We are all consumers and, on occasion, we face disputes with traders who provide us with goods or services. Most consumer disputes, if not resolved amicably, will end up in court. However, the last two decades saw the growth of consumer arbitration in the US, with an increasing number of consumer contracts originating in the US containing arbitration clauses. The question is whether consumer arbitration will take hold outside the US, and in particular in the UK. Continue reading
Hej! I have just returned from the International Congress of Maritime Arbitrators (ICMA), held last week in wonderful Copenhagen and hosted over five days by the Danish Institute of Arbitration. ICMA is held every two to three years and provides a forum for maritime arbitrators, lawyers and others in the shipping industry to exchange views and news. Continue reading
Third party funding (TPF) has become an established feature of the arbitral landscape. It is now not uncommon for parties to consider TPF when commencing or responding to an arbitration, choosing their counsel, or even when negotiating an arbitration agreement.
This raises the question whether such arrangements should be disclosed, and if so, the scope of such disclosure. Continue reading
The long-awaited Opinion of Advocate General (AG) Wathelet in the Achmea case has resulted in an unexpected and rather surprising Opinion.
Many observers (including the present writer) had expected that the AG would hammer the final nail on the coffin of intra-EU BITs and arbitral tribunals based on these treaties. After all, the pressure by the European Commission on intra-EU bilateral investment treaties (BITs)/ECT arbitral tribunals to reject their jurisdiction because the intra-EU BITs and arbitration are supposedly incompatible with EU law has been high for many years. Similarly, the European Commission has been pressurising the EU member states to terminate their intra-EU BITs. Indeed, several member states have done so, or are in the process of doing so.
In light of these developments, it came as a surprise that the AG concluded that intra-EU BITs and international arbitration based on such BITs, is entirely compatible with EU law. The AG fully rejected the arguments raised by the European Commission and several EU member states.
Shareholder disputes normally fall within two categories. The first is where a shareholder is outvoted by a majority which is acting against the interest of the company. The second is where a rogue director is “on a frolic of their own”; that is, they are acting for their own benefit or that of third parties. In such circumstances, minority shareholders can issue either a derivative claim or a claim for unfair prejudice.
Falling foul of a limitation period can stop a treaty claim in its tracks. For claimants, how you frame an alleged treaty breach may, for the purposes of computing time, determine whether the claim is barred in whole or in part. For respondents, successfully proving the expiry of a limitation period may be an entire defence. Whilst a number of international investment treaties (notably, the North American Free Trade Agreement (NAFTA)) contain limitation periods, tribunals have not often addressed this topic in detail, and there is no uniform jurisprudence on how limitation periods should apply. Ultimately, each case must be analysed in its own context. An overly strict approach may, for instance, improperly punish investors that delay filing their notices of arbitration in hopes of finding an amicable solution, particularly where states have represented that, given time, they will provide a remedy. In any event, regardless of how limitation periods are interpreted, investors would be well served by negotiating an agreement with the state that suspends or tolls the limitation period to remove any doubts. This blog post therefore discusses the enforceability of such agreements and flags some practical issues for consideration. Continue reading
On 1 September 2017, the joint ICCA-Queen Mary Taskforce issued its draft report on third party funding in international arbitration. The Taskforce was composed of experienced practitioners and academics from over 20 different jurisdictions. Continue reading
This is the third and final part of a series of three blogs that have discussed in some detail the provisions of the new United Arab Emirates (UAE) Federal Arbitration Law and their prevailing similarities to the existing provisions of the UAE Arbitration Chapter. The comparison so far has shown that the provisions of the new law are in their majority old wine in a new bottle, giving rise to the proposition that the entry into force of that law later this year will not bring about the sea change that the local and international arbitration community was anticipating. That said the UAE Arbitration Chapter is not in as bad a shape as international commentators usually seek to make out. The provisions of the Chapter have received an arbitration-friendly interpretation over the past twenty years or so, having given rise to a jurisprudence constante. The resulting case law precedent lends support to the provisions on arbitration procedure and the powers of the arbitral tribunal, discussed in part 1 and part 2 in the series. As discussed in the further course of this blog, the provisions of the new law in relation to issuing, enforcing and challenging the award equally codify – in relevant part – the existing status quo under the UAE Arbitration Chapter. Continue reading
Parties who provide for arbitration as a means for resolving commercial disputes generally do so because of the oft-cited perceived benefits of arbitration. These include confidentiality, potential time and cost savings, more limited disclosure, the ability to enforce awards in any of the New York Convention signatory countries and, notably, the ability to tailor the process. Continue reading
There is sometimes an uneasy relationship between the courts of the seat of an arbitration and the courts of the place of enforcement of the resulting arbitral award. The relationship is perhaps under the greatest strain when the latter are asked to decide whether to enforce an award that has been set aside by the former. The recent judgment of the English Commercial Court in Nikolay Viktorovich Maximov v Open Joint Stock Company “Novolipetsky Metallurgichesky Kombinat” provides a reminder to parties of the English courts’ deference to an annulment decision at the arbitral seat and the different approaches taken by the courts of other New York Convention states to enforcing annulled awards. Continue reading