REUTERS | Jorge Silva
May 26, 2017

Closing the gap between human rights and investment protection: what role for human rights impact assessments?

Arbitral tribunals are increasingly required to consider the relevance and applicability of international human rights norms to investment protection and arbitration. While opinions are divided on this issue, there is an inescapably “complex relationship” between investment protection and human rights. This post considers the potential significance of human rights impact assessments (HRIAs) in investor-state arbitration. HRIAs may be performed in advance of concluding treaties or ex post, to identify where trade and investment treaties might undermine or enhance human rights protections. We propose that, depending on the scope and status of an HRIA, it may be useful in the context of investment treaty arbitration for understanding the content of investment protections and addressing certain procedural aspects of the arbitration (namely the admissibility of amicus briefs). Continue reading →

REUTERS | Ilya Naymushin
May 25, 2017

Arbitration of shareholders disputes in Russia: bending natural limits of arbitration?

It is trite law that arbitration is a consensual matter. The source of arbitrators’ powers is found in the relevant arbitration agreement. By contrast, parties have access to at least some competent court as of right, and the court’s power is vested in the relevant procedural law. This distinction has a number of important practical consequences, in particular when it comes to the binding effect of decisions rendered by arbitrators and judges. Whereas courts are usually able to issue decisions binding on the third parties (be it an interim order, an order for production of documents or an order for joinder of a third party), arbitrators’ powers are limited by the consent of the parties, being the natural limits of arbitration. Continue reading →

REUTERS | Steve Crisp
May 24, 2017

Dubai onshore and offshore courts confirm application of apparent authority to arbitration under UAE law

In a sequence of recent rulings starting in 2015, the Dubai courts have confirmed that the doctrine of apparent authority does, after all, apply to the formation of arbitration agreements. The former prevailing position was that apparent authority did not have a place in arbitration, which requires a special (rather than just a general) power of attorney for an attorney’s agreement to arbitrate to bind the original rights holder (see Article 58 read together with Article 203(4), UAE Civil Procedures Code, and the extensive commentary provided in G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell, 2017, at II-017 and II-032 – II-037). In its more recent case law precedent, the Dubai Court of Cassation takes the firm view that a natural person signing an arbitration agreement on behalf of a legal person binds that person to arbitration unless proven otherwise. In this sense also, an agent has been taken to bind a principal to arbitration to some extent in the past (G. Blanke, Commentary on the UAE Arbitration Chapter, at I-108 and II-018). This development is encouraging and demonstrates yet again the often understated arbitration-friendly nature of the United Arab Emirates (UAE) and, in particular, the Dubai courts. Given their importance to the successful enforceability of arbitration agreements against original rights holders, all of the Dubai Court of Cassation judgments referred to below deserve closer scrutiny. Continue reading →

REUTERS | Srdjan Zivulovic
May 17, 2017

English court deals firmly with the spectre of the “fourth arbitrator”

The spectre of the “fourth arbitrator” has been discussed in numerous articles and at many a conference. Guidance notes, guidelines and training schemes abound. However, judicial consideration of the use of tribunal secretaries has been relatively limited.

The arbitration market may be grateful, therefore, that an email sent in error to the wrong person gave rise to considerable discussion on the use of tribunal secretaries in the recent English court decision in P v Q. Continue reading →

REUTERS | Denis Balibouse
May 16, 2017

Sales contract, contract for works or “innominate” contract? Why characterising (properly) a contract matters under Swiss law

Swiss law is one of the most frequently chosen governing laws in international contracts. As such, it is important for parties to arbitration proceedings where Swiss law has been chosen as the governing law of their contractual relationship to understand the framework of Swiss contract law. More particularly, it is crucial for those parties to understand why characterising (properly) a contract matters under Swiss law. For that reason, I have decided to reflect briefly in this contribution on one area of Swiss contract law which, in practice, is likely to spark debate between parties to an arbitration; that is whether a contract (usually for the design or manufacturing of a good) should be characterised as a sales contract, a contract for works or a so-called “innominate” contract. Continue reading →

REUTERS | Carlo Allegri
May 11, 2017

Controlling time and cost: if you don’t do it, no one will

How to speed up arbitration and save costs? At the risk of stating the obvious, most practitioners know the answer: focus on the real issues, use common sense and cooperate with the other side on procedural issues. Much waste and delay can be saved where the parties avoid pressing hopeless points, refrain from procedural posturing and show flexibility on points that are of relatively marginal importance. The International Chamber of Commerce (ICC) Commission’s Report on Controlling Time and Costs in Arbitration provides excellent guidance on specific issues that often arise in practice. Continue reading →

REUTERS | Jacky Naegelen
May 10, 2017

Paris Arbitration Week: it’s a wrap!

Co-organised by Paris, the Home of International Arbitration, the International Chamber of Commerce (ICC) and the Comité Français de l’Arbitrage, the first Paris Arbitration Week (PAW) was a significant success. The numerous conferences, presentations and meetings, which took place from 24 to 28 April 2017, attracted members of the arbitration community from all corners of the globe. Continue reading →

REUTERS | Alan Ortega
May 10, 2017

Women in arbitration: Adriana San Román, part 2/2: attitudes towards women, the future and career tips

To mark International Women’s Day on 8 March 2017, Practical Law Arbitration is carrying out a series of interviews with prominent women in arbitration.

In this, the third interview in the series, we interview Adriana San Román, arbitration partner at Wöss & Partners, Mexico City – Washington DC, and member of the International Council for Commercial Arbitration – American Society of International Law (ICCA-ASIL) Task Force on Damages. Adriana started her career in corporate finance before moving to a career in law. She is a leading damages consultant and damages expert in international arbitration and litigation. She has co–authored the book Damages in International Arbitration under Complex Long-term Contracts and several articles on damages in international arbitration.

In Part One, Adriana discussed her leap from finance to law, experience as an arbitral damages expert and her role in the ICCA-ASIL Task Force on Damages. In Part Two, she considers women in arbitration, the future and some career tips. Continue reading →