Three recent decisions of the Courts of Appeal in Singapore and England (BNA v BNB and another [2019] SGCA 84 (“BNA v BNB”); Kabab-JI S.A.L v Kout Food Group [2020] EWCA Civ 6 (“Kabab v Kout”); and Enka Insaat Ve Sanayi A.S. v OOO “Insurance Company Chubb” and others [2020] EWCA Civ 574 (“Enka v…

While the hurdles of virtual hearings have been documented with numerous intelligible solutions, little attention has been turned towards how advocacy is faring in the offline-online migration. It is an attractive notion to think that advocacy, in its subjective glory, can be seamlessly transplanted from the offline world and into the virtual dimension with little…

Mr. Schiefelbein, welcome to the Kluwer Arbitration Blog!  We are grateful to have the opportunity to share your unique perspectives with our readers. Please give our readers a brief introduction to yourself and your route to becoming CEO of the SVAMC. Following law school I was in the United States Air Force Judge Advocate General’s…

“When written in Chinese, the word ‘crisis’ is composed of two characters. One represents danger and the other represents opportunity.” (John F. Kennedy, Former US President). The current Covid-19 pandemic has wreaked havoc globally impacting people in grievous ways. The resultant containment measures by governments have severely limited or otherwise rendered physical interactions impossible. As…

Arbitral awards can be annulled on exhaustive grounds prescribed in the lex arbitri. Under UNCITRAL Model Law Art. 34/2/a/iii an award can be challenged, if arbitrators award differently than the submissions of the parties (ultra or extra petita). In a recent judgment, the Swiss Federal Supreme Court (hereafter “SFSC”) partially annulled an ICC-award on extra petita (4A_294/2019), as the…

Amid the rise of arbitration-friendly regimes, Malaysia has emerged as one of the preferred seats of arbitration in Asia. Several coordinated factors support Malaysia’s emergence as a pro-arbitration jurisdiction. These include significant amendments to the Arbitration Act 2005 (the “Act”), the pro-arbitration position taken by the Malaysian Judiciary, and the rise of the Asian International…

With a feature presentation on “Major Milestones in Canadian Arbitration Law”, the Canadian Journal of Commercial Arbitration launched last week before an online audience of several hundred arbitration practitioners, scholars, and students from around the world. “Our aspiration for the Journal is to contribute materially to bringing together, and strengthening the professional bond, among all…

On June 26, 2020, the Supreme Court of Canada (“SCC”) released a decision with significant implications for international businesses by placing significant limits on the application of arbitration clauses.   Background The case, Uber Technologies Inc. v Heller (2020 SCC 16 ) (“Heller”), involved a challenge to Uber’s standard agreement with drivers requiring disputes to…

The Status of Art Arbitrations in India As per a 2018 report, the Indian art industry is plagued by legal ambiguities, forgeries and lack of transparency, and infrastructural support, making it a fertile ground for disputes. A steady increase in the number of high-net-worth individuals and a surge in online auctions have contributed to the…

The Crimea crisis has received attention by UNCLOS and investment tribunals, as well as by the Swiss Federal Tribunal in appeals and annulment proceedings. However, their analyses have been limited to jurisdiction. The implicated issue was whether the (bilateral) investment treaties (BIT) of the occupying, and a fortiori annexing, State could be applied extraterritorially. These…

On 19 May 2020 the London Court of International Arbitration (hereinafter the LCIA or the Court) issued its annual casework report for 2019. This paper aims to present and analyse the numbers revealed in the report. The focus will be on the development of international arbitration in terms of market, diversity and inclusion, and applicable…

On June 1, 2020, the United States Supreme Court issued its opinion in GE Energy Power Conversion France SAS v. Outokumpu Stainless USA. The Court held that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) does not prohibit a Contracting State from applying the domestic law doctrine…

The Editorial Board of Kluwer Arbitration Blog announces the opening of the following position with Kluwer Arbitration Blog: Assistant Editor for East and Central Asia.   The Assistant Editor reports directly to the coordinating Associate Editor and is expected to (1) collect, edit and review guest submissions from the designated regions for posting on the…

Throughout this week, our contributors from around the globe have offered insights into the USMCA/CUSMA/T-MEC, which enters into force next week. Our contributors have contextualised USMCA against both regional and global developments. Many of them noted the link between USMCA and NAFTA, between USMCA and regional politics, and between USMCA and broader global trends related…

The investor-state dispute settlement (ISDS) arrangements provided in Chapter 14 of the United States-Mexico-Canada Agreement (USMCA) are a radical shift from those that have been in force for the past 25 years under Chapter 11 of the North American Free Trade Agreement (NAFTA). As explored in Wednesday’s post, Canada has effectively opted-out of ISDS under…

As North America embarks into a post-NAFTA era with the USMCA, it is crucial to analyze the new agreement’s disciplines. The USMCA Investment Chapter, for instance, has been the subject of many articles that have reviewed relevant differences with respect to NAFTA, particularly on investment arbitration. This post will explore the arbitration rules applicable to investment disputes…

The Investment Chapter of the United States-Mexico-Canada Agreement “USMCA,” Chapter 14 has had a controversial trajectory.  Chapter 14 reflects a remarkable evolution in United States (“U.S.”) policy on the protection of its investors and their investments in Canada and Mexico.  It is remarkable because – from 2023 – it will limit the scope of protected…

Amid global economic uncertainty, the years-long project of the United States-Mexico-Canada Agreement (“USMCA”) (also known as “the new-NAFTA” or “NAFTA 2.0”) has finally reached fruition. On March 13, 2020, Canada became the final North American party to ratify the agreement and now the treaty will enter into force on July 1, 2020. Kluwer Arbitration Blog has…

On July 1, 2020, the investment chapter of the North American Free Trade Agreement (NAFTA) expired quietly in its North American home, at the age of 26.  It left behind a generation of investment treaties and investment chapters in free trade agreements that are its direct descendants.  It served as inspiration for many other agreements. …

On July 1, 2020, the United States – Mexico – Canada Agreement (USMCA) will enter into force. Although the media widely refers to the treaty by its American name, USMCA, it also carries two other names: Canada has adopted it as the Canada – United States – Mexico Agreement (CUSMA), while Mexico has settled on…

The filing of new actions continues in the United States District Court for the District of Columbia (“D.D.C.”) to enforce ICSID awards rendered against Spain. The latest petition was filed on April 24, 2020, by Watkins Holdings S.à.r.l. and Watkins (Ned) B.V., both affiliates of the UK company Bridgepoint Advisers Limited, seeking the enforcement of…

The Frankfurt Court of Appeals (Oberlandesgericht) has recently taken the view that the publication of a dissenting opinion by the minority arbitrator violates the procedural ordre public, thus constituting a reason to set aside the arbitral award pursuant to Section 1059 para. 2 no 2 b) of the German Code of Civil Procedure (Zivilprozessordnung, ZPO)….

On 1 May 2020, ICSID and UNCITRAL released the long-awaited Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement (ISDS) (“Draft Code”) as previously reported and discussed. Article 1.1 of the Draft Code provides that it applies to “all persons serving as adjudicators in ISDS proceedings”, defined broadly to include arbitrators, ad hoc committee…

Introduction The use of virtual hearings is not new in international arbitration. However, the COVID-19 pandemic has necessitated, and accelerated, a shift from in-person hearings to virtual hearings. With travel bans in place and no visibility of when countries will open their borders again, in-person hearings will likely be the exception rather than the norm…