The EU-China Comprehensive Agreement on Investment (CAI), agreed in principle in December 2020, was announced with great fanfare. Forged after seven years of negotiations between the world’s current largest trading block (the EU) and the country expected to have the world’s largest economy by the end of this decade (China), the CAI was set to…

This post shares a development of potential significance, i.e., the drafting of the Sustainable Investment Facilitation & Cooperation Agreement (SIFCA), a next-generation model bilateral investment treaty (BIT) developed for The Gambia, a sovereign State in West Africa and one of the world’s least developed countries (LDCs). This post continues the discussion raised in January 2021,…

How do English and BVI courts address inconsistencies in arbitration clauses? The English Court of Appeal decision in AdActive Media Inc v Ingrouille [2021] EWCA Civ 313 demonstrates that English courts will make every effort to honour the express terms of a contract. In AdActive, the Court of Appeal examined three apparently inconsistent dispute resolution…

This year marks the 10th anniversary of the UN Guiding Principles on Business and Human Rights (“UNGPs”), which set out the duties of States and responsibilities of companies to embed human rights considerations in business activities. Of the three Pillars in the UNGPs, Pillar II (principles 11-24) specifically sets out human rights principles by which…

In Armada Ship Management (S) Pte Ltd v Schiste Oil and Gas Nigeria Ltd [2021] EWHC 1094 (Comm), the High Court considered the interplay between sections 32 and 72 of the Arbitration Act 1996 (the Act) and provided a rare indication of how the courts will consider section 32 applications, identifying when section 32 will…

ISDS has faced harsh criticism from environmental groups as being inimical to the protection of the environment. This post argues that environmental protection is an emerging jus cogens norm, and thus, an arising erga omnes obligation, which investment tribunals must recognize as such. Additionally, it explores the legal consequences of applying this public international law…

In December 2020, the EU and UK concluded the negotiations of the  Trade and Cooperation Agreement (TCA). This Agreement is a crucial step towards maintaining a long-standing relationship between the EU and the UK. One of the principal goals of the TCA is to achieve climate neutrality by 2050; with this objective, the treaty establishes…

Efficiency in arbitration is an area that is discussed so often it almost feels inefficient to discuss it. Indeed, when the Australian Centre for International Commercial Arbitration (ACICA) (in conjunction with FTI Consulting, and with the support of the Australian Bar Association, Francis Burt Chambers and the WA Arbitration Initiative) launched the results of the…

The dispute between the former owners of the Yukos oil company and the Russian Federation concerning damages of more than US$50 billion is the largest in the history of arbitration. With thousands of pages written on the topic, the dispute has been summarized in earlier posts (see, amongst others, here and here). Following three arbitrations…

In November last year, the UK Supreme Court (the “Court”) pronounced judgment in Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48. It held, among other things, that there was a duty of disclosure for arbitrators in English law. Recognizing the importance of the principle of party autonomy, the Court concluded that parties could,…

Introduction On 17 February 2021, the International Bar Association published its revised Rules on the Taking of Evidence in International Arbitration (“IBA Rules”), replacing the former rules from 2010. The IBA Rules were first introduced in 1999 to codify an international best practice for the taking of evidence in international arbitration proceedings. Influenced by practices…

Traditionally, one of the central pillars of the FET standard has been the protection of legitimate expectations. Legitimate expectations can be either based on a host state’s specific representations provided to the investor, or, under certain conditions, such expectation can be based on the regulatory framework that existed at the time of making the investment….

It is no secret that each sport has its rules of the game with appropriate sanctions for violating them. However, it may be new for someone that sports also have its own dispute resolution system. Almost every sports organization has its own internal dispute settlement bodies, whose decisions may be appealed to Court of Arbitration…

The Effects of Achmea on the Prospective EU Member States  Much ink has been spilt on of the aftermath of the CJEU Achmea decision which has turned the world of arbitration on its head. In-depth analysis and commentary were previously featured on the Kluwer Arbitration Blog as well. Following the decision of the CJEU and…

The Brexit clock is ticking and, under the current circumstances, the no deal scenario is being increasingly regarded at least as a concrete option – although the situation is changing on a daily basis and the extension of the two-year term under Article 50 TFEU could provide some breathing room. In the context of the…

The Public Policy Exception as an Unruly Horse There is an ongoing quest for a uniform application of the New York Convention. However, the interpretation of the exceptions to enforcement still varies. Albeit applying the same provisions, national courts continue to adopt different approaches to the enforcement of foreign arbitral awards. This is particularly true…

Introduction The 2018 International Arbitration Survey: The Evolution of International Arbitration undertaken by the Queen Mary University and White and Case LLP found flexibility to be the third most valuable characteristic of international arbitration. The flexibility inherent in the arbitral process allows tribunals to conduct the proceedings (ideally) in an expeditious manner. One common method…

Under the current Chinese legal framework, while PRC Courts are granted exclusive power to grant interim relief measures in support of arbitration 1) Chinese courts are granted the exclusive power to grant interim relief measures pursuant to the following provisions under PRC law: Article 28 of the PRC Arbitration Law (hereinafter “Arbitration Law”) provides that:…

Five years after filing the Permanent Court of Arbitration (PCA) Case No. 2013-32 under the European Development Fund Arbitration Rules (EDF Rules), the claimant, Consta JV (an Italian contractor), would have hoped for a successful award against the CDE (a joint enterprise between the Ethiopian and Djibouti government) that would be upheld by the local…

The cassation bench of the Supreme Court of Ethiopia, whose decisions have precedential value, in National Motors Corp. v. General Business Development case has ruled that parties’ final intention to be bound by an arbitration award shall be final and may not be subject to review by courts, including the cassation bench. The bench, however,…

Over the past two months, the judgment by the Court of Justice of the European Union (“CJEU”) in Slovak Republic v Achmea BV, hereinafter referred to as “Achmea”, has created much discussion among arbitration practitioners. Its reasoning and implications have already been addressed in several Kluwer Arbitration blog posts, available here, here and here. The…

With the focus of the arbitral community being taken over by the recent discourse surrounding an important branch of international arbitration, i.e., investor state dispute settlement, after the 6 March 2018 Judgment of the Court of Justice of the European Union in Case C-284/16, Slowakische Republik v Achmea BV, there may be a risk today,…

On March 2, 2018, the England & Wales High Court (Court) for the first time set aside an investor-state arbitration award on jurisdiction (Award on Jurisdiction) passed against the Claimant in GPF GP S.a.r.l. v. Republic of Poland[1]. The Court ruled that: A specific event in a series of creeping expropriation did not preclude the…

Ireland’s new mediation law, a strategy for the implementation of mediation within the Ukrainian court system, the lessons emerging from the Global Pound Conferences, developments in Online Dispute Resolution… these are just a handful of the topics which were addressed on the Kluwer Mediation Blog in November. Below you’ll find a very brief summary of…