It is a not uncommon feature of arbitration that an arbitral tribunal will from time to time take “judicial notice” of notorious facts without requiring the parties to adduce specific evidence to prove those facts. Furthermore, arbitrators are almost always appointed because of their particular expertise or experience of particular types of disputes. Continue reading
The US Supreme Court recently issued its decision in Henry Schein v Archer & White. The court’s decision abolishes the “wholly groundless” doctrine, which served as a judge-made exception to the general rule that delegated gateway issues of arbitrability are properly resolved first in arbitration. In this respect, the court’s unanimous opinion is an uncontroversial affirmation of the principle that arbitration agreements are enforced according to their terms. On closer examination, however, Schein also reserves the question about the proper allocation of decision-making authority between courts and arbitral tribunals in circumstances where parties have agreed in their arbitration clauses to the application of a set of arbitration rules. Continue reading
What standard of review should the Swiss Supreme Court apply when seised with a challenge to an award on jurisdiction in an investment treaty dispute and, more specifically, when it has to review the findings of the arbitral tribunal regarding the definition of an investment? Continue reading
Who received an Alexa for Christmas? It seems that more and more of us are comfortable with, perhaps even reliant upon, artificial intelligence in our day to day lives. But how comfortable would we be if robots could be appointed as arbitrators? Although this would involve a significant cultural shift, we are perhaps closer to it than we realise. Continue reading
By now, the readers of this blog will be familiar with the issues brought about by the ruling of the Court of Justice of the European Union (CJEU) in Slovak Republic v Achmea BV. In essence, that ruling declared unenforceable the arbitration mechanism contained in the bilateral investment treaty (BIT) between The Netherlands and the Czech and Slovak Federative Republic, the Dutch-Slovak BIT, for being incompatible with EU law. The CJEU stated the main reasons for this incompatibility to be as follows: Continue reading
Introduction
There are no clear rules on privilege in international arbitration. There remains a lacuna for some consolidated guidance. In the absence of clear or express privilege rules, arbitral tribunals consider the:
We often tell clients about the best features of international arbitration: enforceability of awards, avoiding national courts, flexibility, and the ability of parties to select arbitrators. But what about the worst features? According to the 2018 Queen Mary/White & Case International Arbitration Survey, users of international arbitration complain most strongly about costs, lack of effective sanctions, lack of power relating to third parties, and speed. Continue reading
Further to a request for a preliminary ruling from the German Federal Court of Justice, the Court of Justice of the European Union (CJEU) rendered its decision in Slovak Republic v Achmea BV on 6 March 2018. The CJEU ruled that the arbitration clause included in the bilateral investment treaty (BIT) between the Netherlands and Slovakia is incompatible with EU law. Surprisingly, the CJEU did not follow the earlier opinion of Advocate General (AG) Wathelet. In his opinion, AG Wathelet suggested that EU law does not preclude the application of an investor-state dispute settlement (ISDS) mechanism established by a BIT. Continue reading
At the 12th arbitration, the panel gave to me: 12 investors investing, 11 funders funding, 10 pledgers pledging, nine arbitration clauses, eight arbitral seats, seven Yukos awards, six revised rule sets, five BITs, four NAFTA fall-outs, three arbitrators, two Brexit parties, and the Achmea controversy.*
As 2018 draws to a close, so the Practical Law Arbitration blog must hibernate over the Christmas break. We will be back rejuvenated in early January to kick-start what will undoubtedly be another bumper year.
Until that auspicious occasion, if Morecambe and Wise don’t tickle your fancy, why not kick back with some light reading material? Namely, our review of the ten most significant arbitration-related decisions from the English courts in 2018.
So, as we bid farewell to another year, all that remains is to thank our contributors for their excellent posts over the past 12 months. That and, of course, to wish all of them, and you, a very Merry Christmas and best wishes for 2019.
*With apologies to Frederic Austin. Also worth noting that the numbers in question are not necessarily accurate.
2018 has been a tumultuous year in the world of arbitration. The European Court of Justice (ECJ) has dealt a blow to European investment arbitration, trade policy under Donald Trump’s administration has rattled investors the world over, long-standing legal sagas have continued, and developments in arbitral rules and legislation have seen a continued focus on transparency, diversity and third party funding.
We summarise the major stories of 2018 and do our best to read the tea leaves to divine what arbitration practitioners can expect next year. Continue reading