In 2023, Canadian courts were called to rule on a multitude of fascinating issues, including distinguishing arbitration from expert determination (Clearspring Capital Partners II v. Logistik Unicorp Holdings), exercising their inherent powers to appoint a notable international arbitration law firm as amicus curiae (Hypertec Real Estate Inc. v. Equinix Canada Ltd.), and holding that a…
The General Division of the High Court of the Republic of Singapore (“SGHC”) in the matter of Beltran, Julian Morena and another v. Terraform Labs Pte Ltd and others [2023] SGHC 340 recently dismissed an appeal against an Assistant Registrar’s decision denying a stay in favour of arbitration on the basis that the First Defendant…
As experienced negotiators know, the process of contract negotiation can give rise to fruitful and long-lasting business relationships. The parties may meet several times to develop the precise terms of their agreements, through videoconferences, in conference rooms, or over dinner and drinks. But for many contracts, the parties’ representatives never meet, limiting their negotiations to…
On 25 October 2022, the Brazilian Superior Court of Justice (“SCJ”) upheld a decision that suspended the filing of a proof of claim in bankruptcy proceedings and, consequently, prevented the plaintiff from participating in the general meeting of creditors (see, Appeal to the SCJ n. 1.774.649, 25 October 2022, Amapari Energia S.A. v. Zamin Amapá…
The inaugural Vietnam ADR Week (“VAW”) took place in Ho Chi Minh City from 9 to 12 May 2023. As a sponsor of VAW, Vietnamese law firm, YKVN, organized a discussion panel on 10 May 2023 on a comparative analysis of the approaches taken by various national courts towards the governing law of the arbitration…
The inaugural Vietnam ADR Week (“VAW”) took place in Ho Chi Minh City from 9 to 12 May 2023. As a sponsor of VAW, Vietnamese law firm YKVN organized a discussion panel on 10 May 2023 on a comparison of the interplay of the separability doctrine and questions relating to formation and validity of arbitration…
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…
A key characteristic of an international commercial arbitration award is its binding nature, although parties may still consent to non-binding arbitration. A consent to non-binding arbitration is problematic when the applicable law explicitly prescribes arbitration to be binding. Mainland China is such a jurisdiction. Thus, the issue of the validity of a non-binding arbitration agreement…
The United Arab Emirates (“UAE”) has taken strides in increasingly accepting arbitration as the parties’ chosen dispute resolution mechanism. It is now well established that UAE courts would respect the parties’ agreement on arbitration and uphold valid arbitration clauses. In fact, Article 8(1) of the Federal Law on Arbitration, No. 6 (2018) (“UAE Arbitration Law”)…
The claim that arbitrators do not speak Esperanto may seem so obvious that it should not be stated at all. The artificial language was conceived in the late nineteenth century by Ludwik Lejzer Samenhof as a simple, neutral language that was not tied to any one culture. People of different national and ethnic groups would…
John Steinbeck’s classic novella, “Of Mice and Men,” took a modern day form in the U.S. Supreme Court earlier this week – appropriately enough, for purposes of this blog, in an arbitration matter. As others have commented on social media, during oral argument in Badgerow v. Walters, Case No. 20-1143 (U.S. S. Ct.), the Supreme…
On 30 July 2021, the PRC Ministry of Justice issued the Amendment to the Arbitration Law (Consultation Draft) (the “Draft Amendment”), which is the first substantial amendment of the existing PRC Arbitration Law (the “Arbitration Law”) in more than two decades. (See previous posts on the PRC Arbitration Law here and here.) Of the changes…
The Dubai Court of Cassation, in its recent judgement, DCC 1308 of 2020, explored the effect of incorporation of arbitration clauses by reference. Typically, “incorporation by reference” refers to parties agreeing to incorporate arbitral clauses found in separate standard-form agreements (“SFAs”) into the agreement between the parties by making reference to the same. Such reference…
The Abu Dhabi Court of Cassation in Case No. 922 of 2020 recently considered the requirements that must be satisfied to conclude an arbitration agreement by powers of attorney. The judgment is the latest in a line of authorities confirming that special requirements apply to the formation of arbitration agreements (a courtesy translation of the…
The doctrine of separability of arbitration agreements recognises that an arbitration clause contained in a broader agreement is separate and valid despite the invalidity of the rest of the agreement. The doctrine also raises a fundamental question: what is the governing law of the separable arbitration agreement as compared to the remainder of the contract…
The announcement on 13 August 2020 of a rapprochement between Israel and the United Arab Emirates (‘UAE’) took the world by surprise. Seasoned regional observers noted quiet cooperation and cross-border transactions over the past few years, but few expected these covert relationships to burst into public view so fully and wholeheartedly. The joint declaration, soon…
Uber Technologies Inc. v. Heller raises questions on the possibility of third-party funding limiting unconscionable arbitration agreements. This post examines (I) how third-party funding could reduce the amount of unconscionable arbitration clauses and (II) how it could promote more specific criteria for the doctrine of unconscionability. Finally, this post offers some concluding remarks. I. Third-Party Funding…
It is undisputed that the Arbitration Law of the People’s Republic of China (“the Arbitration Law”) has greatly contributed to the establishment, development and improvement of China’s current arbitration system. However, due to the fast-moving socio-economic realities and the ever-developing legal system of China, the provisions of the Arbitration Law have gradually begun to lag…
This post examines the admissibility of investment claim assignments based on the notion of Investor-State arbitration where there is no contractual relationship between the disputing parties. To do so, it draws on Jan Paulsson’s famous article titled Arbitration Without Privity. Contract Assignments, Assignment of Claim and Arbitration Agreements The assignment of international contracts is…
During the recent visit of Brazilian President, Jair Bolsonaro, to India, Brazil and India inked the investment cooperation and facilitation treaty (hereinafter bilateral investment treaty – BIT). From Brazil’s point of view, this BIT is an extension of a novel approach to foreign investment in international law based on investment facilitation and cooperation, not investment protection…
Over the past few months anti-corruption protesters in Lebanon have taken to the streets calling for widespread reforms to the Lebanese economic and political system. This has caused considerable strain on the country’s already frail economy. The first two weeks of the unrest saw a complete closure of banks with no possibility of making transfers…
An asymmetrical arbitration clause is one where only one party can choose the method of resolving disputes between the parties. A slightly varied form of such a clause is usually contained in statutory arbitrations, which involve lop-sided arbitration clauses where only one party has the right to appoint the arbitrator. At first brush, these clauses…
In 2019, the Swiss Supreme Court (“Supreme Court”) seized two opportunities to confirm and develop its existing case law in relation to the personal scope of arbitration agreements and their possible extension to non-signatories. Extension to Non-Signatories under the New York Convention In a first decision, ATF 145 III 199, dated 17 April 2019,…
Introduction Since the enactment of the Argentine Civil and Commercial Code (the “CCCN”),1)The CCCN, Law No. 26.994, is in force since August 1, 2015. Argentina counts on a national statute to regulate the “arbitration agreement”. This legislative milestone has been mostly welcomed by the arbitral community, although some of its provisions have been subject to…
