As COVID-19 swept the world, and face-to-face meetings have diminished, the legal profession was forced to adapt. For arbitration, this has resulted in a new way of virtually conducting oral hearings. Continue reading →
The global health crisis caused by the COVID-19 pandemic not only stretches health systems beyond their maximum capacities, but the pandemic is also causing an economic crisis that could exceed the magnitude of the Great Depression. Continue reading →
Generally speaking, commercial arbitrations which are seated in England and Wales must be conducted as expeditiously as possible. However, as well-intentioned as the tribunal and parties may be, COVID-19 continues to cause much delay in the conduct of international arbitration. Since the pandemic began, legal counsel have been fielding and responding to requests for delay and alterations to the regular procedure of ongoing arbitrations. This post doesn’t seek to express a view on the merits of such applications but attempts to shine a light on the kinds of applications that practitioners are now facing on a day-to-day basis.
Arbitrating commercial disputes has often been considered an agile resolution process, and the reaction of arbitral institutions to the disruption caused by the COVID-19pandemic has been further evidence of this. However, as the economic impact of the lockdown begins to take its toll, companies and their legal teams will be looking to achieve cost and time efficiency in the conduct and management of commercial disputes. In-house lawyers, under pressure to keep costs down, will watch with interest to see whether the emergence of alternative, more digitised and expedited arbitration services will create a new landscape for arbitration.
How pro-arbitration are the courts of England and Wales? How pro-arbitration should they be? A recent decision of the Court of Appeal indicates that the answer to both questions is “very much”. The decision, and the proceedings which led to them, illustrate just how far the system encourages arbitration now. Continue reading →
It is always tempting for a party to a dispute to reach for a freezing injunction in order to protect assets, whether the matter is being arbitrated or is before the courts. However, as illustrated in Petrochemical v PSB Alpha, the risk of dissipation must be unjustified and there must be a sufficient link to the jurisdiction to warrant granting of the order. Petrochemical gives us an insight into what constitutes justifiable, as well as the standard for satisfying a sufficient connection to the jurisdiction when there is a contemporaneous trial in another jurisdiction. Continue reading →
This step does not come as a surprise, in light of the fact that the vast majority of EU member states issued ajoint declaration, on 15 January 2019, on the legal consequences of the judgment of the Court of Justice of the European Union (ECJ) in Achmea and on investment protection in the EU. The declaration proclaimed the intention to terminate their existing intra-EU BITs. The member states reportedly agreed on a draft in October 2019, which was later published by the EU in November 2019.
In a recently published ruling (see Loralia Group LLC v Landen Saudi Company), the Dubai International Financial Centre (DIFC) Court of First Instance (DIFCCFI) contemplated the application of UAE public policy within the meaning of articles 41(2)(b)(iii) and 44(1)(b)(vii) of the DIFC Arbitration Law (see DIFC Law No. 1 of 2008 on Arbitration). These articles encapsulate the public policy exception as a ground for challenging or refusing to enforce an arbitral award rendered in the DIFC. More specifically, article 41(2)(b)(iii) empowers the DIFC courts to nullify or set aside an award that “is in conflict with the public policy of the UAE”, whereas article 44(1)(b)(vii) provides a corresponding tool to the DIFC courts to refuse enforcement for violation of that same public policy. Importantly, the public policy concerned here is that of the UAE, and as such suggests that the public policy applicable in the DIFC is identical to the public policy applicable onshore. Albeit that the ruling under discussion appears to confirm as much, it suggests that even though UAE public policy is identical as a concept and in content onshore and offshore, it might apply differently in the DIFC.