In its recent decision of 9 October 2020 in Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb” & Ors [2020] UKSC 38 (Enka), the UK Supreme Court upheld the decision of the England and Wales Court of Appeal earlier this year restraining Chubb Russia from proceeding with parallel court proceedings in Russia, but…

The economic downturn in Thailand has resulted in increased pressure on Thai debtors. Several banks have forecasted Thailand’s gross domestic product (GDP) to contract 8.1 percent in 2020 due to a more severe than expected COVID-19 pandemic and the containment measures implemented by governments in many countries including Thailand. Creditors who are party to an…

The relationship between arbitration and the United Nations Convention on Contracts for the International Sale of Goods (“CISG” or “Convention”) is not a clear one, and the question of when an arbitrator is bound to apply the CISG is still not answered with clarity either by scholars or by practitioners. At a recent conference organized…

In its decision of 11 June 2020, an ICSID Annulment Committee annulled an award in Eiser and Energia Solar Luxembourg v. Spain, ICSID Case No. ARB/13/36. It did so on the grounds that the arbitrator appointed by the investors, Stanimir Alexandrov, and his former law firm, Sidley Austin, had worked so closely and frequently with…

We are happy to report that the latest issue of the ASA Bulletin is now available and includes the following articles and cases:   ARTICLES Felix DASSER, ASA – Swiss Home of Arbitration In his message as ASA President, Felix DASSER addresses the future of Swiss arbitration and the initiatives recently launched by ASA to…

The COVID-19 pandemic has exerted an unprecedented impact on individuals, entities, businesses, and states. National court systems and alternative dispute resolution regimes have also been severely affected. Yet, international arbitration has demonstrated itself to be both adaptable and resilient throughout the crisis and emerged more strongly positioned as a method of dispute resolution for a…

Offshore courts in the UAE have long been used as conduit jurisdictions, particularly by international parties seeking to enforce foreign arbitral awards. The Abu Dhabi Global Markets (“ADGM”) and Dubai International Financial Centre (“DIFC”) have signed Memoranda of Understanding (“MoU”) with onshore authorities, pursuant to which onshore Emirati courts agree to recognise and enforce ADGM/DIFC…

Chile confirmed its first case of COVID-19 on March 3, 2020. Since then, Chilean institutions have designed several solutions to adjust their operation during the sanitary crisis. This brief report provides information about the legislation passed by the Chilean Congress to regulate judicial proceedings. Specifically, we offer an overview of the impact of Law 21,226…

The Supreme Court of India (“Supreme Court”) recently ruled on the arbitrability of fraud in the case of Avitel Post Studioz Ltd. v. HSBC PI Holdings [2020] (“Avitel”). The judgement lays down the tests to determine “serious allegations of fraud” and thereby disputes which cannot be resolved through arbitration. Various developments in the jurisprudence of…

The draft bill for the revision of the 12th Chapter of the Swiss Private International Law (“PILA”) was recently approved by the Swiss legislator (as analyzed previously on this blog). Besides permitting the filing of set-aside motions in the English language, the provisions regulating the court assistance have also been revised and adjusted with the…

In a recent decision, New York State’s highest court (the New York Court of Appeals) rejected an argument that a tribunal exceeded its authority, as to warrant vacatur, when it reconsidered and corrected an earlier decision rendered in a “partial final award.”  The Court concluded that arbitrators are not functus officio to reconsider an interim…

The arbitration laws of many established arbitral jurisdictions, for instance, the English Arbitration Act 1996, German Code of Civil Procedure, the Swedish Arbitration Act 2019 (see post on the revised Act here) and the US Revised Uniform Arbitration Act, place no restrictions as to who may act as a party representative in an arbitration. The…

We are happy to inform you that the latest issue of the journal is now available and includes the following contributions:   Mees Brenninkmeijer & Fabien Gélinas, Execution Immunities and the Effect of the Arbitration Agreement The prevailing view in international legal practice is that a state does not waive its immunity from execution by…

On 22 September 2020, the U.S. Court of Appeals for the Seventh Circuit joined the Second and Fifth Circuits in narrowly interpreting the statutory language “foreign or international tribunal” in 28 U.S.C. § 1782(a), holding that Section 1782 does not authorize U.S. discovery for private foreign arbitrations.  Servotronics, Inc. v. Rolls-Royce PLC, No. 19-1847, — F.3d. –,…

Brazil’s new Franchising Law (Law No. 13.966/19) was published on December 27th, 2019 and became effective as of March 27th, 2020. One of the innovations (more of a confirmation) set forth by the new legislation is the provision contained in article 7, paragraph 1, which states that “the parties may resort to arbitration to resolve…

In early September 2020, the United Kingdom (‘UK’) Secretary of State for Northern Ireland, Brandon Lewis, conceded in no uncertain terms that the UK Internal Market Bill would violate public international law, albeit only in “a very specific and limited way“. This immediately caused controversy, to put it mildly. The EU Commission did not take…

Of the six States that have ratified the United Nations Convention on International Settlement Agreements Resulting from Mediation (“Convention”) only Singapore seems to have made any requisite preparation for its implementation, by passing the Singapore Convention Mediation Act in February 2020. Yet, following the Convention’s entry into force on 12 September 2020, forthcoming developments in…

Many see the Pan-African Investment Code (PAIC), a model instrument adopted by the African Union (AU) in 2015, as the first step toward the ‘africanization’ of international investment law. While several national and regional instruments on foreign investments had been adopted by African States and Regional Economic Communities (RECs) prior to the PAIC, the latter’s…

Aron Broches, the chief architect of the ICSID Convention, said in 1964 that the role of conciliation in the Convention’s framework may prove to be more important than arbitration. There is little doubt that more than 50 years later, this forecast by one of international investment law’s giants has not yet become a reality. The…

As has been previously reported in this blog (e.g., here and here), there exists a rising interest globally for alternative forms of dispute resolution (ADR) for investor-state disputes. Indicative examples from investment treaty-making confirm this, including the USMCA, CPTPP, the EU’s investment agreements with Canada, Singapore and Viet Nam, ACIA, and the China-Hong Kong CEPA…

In their reform discussions, States and arbitration institutions have been exploring the potential for investor-State mediation to work alongside arbitration, or even to replace it altogether for some disputes. While investor-State mediation has strengths relative to arbitration, any reform must carefully integrate mediation with existing processes and reform efforts. In this post, I explore one…

 “Lo que yo sostengo es que el sol no durará eternamente”, fue la verdad resumida que uno de los personajes del cuento de ciencia ficción de Isaac Asimov, llamado “La última pregunta”, expresó a otro, mientras hablaban sobre qué pasaría con la humanidad cuando el sol se quede sin brillo. Su discusión sucedió durante el…

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…

Arbitration has undoubtedly become the dominant international procedure for settling investor-State disputes. Over the years, we have published various posts on the Blog that have considered intersections and tensions between arbitration and other, alternative, forms of investor-State dispute settlement (‘ISDS’). To mark this month’s entry into force of the Singapore Convention on Mediation, our series…