In the commercial world, time is of the essence. Anyone who has ever litigated knows that it is expensive, time consuming, emotionally harmful and unpredictable. This is especially true if the parties to the dispute are based in different countries. Continue reading
2016 gave us a bumpy ride for so many reasons, and developments in the arbitration world were no exception. While there can be no promises that 2017 will be as turbulent, the year still promises to provide some interesting developments in the arbitration arena. So as 2017 kicks in, with new year resolutions made and broken, Practical Law Arbitration has been looking ahead to the anticipated arbitration-related developments in 2017 and beyond. Continue reading
It is not for me to judge whether you will want to remember 2016 fondly, whilst sipping on your Prosecco (or, following Brexit, English sparkling wine) over a turkey dinner, but it has certainly been an eventful year. This has no less been the case in the world of arbitration. As such, Practical Law Arbitration has published its review of 2016. It covers all manner of arbitral excitement, such as expedited rules and provisions, third party funding and the saga of Essar v Norscot, gender diversity, investor-state dispute settlement (ISDS) provisions, and, of course, the vote of the British people to leave the European Union and our transatlantic cousins’ election of Donald Trump to the office of President of the United States. Continue reading
In December 2015, the China-Australia Free Trade Agreement (ChAFTA) entered into force. Although the agreement was hailed as ground-breaking for both nations, it was missing a generous investor-state dispute settlement (ISDS) provision. Under ChAFTA, an investor may only bring an arbitration claim under Article 9.12 if there has been a breach of Article 9.3 (national treatment). This claim can also be brought only after consultations have taken place under Article 9.11. Article 9.3 provides for the national treatment of investors. Investors should not be treated less favourably than nationals of the host state in circumstances such as the operation and sale of their assets. This blog aims to briefly examine whether this narrow ISDS clause will impact foreign direct investment (FDI) inflows. Continue reading
If you are thinking of buying a new pet, “cats or dogs?” may be a reasonable question to ask. But what if the answer is “cats in town, dogs in the countryside”? Is that a non-answer? Or does it express what you most needed to know? If that is a good answer for yourself when deciding what to do, how good is it a guide for someone else? Perhaps it depends why that person is asking. That depends of course on what that person wants to know. Is that the same as what that person thinks he or she wants to know? Continue reading
You have won an award, and you are now facing the prospect of enforcing it. Perhaps the award debtor is a special purpose company, with no assets of its own, or it is located in a “difficult” jurisdiction. It might be that the award debtor is a sovereign state that refuses to pay for political or similar reasons. There may be many other reasons why you would shudder at the thought of having to spend another small fortune and months, if not years, on enforcing your award, potentially without success. It is at this point that some award creditors might consider cutting their losses and “selling” their award. Continue reading
Lord Scarman’s warning of the “treacherous shortcut” that can be preliminary issues in Tilling v Whiteman remains sage. It is true that isolating vaguely drafted questions for preliminary determination, or those that have no significant impact on the outcome of a case, can lead to a disproportionate outlay of costs early on in proceedings. This does not mean that preliminary issues cannot also serve as a useful means of non-treacherously short-circuiting the time and costs of taking a dispute through the ordinary arbitration process. The authorities on what sort of issues are appropriate for early determination are not controversial, but an interesting point can be the timing of that determination. At what stage should the parties isolate and arbitrate? Continue reading
There is now a broad consensus across the common and civil law divide that it is permissible in international arbitration for counsel to prepare a fact witness for the purpose of giving evidence to the arbitral tribunal. However, considerable differences still exist as to what constitutes permissible “witness preparation”, under arbitration laws and within ethical rules of different jurisdictions. This post considers a number of legal, ethical and practical considerations that might influence practitioners’ approaches to witness preparation in international arbitration. Continue reading
It is no secret that regular users of arbitration are dissatisfied about costs and delay. Despite choosing arbitration as their preferred dispute resolution process, respondents to last year’s Queen Mary University of London survey identified “costs, lack of effective sanctions during the arbitral process, lack of insight into arbitrators’ efficiency, and lack of speed” as the worst features of the process. The sort of active case management that fosters efficiency and reduces cost is sadly lacking in many cases. Continue reading
Trade and investment agreements featured extensively during the US presidential election campaign. Continue reading