The year 2022 seems to have passed in a flash, but not without bringing some exciting developments for the arbitration scene in Southeast Asia. From the Southeast Asia editorial team, here are some of the past year’s highlights.   Developments in the law and jurisprudence Contributors to the Kluwer Arbitration Blog critically analysed the Singapore…

The differences between admissibility and jurisdiction in arbitration have been recognized in various jurisdictions, such as the UK, US and Singapore, and they have been covered extensively in academic scholarship. This post will discuss the distinctions drawn between admissibility and jurisdiction by the Court of Appeal in Hong Kong in C v D.1)[2022] HKCA 729;…

Following a fruitful 2020, 2021 also brought some noteworthy developments in France, that this post proposes to review on a general level. Overall, the Paris Court of Appeal (“the Court”) seems to have taken a slightly more exigent approach towards arbitration this year, while the Cour de cassation has overturned regrettable decisions. Admissibility and Waiver…

The distinction between jurisdiction and admissibility (the “Distinction”) has important consequences in international arbitration. Chief among these is the determination of the permissible extent of a national court’s intervention regarding a final award;1)Gretta Walters, “Fitting a Square Peg into a Round Hole: Do Res Judicata Challenges in International Arbitration Constitute Jurisdictional or Admissibility Problems?” (2012)…

Arbitration agreements often provide that certain procedural steps must be undertaken before arbitration is commenced, such as mediation or negotiation. This provides a ‘cooling-off period’ in which the parties can seek to resolve their dispute amicably before resorting to formal proceedings. When a party fails to satisfy a pre-arbitration procedural step and launches prematurely into…

A common issue in commercial contracts across a range of industries is whether a claimant’s failure to comply with the provisions of a dispute resolution clause gives rise to an issue of admissibility or jurisdiction. There have been a range of recent decisions from across the globe ruling on this very question, with all of…

The Achmea saga has taken yet another twist. In a recent communication to the Dutch Parliament, the Dutch Ministry of Economic Affairs and Climate disclosed that it initiated “anti-arbitration” proceedings before the German courts on 11 May 2021 to “avert” two ECT-based ICSID arbitrations brought against it by the German energy companies RWE and Uniper (“Communication”)….

An emerging consideration in international arbitration is the use of evidence acquired illegally. Illegally obtained evidence can take a variety of forms, including, for example, illicit recordings, information obtained by trespass, and ‘hacked evidence’. ‘Hacked evidence’ refers to materials obtained through unauthorised access to an electronic system (either directly or through a third party), and…

In BBA and others v BAZ and another appeal [2020] SGCA 53, the Singapore Court of Appeal (“SGCA”), in refusing to set aside an arbitral award, held that issues of time bar which arise from the expiry of statutory limitation periods go towards admissibility and not jurisdiction. Such issues cannot therefore be reviewed de novo…

With the increase of cyber-attacks, arbitral tribunals face the question whether to accept evidence obtained via such an unlawful breach. The question even found its way to this year’s Vis Moot problem, confirming the timeliness and need for a debate on a global level. Current Framework on Admissibility of Evidence An arbitral tribunal is not…

Pre-arbitration procedural requirements come into operation before the commencement of arbitration proceedings where parties have agreed on a multi-tiered dispute resolution mechanism. They are especially common in construction and engineering contracts. The Islamabad High Court (IHC) in Pakistan has addressed issues related to the nature of these requirements and consequences of non-compliance in its recent…

Investor-state tribunals frequently face allegations of economic crimes, especially in jurisdictions with a weak rule of law. For instance, the largest ever investor–State award of $50 billion in Yukos v Russian Federation, primarily concerned a criminal investigation of alleged tax evasion, fraud and embezzlement by what was then the largest Russian oil company. The tribunal…

This post gives a bird’s eye view of an   imminent investment arbitration and forecasts procedural and/or jurisdictional hurdles to the case, by analyzing the dispute resolution provision and relevant precedents, with the intention of highlighting recurring inconsistencies on a key procedural issue and urging for more predictable outcomes for the benefits of the stakeholders in…

The new arbitration rules of the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC Rules” or “Rules”) entered into force on 1 January 2017. These Rules introduced a new procedure in Article 39 that is, in fact, uncommon to most of the renowned arbitration rules, including the ICC Rules of Arbitration (2012), the LCIA…

The situation that the Bundesgerichtshof was recently faced with in a case is not uncommon: whilst a state court still reviews an arbitral tribunal’s preliminary ruling on its competence, the arbitral tribunal delivers its final award on the merits. This raises one question: What are the implications for the pending challenge to jurisdiction? In previous…

Introduction On 12 July 2016, a five-member arbitral tribunal (the Tribunal) constituted under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) issued its long-awaited award on the merits in an arbitration brought by the Philippines against China. The tribunal’s jurisdiction is derived from UNCLOS; all State parties to UNCLOS…

The recently published Philipp Morris v Australia award concerning Australia’s plain packaging of cigarettes legislation contains important indications regarding the conditions for the timely structuring of investments in order to be able to initiate investment arbitration proceedings. Background of the case Philip Morris International (PMI), a company incorporated in New York, produces cigarettes and owns…

Drafted by HSF Partner, Mathias Wittinghofer, and Associates, Tilmann Hertel and Nils Kupka, from HSF’s Frankfurt office In 1999 Germany adopted the UNCITRAL Model law on International Commercial Arbitration (“ML”), but with a material addition: German law stipulates that prior to the constitution of the arbitral tribunal an application can be made to a German…

The so-called Jnah v. Marriott saga belongs to the category of cases that are seemingly never-ending. It is telling that the contracts which gave rise to the various disputes between the Lebanese company Jnah Development SAL (“Jnah”) and the US company Marriott International Hotels Inc. (“Marriott”) were concluded in 1994. On 18 March 2015, the…