It is often said that flexibility is a cornerstone of international arbitration and that the tribunal (typically in consultation with the parties) is the master of how the proceedings are to be conducted. Yet, it remains unsettled whether certain specific rules of procedure or evidence must be complied with in arbitration – sometimes, at the…

  As 2019 dawns the arbitration community looks forward to the Hong Kong Code of Practice for Third Party Funding in Arbitration coming into force on 1 February 2019. In this article we look at the impact of the Hong Kong Code on Hong Kong seated arbitrations and draw comparisons with the voluntary Code of…

At the risk of mixing metaphors, if Achmea (Slovak Republic v Achmea Case C-284/16) killed intra-EU investor-state arbitration, and the European Commission’s Communication COM(2018)547/2 of 19 July 2018 knocked the head off its zombie corpse, then the Declaration of the Representatives of the Governments of the Member States of 15 January 2019 on the legal…

Perhaps the one thing that is certain about the UK’s departure from the European Union is that it is uncertain. It is not certain that the UK and the EU will strike a deal on their future trading relationship after the UK leaves the EU on 29 March 2019; it is not known whether the…

The seat of arbitration is a vital aspect of any arbitration proceeding. The situs is not just about where an institution is based, where hearings will be held or where there may be a good pool of arbitrators. It is also about which courts have supervisory power over your arbitration and the scope of those…

Two recent pieces of recent research raise the question of whether arbitration users really value finality in arbitration or take it for granted. Is it time (again) to discuss whether s69 Arbitration Act 1996 is meeting users’ needs? Arbitration Act 1996, s69 Section 69 of the Arbitration Act 1996 (AA 1996, s 69) is a…

There has been much comment about recent awards in Energy Charter Treaty (‘ECT’) arbitrations concerning investors’ claims against Spain and other EU states regarding renewable energy projects . The fortunes of investors and states have waxed and waned over the last few years, but overall it seemed that investors faced a considerable hurdle. In recent…

Mr Daniel Kahneman is a Nobel Prize winner in Economic Sciences, and the author of the bestselling book “Thinking, Fast and Slow”. His book focuses on behavioural science, and explains how cognitive biases fool us into making suboptimal decisions. In December 2017, PwC updated its International Arbitration damages research (“PwC Research”). It reviewed multiple international…

The recent decision in P v Q [2017] EWHC 148 (Comm) provided, for the first time, guidance on how a Court will approach an application for disclosure in support of an application to remove Arbitral Tribunal members under s.24 Arbitration Act 1996. Background The Claimant had brought an application to remove two wing members (the…

The use of tribunal secretaries in arbitration is a hotly debated topic. For some time now, the use of a secretary has been increasing in the interests of cost and time efficiency. For some however, there is a fear that arbitrators delegate their duties and for a ‘second’ or ‘fourth’ arbitrator to be involved in…

Readers of this blog will need no reminding that, in the Queen Mary-White & Case 2015 International Arbitration Survey, the seats of Hong Kong and Singapore were amongst the top five most preferred and widely used seats by respondents to that survey. Both jurisdictions are known for adopting competitive and innovative arbitration laws to promote…

On 22 September 2016, the 1st Instance Court of Jundiaí – São Paulo dismissed a claim under Article 485, VII of the New Brazilian Civil Procedure Code (NBCPC) finding that the court lacked jurisdiction over disputes arising out of a distribution agreement which provided for disputes to be resolved by arbitration. Pursuant to Article 485,…

James Crawford described the principle of state immunity as “…a rule of international law that facilitates the performance of public functions by the state and its representatives by preventing them from being sued or prosecuted in foreign courts…it precludes the courts of the forum state from exercising adjudicative and enforcement jurisdiction in certain classes of…

Modern institutional arbitration rules commonly provide for emergency relief at the outset of the arbitration either through the expedited formation of a tribunal or the appointment of an emergency arbitrator, or both. This could either be viewed as a broadening of options for a party seeking immediate remedy or a constraint of the court’s powers…

In a 2014 speech delivered in Sydney entitled “Commercial Courts and International Arbitration – Competitors or Partners?”, Michael Hwang SC, referring to the New York Convention on the Recognition and Enforcement of Arbitral Awards (‘New York Convention’), described the Hague Convention on Choice of Court Agreements (‘Hague Convention’) as “a sort of mini version of…

The Court of Appeals for the Second Circuit, which covers the district courts of New York, Connecticut and Vermont, was recently called to decide the effect that a vacatur of an award in the seat of arbitration (in that case, Mexico) had in an ongoing enforcement proceeding in New York. The Court of Appeals held…

Introduction The Hague District Court ruled on 20 April 2016 to reverse a PCA tribunal’s decision against Russia to pay damages in excess of US$50 billion to the former majority shareholders of Yukos Oil Company, which was once the largest oil company in Russia (see earlier blog post on the Hague Court’s decision). The Hague…

Arbitration in Brazil has come a long way since the passing of the Brazilian Arbitration Act in 1996 (the “BAA”). The BAA has its origins in the UNCITRAL Model Law and even though it preceded Brazil’s ratification of the New York Convention by six years, the BAA is consistent with the New York Convention, at…

Prior to the amendment of the Indian Arbitration and Conciliation Act 1996 (“the Act”), India’s journey towards becoming an international commercial hub that could rival Singapore and London was hampered by a largely ineffective Act and an arbitration regime that was afflicted with various problems including those of high costs and delays. To address these…

An arbitration can be severely disrupted by a party who refuses to comply with an order or direction of its tribunal. In such circumstances, a peremptory order may be used to force the non-compliant party to comply with the earlier order or direction within a specific timeframe. An arbitral tribunal’s peremptory order was recently enforced…

for YSIAC In an age of ever-increasing complexity, where your watch can open your garage and answer your phone (yes, the Apple watch can really do that), many of us in the international arbitration community have lost sight of the most powerful weapon in the advocate’s toolbox: simplicity. A previous post on this blog eloquently…

The phenomenon of “price review” and “price reopener” disputes – whereby a party seeks to adjust the pricing basis under an existing long term gas sales contract – has for a number of years been the subject of lively discussion in energy and arbitration circles.  As participants at the GAR Live Energy Disputes event (held…

International arbitration has been widely recognized as an efficient process for resolving State-to-State disputes. Factors such as procedural flexibility and party autonomy, which contribute to general appeal of international arbitration, play out to render arbitration as the preferable option for settlement of complex disputes between States. More importantly, however, the success and broader acceptance of…

Introduction As reported by Clyde & Co for the Kluwer Arbitration Blog on 12 January 2015, the Singapore High Court released its decision in PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation (Indonesia) [2014] SGHC 146 relating to PT Perusahaan Gas’ (PGN) unsuccessful appeal of an interim arbitral award made in favour of…

and Ian Hopkinson, Clyde & Co At above US$60 per barrel, crude oil prices have bounced a little since their January 2015 low. However, with continued mixed indications concerning US production, opinion remains divided on where prices will end up in the short to medium term. As the recent GAR Live Energy Disputes event (held…

The IBA recently revised its Guidelines on Conflicts of Interest in International Arbitration. This was the culmination of a review by the IBA Arbitration Committee, which began in 2012. The salient changes address the rise of advance declarations by arbitrators; third-party funding; increasing significance of arbitral secretaries; and the possibility that an arbitrator, and counsel…

Singapore’s longstanding reputation as an arbitration friendly jurisdiction was reinforced in 2010 with the legislature’s adoption of the 2006 amendments to the UNCITRAL Model Law on International Commercial Arbitration. The 2006 UNCITRAL amendments concerned, among other matters, the use of interim awards in international arbitration, and recognised “the need for provisions in the Model Law…

International arbitration must of necessity rely on the courts to uphold and enforce arbitral awards and to support the arbitral process. In words of Professor Jan Paulsson, “the great paradox of arbitration is that it seeks the cooperation of the very public authorities from which it wants to free itself.” (Jan Paulsson, Arbitration in Three…

The case of Perenco Ecuador Limited v Republic of Ecuador, ICSID Case No. ARB/08/6 (Decision, 12 September 2014), is one of a number of investor-state disputes to arise from the Ecuadoran government’s policies on the so-called “extraordinary income” of oil companies operating in its territory in the mid to late 2000s. Keen followers of international…

During the last few years, a series of court decisions in India have strengthened the pro-arbitration stance in the Indian judiciary. In BALCO (2012), the Supreme Court of India limited the supervisory jurisdiction of the Indian courts regarding arbitrations seated outside India. Since BALCO, further decisions of the Supreme Court and High Courts of India…

The London Court of International Arbitration (LCIA) has recently adopted a new set of arbitration rules, which will come into effect on 1 October 2014.The new rules aim to ensure an effective, efficient and fair process. The LCIA reports that its new Director General, Dr Jacomijn van Haersolte-van Hof, thanked those who contributed to ‘the…

Enactment of a federal arbitration law has been ‘imminent’ since the United Arab Emirates acceded to the New York Convention in 2006 (the ‘Convention’). Once enacted, it is expected that the federal law will repeal Articles 203 to 218 of Federal Law (11) of 1992, the Civil Procedure Code (‘CPC’), which currently govern arbitration in…

The potential intervention of Indian courts over foreign seated arbitrations is a hot topic in international arbitration. On 28 May 2014, the Supreme Court of India (“SCI”) heated up the debate by handing down a judgment in Reliance Industries Limited & Anr v Union of India. The SCI found that Indian courts had no jurisdiction…

By Sapna Jhangiani and Khaled Moyeed, Clyde & Co LLP “To the question: What are the professional rules applicable to an Indian lawyer in a Hong Kong arbitration between a Bahraini claimant and a Japanese defendant represented by New York lawyers, the answer is no more obvious than it would be in London, Paris, Geneva…

By Ben Knowles and Khaled Moyeed at Clyde & Co LLP A recent arbitration award has highlighted the question of the enforceability of forfeiture provisions in oil and gas JOAs. The effect of such provisions is that a defaulting party forfeits its participating interest (“PI“) in a project on account of a default, such as…

By Beth Cubitt and Tom French The proposed Trans-Pacific Partnership Agreement (TPPA) – a multi-lateral agreement proposed between a number of countries, currently including Australia, Canada, Japan, Malaysia, Mexico, Peru, the United States and Vietnam (although it is hoped to be an open platform welcoming other countries to participate) – is currently the subject of…

The Brazilian Superior Court of Justice (“STJ”) has issued, on 19 June 2013, a landmark decision addressing the principle of Kompetenz-Kompetenz (Resp. no. 1,278,852-MG Samarco Mineração S/A v Jerson Valadares da Cruz). The decision deals with the allocation of competence between arbitral tribunals and national courts to decide on the validity of an arbitration agreement….

and Matthew Lam, Partner, Clyde & Co As announced recently on this blog Chinese Court Decision Summaries on Arbitration, edited by WunschARB, were recently published by Kluwer Arbitration. The case summaries are a welcome addition to the Kluwer Arbitration database, particularly given the paucity of caselaw analysis currently available in this area, and the editors’…

A recent decision of the Brazilian Superior Court of Justice (“STJ”) has ruled, for the first time, on the issue of the concurrent jurisdiction of national courts and arbitral tribunals with respect to the making of interim measures (Itarumã Participações S.A. v Participações em Complexos Bioenergéticos S.A. – PCBIOS, Resp no. 1,297,974-RJ). The decision is…

Amendment to the International Chamber of Commerce Rules of International Arbitration The International Chamber of Commerce has issued a revised set of rules for International Arbitration, due to come into force from 1 January 2012 (the “2012 Rules”). The 2012 Rules are clearly an attempt by the ICC to respond to the business needs of…