REUTERS | Lindsay DeDario
November 29, 2016

Arbitrating insolvency disputes: an imperfect solution?

In the current economic climate, insolvent defendants are more and more common. Cross-border insolvency raises some particularly tricky conflict of law issues. These are likely to become even more complex when (if?) Brexit is implemented, at least to the extent that the UK is no longer bound by the EC Insolvency Regulation. Disclaimer: I’m not an insolvency lawyer (far from it), but I was interested to see the recent revival of the idea that international arbitration might provide a solution to some of the tricky procedural and substantive issues that cross-border insolvencies can pose. Is arbitration really the solution? Continue reading →

REUTERS | Jason Lee
November 24, 2016

Just to clarify: Xstrata Coal and Article 27.1 of the LCIA Rules

The recent decision in Xstrata Coal Queensland Pty Ltd v Benxi Iron & Steel (Group) International Economic & Trading Co Ltd provides useful guidance on when a court may extend time to allow an arbitral tribunal to clarify or remove ambiguity in their award by issuing a memorandum pursuant to Article 27.1 of the London Court of Arbitration Rules 1998 (LCIA Rules). Continue reading →

REUTERS | Lucy Nicholson
November 22, 2016

The importance of developing skills to address culture in arbitration

The increasing globalisation of commerce and the growth of multi-national companies have also resulted in an increased use of arbitration to resolve commercial disputes, domestically and internationally. Accompanying this growth is a greater need for arbitrators and advocates to develop critical cross-cultural competency skills. More and more parties to arbitrations hail from different legal systems, social traditions, faith-based customs, and family backgrounds. These disparate perspectives permit disputants to look at the same set of facts and circumstances and interpret them differently. They then bring those paradigms with them as they engage in the arbitration process, affording endless opportunities for cross-cultural misunderstandings, even among citizens of the same country. Thus, developing cultural sensitivity and cultivating awareness of subtle statements and actions in an arbitration proceeding can lead to prompt recognition and identification of cultural issues, so that they can be addressed in the most useful manner. This is neither simple nor straightforward, but well worth the effort. Continue reading →

REUTERS | Ilya Naymushin
November 17, 2016

The RAA Survey shows that sanctions imposed on Russia have had a very limited impact on Russia-related arbitrations

Sanctions imposed against certain Russian persons in relation to the situation in Ukraine have been a hot topic for the Russian arbitration community over the past two years, triggering discussions at numerous seminars, conferences and symposia. However, a recent survey conducted by the Russian Arbitration Association (RAA) suggests that all of this may have been much ado about nothing. Continue reading →

REUTERS |
November 14, 2016

Emergency arbitrators at the expense of urgent relief from the English courts: a trade-off worth making?

In the recent case of Gerald Metals SA v Timis, the English High Court held that it did not have power to grant urgent relief in support of arbitration in circumstances where timely and effective relief could be obtained through the arbitral process; for example, by appointing an emergency arbitrator. Continue reading →

REUTERS | Denis Balibouse
November 10, 2016

Creation of a Global Arbitration Ethics Council: the Swiss Arbitration Association declares that time has not yet come

In September 2014, the President of the Swiss Arbitration Association (ASA) called for the creation of a Global Arbitration Ethics Council, a truly transnational body, to whom matters of alleged unethical conduct would be referred. Continue reading →

REUTERS | Carlos Garcia
November 8, 2016

Standard Chartered Bank v TANESCO: contractual ICSID case calls finality of ICSID decisions into question

Whilst the International Centre for Settlement of Investment Disputes (ICSID) Convention specifically provides for the revision of a final award in cases of “discovery of some fact of such a nature as decisively to affect the award”, it does not expressly address the question of whether, and on what basis, a tribunal may reconsider and possibly alter a previous decision, such as a decision on jurisdiction, before the final award is issued. Continue reading →

REUTERS | Mike Hutchings
November 3, 2016

Arbitration: a crucial factor in ease of doing business and investment growth in Africa

Growth in major African economies over the last two decades has been attributed to the increase in foreign investment and business opportunities. With the increase in foreign investment has come the increase in international disputes and the reluctance of foreign investors to settle these disputes in local courts in African jurisdictions. Continue reading →

REUTERS | Jorge Silva
November 2, 2016

Effective incorporation of arbitration clauses: are you making it clear?

Introduction

The question of whether an arbitration agreement is incorporated into a contract is fundamental, determining whether the parties are required to resolve their disputes by arbitration. However, whilst section 6 of the Arbitration Act 1996 clearly defines what is meant by an “arbitration agreement”, the provision leaves open the question of what is required for the effective incorporation of an arbitration clause by reference. Continue reading →