The recent Privy Council decision in Flashbird Ltd v Compagnie de Sécurité Privée et Industrielle SARL has highlighted some of the problems that can arise from the use of hybrid arbitration clauses. This blog considers the issues that arose in that case and how parties can avoid them.
While the decision to leave the EU in 2016 may now seem like it was in the distant past, its repercussions continue to shape the future of the English legal profession. For arbitration, the disruption has created new opportunities and unforeseen obstacles. Jurisdictional clauses that once seemed adequate now appear lacking. The uncertainty surrounding English litigation may be to the benefit of arbitrators. However, to take full advantage of the sector’s potential for growth, new barriers to English practitioners operating abroad must be overcome.
One of the most interesting aspects of international arbitration are the applicable laws. For me, what makes international arbitration stand out as its own system of law, much like the law of contract, torts or criminal law, is the method employed to determine which laws apply and how they operate together in harmony, or at least sufficiently, to dispose of the dispute. Once that exercise has been completed, the process becomes, effectively, a form of litigation.
The Practical Law Arbitration Blog will resume in early January 2022. Until then, from the Practical Law Arbitration team, thank you to all of our contributors for another packed year of excellent commentary, to you for reading. Happy holidays and stay safe.
The ongoing tragedy of the global pandemic was without a doubt the main story of 2021. While the latter half of 2020 was marked by a rush by practitioners, arbitrators and arbitral institutions to adapt to the world of remote working with travel and in-person hearings no longer possible, 2021 saw the fruits of that labour with practitioners making use of new institutional rules, better technology and an increased acceptance of digital communication. Continue reading
Tiered arbitration clauses, where a party is required to attempt various dispute resolution alternatives such as negotiation and mediation, are commonplace in commercial contracts. However, despite their widespread use, up until this year the English courts had not directly considered the question of what happens when a party does not comply with pre-arbitration steps before initiating arbitration proceedings. Instead, the English arbitration community has had to make do with the obiter findings of Teare J in Emirates Trading Agency LLC v Prime Mineral Exports Private Limited.
The Court of Cassation in Egypt has set aside a $490 million ICC award against an Egyptian state authority following their termination of a concession contract. This post explores the decision in detail and considers the ramifications for arbitration in Egypt following the Court’s decision that, for certain issues, state administrative contracts are not arbitrable.
LIBOR, once ubiquitous as the interest rate benchmark in financial transactions around the world, is on its way out. In July 2017, the Financial Conduct Authority (FCA) announced that LIBOR would be phased out by the end of 2021 and, in March 2021, the FCA and the Bank of England jointly announced that as of 31 December 2021, all sterling, euro, Swiss franc, Japanese yen settings and 1-week and 2-month US dollar settings will cease to be published, and the remaining US dollar settings will cease by June 2023.
It is no secret that international arbitration proceedings can have a significant carbon footprint owing to a number of factors, ranging from large volumes of paperwork to international travel, particularly in cross-border disputes and complex matters which require the involvement of multiple witnesses, experts, and counsel from various jurisdictions. However, in recent years, organisations have encountered an increasing amount of pressure from shareholders, investors and other stakeholders to consider environmental, social and governance (ESG) factors in the context of their business models and activities. Together with more stringent ESG requirements and detailed guidance from financial regulators, it will only be a matter of time before organisations need to be actively mindful of their environmental impact when pursuing international arbitration and other similar forms of alternative dispute resolution.
Many litigators have been faced with determining the appropriate course of action to take when they have encountered a sophisticated contract containing two diametrically opposed forms of dispute resolution, final and binding arbitration on the one hand and exclusive jurisdiction of a national court on the other. Continue reading