In the majority of, if not all cases, a notice of arbitration will be preceded by negotiation or correspondence between employees or agents of the parties. The trap for the unwary, as illustrated by the recent decisions in Sino Channel Asia Limited v Dana Shipping and Trading Pte and Glencore Agriculture BV v Conqueror Holdings Ltd, is that serving the notice of arbitration on the person whom the serving party has previously dealt with may not be effective service at all. Continue reading
The use of tribunal secretaries in international arbitration has been the subject of much criticism and debate in recent times. Much of the concern has focused on the idea of the tribunal secretary effectively performing the functions of a “second”, “fourth” or “shadow” arbitrator. Continue reading
Can a New York Convention defence to enforcement of an award be waived or contracted out of in advance of any dispute arising? And if so, might institutional arbitration rules incorporate provisions which (intentionally or otherwise) have the effect of precluding reliance on the New York Convention defences to enforcement? For example, Article 35(6) of the International Chamber of Commerce (ICC) Arbitration Rules (2017) states that “by submitting the dispute to arbitration under the Rules, the parties undertake to carry out any award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made.” Does this waiver include defences to enforcement? This is a tricky issue which has received surprisingly little consideration, at least as a matter of English law. Continue reading
One of the great attractions of arbitration over litigation is that it gives the parties the opportunity to participate in the selection of an arbitrator who will resolve their disputes. The choice of arbitrator can be critical to the outcome, which may be why 38% of respondents to School of International Arbitration at Queen Mary, University of London (QMUL) 2015 arbitration survey cited arbitrator selection as one of the most valuable characteristics of arbitration. Continue reading
Cybercrime has become a regular feature of global news. The question is not if another attack will happen, but when. Prominent examples include the leak of millions of attorney-client documents from law firms Appleby and Mossack Fonseca, and the “Petya” attack, which brought DLA Piper’s system to a standstill.
Arbitration is also at risk. Parties, arbitrators, counsel and institutions may be compromised, and the consequences could be serious for the target and the arbitral community as a whole. We explore the risks and consequences in our article Is our imagination failing us? Call for cybersecurity guidelines in international arbitration. Continue reading
Earlier this year, the Arbitration Centre at the Institute of Modern Arbitration in Russia (ACIMA) announced that it had obtained a government licence to operate as a “permanent arbitral institution” under the new Russian arbitration legislation. The ACIMA is the new kid on the block, having been established only a little over a year ago, in August 2016. Meanwhile, in Kazakhstan, work appears to continue apace on the creation of the Astana International Financial Centre (AIFC), which will host the new Astana International Arbitration Centre (AIAC) from January 2018. The AIFC is being modelled on the Dubai International Financial Centre (DIFC), which signed a consultancy agreement with Kazakhstan to assist in the establishment of the AIFC.
These developments, on their face, confirm the trend towards regionalisation in international arbitration that has been in evidence for a number of years. However, as the closure of the LCIA India demonstrates, regionalisation has its limits as established “universalist” institutions, such as the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA) (London), continue to attract parties from around the world. In this context, what are the prospects for the new arbitration centres in the CIS region? To answer that question it is worth taking a look at the broader regional context.
One need only google “The Belt and Road Initiative (BRI)” to see maps of Eurasia, crossed East to West with different coloured lines marking the contours of the world’s largest infrastructure project, determining the economic future of the continent for many decades to come. Each professional geographer, demographer, economist or historian, will have different thoughts looking at those maps. A question that may arise for lawyers specialising in international dispute settlement will be: how many project, construction and transportation (maritime, automotive and rail) disputes will arise on those routes? Probably, millions or a billion. And which forums will be in charge of settling them? Continue reading
It is common for an arbitrator and party representative to be from the same set of chambers, particularly if the dispute relates to a specialist area of law where there may be a small pool of arbitrators and counsel from which to draw. Is it an issue? And if it is, what should be done?
A recent ruling of the Supreme Court of Russia took upon an interesting, even though not very common question of whether an arbitral tribunal has a duty to determine the law applicable to the merits of the case as a preliminary issue (Case No. А40-42294/2016). Usually, the parties to a cross-border contract ensure that the contract contains a clause selecting the governing law. Sometimes, however, the parties may not be diligent enough to agree on this, in which case this may become a subsequent issue.
On 30 August 2017, the Moroccan Parliament ratified the Morocco-Nigeria bilateral investment treaty (BIT), which now awaits ratification by Nigeria. This treaty, part of a suite of agreements signed between Morocco and Nigeria at a ceremony in Casablanca in December 2016, is intended to herald a “strategic partnership” at a time when the two countries are embarking on an ambitious joint venture to construct a 4,000 km regional gas pipeline that will connect west African countries’ gas resources to Morocco and ultimately Europe. Continue reading