Part One of this blog post discussed how uncertainty can arise in determining the Limitations laws that apply in international commercial arbitration proceedings. Part Two will now discuss some potential solutions.   One Solution The United Kingdom modified the traditional common law approach with the enactment of the Foreign Limitation Periods Act 1984 (UK), which…

This two-part blog post discusses applicable limitation laws, i.e., legislation purporting to limit the time period within which claims in international commercial arbitration proceedings must be commenced (Limitation laws). It raises questions regarding how arbitral tribunals ought to decide whether to apply such Limitation laws and whether attempts to classify them as matters of ‘substance’…

This post provides a review of the most noteworthy arbitration-related developments in France in 2022. In a nutshell, last year, French courts consolidated previous approaches and solutions endorsed in 2020 and 2021, and confirmed major developments of French arbitration law.   The Fear of a Substantive Review of Awards by the Annulment Judge Are French…

The landmark decision of the UK Supreme Court (the “Court”) handed down in 2021 in the case Kabab-Ji SAL v. Kout Food Group  has already attracted considerable attention. Thus far comments focused on the Court’s construction of the New York Convention of 1958. Yet, the decision deserves a second look – which this post aims…

An arbitrator’s authority to rely on a law that was not pleaded by the parties has been the subject of extensive discussions in the literature. Anecdotal evidence suggests that civil law jurisdictions broadly tend to adopt a more liberal approach to recognizing such authority in international arbitration, while common law jurisdictions, on the other hand,…

The epic finale of the Kabab-Ji saga has arrived.  On 28 September 2022, the French Court of Cassation has delivered its long-awaited decision in Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) (Court of Cassation, Appeal No. 20-20.260) less than a year following the United Kingdom Supreme Court’s (UK SC) final say in the case’s…

As part of the 2022 Paris Arbitration Week, several sessions were held in (relation to) the metaverse. This post provides an overview of the discussions held by the third panel during the 6th ICC European Conference (“Debate on Metaverse: Will Arbitration be the Arena of Web 3.0 Conflict? A Dispute Resolution Minefield Coming from the…

Although Taiwan’s legislative and judicial practices already conform to the spirit of the New York Convention (“Convention”) and the Model Law, it appears that non-Taiwanese parties nevertheless remain hesitant to arbitrate in Taiwan. The necessity of becoming a Model Law jurisdiction arises from Taiwan’s inability to accede to the New York Convention. Hence an institutional…

On 21 April 2021, the CIArb’s London Branch hosted its annual Keynote Speech, which was held online this year. In her speech on “The Proper Law of the Arbitration Agreement”, Professor Dr. Maxi Scherer discussed the different approaches taken by jurisdictions worldwide in determining the law governing the arbitration agreement. She further compared those approaches…

The doctrine of separability of arbitration agreements recognises that an arbitration clause contained in a broader agreement is separate and valid despite the invalidity of the rest of the agreement. The doctrine also raises a fundamental question: what is the governing law of the separable arbitration agreement as compared to the remainder of the contract…

2020 saw important case law developments concerning the proper law of arbitration agreements, where the seat of the arbitration is in a different jurisdiction from the governing law of the main contract, particularly in the UK. However, various jurisdictions have adopted different approaches to this issue. It remains to be seen which jurisdictions will follow…

In a recent judgement in the proceedings for setting aside an arbitral award, the Swedish Court of Appeal addressed issues concerning the law applicable to an arbitration agreement, the validity of an arbitration agreement, the due process standard applicable in cross-examination, and the procedural error of rendering an award without considering all the arguments raised…

Almost a decade after the Dallah saga, the French and English courts are once again considering the enforcement of the same award yet reaching conflicting solutions. On 29 March 2019, the High Court of England and Wales, followed on 20 January 2020 by the England and Wales Court of Appeal both refused to enforce an…

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…

In a recent decision in XPL Engineering ltd. v. K & J Townmore Construction ltd. [2019] IEHC 665, the Irish High Court decided to refer a construction dispute to arbitration on an application by the defendant, K & J Townmore Construction Ltd, for an order under Article 8 (1) of the UNCITRAL Model Law referring…

The year 2020 marks the 40th anniversary of the United Nations Convention on Contracts for the International Sale of Goods (CISG), one of the most important substantive instruments in international commercial law. To celebrate this occasion, the ICDR Young and International (Y&I) group and NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law organized a…

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…

Introduction The United States announced the reinstatement of sanctions on Iran in May 2018. Following that, the EU responded by revising their Blocking Regulation (Regulation 2271/96) in August 2018. The Blocking Regulation was designed to safeguard European entities from the extraterritorial reach of the U.S. sanctions. The uncertainty surrounding the scope of application and the nature of blocking…

When a party seeks to challenge the jurisdiction of the arbitral tribunal on the basis of the substantive invalidity of the arbitration agreement, the proper law of the arbitration agreement governs the inquiry. The prevailing approach adopted to determine the proper law of the arbitration agreement is the three-stage choice-of-law analysis set out in Sulamérica…

The Guide on the Law Applicable to International Commercial Contracts in the Americas (the “Guide”) was recently approved by Resolution 249 of 2019 of the Inter-American Juridical Committee (CJI) of the Organization of American States (OAS). The instrument particularly takes into account the OAS Mexico Convention of 1994 “on the law applicable to international contracts”…

Tribunal Directions re GDPR in Tennant Energy vs. Canada A NAFTA tribunal in the Tennant Energy vs. Canada case recently issued directions by email to the parties stating that “the Tribunal finds that an arbitration under NAFTA Chapter 11, a treaty to which neither the European Union nor its Member States are party, does not,…

Introduction Nearly 20 years after the enactment of the Swedish Arbitration Act of 1999, a revised version of the Swedish Arbitration Act entered into force on March 1st, 2019.1) See also here (reporting on the background and process of revising the Swedish Arbitration Act). As addressed below, this update enacts improvements to Sweden’s former arbitration law,…

Introduction In order to conclude an enforceable arbitration agreement, various validity conditions are required. The authority of the signatory agent to conclude an arbitration agreement on behalf of the principal is one of these requirements. In some jurisdictions, an explicit/specific authority is also required. An agent authorized with a general power of attorney, but without…

It’s been decades since arbitration has started its emancipation from conflict of laws rules (private international law). Many were of the opinion, and still are, that conflict of laws rules are an undesirable straitjacket forcing the arbitral tribunal to determine the applicable law according to rigid and complicated rules and thus hindering it from considering…