REUTERS |
February 19, 2016

Key points from EFILA’s 2nd Annual Conference

At the 2nd Annual Conference of the European Federation for Investment Law and Arbitration (EFILA) which was held in Paris on 5 February 2016, investment arbitration experts discussed current issues of investment arbitration and the way forward.

More than 100 investment arbitration experts, ranging from policy makers and academics, to counsel and arbitrators, discussed a whole array of topics, such as the current critical debate against investor-State arbitration (ISDS) in Europe, the role of third party funders, and the European Commission’s proposal for an “international investment court” (ICS). This blog post highlights key themes discussed at the conference. Continue reading →

REUTERS | Hannibal Hanschke
February 16, 2016

Seeking a second bite at the apple in setting aside proceedings: Swiss Supreme Court voices concern and sets the record straight

An oft-cited advantage of arbitration is the finality of the process: arbitration is a one-stop dispute resolution mechanism, subject to the (usually) limited grounds under which an award may be challenged at the seat of the arbitration. The attractiveness (and suitability) of a country as a seat for international arbitration depends, amongst other things, on the extent to which an arbitral award is subject to judicial review by the courts of the country where that award was made. Continue reading →

REUTERS | Shutterstock
February 15, 2016

Arbitration finance: Show me the settlement strategy

Counsel, institutions and tribunals must bring settlement/ADR firmly within the arbitration process in order to satisfy clients and reduce third-party funding costs

In the latter half of 2015, the Queen Mary/White & Case International Arbitration Survey 2015 re-confirmed international arbitration as the primary way to resolve cross-border disputes. Whilst its best feature remains the international enforceability of awards, users are concerned that it costs too much and takes too long. In seeking ways to address these issues, the survey asked users to state what arbitration lawyers can do better. In-house counsel voted resoundingly for arbitration counsel to do more to encourage settlement of disputes in the course of arbitration.

It might interest readers to know that arbitration funders, who want to see arbitration counsel demonstrate a robust settlement strategy as part of their overall dispute resolution plan, share this sentiment.

Tribunals and institutions should complement the call for arbitration counsel to do more to encourage settlement by imposing costs consequences in the costs award. Continue reading →

REUTERS | Ina Fassbender
February 12, 2016

An interview with Meg Kinnear, Secretary General of ICSID: part 4/4: topical issues in ICSID arbitration

Our interview series on the Practical Law Arbitration blog continues with part 4 of my interview with Meg Kinnear, who since 2008, has been the Secretary General of the International Centre for Settlement of Investment Disputes (ICSID) at the World Bank.

In part 1 of the interview, Meg talked about her background and role at ICSID. In part 2, she focused on elements of ICSID procedure and in part 3 she considered changes to ICSID arbitration procedure. Finally, in part 4 Meg considers current topical issues in ICSID arbitration, such as the EU proposal for reformed ISDS provisions, transparency rules and third party funding. Continue reading →

REUTERS | David Mdzinarishvili
February 10, 2016

Limits of the automatic stay in arbitration under Article 20.1 of the Model Law on Cross-Border Insolvency

Article 20.1(a) of the UNCITRAL Model Law on Cross-Border Insolvency (the Insolvency Model Law) provides for an automatic stay of proceedings in England where a foreign proceeding is recognised as a foreign main proceeding for the purposes of the Model Law. In practical terms, this means that an arbitration seated in England will be automatically stayed where one of the parties (usually, the respondent) obtains recognition in England of a foreign insolvency process. An automatic stay is a powerful weapon because it immediately stays an arbitration, potentially on an indefinite basis. This can be particularly frustrating where the final hearing is only days or weeks away and the claimant has already incurred significant costs and efforts in pursuing the arbitration. What then can a party do when faced with an automatic stay, if it wants to proceed with the arbitration? Continue reading →

REUTERS | Regis Duvignau
February 9, 2016

An interview with Meg Kinnear, Secretary General of ICSID: part 3/4: Changes to ICSID arbitration procedure

Our interview series on the Practical Law Arbitration blog continues with part 3 of my interview with Meg Kinnear, who since 2008, has been the Secretary General of the International Centre for Settlement of Investment Disputes (ICSID) at the World Bank.

In part 1 of the interview, Meg talked about her background and role at ICSID. In part 2, she focused on elements of ICSID procedure and in part 3 she considers changes to ICSID arbitration procedure. Finally, in part 4 Meg considers current topical issues in ICSID arbitration, such as the EU proposal for reformed ISDS provisions, transparency rules and third party funding. Continue reading →

REUTERS | Pichi Chuang
February 3, 2016

Managing expectations: Looking ahead in 2016

A number of years ago, in the middle of a small loch, the kayak I was manning capsized, plunging me into the murky depths of muddy weeds and foul water. Ever since, because of the unique way in which my craft crashed down upon me, I have had to put up with a left shoulder that crunches when I move my arm. Suffice it to say, had I known what to expect when I set off, I would have at least hesitated. Admittedly, this lesson in preparedness came quite late in my life, but at least I do now appreciate the advisability of thinking ahead. As such, and in a similar vein, Practical Law Arbitration has been looking ahead and anticipating what arbitration-related developments are expected in 2016 and beyond. Continue reading →

REUTERS | Corbis
February 3, 2016

An interview with Meg Kinnear, Secretary General of ICSID: part 2/4: ICSID arbitration procedure

Our interview series on the Practical Law Arbitration blog continues with part 2 of my interview with Meg Kinnear, who since 2008, has been the Secretary General of the International Centre for Settlement of Investment Disputes (ICSID) at the World Bank.

In part 1 of the interview, Meg talked about her background and role at ICSID. In part 2, she focuses on elements of ICSID procedure and in part 3 considers changes to ICSID arbitration procedure. Finally, in part 4 Meg considers current topical issues in ICSID arbitration, such as the EU proposal for reformed ISDS provisions, transparency rules and third party funding. Continue reading →

REUTERS | Corbis
February 2, 2016

The Fourth Arbitrator: BLP arbitration survey on the use of tribunal secretaries in international arbitration

The Fourth Arbitrator

As illustrated by the Yukos arbitrations, the use of tribunal secretaries in international commercial arbitration is under scrutiny. Should a tribunal secretary be permitted to become ‘the Fourth Arbitrator’ because the work he or she carries out has the potential to influence the outcome? What can be done to guard against this? Continue reading →