REUTERS | Luke MacGregor

Generally speaking, commercial arbitrations which are seated in England and Wales must be conducted as expeditiously as possible. However, as well-intentioned as the tribunal and parties may be, COVID-19 continues to cause much delay in the conduct of international arbitration. Since the pandemic began, legal counsel have been fielding and responding to requests for delay and alterations to the regular procedure of ongoing arbitrations. This post doesn’t seek to express a view on the merits of such applications but attempts to shine a light on the kinds of applications that practitioners are now facing on a day-to-day basis.

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REUTERS | Hannah McKay

Arbitrating commercial disputes has often been considered an agile resolution process, and the reaction of arbitral institutions to the disruption caused by the COVID-19 pandemic has been further evidence of this. However, as the economic impact of the lockdown begins to take its toll, companies and their legal teams will be looking to achieve cost and time efficiency in the conduct and management of commercial disputes. In-house lawyers, under pressure to keep costs down, will watch with interest to see whether the emergence of alternative, more digitised and expedited arbitration services will create a new landscape for arbitration.

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REUTERS | Rebecca Naden

How pro-arbitration are the courts of England and Wales? How pro-arbitration should they be? A recent decision of the Court of Appeal indicates that the answer to both questions is “very much”. The decision, and the proceedings which led to them, illustrate just how far the system encourages arbitration now. Continue reading

REUTERS | Lucas Jackson

It is always tempting for a party to a dispute to reach for a freezing injunction in order to protect assets, whether the matter is being arbitrated or is before the courts. However, as illustrated in Petrochemical v PSB Alpha, the risk of dissipation must be unjustified and there must be a sufficient link to the jurisdiction to warrant granting of the order. Petrochemical gives us an insight into what constitutes justifiable, as well as the standard for satisfying a sufficient connection to the jurisdiction when there is a contemporaneous trial in another jurisdiction. Continue reading

REUTERS | Yves Herman

On 5 May 2020, over two years after the fateful Achmea ruling, 23 EU member states signed an agreement to terminate all intra-EU bilateral investment treaties (BITs) (termination agreement).

This step does not come as a surprise, in light of the fact that the vast majority of EU member states issued a joint declaration, on 15 January 2019, on the legal consequences of the judgment of the Court of Justice of the European Union (ECJ) in Achmea and on investment protection in the EU. The declaration proclaimed the intention to terminate their existing intra-EU BITs. The member states reportedly agreed on a draft in October 2019, which was later published by the EU in November 2019.

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REUTERS | Ilya Naymushin

In a recently published ruling (see Loralia Group LLC v Landen Saudi Company), the Dubai International Financial Centre (DIFC) Court of First Instance (DIFCCFI) contemplated the application of UAE public policy within the meaning of articles 41(2)(b)(iii) and 44(1)(b)(vii) of the DIFC Arbitration Law (see DIFC Law No. 1 of 2008 on Arbitration). These articles encapsulate the public policy exception as a ground for challenging or refusing to enforce an arbitral award rendered in the DIFC. More specifically, article 41(2)(b)(iii) empowers the DIFC courts to nullify or set aside an award that “is in conflict with the public policy of the UAE”, whereas article 44(1)(b)(vii) provides a corresponding tool to the DIFC courts to refuse enforcement for violation of that same public policy. Importantly, the public policy concerned here is that of the UAE, and as such suggests that the public policy applicable in the DIFC is identical to the public policy applicable onshore. Albeit that the ruling under discussion appears to confirm as much, it suggests that even though UAE public policy is identical as a concept and in content onshore and offshore, it might apply differently in the DIFC.

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REUTERS | Denis Balibouse

Due to the economic fallout of the COVID-19 pandemic, many economies around the world are facing the risk of a severe recession in 2020, which could involve a wave of corporate bankruptcies. To make matters worse, in a globalised economy, the effects of insolvency proceedings are likely to be felt across multiple jurisdictions. Were such a negative scenario to materialise, many companies might be confronted by the complex imbrication between insolvency law and arbitration. Continue reading

REUTERS | Jorge Silva

In the recent case of A Company v X, the English Technology and Construction Court granted an injunction to prevent an expert witness from acting for a party in arbitration proceedings in circumstances where a colleague of the expert at the same global consultancy firm was already acting for the other party in separate arbitration proceedings. Continue reading

REUTERS | Hannah McKay

A while ago, I wrote a summary of the decision in Cofely Limited v Bingham and another. That decision concerned the costs position following the removal of an arbitrator under section 24 of the Arbitration Act 1996 (AA 1996) and, in particular, the following question: is the arbitrator potentially liable for the costs of the application to remove him or her?

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