The confidentiality of arbitration proceedings has long been recognised, and indeed this confidentiality is often cited as one of the key advantages of arbitration over litigation in circumstances where parties are keen to keep details of their dispute private. However, there are cases in which confidential materials generated during the course of an arbitration can be used during litigation proceedings, resulting in a loss of confidentiality over those materials. Continue reading
Over the past few decades, we have seen the emergence of a multitude of domestic and regional arbitration centres, set to rival the historical dominance of Europe and the US (and particularly the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA)) as the global hubs for international commercial arbitration. This trend shows no sign of slowing down, with plans for one such Mumbai-based arbitration centre announced earlier this month, and several more in the pipeline. Set against the backdrop of accelerating globalisation, it is hardly surprising that the historical near-monopoly of certain centres sits ill at ease with arbitration’s growing global audience. Yet to what extent have domestic and regional contenders secured a foothold, and what implications does regionalisation hold for the wider market? Continue reading
Between 8 and 11 May 2016, the 23rd Congress of the International Council for Commercial Arbitration (ICCA) will be held in Mauritius, the first time ICCA has held its bi-annual Congress in Africa. The location and theme of the Congress, as well as its VIP speakers, not only reflect the increased importance of international arbitration, both to Africa and the wider business community, but also the need for continued improvement. Will the 23rd ICCA Congress make a serious contribution towards that progress? Continue reading
Summary
Arbitration practitioners tend to think that tolerance of late and untimely submissions is a slightly embarrassing quirk of arbitral procedure. There is an assumption that their colleagues who also practice before domestic courts do not flout procedural timetables so readily (for example, by making last minute submissions after the close of a hearing). The truth is quite different; where they see an opportunity to do so, lawyers before the English courts are just as willing to flout timetables as their colleagues before arbitral tribunals. Although the English courts’ approach does not deal with all the problems thrown up by late submissions, arbitration could incorporate certain features of court litigation, including the principles and jurisprudence that have developed around late submissions and amendments. Parties to an arbitration would be well advised to build a framework for considering late submissions into Procedural Order Number 1 in order to create a robust and predictable means by which to deal with them. Continue reading
For arbitration practitioners around the globe, the International Bar Association Guidelines on Conflicts of Interest in International Arbitration (IBA Guidelines) have become an important tool for ascertaining a potential conflict for an arbitrator. In response to the QMUL 2015 Survey some 71% of arbitrators and practitioners confirmed that they had seen the IBA Guidelines used in practice. Continue reading
In the recent case of Barrier Ltd v Redhall Marine Ltd the court re-visited the rules for deciding whether or not an arbitration clause had been incorporated into the contract, and how the rules differ when you are trying to incorporate a term from a different contract altogether. Continue reading
Currency exchange fluctuations are an inherent risk in international trade and consequently in cross-border disputes. While contractual risks can be taken care of at the time of contracting, disputes will inevitably unfold over a certain (rather unpredictable) period of time. This makes parties particularly vulnerable to developments affecting the value of the currency of the debt. Continue reading
Multi-tier arbitration clauses are commonly found in commercial contracts. In the interest of reducing the costs of resolving a dispute, it is indeed increasingly common for parties to require an obligation to negotiate, explore possibilities of reaching an amicable settlement, or conduct a conciliation, mediation or adjudication, before commencing arbitration. Continue reading
On 1 February 2016, the Singapore International Arbitration Centre (SIAC) announced the upcoming launch of a set of arbitration rules designed specifically for investor-state disputes, and published a first draft for consultation. Produced by a panel of eminent experts, the draft Investment Arbitration Rules 2016 (draft Rules) aim to offer an alternative to the procedural rules most commonly incorporated in international investment agreements (IAAs), such as the International Centre for Settlement of Investment Disputes (ICSID) Rules and the United Nations Commission on International Trade Law (UNCITRAL) Rules. Continue reading
In this year’s Bailii Lecture, Lord Thomas, the Lord Chief Justice of England and Wales, expressed the view that the success of commercial arbitration in London has had an adverse effect on the development of the common law, as many cases that would otherwise have gone to courts instead were resolved through arbitration. He called for a rebalancing of the situation, noting the need for a proper “diet of commercial cases” for the courts, and suggested several potential solutions. One of those possible solutions is a greater use of the procedure under section 45 of the Arbitration Act 1996. Continue reading