Applicable Law

Applicable Law, Appointment of arbitrators, Blockchain, Confidentiality, Contract Drafting, New York Convention, Seat of the arbitration

(Shehata & Partners, Maastricht University)/ /2 Comments

This post, which continues the topic considered here and here, discusses the main issues to consider when choosing arbitration to resolve smart contracts disputes, and lists a number of red flags that emerge from a survey of white papers on arbitrating smart contract disputes prepared by the tech community. (1) The Form of Smart Contract…

Applicable Law, Customary international law, ICSID, ICSID Arbitration, Investment Arbitration, Investment protection, Investor-State arbitration, ISDS

(Three Crowns LLP) and / /1 Comment
Three Crowns LLP

Without the rights and protections of a treaty, a foreign investor who suffers a wrongful act at the hands of a host State traditionally has no legal standing to pursue an international claim against that State.1) Case Concerning the Barcelona Traction, Light & Power Company Limited (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3,…

Applicable Law, Arbitration, Arbitration Agreement, Courts, New York Convention, UNCITRAL Model Law

(National University of Singapore, Faculty of Law)/ /Leave a comment

Part 1 of this blog argued that courts that are asked to resolve Article 8(1) Model Law disputes should adopt a deferential approach to tribunal competence under both a contextual and purposive interpretation of the Model Law or similar provisions aimed at giving effect to Art II(3) NYC. On this proposed view, such a court…

Applicable Law, Arbitration, Arbitration Agreement, Courts, New York Convention, UNCITRAL Model Law

(National University of Singapore, Faculty of Law)/ /1 Comment

A crucial issue in arbitration is determining the proper relationship between courts and the arbitration process. In addition to court challenges to preliminary jurisdictional decisions by arbitrators and court applications to annul awards or prevent enforcement, a number of other court actions also raise relationship issues. This blog is concerned with scenarios such as commencement…

Applicable Law, Arbitration, Arbitration Agreement, Arbitration clause, Finland

(Hannes Snellman)/ /Leave a comment
Finland Arbitration Institute (FAI)

Introduction It is not unusual that parties to FAI arbitration proceedings raise various jurisdictional objections before the Finland Arbitration Institute (“FAI”) and, provided that FAI will nonetheless allow the arbitration to proceed, subsequently also before the arbitral tribunal. Such objections come in all shapes and sizes. For example, respondent may dispute the existence of an…

Applicable Law

, (Bříza & Trubač)/ /2 Comments
YIAG

International arbitration takes a great pride in being flexible, adjustable and thus very responsive to the needs of the parties involved. Indeed, in terms of international arbitration imagination has virtually no limits – nothing really prevents parties to an arbitration agreement from agreeing on an arbitration pursuant to the UNCITRAL Arbitration Rules, in the Spanish…

Applicable Law, Arbitral seat, Arbitration Agreement, Arbitration clause, Commercial Arbitration, Governing Law, Seat of the arbitration, Separability

(Al Tamimi & Company)/ /Leave a comment

Introduction In BCY v BCZ [2016] SGHC 249, the High Court of Singapore found that parties could not be bound by an arbitration agreement that was part of an unexecuted underlying contract. This post examines the analysis taken by the Singapore High Court vis-à-vis the Swiss Supreme Court, in a similar fact pattern.   The…

Appeal, Applicable Law, Arbitration, Arbitration Proceedings, Croatia, Small claims

(University of Aberdeen)/ /Leave a comment

In January 2015, a new arbitration institution, under somewhat ambiguous name of the Civil Arbitration Court (“Parnični arbitražni sud”) [“CAC”], was established. The program and rules provided by the CAC reveal its dedication to provide parties with an alternative forum for the resolution of disputes related to small claims, as in accordance with the principles…

Applicable Law, Appointment of arbitrators, Arbitrability, Arbitration, Interim measures

(University of Aberdeen)/ /Leave a comment

The Report of the International Finance Corporation [IFC] “Investing Across Borders” for the year 2010 outlined that a stable, predictable arbitration regime, as a part of broader framework for the rule of law, is one of the factors that drive foreign investment and it should be country’s top priority. Despite the fact that reforming an…

Applicable Law, Jura Novit Curia, Switzerland

(von Segesser Law Offices)/ /1 Comment

and Katherine Bell, Schellenberg Wittmer In decision 4A_554/2014 dated 15 April 2015, the Swiss Federal Supreme Court considered an application to set aside an award on the ground of violation of the right to be heard where the sole arbitrator had based her award on a legal concept that had not been explicitly pleaded by…

Applicable Law, Arbitration Agreements, Arbitration Proceedings, Bankruptcy and arbitration, Sweden

(University of Aberdeen)/ /1 Comment

The effects of bankruptcy on arbitration remain unclear and they differ from jurisdiction to jurisdiction. Although being oft-discussed in doctrine as well in court and arbitral practice, there is still no uniform answer to the question of which law governs such effects. We saw this question again in the Svea Court of Appeal’s [“Svea Court”]…

Applicable Law, Arbitration, Economic Sanctions, Sanctions

(AZHA Avocats)/ /Leave a comment

As mentioned in a prior entry (Brussels’ Sanctions Against Russia and Moscow’s Retaliatory Measures Through the Eyes of the Arbitrator), under certain conditions, arbitrators have the authority to give effect to economic sanctions that are external to the applicable law. These, just like exchange control regulations and antitrust laws, fit into the category of overriding…

Applicable Law, Arbitration, China, Hong Kong

(AnJie Law Firm)/ /1 Comment

The Hong Kong International Arbitration Centre (“HKIAC”) has recently revised its Model Arbitration Clause to include a choice of law provision. “Any dispute, controversy, difference or claim arising out of or relating to this contract, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or…

Applicable Law, Arbitration Agreements, Germany, Group of Companies Doctrine

(Linklaters LLP)/ /1 Comment

A recent decision of the German Federal Supreme Court dated 8 May 2014 (case reference no. III ZR 371/12) again calls for a debate on the binding effect of an arbitration agreement for a non-signatory – a well-known and highly-debated phenomenon since the Dow Chemical arbitration. The Dow Chemical case According to the award rendered…

Applicable Law, Arbitration Agreements

(Linklaters)/ /3 Comments

Defective arbitration clauses are certainly uncommon, but do appear on a recurring basis in domestic and international arbitration practice. Many practitioners can go their entire professional lives without seeing any, while others encounter two or three cases over their career. The types of defective arbitration agreements or clauses are varied. Obviously, in most cases the…

Applicable Law, Arbitration Agreements

(Herbert Smith Freehills LLP)/ /1 Comment
Herbert Smith Freehills

The December 2013 decision of the English Commercial Court (the Court) in Habas Sinai Ve Tibbi Gazlar Istihsal Andustrisi AS and VSC Steel Company Ltd [2013] EWHC 4071 (Comm) (Habas) summarised the guidance provided in Sulamérica Cia Nacional De Seguros S.A. and others v Enesa Engenharia S.A [2012] EWCA Civ 638 (Sulamérica) and Arsanovia Ltd…

Applicable Law, Arbitral Tribunal, Arbitration Awards, Enforcement, Qatar, Set aside an arbitral award

(Qatar International Center for Conciliation and Arbitration)/ /Leave a comment

A controversial decision by Qatar’s Court of Cassation has ruled on the necessity for arbitral awards to be rendered in the name of His Highness The Emir of Qatar. The said ruling issued on 12 June 2012 (Petition No. 64/2012) set aside an arbitral award rendered under the auspices of the Qatar International Center for…

Annulment, Applicable Law, Arbitral seat, Arbitration, Arbitration Awards, Arbitration Institutions and Rules, Arbitration Proceedings, Enforcement, Latin America, Seat of the arbitration, Set aside an arbitral award, Set aside an international arbitral award, South America

(Universidad Monteávila (Caracas))/ /Leave a comment

One of the most important elements to consider when participating in arbitration proceedings is the available mechanisms to challenge the award of the arbitral tribunal. This element acquires an added significance when it comes to international arbitration where the award may be enforced in several jurisdictions. With that in mind, it is pertinent to refer…

Applicable Law, Arbitral seat, Arbitration clause, Asia-Pacific, Seat of the arbitration

(Notre Dame Law School)/ /Leave a comment

As reported yesterday, the recent tragedies in Bangladesh factories have resulted in a major breakthrough with the signing of the Accord on Fire and Building Safety in Bangladesh. Thus far, leading retailers such as H&M, Marks & Spencer, Tesco, Sainsbury’s, Benetton, and Calvin Klein are on board. Notably absent from the list are leading U.S….

Applicable Law, BIT, ICSID Convention, Investment, Investment agreements, Investment Arbitration

(Colibra Insurance)/ /Leave a comment

In Part I it was argued that the proper law applicable in the investor-State disputes under Article 42 (1) ICSID Convention depends on the substantive grounds of the investor’s claim. In support of this, I have outlined three factual scenarios and types of claims with evidence from case law. Part I dealt with host State…

Applicable Law, BIT, ICSID Convention, Investment, Investment agreements, Investment Arbitration

(Colibra Insurance)/ /Leave a comment

Rationalizing applicable law in investor-State disputes in absence of express choice of law under Article 42 (1) of ICSID Convention PART I Article 42 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) determines the powers of an arbitral tribunal constituted under the ICSID Convention as…

Applicable Law, Arbitral Tribunal, Arbitration, Arbitration Awards, Investment agreements, Investment Arbitration, Uncategorized

(University of Victoria Faculty of Law)/ /Leave a comment

At a conference a few years back, a well-known and respected arbitrator was speaking on the topic of predictability and consistency of arbitral decision making in investment treaty arbitration.  The arbitrator asked whether arbitrators should fly solo or in flocks.  He made a strong and persuasive case for the independence of the arbitrator, to fly…

Applicable Law, BIT, Damages, ICSID Convention, Investment Arbitration, State entity, Treaty, Umbrella clause

(International Moot Court Competition Association (IMCCA))/ /Leave a comment

The problem of the law applicable to State contracts (i.e. contracts concluded between a foreign national and a State or a state entity) as well as the responsibility of States for the breach of these contracts has entertained the minds of scholars and practitioners ever since the famous PCIJ dictum in the 1929 Serbian Loans…

Applicable Law, Arbitration, Arbitration Proceedings, Arbitration Quiz, Arbitrators, Costs in arbitral proceedings, Expedited arbitration, Joinder, Jurisdiction, Mediation

(MDisputes)/ /Leave a comment

Last week’s summer quiz on international arbitration and mediation provoked a happy flurry of answers from around the world from a broad range of practitioners. Before we get to the answers, here are some interesting observations from the empirical data that we unintentionally gathered. Conclusive Empirical Data about International Arbitration and Mediation Practitioners (“Practitioners”) As…