In most complex litigation, the exchange of documentary evidence is essential to the fact-finding process. The same is true of document production in arbitration, which, while not mandatory, is frequently used. A common ground for withholding a document requested by a counterparty is that the document is protected by legal privilege. However, several challenges may arise concerning privilege claims.
In the recently issued Green Power Partners K/S, SCE Solar Don Benito APS v. Kingdom of Spain award, for the first time ever, an SCC arbitral tribunal established under the Energy Charter Treaty (ECT) declined jurisdiction by accepting the Achmea jurisdictional objection.
The 2021 Delos Rules of Arbitration came into effect on 1 November 2021, the first major revision since the institution was established in 2014. The updated rules introduce a number of innovations aimed at maximising the time and cost efficiency of arbitrations. Most notably, Delos has introduced a unique Compliance Reinforcement Mechanism aimed at promoting greater voluntary compliance with awards, which earned a nomination for the 2022 GAR Award for Innovation. The 2021 Rules also introduce updates in areas such as joinder and consolidation, the disclosure of third-party funding, and changes to the Delos “safe seat” regime.
The recent case of National Investment Bank Ltd v Eland International (Thailand) Co Ltd and another addresses a wide range of matters related to arbitration in a relatively brief judgment. Foxton J considered, among other things, the relationship between sections 18 and 72 of the English Arbitration Act 1996 (AA 1996), waiver, section 14 of the AA 1996 and issue estoppel.
National Investment Bank Ltd (NIB) succeeded in its application under section 72 of the AA 1996 for a declaration that an arbitrator appointed by the court under section 18 of the AA 1996 did not have jurisdiction in respect of claims already advanced in court proceedings in Ghana. This blog will focus on the successful waiver argument raised by NIB.
On 9 December 2021, the Supreme Court of Russia issued a ruling in the case of JSC Uraltransmash v PESA (the decision) on the interpretation of legislative amendments made to the Russian Arbitrazh (Commercial) Procedure Code (the amendments). These provide for exclusive jurisdiction of Russian state courts over certain disputes involving sanctioned persons and disputes arising from imposition of sanctions notwithstanding a contradictory jurisdiction or arbitration clause, and the right to seek anti-suit injunctions that allows a sanctioned person to preclude the other party from starting or continuing foreign court or arbitration proceedings.
In an award in MAKAE Europe SARL v Kingdom of Saudi Arabia rendered under the ICSID Convention, and the agreement between the Government of the Kingdom of Saudi Arabia (KSA) and the Government of the French Republic concerning the encouragement and reciprocal protection of investments, which entered into force with effect from 18 March 2004 (KSA-France BIT), a three-member tribunal constituted by ICSID found that it did not have jurisdiction on the basis that the claimant failed to demonstrate the requirements of a protected investment under article 1(1) of the KSA-France BIT. This award shows that the gateways for a tribunal’s jurisdiction under bilateral investment treaties (BITs) tend to be strict and require presentation of sufficient evidence for a foreign investor to pass successfully.
As of 2022, 46 African countries have signed a memorandum of understanding to be part of the Belt and Road Initiative (BRI), which is China’s infrastructural investment push involving much of the developing world. The BRI’s influence on the continent is doubtless and involves technically complex, high-value, long-term and capital-intensive undertakings, which frequently involve substantial public and state interests. Energy generators, long-distance pipelines, ports, and railways are but a few examples. As such, BRI projects are a fertile environment for cross-border, multiparty and complex disputes.
This blog explores the evolution in the articulations of dispute resolution provisions in bilateral investment treaties (BITs) between China and African states. Continue reading
All English arbitration lawyers are familiar with the long-standing principle of the separability of an arbitration agreement as enshrined in section 7 of the English Arbitration Act 1996 (AA 1996). That section provides:
“Unless otherwise agreed by the parties, an arbitration agreement which forms or was intended to form part of another agreement (whether or not in writing) shall not be regarded as invalid, non-existent or ineffective because that other agreement is invalid, or did not come into existence or has become ineffective, and it shall for that purpose be treated as a distinct agreement.”
A topical and interesting decision from the Commercial Court last month, PJSC National Bank Trust v Boris Mints, looks at the circumstances in which an arbitration decision can bind non-parties. Topical, for me at least, not just because it was yet another case where Russian litigants were using English courts to resolve their disputes, but also because I have had a couple of cases recently where a related point has arisen.
On 15 March 2022, the Stockholm-based think tank Climate Change Counsel (CCC) released its report on the role of the Energy Charter Treaty in climate change and clean energy transition policy.