REUTERS | Maxim Shemetov
March 16, 2018

Presumption of confidentiality in international commercial arbitration

In a recent article, Constantine Partasides QC and Simon Maynard argued that the presumption of confidentiality in the English Arbitration Act 1996 (AA 1996) should be reversed. According to the authors, this would not prevent parties who wish to opt for confidentiality from doing so, but would hopefully address the concerns which the public at large has about arbitration (in particular, investment arbitration at the time of writing). Frankly, I do not believe that this would be the case. Continue reading →

REUTERS | John Sibley
March 15, 2018

Jurisdiction issues in arbitration

On 20 February 2018, about 80 participants attended Quadrant Chambers’ biannual international arbitration seminar. The topic for discussion and debate was “Jurisdiction Issues in Arbitration”. The panel event was chaired by Simon Rainey QC of Quadrant Chambers and the speakers were Louis Flannery (now QC), Head of International Arbitration at Stephenson Harwood, Philippa Charles, Head of International Arbitration at Stewarts, and former High Court judge, now full time arbitrator, Sir David Steel of Arbitrators at 10 Fleet Street. Continue reading →

REUTERS | Philippe Wojazer
March 12, 2018

Late twist to the Commisimpex saga as French Supreme Court reverses its position on state immunity from execution

On 10 January 2018, the French Supreme Court issued a second decision in the Commisimpex v Democratic Republic of Congo case, shifting its position on state immunity from execution. In the light of the new Sapin II law, the court held that a waiver of immunity from execution has to be both specific and express when it comes to seizing diplomatic assets. This decision is inconsistent with the approach taken in the French Supreme Court’s previous decision on 13 May 2015 in the same case. Continue reading →

REUTERS | Vasily Fedosenko
March 9, 2018

Three, two, one… lift off: a fresh start for arbitration in the UAE?

Following the launch of the revised arbitration rules of the Dubai International Arbitration Centre (DIAC) (the DIAC Rules) during Dubai Arbitration Week in November 2017, their adoption by Ruler’s Decree is now (according to confidential sources) imminent and likely to coincide with the official adoption of the new United Arab Emirates (UAE) Federal Arbitration Law, which is to replace the UAE Arbitration Chapter, that is, the arbitration-specific provisions of the UAE Civil Procedures Code. Pursuant to an announcement of the UAE government on 28 February 2018, the UAE Federal Arbitration Law has now been approved by the UAE Federal National Council, the UAE advisory parliament, pursuant to Article 90 of the UAE Constitution. It is therefore on schedule to enter into force later this year. Continue reading →

REUTERS | Yuriko Nakao
March 7, 2018

Black Tuesday: the end of intra-EU BITs

In his Opinion, Advocate General Wathelet in Achmea v Slovak Republic some six months ago argued that intra-EU bilateral investment treaties (BITs) and investment treaty arbitration based on those BITs are compatible with EU law. More specifically, he opined that arbitral tribunals established on the basis of intra-EU BITs should be considered similar to the domestic courts of EU member states. This would, on the one hand, allow such arbitral tribunals to request preliminary rulings from the Court of Justice of the European Union (CJEU) in EU case law at issue, while on the other hand, the CJEU would be able to ensure that these arbitral tribunals apply and interpret EU law according to its case law.

Continue reading →

REUTERS | Clodagh Kilcoyne
March 1, 2018

A rare insight into practice of arbitral institutions: LCIA’s published decisions on arbitrator challenges

On 12 February 2018, the London Court of International Arbitration (LCIA) Secretariat made available anonymised excerpts from 32 arbitrator challenge decisions on its website. Together with the previous collection of summaries of 28 challenge decisions published in 2011 for the period 1996-2010, this release provides useful insight into the practice of the LCIA Court between 2010 and 2017. Continue reading →

REUTERS | Ilya Naymushin
February 28, 2018

Great Station Properties v UMS Holding Limited: a continuation of the English courts’ pro arbitration approach

The decision of the English Commercial Court in Great Station Properties v UMS Holding Limited on 20 December 2017 was notable for arbitration practitioners on two counts. First, it showed the court’s willingness to order a worldwide freezing order (WFO) to aid the enforcement of an arbitral award and judgment of the court, and second it showed that findings of fact in an arbitration could amount to sufficient evidence for the court to grant an interim measure. Continue reading →

REUTERS | Clodagh Kilcoyne
February 27, 2018

Validity of notices and requests for arbitration: when context and rules are key factors

Usually, the first formal step in an arbitration is the service of a notice or request for arbitration. The parties are generally free to agree how arbitration proceedings are to be commenced and, historically, the courts have tended to have a robust approach to the construction of notices of arbitration. However, it would be wrong to underestimate the importance of getting the notice or request for arbitration right. If you don’t, claims may become time-barred because an ineffective arbitration notice will not stop time running for the purposes of statutory or contractual time limits. Failure to commence an arbitration effectively may affect the jurisdiction of the tribunal to make a binding award. At the very least, it may result in wasted costs. Continue reading →

REUTERS | Eric Gaillard
February 19, 2018

Petrotrin v Samsung: lessons learned from a challenge under section 67 Arbitration Act 1996

As the UK continues to enjoy some of the coldest weather of its winter so far, why not visit the Caribbean? Or, more precisely, the English High Court’s decision last November in Petroleum Company of Trinidad & Tobago Limited v Samsung Engineering Trinidad Co. Ltd, which dealt with a challenge to a tribunal’s partial award under section 67 of the Arbitration Act 1996 (AA 1996). Continue reading →