UK Prime Minister May was the first foreign leader to visit US President Trump, thereby underlining the “special relationship” between the UK and the USA. One of the aims of the visit was to kick-start negotiations for a trade deal between the UK and the USA. Continue reading
The relationship between international investment law and international human rights law has become increasingly relevant in recent years. How and to what extent a state should be permitted to rely on its human rights obligations to defend claims that it has breached its investment treaty obligations has, in particular, received significant attention. Less discussed, however, is how investment treaties may be used positively to enforce compliance with human rights obligations. Following the recent decision of the tribunal in Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v Argentina, this blog post considers the circumstances in which a state may be able to bring a counterclaim under an investment treaty against an investor for human rights violations. Continue reading
At the end of last year, I had my first experience of conducting the advocacy in an international commercial arbitration. For the first time, I was up there in front of the tribunal, not just listening to what was being said and helping to locate documents, but making submissions and cross-examining witnesses. Continue reading
Whatever your opinion on the ethical implications of third party funding in international arbitration, the past six months have seen two firm nods in its favour. These have signaled that, as a method of financing arbitration, it is here to stay. Continue reading
It’s that time of year again…dry January, healthy eating, gym, early nights. None of that will last forever (thank goodness) but there are some new year’s resolutions that may yield more enduring beneficial results. Drafting arbitration clauses is something that tends to be left until the last minute and performed at speed: it is hardly surprising, therefore, that defective or even pathological arbitration clauses are commonplace. I was very struck in 2013 by an interesting article by Jonathan Choo and Shaun Lee (then both at Olswang) suggesting that around 30-35% of Singapore International Arbitration Centre (SIAC) cases involved a clause that was defective in some way. That is a lot of defective clauses. The problem is, of course, that for a recalcitrant respondent, a defective arbitration clause is the gift that keeps giving – from delays in appointments right through to jurisdictional disputes and resisting enforcement. So… just in case your new year’s resolutions list is lacking on the arbitral front, I offer the following thoughts for consideration next time a draft arbitration clause crosses your desk. Continue reading
Two recent lectures by prominent arbitration practitioners revisited the issue of due process in international arbitration. In her Freshfields lecture, Professor Lucy Reed noted a recent trend to use due process as a sword rather than a shield. She gave a number of examples where a party sought to elevate a mere procedural complaint to an allegation of due process violation, including through repetition, amplification, sheer number and unrelenting tone of due process challenges. Continue reading
The issues
A perceived lack of diversity among arbitrators is forever captured in the oft-quoted description “pale, male and stale”. Continue reading
The “discounted cash flow” (DCF) method has increasingly widespread application, notably to compute damages claims. Its purpose is to determine the value of a business or an investment by projecting the anticipated future cash flow before discounting it back to present value (at a specific discount rate). In other words, the DCF method puts a present value on a future loss. Continue reading
It is probably fair to say that the majority of practising international arbitrators came through the ranks as practising lawyers. The lack of gender balance on international arbitration tribunals is often attributed to the “pipeline leak”, that there are insufficient numbers of women at the top end of the legal profession. This should not be so: In 2015-16, of the UK students accepted to study law at undergraduate level in England and Wales, 67.3% were female. Of those who qualified as solicitors on 31 July 2015, 61% were female. But by the time they reach partner level, the figure has dropped to less than 20%. There is a large measure of consensus as to the reasons why that is the case: office climate, difficulties managing dual careers, lack of female role models or mentors, lack of flexible work options and attitudes to flexible working. At the international arbitrator level, where the appointees are principally those who have reached the top of their profession, numbers become even smaller. Here women face difficulties in getting to the initial stage at which they may be considered for an arbitral appointment. Continue reading
As part of the drive to achieve faster, more cost efficient arbitrations, a number of arbitral institutions offer an expedited arbitration procedure, designed to deliver an award within a fixed timeframe. Continue reading