Introduction Whenever the court is confronted with the task to determine the governing law of an arbitration agreement on the basis of knowing only (1) the stipulated governing law of the main contract and (2) the seat, a three-folded test will be applied. It enquires into (i) express choice, (ii) implied choice and (iii) closest…

In the last few years, the international arbitration community has started to engage in discussions on the digital transformation of dispute resolution and on artificial intelligence (also on this blog). Scholars and arbitration practitioners have been speculating on how artificial intelligence might be used in arbitral proceedings and the potential impact it might have on…

Introduction On the 18th of February, the Court of Appeal in The Hague reversed the lower court’s decision annulling the awards rendered against the Russian Federation in Veteran Petroleum Ltd., Yukos Universal Ltd. and Hulley Enterprises Ltd. cases. The awards are thus revived. Notwithstanding the global notoriety and public controversy, the identity of the protagonists,…

On 20 January 2020, the Court of Appeal delivered its judgment in Kabab-Ji SAL (Lebanon) v. Kout Food Group (Kuwait) [2020] EWCA Civ 6. This post will focus on the Court’s findings on “no oral modification” (“NOM”) clauses and the impact that such clauses have on whether non-signatories to a commercial contract can be bound…

In a decision likely to enthuse investors willing to enforce intra-EU ICSID awards in the UK, the UK Supreme Court unanimously held yesterday that the UK’s enforcement obligations under the ICSID Convention could not be affected by the EU duty of sincere co-operation (in this case, the question of whether the award obtained by the…

It would be difficult not to have encountered at least one arbitration event in the past year where data protection or cybersecurity was discussed. As these discussions become more frequent, one may wonder: what are the practical implications of data privacy and cybersecurity on the actual conduct of international arbitrations? This was what the Singapore…

A 3-day International Conference on Construction Law & Arbitration was held in December 2019 in New Delhi, co-hosted by the Society of Construction Law-India and the Chartered Institute of Arbitrators-India. During the course of their presentations, the panelists discussed various topics ranging from trends in construction law in the context of arbitration across global jurisdictions…

The award in Serafín García Armas and others v. Venezuela (PCA Case No.2013-3) (administered under the 1976 UNCITRAL Rules) was released in April 2019. This post refers to two decisions by Mr. Hugo Siblesz on challenges brought by Venezuela to the claimants’ appointment of Prof. Guido Tawil as party-appointed arbitrator. Mr. Siblesz was acting in…

Amid the celebrations that accompanied the conclusion on 14 July 2015 of the Joint Comprehensive Plan of Action (JCPOA) between the E3/EU+3 (China, France, Germany, Russia, the UK and the U.S., with the EU Commission) and Iran, few observers paid attention to the Dispute Resolution Mechanism (DRM) embedded in two paragraphs, ¶¶ 36 and 37,…

“the money’s not about the money…The key to settlement lay not in the realm of calculation and rationality but in the more opaque social world of face, punishment, justice and emotion.” Charlie Irvine in Not about the money? The end of 2019 and the start of 2020 offered a rich variety of posts on the…

The automatic stay provisions in the Indian arbitration regime have been a matter of a long debate. At first blush, the automatic stay seems like the perfect protection mechanism for any award debtor; however, it often puts the award creditor in a difficult spot. Arbitral awards rarely go unchallenged in India. The automatic stay provision…

Since 2014, the Casablanca Arbitration Days (CAD) have no doubt become one of the most attended arbitration-related events in Africa. Organized on 5-6 December 2019 at Kenzi Tower Hotel Casablanca by the Casablanca International Mediation and Arbitration Centre (CIMAC), this year marked the fifth edition of CAD under the topic ‘Investing and Doing Business in…

In a ruling of 11 December 2019 (see Cassation No. 8/2019 (JT) – Al Taena: AF Construction Company LLC (formerly Al Futtaim Carillion – Abu Dhabi LLC v. Power Transmission Gulf), the Dubai-DIFC Joint Judicial Tribunal, also commonly known as the “Judicial Tribunal” or simply the “JT”, was required to deal with the conflicting jurisdiction…

Amazon founder Jeff Bezos on his recent visit to India in January 2020 remarked that the 21st century belongs to India. If that is true, it would also mean a flurry of disputes involving some Indian angle are inevitable and will keep the arbitration industry busy. Thus, even though 2019 may have drawn curtains over…

“Recourse to arbitration has now become a right of the competent ministry with the agreement of the Ministry of Finance. Whereas recourse to arbitration was previously an exception, now, this is a clear confirmation by the government of the importance of arbitration and the government’s commitment to participate in more rapid, cost-effective litigation.” – Saudi…

As UNCITRAL Working Group III is proceeding to address concrete proposals to reform treaty-based investor-state arbitration, the future of investor-state dispute settlement (ISDS) is at a historic juncture. Reform proposals include both incremental changes to investor-state arbitration and proposals for further institutionalization, such as the call of the European Union (EU) to establish a Multilateral…

This is the 1st part of the report highlighting the most significant arbitration related decisions of the Swiss Federal Supreme Court (the “Supreme Court”) issued in 2019.   Arbitrability In the decisions 4A_244/2019 and 4A_246/2019 of 12 December 2019, the Supreme Court dealt with the issue of arbitrability. In two arbitrations brought before a tribunal…

This is the 2nd part of the report highlighting the most significant arbitration related decisions of the Swiss Federal Supreme Court (the “Supreme Court”) issued in 2019.   Ne Eat Arbiter Extra Petita In the decision 4A_294/2019 / 4A_296/2019 of 13 November 2019, the Supreme Court dealt with an extra petita appeal against an ICC-award….

Several developments in 2019 highlighted the increased presence of human rights considerations in international investment law. As described by our contributors, however, tensions persist. The 2019 Netherlands Model Agreement, released in March, represented a notably progressive approach to reflecting human rights considerations in foreign investment, as explained by our contributors. This development builds on related…

The Finland Chamber of Commerce has recently revised its Arbitration Rules and the Rules for Expedited Arbitration to address the growing demands of the competitive world of commercial arbitration, as reported by the Arbitration Institute of the Finland Chamber of Commerce ( “FAI” or the “Institute”) in its article from December 2019. The revised Rules,…

Questioning About the (Inexorable?) Future Could artificial intelligence (AI) carry out decision-making? Is it just a matter of time? Will AI replace human arbitrators? Further, will emotional intelligence always trump AI, or will AI enhance the arbitral process? Despite the topicality of the subject, the arbitration rules remain silent about AI. However, there is also…

2019 was an important year for international arbitration developments in the United States, both in the commercial and investment context.  Some of the more far-reaching developments included the deepening circuit court split on whether “manifest disregard” of the law is a grounds to refuse enforcement of an award, the first U.S. Court of Appeals decision…

We are happy to inform you that the latest issue of the journal is now available and includes the following contributions:   Markus PETSCHE, Restrictive Interpretation of Investment Treaties: A Critical Analysis of Arbitral Case Law This article critically discusses the recourse to the principle of restrictive interpretation (in dubio mitius) by treaty-based investor-state arbitral…

Introduction The Society of Construction Law India and the Chartered Institute of Arbitrators India Branch together held an International Conference on Construction Law and Arbitration in New Delhi, India in December, 2019. The conference was well attended by practitioners and participants from various jurisdictions.  Needless to say, the construction industry is one of the fastest…