Surveys conducted by Queen Mary University of London have confirmed that international arbitration remains the preferred method for resolving cross border disputes. One of the key attractions of arbitration is the ability of the parties to participate in the selection of the arbitrators who will determine the issues in dispute and the quality of arbitration proceedings is largely dependent on the quality and skill of the arbitrators appointed. Continue reading
The recent case of Essar v Norscot has clarified that an arbitrator’s general power to award costs includes the power to award the costs of third party funding. In so doing, has arbitration gained an unexpected advantage over litigation for claimants that require third party funding? Continue reading
This month, a new arbitrator search tool has been introduced via the Equal Representation in Arbitration (ERA) Pledge website to help arbitration practitioners and parties identify qualified female arbitrators to hear their cases. Continue reading
The question of arbitrability of Russian corporate disputes is an old chestnut. For a few years, it was the subject of lively debate, and a number of academics and practitioners robustly criticised the state courts’ approach to the issue. The central question concerned the proper interpretation of section 33 of the Arbitrazh Procedure Code (APC), which allocated special competence (специальная подведомственность) over corporate disputes (defined in section 225.1 of the APC), to the state Arbitrazh (Commercial) Courts (AC).
In 2004, in response to an increasing number of challenges based on conflicts of interest on the part of arbitrators, the International Bar Association published Guidelines on Conflicts Interest which were subsequently updated in 2014 (IBA Guidelines). More than a decade after their first publication, the widespread acceptance of the IBA Guidelines by the international arbitration community, has resulted in its quasi-law status.
However, this confidence should not result in the unfettered use of the IBA Guidelines as a replacement for careful analysis of the merits of any potential challenge. Continue reading
The decision of whether to mediate or proceed straight to arbitration before each party knows what the other will say, or before they have seen the supporting evidence (or defence), may be thought of as an insoluble problem. So too might the question of how disputes can be resolved proportionately where there are multiple parties under chain contracts, which may or may not be subjected to the added complications of differing law and jurisdiction clauses. So how best to address it?
It is well-known that problems frequently arise when a non-state winning party attempts to enforce and execute an arbitral award against a state or state entity. Continue reading
The Energy Charter Treaty (ECT) is entering a new era. That is, who is being sued and what types of energy sources those claims relate to, has evolved from what was originally contemplated by its drafters in the early 1990s. That trajectory is set to continue as the significant amount of renewable ECT claims registered over recent years against EU member states are heard by arbitral tribunals and their awards are issued.
The Singapore High Court recently set aside an arbitral award for breach of natural justice in JVL Agro Industries Ltd v Agritrade Int’l Pte Ltd. The tribunal majority decided the case on the basis of a point raised for the first time and in passing by the tribunal in the final minutes of closing arguments, and on which the parties were not then directed to make submissions. Continue reading
Next month marks 15 years since I joined the counsel team for the claimant in Loewen v United States. I recall clearly my excitement on receiving the US government brief to which I was to respond. It was a powerful document, thoroughly researched and citing everything from mixed claims commission decisions of the 1920s to 19th-century diplomatic correspondence to Grotius. I heard the echo of my professor of international law, Al Rubin (no relation), who told us on the first day of class that we would never use his teaching in practice unless we joined a ministry of foreign affairs. How wrong he was. Continue reading