an increasing threat to the security of our virtual world and have claimed a long list of victims from celebrities to governments. In a post-WikiLeaks world, participants in international arbitration have not been spared. In 2015, in the course of an arbitration between China and the Philippines over disputed territory in the South China Sea, the website of the Permanent Court of Arbitration in the Hague, the Philippines’ Department of Justice and the law firm representing the Philippines were hacked. This incident underscores the fact that every participant in an arbitration needs to consider these risks, and that data associated with any arbitration is only as secure as the weakest link in the chain through which that information passes. Continue reading →

REUTERS | Mike Blake
May 14, 2019

Getting sorted in southern Africa: how to enforce foreign arbitral awards

Africa continues to attract significant foreign investment, fuelled by rapid urbanisation, technological growth and a rising demand for basic services and infrastructure development. The associated upsurge in cross-jurisdictional disputes involving African parties, many of which are referred to arbitration rather than conventional civil court process, is evident from the annual case load statistics released by major international arbitral bodies. Continue reading →

REUTERS | Carlos Garcia Rawlins
May 9, 2019

Memorials v pleadings: how to pick the winning approach for your arbitration

So you’ve settled your jurisdictional turf war, stayed court proceedings in favour of arbitration and finally have a conflicts-free tribunal. The next major tussle is likely to be over the procedure to be followed in the arbitration. Of the various issues to be determined, there is probably no more consequential decision than that of whether to adopt a procedure based around continental-style memorials or common law-style pleadings. Although the memorial approach is becoming increasingly common in commercial arbitrations, it is also not unusual for a pleadings approach to be followed and it is important for practitioners to understand the differences and to think critically about which approach is appropriate for their case. Continue reading →

REUTERS | Carlo Allegri
May 3, 2019

So tell me what you want, what you really really want (but we’ll ignore it anyway): third-party funding and the proposed ICSID amendments

On 3 August 2018, the International Centre for Settlement of Investment Disputes (ICSID) published its working paper on potential rule amendments, citing its desire to incorporate the case experience gained and lessons learnt from over 650 ICSID cases into the rules. One of the key new proposed rules requires compulsory disclosure (or notice) of third-party funding. ICSID justified the inclusion of this rule by claiming that it would guard against conflicts of interest between third-party funders and arbitrators. Continue reading →

REUTERS | Amr Abdallah Dalsh
May 2, 2019

Islamic banking and finance disputes: the case for semi-secular arbitration (Part 2)

This blog is published in two parts. Part 1, which was published in March this year, provided some background to dispute resolution in the banking and finance sector, highlighting in particular the apparent inaptitude of conventional dispute fora, such as the courts, to deal with Islamic finance disputes adequately. This part 2 addresses how arbitration as an alternative form of dispute resolution can assist in providing Shari’a-compliant solutions where conventional dispute resolution through the courts fails. In doing so, it makes the case for semi-secular arbitration, a form of arbitration that combines Islamic and secular elements to ensure a Shari’a-compliant outcome. Continue reading →

REUTERS | Edgar Su
April 29, 2019

Reflections on the Dispute Resolution and Arbitration Committee’s sessions at the Inter-Pacific Bar Association Conference in Singapore, April 2019

The Inter-Pacific Bar Association (IPBA) is an organisation with some similarities to the International Bar Association (IBA), with a regional focus on Asia-Pacific. Its annual conference (the 29th) was this year in Singapore between 24 and 27 April 2019. The conference was well attended by lawyers, experts and various others with an interest in the Asia-Pacific region. This does not necessarily mean that the attendees were from the Asia-Pacific region, and in recent years there has been a notable increase in the number of attendees from Europe and other areas outside Asia-Pacific (including barristers from England). Continue reading →