This piece deals with the recently established Patent Mediation and Arbitration Centre (PMAC) of the Unified Patent Court (UPC). It addresses some key concerns surrounding the risk of unenforceability of PMAC arbitral awards and proposes three viable solutions. As of 1 June 2023, the Agreement on a Unified Patent Court (UPC Agreement) has entered into…
The Panel “The Future of Major Energy Projects Crises, Challenges, and Opportunities” took place on the penultimate day of the London International Disputes Week 2023 (“LIDW 2023”) on 18th May 2023 in the London office of McDermott Will & Emergy with panellist Armando Neris from McDermott Will & Emery, Lucian Ilie from Outer Temple Chambers,…
In a recent decision, the Austrian Supreme Court ruled on the enforceability of an investor-state award rendered under the ICSID Additional Facility Rules. While the Supreme Court found that the award was — in principle — enforceable under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards from 1958 (“NYC“), it upheld the…
Over the last few years, the courts in Qatar have been criticized from the arbitration community for having issued several rulings setting aside both domestic and foreign arbitral awards on public policy grounds. In particular, these rulings held that like court issued judgments, domestic and even foreign arbitral awards were required to be rendered in…
Recently the Supreme Court of India in Amazon.com NV Investment Holdings Inc. v. Future Retail Ltd, (“Amazon v. Future”) took a progressive step by enforcing an emergency order/award rendered by an emergency arbitral tribunal appointed by Singapore International Arbitration Centre (“SIAC”). The Court held that the term ‘arbitral tribunal’ contained in section 17 of the…
Where C commences an arbitration against a non-existent entity E, and D defends the arbitration in the guise of E, can an award rendered in favour of E be enforced by D against C?1)This article is written in the author’s personal capacity. The opinions expressed are entirely the author’s own, and do not reflect the…
The dispute involving the State of Libya and French company SORELEC was heard by the Paris Court of Appeal in the context of a much lower tolerance for bribery and corruption in domestic and international affairs than ever before. France has indeed significantly strengthened its anti-corruption framework since adopting the so-called “Sapin II” law in…
Approximately a year ago, on 19 December 2019, the First Chamber of the Supreme Court of Costa Rica recognized an ICC arbitration award rendered on 10 June 2016 by a tribunal seated in Miami. This case, one of the very few where the New York Convention (“NY Convention”) has been applied by a State court…
The Singapore Convention on Mediation entered into force on 12 September 2020. Its entry into force compels a deeper look at dispute resolution design for investor-state disputes, and encourages a reconsideration of the common choice of arbitration in favour of mediation for two main reasons. The first reason relates to enforcement as the entry into…
On 11 August 2020 the LCIA unveiled the long-awaited update to its Arbitration Rules (the 2020 Rules). The 2020 Rules will become effective on 1 October 2020 and will apply to arbitrations commenced from that date onwards. They will supersede the 2014 edition of the LCIA Arbitration Rules (the 2014 Rules). The 2020 Rules introduce…
After the Court of Justice of the European Union (“CJEU”) rendered the Achmea decision, heated discussions on its impact ensued. Particularly, the concern raised on whether the ICSID proceeding provided for in intra-EU BITs and intra-EU disputes under the Energy Charter Treaty (“ECT”) would be valid. Several arbitral tribunals and national courts have dealt with…
We live in time when sanctions hit the headlines almost every quarter. Naturally, this frustrates contracts and creates additional causes for disputes. However, there exists uncertainty as to whether sanctions also render awards unenforceable on the grounds of public policy. As will be shown in this post, even within the supreme court of one country…
In a ruling of 11 December 2019 (see Cassation No. 8/2019 (JT) – Al Taena: AF Construction Company LLC (formerly Al Futtaim Carillion – Abu Dhabi LLC v. Power Transmission Gulf), the Dubai-DIFC Joint Judicial Tribunal, also commonly known as the “Judicial Tribunal” or simply the “JT”, was required to deal with the conflicting jurisdiction…
How is the content of laws determined, and by whom, in international commercial arbitration? This topic mainly concerns an old legal assumption: iura novit curia, the Latin legal maxim for “the court knows the law”. While somewhat reasonable and predictable on the face of it since anyone can reasonably expect the court to know the…
The national courts in Uzbekistan have not commonly been noted by arbitration lawyers and foreign investors for having a pro-arbitration judicial attitude. However, since President Mirziyoyev took office in 2016, Uzbekistan has been trying to build a reputation as an investment-friendly country. It was hoped that the reforms in various sectors would extend as far…
Arbitrators and tribunal-appointed experts are at all times obliged to disclose any and all circumstances that might give rise to doubts as to their impartiality and independence. This is one of the most fundamental duties to safeguard the legitimacy of arbitration. Yet, what are the consequences if they fail to do so? This question has…
Recently, focus has been brought upon the use of international arbitration to solve human rights abuses caused by businesses (“BHR Arbitration“). Disputes involving human rights violations often occur between parties of unequal financial means and commercial sophistication, and in countries which cannot offer an efficient and free from corruption judicial system. Arbitration has the potential…
With the rise of e-contracts and smart contracts in commercial transactions globally, it becomes important to analyse developments in ADR such as blockchain arbitration. The concept of blockchain arbitration is very recent and it seeks to use the advantages of the technology in dispute resolution (how blockchain arbitration works can be read here). However, one…
Discussions of corruption carry strong moral sentiments. After all, the abuse of public office for private gain erodes people’s trust in government and institutions, makes public policies less effective and fair, and siphons taxpayers’ money away from schools, roads, and hospitals. More generally, broad-based corruption weakens the foundations of a healthy economy, degrades social norms,…
Modern day arbitration agreements usually contain provisions that require parties to take certain steps before the commencement of arbitration. Such clauses, often described as “multi-tiered” clauses, set out a sequence for invoking the arbitration agreement. Typically, pre-arbitration steps include procedures such as time-bound mediations, amicable settlements, cooling-off periods, and other forms of non-binding determinations. Despite…
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…
“Enforcement” of arbitral awards is one of the main selling points of arbitration, with the perception being that nothing yet comes close to the New York Convention to enforce court judgments. The Hague Convention on Choice of Court Agreements will assist when adopted by more countries. For now, the mere uttering of the incantation “enforceability”…
