Arbitration

Arbitration, Counterclaims, Environment, Investment agreements, Investment Arbitration, Investor-State arbitration

(Twenty Essex) and (King's College London)/ /Leave a comment

The potential clash between protection of investors under investment treaties and protection of the environment has emerged in a number of recent arbitrations. More than 60 investment disputes filed since 2012 have had some environmental component. Amongst them, there have been several cases in which States have sought to enforce environmental law against investors in…

Arbitration, Energy, Energy Charter Treaty, European Commission, Fair and Equitable Treatment, Investment Arbitration, Italy, Legitimate Expectations

(Omnia Strategy LLP)/ /Leave a comment

Introduction The investment solar energy saga triggered by the regulatory reforms in the renewable energy undertaken by Spain and Italy is likely to be the new Black Swan in the investment arbitration world, reaching the importance and controversy of the Argentinian crisis of 2001. In addition, the question whether the ISDS system has learnt the…

Arbitration, Privilege

(Richard Levin Arbitration)/ /2 Comments

The law of privilege as relating to in-house counsel (especially in civil law jurisdictions) is indeed a controversial and much debated issue. Well-spoken advocates from the “internal” as well as “external” bar have written and spoken on this this issue forcefully. In reading DLA Piper’s Legal Professional Privilege Global Guide (2017), it is absolutely mind…

Agency, Arbitration, Austria, New York Convention, Recognition and enforcement of arbitral award

/ /Leave a comment
Schoenherr

On 1 March 2017 the Austrian Supreme Court (Oberster Gerichtshof) ruled on whether potential claims under the Austrian Commercial Agents Act (Handelsvertretergesetz) can be brought before an Austrian court even if the underlying agency agreement contains an arbitration clause and is governed by the laws of New York (OGH 1.3.2017, 5 Ob 72/16y). The judgment…

Arbitration, BIT, Investment Arbitration, Poland

(Kancelaria Adwokacka Adwokat Marcin Orecki)/ /Leave a comment

After a few declarations of intention to terminate BITs (see my previous post), Poland put words into actions. On 18 July 2017, the Polish Government submitted to the Sejm (the lower house of Polish Parliament) a draft law (“Draft Law”, available in Polish here) which empowers the Polish President to unilaterally terminate the Agreement on…

Arbitration, Portugal, Seat of the arbitration

(Abreu Advogados)/ /Leave a comment
Young ICCA

Introduction There are over 250 million people who speak Portuguese, being commonly identified as the sixth most spoken language in the world. It is an official dialect in Angola, Brazil, Cabo-Verde, Equatorial-Guinea, Guinea-Bissau, Macau, Mozambique, Portugal, São-Tomé and Principe and Timor-Leste. Business transactions are entered into daily within a vast territorial space that reaches from…

Arbitration, Arbitration Institutions and Rules, Kazakhstan

(Herbert Smith Freehills)/ /Leave a comment
Herbert Smith Freehills

The President of the Republic of Kazakhstan (President) signed the constitutional law “On the Astana International Financial Centre” (Law) on 7 December 2015, which provides a legal framework for the establishment and operation of the Astana International Financial Centre (AIFC). The launch of the AIFC is part of the President’s “100 Concrete Steps” Plan of…

Arbitration, Confidentiality, Lithuania

(Ellex Valiunas )/ /Leave a comment
Young ICCA

Since 1996, commercial arbitration in Lithuania has been regulated by the Law on Commercial Arbitration which was based on the provisions of the 1985 UNCITRAL Model Law on International Commercial Arbitration. In 2012, the Lithuanian Parliament revised the Law in accordance with the 2006 amendments to the UNCITRAL Model law. Furthermore, in order to emphasize…

Arbitration, Document Production, Evidence

(Bryan Cave Leighton Paisner LLP) and (Bryan Cave)/ /Leave a comment
Bryan Cave Leighton Paisner LLP

The process of document production in international arbitration is important. Documentary evidence is often the primary category of evidence; and legal costs associated with it tend to constitute a significant proportion of the overall costs of arbitral proceedings. Document production may also be one of the very reasons why arbitration has been preferred over litigation….

Arbitration, UNCITRAL, UNIDROIT Principles of International Commercial Contracts

(Universidad Carlos III de Madrid)/ /2 Comments
Institute for Transnational Arbitration (ITA)

The last 40 years or so has experienced increased growth in the number of transactions concluded internationally, departing from classical one-shot contracts such as the simple sale of goods contract. These complex contracts involve in many instances a mix of private and public issues as is seen in regulatory sectors (telecommunications, oil and gas). The…

Arbitral Award, Arbitration, Enforcement, India, Recognition and enforcement of arbitral award

, (Nishith Desai)/ /Leave a comment
YSIAC

India has long been regarded as an unappealing centre for arbitration – be it as the seat of arbitration or as the place of final enforcement of the arbitral award. Indian judiciary is often quoted to be over interfering in matters of arbitration and enforcement. If fact could replace fiction, in the last decade, Shylock…

Arbitration, Counterclaims, Escalation clauses, France

(Gide Loyrette Nouel)/ /Leave a comment

In a judgment of 24 May 2017 (Biogaran v International Drug Development, case n° 15-25.457), the commercial chamber of the French Cour de Cassation (Supreme Court) considered the question of whether a counterclaimant is bound by the requirements of a “multi-tier” dispute resolution clause. The clause in question required the parties to mediate as a…

Arbitral Tribunal, Arbitration, Set aside an arbitral award, South Korea

, (Bae, Kim & Lee LLC)/ /Leave a comment
Bae, Kim & Lee LLC

A recent decision of the Seoul Central District Court provided guidance as to when a party should be considered to have waived its right to object to instances of non-compliance in arbitration proceedings. This post provides a summary of the Court’s judgment case and considers the possible ramifications of the Court’s reasoning for parties involved…

Arbitration, Third party funding

(Armstrong Teasdale)/ /1 Comment

In the middle of uncertainty over the economic implications of a European Union without Britain and against a continuing rise in the popularity of arbitration as an avenue for redress by corporate investors, a round-table discussion at a chambers on third-party funding of disputes on Tuesday 12 July 2017 could not have come at a…

Arbitration, Hong Kong, Third party funding

(Signature Litigation)/ /Leave a comment
HK45

The Hong Kong Legislative Council (LegCo) recently adopted a new law permitting the third party funding of arbitration. This comes as a welcome development, bringing Hong Kong into line with other common law jurisdictions and ensuring that it keeps pace with its international rivals. It also strengthens the position of the Hong Kong International Arbitration…

Arbitration, Enforcement, Interim Award, Interim measures, Interim Orders, interim relief

, (Linklaters)/ /1 Comment
Linklaters

So called “emergency arbitration” is raising considerable interest among international arbitration practitioners, as the importance of this tool aimed at protecting the parties’ rights either during the period between the filing of an arbitration request and the constitution of the arbitral tribunal or in the course of the proceedings, before the award is rendered, is…

Arbitration, Arbitrator Intelligence

(Director Content and Market Development, Wolters Kluwer Legal & Regulatory, International Group)/ /1 Comment

In June 2014, at the ITA Workshop in Dallas, I heard a passionate woman presenting her mission of increasing fairness, transparency, accountability, and diversity in the arbitrator selection process, and how she intended to do this. “I want to support this” is what I thought. Roger Alford was so kind to introduce me to this…

Arbitration, Code of Ethics, Counsel, Counsel conduct

(General Editor, ICCA Publications; Amsterdam Center for International Law, University of Amsterdam)/ /3 Comments
Institute for Transnational Arbitration (ITA)

Who Should Regulate the International Bar? The regulation of professional ethics of the international bar is among the most hotly debated issues in international arbitration (inter-state, investor-state, and commercial). It reflects the regulatory gap that has developed as proceedings before international courts and tribunals have proliferated and counsel diversified. Addressing this issue is crucial, as…

Arbitration, Brexit, European Law, European Union, Investment, Investment agreements, Investment Arbitration, Investment protection, UK

(Notre Dame Law School)/ /Leave a comment

On May 30, 2017, Volterra Fietta and the University of Notre Dame hosted a debate of whether foreign investors can sue the United Kingdom for a hard Brexit. The recorded video is now available for viewing. Markus Burgstaller and I presented the case that foreign investors may have viable claims against the UK, while Jeremy…

ADR, Arbitration, Arbitration Awards, Arbitrator Intelligence, Arbitrators, Global Pound Conference, ICC

(MDisputes) and (International Dispute Resolution)/ /1 Comment

Mark Twain once wrote that a person with a new idea “is a crank until the idea succeeds.”1)Pudd’nhead Wilson’s New Calendar, in Following the Equator (1897). The Merriam Webster dictionary defines “crank” as “an annoyingly eccentric person.” Innovations and new ideas on the verge of implementation seem to arrive almost weekly in international arbitration. They…

Arbitration, Portugal, Public Policy

(BCH Advogados)/ /Leave a comment

1. I have written elsewhere about the uncertainty that the Portuguese courts have experienced in defining the “international public policy” of the Portuguese State and, more specifically, in finding in some particular cases that there was a situation amounting to a violation of that standard for the purposes of annulment of (or refusal to recognise)…

Appointment of arbitrators, Arbitral Tribunal, Arbitration

, (Allen & Overy)/ /2 Comments
YSIAC

In April 2010, Professor Jan Paulsson delivered his inaugural lecture as holder of the Michael R. Klein Distinguished Scholar Chair at the University of Miami School of Law where he expressed the view that the practice of unilateral appointments (or nominations) of arbitrators is a moral hazard which should be removed. This lecture sparked debate…

Arbitration, Croatia, Enforcement, Interstate arbitral awards, Slovenia

(Yale Law School)/ /1 Comment

On Thursday, the arbitral tribunal in Croatia/Slovenia rendered a final award on the merits of the dispute despite what a previous post on this blog called “severe breaches of duty of confidentiality and impartiality” during the arbitral proceedings. In commercial and investment arbitration, where procedural irregularities arise, either party can seek annulment of the award…