REUTERS | David Gray
February 16, 2018

An erosion of the Fiona Trust “one-stop shop” presumption?

In Michael Wilson & Partners Limited v John Forster Emmott, the English Court of Appeal allowed an appeal in part against the first instance decision of O’Farrell J to maintain an anti-suit injunction in respect of proceedings in New South Wales which were, it had been said, brought in breach of an agreement to arbitrate in London. The decision raises significant questions about the true scope and application of the Fiona Trust “one-stop shop” presumption to the construction of arbitration clauses, which I examine in this post. Continue reading →

REUTERS | Denis Balibouse
February 14, 2018

WTO appellate body: can arbitration break the current deadlock?

The dispute settlement system of the World Trade Organisation (WTO) is often referred to as the crown jewel of the multilateral trading system established by that institution. Over 500 disputes have been brought to the WTO since its beginning in 1995. Key to this success is the role played by the Appellate Body, a permanent body composed of seven members, appointed by the WTO membership. As explained below, the Appellate Body essentially acts as an appellate court for disputes arising among WTO members in relation to WTO agreements. Recent political developments threaten the functioning of the Appellate Body and, by extension, the multilateral trading system as a whole. Continue reading →

REUTERS |
February 9, 2018

Computer says no: data analytics in arbitration

Recent years have seen the launch of several so-called “data analytics” tools, designed to help litigators to predict the outcome of their disputes. I think the first one I read about was “Lex Machina”, launched in around 2010 as a spin-off from a Stanford Law School public interest project. At that time, the product was being marketed as “moneyball for litigators”. It worked by trawling publicly available data (mainly, I think, published judgments and decisions), to produce analyses of the relative strengths or weaknesses of a particular claim or defence. The tool analysed a number of factors, but the key selling point seemed to be the ability to predict how a particular judge might decide any given dispute. Continue reading →

REUTERS | Enrique Castro-Mendivil
February 2, 2018

The Creaking Bear: latest developments in investment arbitration in environmentally sensitive projects

Following latest International Centre for Settlement of Investment Disputes (ICSID) case law on the subject (Bear Creek Mining Corporation v Republic of Peru), foreign investors are advised to take extra care when making investments in socially unstable and environmentally sensitive parts of the world. This may mean that investors might have to bear contributory responsibility for managing the foreign investment environment and the human capital that resides within it. Foreign investors will not be able to hide behind a full protection and security (FPS) standard, in the hope that the host state will provide reliable social stability where the investment itself is the prime cause of political and social instability. In this context, the Indigenous and Tribal Peoples Convention 1989 (ILO Convention 169) may play a decisive role in managing the foreign investor’s conduct in the host state and require an investor to consult with indigenous communities affected by the investment to ensure the proper conduct of the investment. Ultimately, whether the investor may be held contributorily liable or not will be a question of evidence on a case-by-case basis, but as the dissenting opinion in this case demonstrates, there is a tangible risk that a tribunal may go either way. Continue reading →

REUTERS | Eddie Keogh
January 29, 2018

Hitting where it hurts most: in the wallet – the English courts’ toolbox in support of arbitration

Several recent judgments provide guidance on the powerful tools available to parties seeking enforcement of arbitral awards in England and Wales, including worldwide freezing orders (WFOs) and third party debt orders (TPDOs). Recent decisions bolster the traditional pro-arbitration approach of the English courts and illustrate the advantages of seeking orders from them, whether or not the defendant’s assets are located within the jurisdiction. Continue reading →

REUTERS | Eric Vidal
January 16, 2018

Looking back on 2017: spotlight on arbitral secretaries

While the involvement of arbitral secretaries has become common practice, a number of practitioners have, over the past few years, voiced concerns regarding their precise role and functions. There is a fear that arbitral secretaries may, in some cases, essentially become a “fourth arbitrator” by taking over tasks that must necessarily be assumed by arbitrators.

In reaction to these concerns, the Australian Centre for International Commercial Arbitration (ACICA), the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), and the Stockholm Chamber of Commerce (SCC) have provided new guidance on the appointment of arbitral secretaries, the scope of their involvement and duties, as well as their remuneration. Continue reading →

REUTERS | Maxim Shemetov
January 10, 2018

Arbitration in 2018: evolution, revolution or repetition?

“There is nothing permanent except change.” (Heraclitus)

The international arbitration world has lots in store for us in 2018. We can certainly expect more of the same when it comes to the ongoing debates on third party funding, Brexit, transparency and diversity. Naturally, we can also rely on the institutions to unveil new rules and guidance, and for those interested in investment treaty arbitration, the International Centre for Settlement of Investment Disputes’ (ICSID’s) project to amend its rules will be gathering pace this year. On that subject, we will continue to closely track the revolt against the current form of investor-state dispute settlement (ISDS) and where that debate will lead. Continue reading →