REUTERS | Arnd Wiegmann
March 16, 2016

Third-party funding: a Swiss law perspective

Third-party funding (TPF) has attracted a great deal of attention over the last decade in numerous jurisdictions, including in Switzerland. TPF arrangements are usually motivated by a party’s lack of the necessary funds to commence arbitration proceedings or its desire to outsource the costs of the arbitration and any associated financial risks. The third-party funder will typically earn an agreed percentage (usually ranging between 15−50%) of any award or a success fee if the arbitration is successful. Conversely, the funder will not receive any payment or return of the funds should the arbitration be ultimately unsuccessful. Unlike banks, third-party funders endorse the risk of the arbitration. As such, TPF is stated to be a variation of the “no win, no fee” approach. Continue reading →

REUTERS | Suzanne Plunkett
March 9, 2016

London calling: where and how to resolve disputes

International commercial dispute resolution is big business. Which are the key centres for the resolution of such disputes? Having seen at first hand quite a number of such centres, I am satisfied that London can lay a strong claim to pole position. As I see it, English law (the grandfather of the common law systems) has a big part to play in this, achieving, as it does, a high degree of certainty through decided cases. Continue reading →

REUTERS | Brian Snyder
March 8, 2016

Arbitration in Saudi Arabia: how is it changing?

In this blog, we consider developments in Saudi law in recent years. They suggest that the Kingdom is moving in the right direction in terms of the arbitration of construction disputes, albeit with somewhat tentative steps. With the potential for long term infrastructure development in Saudi, this is a positive sign for foreign businesses entering the Saudi market. Continue reading →

REUTERS | Toby Melville
March 8, 2016

A “Precedent H” for arbitration?

In recent years, following the recommendations of the Jackson Review, the English courts have made significant efforts aimed at reducing the costs of litigation. One of the tools adopted by the English courts is a standard costs budgeting tool, catchily named “Precedent H”, that the parties are required to exchange and file with the court at the very outset of the proceedings. The court will use Precedent H to assess costs at the end of the proceedings. The basic idea is to ensure that the costs of the proceedings are monitored constantly and remain proportionate to the issues in dispute. Whilst the effectiveness and efficiency of this approach remain subject to debate, can arbitration practitioners learn from (and improve on) the English courts’ approach? Continue reading →

REUTERS | Soe Zeya Tun
March 1, 2016

A new arbitration law for Myanmar

A team at Allen & Overy LLP (including myself) was involved in reviewing the Myanmar Arbitration Bill and suggested revisions and commentaries with the aim of bringing the Bill in line with the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration 1985 (as amended in 2006) (the Model Law) and legislation in other arbitration friendly jurisdictions. Continue reading →

REUTERS |
March 1, 2016

Through the looking glass: where will the current drive for transparency in international commercial arbitration end?

In investment treaty arbitration there is a perceived public interest due to the involvement of states and state entities, so openness (including as to party names, publication of decisions, and even pleadings) is the norm. This approach extends to publishing awards on the merits. This is not the case in international commercial arbitration (a dispute resolution process entered into autonomously by private parties). In this arena, the very fact of the dispute itself and the outcome are confidential. Notwithstanding this, users of commercial arbitration increasingly want more information about certain elements of the arbitral process, citing reasons of predictability and certainty. Continue reading →

REUTERS | Stephen Hird
February 26, 2016

The EU flexes its muscles: update on EU foreign investment disputes

On 4 February 2016, the European Commission filed an amicus brief with the US Court of Appeals for the Second Circuit, opposing the enforcement of the controversial International Centre for Settlement of Investment Disputes (ICSID) award against Romania in the Micula case. In its amicus brief, the Commission argued that the award was rendered under an “illegal” treaty and urged the Court of Appeals to overturn a lower court judgment that confirmed the award. Continue reading →

REUTERS |
February 23, 2016

Disclosure and production in arbitration: finding the right framework

Finding the framework

A great attraction of arbitration is that parties have the choice not to litigate their disputes under the document disclosure/production regimes of a particular domestic court. Instead, they can agree (or empower an arbitrator to select) the process. In contrast to processes they are used to, the regime chosen might be narrower in scope (and so quicker and cheaper), or more extensive (with the potential to give them greater access to documents that their opponents control).

Which process should be advocated or selected? In the end, the usual unhelpful if accurate principle applies: it depends on the circumstances of the relationship in play or the dispute that might be anticipated (or already has arisen).

That said, there are some key factors that will inform what framework has to, or should sensibly, be deployed. While the thoughts below are geared towards a situation where parties/their advisors and tribunals are confronted with a choice of the process to advocate or adopt, such thoughts can and should be borne in mind too when parties are negotiating the terms of an arbitration agreement before a dispute has arisen. Continue reading →

REUTERS | Adnan Abidi
February 22, 2016

When a “may” is (almost) a “must” in an arbitration agreement

Critics have lamented that the English courts have not kept pace with trends in the world of arbitration. Any lingering doubts, however, should be quashed by the Privy Council’s decision in Anzen Limited and others v Hermes One Ltd. In Anzen, the court interpreted an optional arbitration clause with the word “may” liberally; granting a stay of litigation proceedings in favour of arbitration even though the applicant itself did not intend to commence an arbitration. Crucially, its decision was underpinned by the reality of commercial parties’ preference for arbitration. Continue reading →