The two Philip Morris cases, involving restrictions on the presentation and sale of cigarettes through plain packaging measures, have been used by anti-investor-state dispute settlement (ISDS) groups as the prime examples for creating the myth that treaty arbitration causes states not to adopt certain measures for the protection of public goods. They argue that it has resulted in so-called “regulatory chill”. Continue reading
The usual practice in international arbitration is for each party to appoint an arbitrator, and then for the two party-appointed arbitrators to appoint the chair or president of the tribunal. Some have criticised this approach as creating a “moral hazard” in which party-appointed arbitrators may be inclined to rule for the party that appointed them. Professor Albert Jan van den Berg noted that “[a] nearly 100 percent score of dissenting opinions [are] in favour of the party that appointed the dissenting arbitrator” and this “raises concerns about neutrality” (Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration, in Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (2011)). Yet others have emphasised the right of parties to choose the arbitrators and the ability of an arbitrator to express disagreeing views in a dissenting opinion as necessary for the continued viability of international arbitration (see Charles N. Brower & Charles B. Rosenberg, The Death of the Two-Headed Nightingale: Why the Paulsson—Van den Berg Presumption that Party-Appointed Arbitrators are Untrustworthy is Wrongheaded, 6 World Arb. & Med. Rev. (2012)). Continue reading
It is a truism that amicable negotiations without recourse to litigation or arbitration have many advantages and should generally be encouraged as a preferred method of dispute resolution. In this context, conciliation procedures (which include mediation), whereby a third party facilitates settlement negotiations without the power to impose any particular resolution on the parties, provide important means of achieving a settlement. Continue reading
Legal disputes arising during Olympic Games (including, amongst others, eligibility, disciplinary or doping-related disputes) are decided by a temporary “office” of the Court of Arbitration for Sport (CAS), referred to as the CAS ad hoc Division. The CAS ad hoc Division has operated at each edition of the Summer and Winter Olympic Games since 1996, as well as at other major sporting events such as the Commonwealth Games, the UEFA European Football Championships, the AFC Asian Cup, the FIFA World Cup and the Asian Games. Continue reading
Legal writings and conference papers discussing technology in arbitration almost inevitably touch upon the ability of artificial intelligence (AI) to assume the decision-making role. In a recent Young ICCA blog post on machine arbitration and machine arbitrators, Jack Wright Nelson offers an interesting analysis as to why this type of dispute resolution would be acceptable. Continue reading
Cost and delay remain the two areas of greatest concern to parties in arbitration. Data released last year by the London Court of International Arbitration (LCIA) indicated that the median and mean durations of an LCIA arbitration are 16 and 20 months respectively. Continue reading
In the past 20 years, offshore firms and investors have piled into emerging markets. In many cases, these offshore investors enter into a partnership or joint venture with a local entity for regulatory or commercial reasons, and the relevant partnership or investment agreements often contain arbitration clauses, particularly in Asia Pacific, because of concerns with the reliability of many local courts and the difficulty with enforcing foreign court judgments. By contrast, a large majority of developing states are amongst the 156 state parties to the New York Convention of 1958, which grants recognition and enforcement of arbitral awards made in other contracting states. Continue reading
The decision of the International Centre for Settlement of Investment Disputes (ICSID) tribunal in the RREEF v Spain energy dispute has recently been published, and with it, a yet further analysis of the relationship between the EU and intra-EU investment treaties (specifically, the Energy Charter Treaty). The RREEF proceedings represent one of around 30 arbitrations arising from reforms to the Spanish renewable energy sector. (Such claims are, it seems, the reason for Western Europe being the most-sued region in 2015, according to ICSID statistics.) Continue reading
The International Chamber of Commerce (ICC) is experiencing an increasing number of arbitrations where one of the parties, and more significantly the claimant, is from Sub-Saharan Africa. The range of disputes is broadening from resource extraction to major infrastructure projects, farming and even football. There is a strong correlation between the growth in external investment development and the growth in arbitration. However there are structural and cultural challenges. On 29 June 2016, Tunde Ogunseitan, Counsel at the ICC, Olasupo Shasore, former Attorney General and Commissioner for Justice, Lagos State, and Julius Nkafu, barrister, met to discuss the opportunities and challenges for international arbitration in Sub-Saharan Africa. Continue reading
In Switzerland, the relationship between international arbitration law and human rights has attracted a growing amount of interest over the past few years. However, in practice, human rights issues have been relatively slow to arise in the international arbitration context. Continue reading