Background There is much public discourse on the impact of the ongoing pandemic on international arbitrations. Commentators and scholars have provided perspectives on how to navigate and find safe harbours in the uncharted waters of COVID-19. In the “new normal” of wide-ranging travel advisories and restrictions, there is an emerging consensus to better integrate the…

During a vivid “virtual” presentation delivered by the well-known arbitrator, professor and practitioner, Gary Born, the topic of virtual hearings was addressed. Another well-known international arbitrator, Elena Gutierrez García and the President of the AMCHAM-Peru Arbitration Center, José Daniel Amado, moderated the discussion. At the outset, Mr. Born clarified that virtual hearings are not a…

Since 2017, the appointment of members of the Appellate Body (‘AB’) of the Dispute settlement system of the World Trade Organisation (‘WTO’) has been blocked by the United States (‘US’). This has disrupted the functioning of the WTO dispute settlement system. The US claims that it has blocked the appointment for serious reasons: the AB…

Ahead of the thirty-ninth session of UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), the General Assembly Secretariat issued a note on issues to be considered on the topic of security for costs and frivolous claims. Averting frivolous claims has been a recurring topic in the ISDS debate over the past years, not least in…

One of the topics on the agenda of UNCITRAL Working Group III is the establishment of an Appellate Court system. The system of investor-State dispute resolution therefore now faces the fact that WG III is considering, among other matters, the following: the repeal of local law governing the setting aside of an UNCITRAL award giving…

Arbitrators under the Crossfire While investor-state dispute settlement (ISDS) was created with the purported goal of depoliticizing investment disputes, it is currently at the centre of heated political debates. Investment arbitration follows the commercial arbitration paradigm, with disputing parties playing a direct role in the composition of the tribunal. This is perceived as a tool…

Next week was due to be the 39th session of the United Nations Commission on International Trade Law’s (UNCITRAL) Working Group III, and its sixth session considering the issue of reform to investor-State dispute settlement (‘ISDS’). The session has since been postponed indefinitely, in light of the current global COVID-19 pandemic. In lieu of Working…

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….

Polish civil procedure is in the midst of a very significant makeover. The bulk of amendments came into effect on 7 November 2019 (the Polish version of the amending act to the Polish Code of Civil Procedure (CCP) is available here). This blog post discusses the nature of those amendments and their significance for arbitration….

2019 has been a busy year for international arbitration in Sub-Saharan Africa. Indeed, the year has brought an interesting wave of precedents, new domestic statutes, modern international investment agreements, and arbitration events. This post highlights and summarises some of the African developments covered in the Blog in 2019, with many thanks to the authors who…

Under French law, the principle is that both a request to set aside an award and an appeal of a decision upholding enforcement (ordonnance d’exequatur) have no suspensive effect (Article 1526(1) of the Code of Civil Procedure, ‘CCP’), so that an international arbitral award is immediately enforceable. However, as an exception, stay or adjustment of…

Arbitrators’ civil liability is not a topic that everyone within the arbitration community enjoys discussing. Therefore, it is not surprising that the approach to the concept of liability differs within the arbitration community. In cases where someone may face civil liability, the possibility to insure such risk arises. This blog post, therefore, will deal with…

Essential Role of Effective Case Management in Arbitration Throughout the second half of the 20th century, arbitration has become a dominant and preferred method for resolving international disputes. Its advantages are widely known. This being said, international arbitration suffers nowadays from increasing costs and duration of the proceedings. It is less efficient than it promises….

In the recent judgment of AIC Limited v The Federal Airports Authority of Nigeria [2019] EWHC 2212, the English High Court adjourned the decision to enforce a Nigerian arbitral award in exercise of its discretion pursuant to section 103(5) of the Arbitration Act 1996 (which gives effect to Article VI of the New York Convention)…

With over $3 billion invested by Vedanta Resources in Zambia since it became a shareholder in Konkola Copper Mines (KCM) in 2004, it is a less optimistic turn of events with Vedanta Resources and fellow shareholder, the government-owned Zambian State Mining Company ZCCM-IH (ZCCM), being at loggerheads in arbitration. In this post, we examine what…

The new EU data protection framework, in particular the General Data Protection Regulation (GDPR) applicable as of May 2018, dramatically shifted the focus of all organizations towards ensuring transparency and accountability in their data processing operations. The broad material scope of GDPR practically affects any private organization and practitioner within the EU. Moreover, in certain…

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,…

The interplay between the principle of party autonomy and procedural flexibility in arbitration greatly accounts for the growth of international arbitration as the preferred method of dispute resolution for cross-border commercial disputes. The growing trend of this preference is reflected in the most recent International Arbitration Survey conducted by the School of International Arbitration at…

States can regulate as part of their sovereignty and can give away a part of their regulatory freedom by making commitments to foreign investors, such as the obligation to compensate investors for expropriation. Unless a treaty removes or modifies a particular norm of international law, international law on expropriation, including customary law, should apply. The…

Background The ICC Commission on Arbitration has recently published a report on Emergency Arbitrator (“EA”) Proceedings (“Report”) that promises to “offer guidance to users, counsel and EAs to facilitate the use of EA proceedings through increased transparency and predictability”. The Report analyses the 80 cases in which the ICC EA procedures have been used in…

On 23 May 2019, the Arbitration Institute of the Finland Chamber of Commerce (FAI) hosted the 15th IFCAI Biennial Conference in Helsinki. The International Federation of Commercial Arbitration Institutions (IFCAI) organises the “IFCAI Biennial Conference” every two years in cooperation with an IFCAI member arbitration institution. This year it was hosted by the FAI in lieu…

The main concerns of parties when considering arbitration are the costs and length of arbitration proceedings (see, e.g., Queen Mary University of London 2018 International Arbitration Survey). The popularity of arbitration as a method of resolving construction disputes thus depends largely on whether costs can be reduced and efficiency maintained. This is particularly the case…

During the London International Dispute Week in May this year (which was covered at the Kluwer Arbitration Blog in depth, see here), a panel on “energy disputes in a disruptive world” focused on the increasing prevalence of claims against energy companies in relation to climate change or for involvement in human rights impacts. I had…