As one of the few barristers at the English bar with an international arbitration practice relating to Latin America, I am often asked how difficult it is to enforce foreign arbitral awards in Brazil. Until recently, my response has been that it is relatively straightforward. However, on 19 April 2017, the Superior Court of Justice (STJ) in Brasilia issued its controversial decision in Abengoa. Continue reading
The civil unrest that was at the root of the Arab Spring has given rise to a series of investor state claims. Many of these have been brought against a Middle East and North Africa (MENA) host state in arbitration, typically under a bilateral investment treaty (BIT) between the country of the foreign investor and the host state. Arbitral proceedings are currently pending against Egypt, Libya and Syria. Only one case to date, Ampal v Egypt, has concluded in a final award and allows some limited insight into how investment tribunals may deal with claims that are a result of the Arab Spring. Most cases, especially ones brought against Egypt, have settled or are in the process of settlement, no doubt out of a concern to preserve a positive sentiment of foreign direct investment into Egypt. Others have determined for lack of jurisdiction. Still others that may ultimately result in a final award are presently pending and will probably not conclude before sometime in 2018. Continue reading
The end is nigh for 2017 and with it a pause for the Practical Law Arbitration blog. We will be back with our first post of the new year on Tuesday 9 January, a look ahead to key anticipated arbitration developments in 2018.
Until then, if your family has tired of the annual recital of Clement Clarke Moore’s ‘Twas the Night Before Christmas, why not sit down with mince pies and mulled wine (hot chocolate for the children) and indulge in our top 10 English cases of 2017.
All that remains, as 2017 fades into memory, is to thank our contributors for their varied and interesting posts throughout the last 12 months and to wish all of them, and our readers, the best of the festive season and a successful New Year.
2017 proved a boisterous year in the world of arbitration. The Yukos saga continued, with the recipients of the largest arbitration award ever, set aside in 2016 by the Hague District Court (the jurisdiction where the arbitration was seated), dropping enforcement actions in the French and Belgian courts to focus on the Dutch appeal. Headline grabbing proceedings between the defunct subsidiary of French energy group Total and two Russian provinces came to an end as the Total subsidiary defeated the provinces’ US$22.4 billion claim, bringing to an end the eight-year long dispute. The claim became notorious after two of the original arbitrators became entangled in a wide-reaching criminal investigation resulting in significant involvement by the French and Swedish courts. Finally, seismic political shifts, aggressive pushes for reform of investor-state dispute settlement (ISDS) and the introduction of new arbitral institutional rules and arbitration legislation made for a busy year for practitioners.
We summarise the big stories from 2017 and give an early view on what to look forward to in 2018 (spoiler alert: it is pretty much more of the same). Continue reading
Clauses of indexation, price-revision and hardship
Long-term energy contracts typically contain a formula for calculating the price throughout the life of the contract, usually by reference to market factors (notably the market price of crude oil in long-term gas supply contracts). Continue reading
Technology, Media and Telecommunications (TMT) disputes have been attracting a growing level of interest in the last few years. Welcome to the global digital age: technology is everywhere, and this ubiquity is expected to give rise to a commensurate number of disputes. Continue reading
There have been five rounds of North American Free Trade Association (NAFTA) renegotiations thus far, but seemingly little progress regarding Chapter 11 – the investor-state dispute settlement (ISDS) chapter. While Canada and Mexico both favour keeping Chapter 11 with some tweaks and improvements, the US seems to have a different view entirely, wanting either dramatic changes or possible removal. Clearly, NAFTA has an ISDS problem that needs solving, and the EU-Canada Comprehensive Economic Trade Agreement (CETA) model just might be the answer. Continue reading
The recent events regarding the annexation of Crimea by Russia has given rise to the issue of a breach of territorial integrity and thus the sovereignty of states, and how such a breach affects the application of investment treaties and dispute settlement options. Continue reading
Despite the tensions that sometimes arise in the relationship between national courts and the institutions of international arbitration, one critical area of cooperation is the support that national courts provide by way of interim relief. One of the most obvious examples of that relief is the granting of freezing injunctions and disclosure orders restraining a respondent from disposing of its assets, pending the outcome of a reference and identifying the scope of those assets. Depending on the nature of the case and the location of the respondent, it may be that such relief is sought in more than one jurisdiction. Continue reading
On 22 November 2017, Freshfields Bruckhaus Deringer’s International Arbitration Group hosted its 32nd annual arbitration lecture in conjunction with Queen Mary University of London’s (QMUL) School of International Arbitration. This year’s lecture was delivered by the Rt Hon Lady Justice Gloster DBE on the subject of “Symbiosis or Sado-Masochism? The relationship between the courts and arbitration”.