REUTERS | Suzanne Plunkett
November 13, 2017

Brexit and the prospects of investor-state arbitration against the UK: laming, claiming and blaming

The UK’s exit from the EU has somewhat sunk into people’s minds since the British referendum vote on leaving the EU in June last year. That vote, no doubt, sent shock waves far beyond the shores of the British Isles. It has, to some extent, marginalised the UK on the EU political stage, the UK being the first (and hopefully – some may say – the only) country ever to leave the EU. That said, the final word on Brexit has not yet been said. There is at least some hope (albeit remote) that the UK’s exit from the EU may still be stopped in its tracks. In the meantime, foreign investors have good reason to ask how their UK investments will be affected by Brexit, as and when it happens, and have to be forgiven for contemplating suitable avenues of redress in the event that their investments were to take a hit from Brexit in further course. Continue reading →

REUTERS | Mike Hutchings
November 9, 2017

A new approach to investment protection? Recent developments in Africa

Investor-state dispute resolution (ISDS) has been the subject of intense global scrutiny in recent years. In Europe, the EU Commission has been driving forward a proposal for the creation of a multilateral investment court system to replace ad hoc arbitration in existing bilateral and multilateral treaties. In July of this year, the UN Commission on International Trade Law (UNCITRAL) agreed that a working group should consider the issue of multilateral reform of ISDS including the EU’s suggestion of a multilateral investment court. However, whilst ISDS in the context of the Transatlantic Trade and Investment Partnership (TTIP), the Comprehensive Economic and Trade Agreement (CETA) and, more recently, the North America Free Trade Association (NAFTA) has grabbed the headlines, other states and blocs are forging their own paths for reform. Whilst there has been a domestication of remedies in some instances, a number of novel changes in approach to investment protection and ISDS have been adopted in treaties signed by countries in Africa. Continue reading →

REUTERS | Suzanne Plunkett
November 3, 2017

Relief and confidentiality: Sowden v Smyth-Tyrrell and UMS Holdings Ltd v Great Station Properties SA

Two recent decisions of the High Court have provided salutary illustrations, reminders and guidance as to substantive and procedural aspects of English arbitration law: one in the context of the requirements for relief under section 68 of the Arbitration Act 1996 (AA 1996), and the other as regards arbitral confidentiality and the extent to which that may survive (or be protected in) a challenge process via the High Court. Continue reading →

REUTERS |
November 2, 2017

Update on the European Commission’s drive for investment courts

The European Commission has emerged as one of the biggest drivers for reform of investor-state dispute settlement (ISDS). Arguing that the current ISDS system lacks legitimacy, consistency and transparency, the EU has taken a two-pronged approach in its push for reform. First, it has sought to replace traditional investor-state arbitration with a system of standing investment courts when negotiating new trade agreements. Second, and in parallel, it has led the charge for the creation of a permanent multilateral investment court with the vision of reshaping ISDS on a global scale. Continue reading →

REUTERS | Paulo Whitaker
October 30, 2017

Trends in investment treaty arbitration: a perspective on Brazil

Brazil’s experience with investment agreements stands in sharp contrast to that of other countries. At a time when most states were promoting them, Brazil declined to do so. For this reason, the government’s recent promotion of cooperation and facilitation investment agreements (CFIAs) is of some interest. This blog post discusses the context in which CFIAs in Brazil have emerged; considers their main features (in particular, the dispute resolution mechanism); and reflects on their advantages and disadvantages relative to traditional bilateral investment treaties (BITs). Continue reading →

REUTERS | Jumana El Heloueh
October 26, 2017

The DIFC Courts’ conduit jurisdiction: time for a post mortem?

This year so far has dealt a severe (some may say mortal) blow to the Dubai International Financial Centre (DIFC) Courts’ status as a conduit jurisdiction. The case law of the Joint Judicial Tribunal (the JT) – a judicial body composed of both onshore Dubai and offshore DIFC Court judges and formed by the Ruler of Dubai to oversee conflicts of jurisdiction between the onshore Dubai and offshore DIFC Courts (see Decree No. (19) of 2016 establishing the Dubai-DIFC Judicial Tribunal) – has been unashamedly critical of the DIFC Courts’ creeping expansion of their own jurisdiction to encompass actions without a tangible link (whether geographic or otherwise) to the DIFC. The example par excellence of such actions have been the ratification and enforcement of both domestic (non-DIFC) and foreign arbitral awards for onward execution against assets of an award debtor in onshore Dubai (absent assets offshore). The case in favour of service as a conduit has been compelling, allowing international award creditors to circumvent the often erratic application by the onshore United Arab Emirates (UAE) courts of Article 216 of the UAE Civil Procedure Code, which accords comparatively wide discretion for the challenge of awards in the enforcement process. Regular readers of this blog will recall the recent ruling of the Dubai Court of First Instance that has essentially called for an end to the DIFC Courts’ role as a conduit, setting aside the Banyan Tree line of cases, which are routinely cited as the locus classicus of the DIFC Courts’ conduit jurisdiction (see Commercial Case No. 1619/2016, ruling of the Dubai Court of First Instance of 15 February 2017, reported in G. Blanke, Dubai courts v DIFC courts: just a jurisdictional stand-off or an outright declaration of war?). Continue reading →

REUTERS |
October 23, 2017

Singapore court sets aside investment treaty award on merits for the first time

In Kingdom of Lesotho v Swissbourgh Diamond Mines (Pty) Ltd, Judge Ramesh, sitting in the Singapore High Court, set aside an investment treaty award in a dispute between the Kingdom of Lesotho and a group of South African mining investors headed by Josias Van Zyl and comprising of his company (Swissborough Diamond Mines) and various of his family trusts. Continue reading →

REUTERS | Denis Balibouse
October 19, 2017

Definition of “investment”: an intriguing obiter dictum of the Swiss Supreme Court with unknown consequences

A few months ago, Naomi Briercliffe (a talented former colleague of mine) and Stephanie Grace Hawes posted on this blog a very interesting and thought-provoking analysis of what they consider to be the most appropriate standard of review when jurisdictional challenges to investment treaty awards are filed before national courts. Continue reading →

REUTERS | Maxim Shemetov
October 16, 2017

Arbitration: a new forum for business and human rights disputes?

On 27-29 November 2017, the United Nations Forum on Business and Human Rights will convene in Geneva. Its central theme: Access to Effective Remedy. In line with this shifting focus by the international community on the third pillar of the UN Guiding Principles on Business and Human Rights (UNGPs), a working group of international law specialists published a proposal to use arbitration to resolve disputes that arise out of human rights abuses involving businesses (BHR disputes). Continue reading →