On 21 February 2024, the District Court of Amsterdam (“the court”) rendered a decision in summary proceedings. The key question that arose from this decision was: Can parties facing an unclear arbitration agreement ask the national courts to resolve their disputes instead? The issue of ambiguity surrounding arbitration agreements is not a novel phenomenon (see,…
In January 2023, the Hong Kong Court of First Instance in Grand Ocean & Williams Co Limited v. Huaxicun Offshore Engineering Co Ltd (江苏华西村海洋工程服务有限公司) [2023] HKCFI 86 (“Grand Ocean”) held that an arbitration clause, governed by the laws of the People’s Republic of China (“PRC”), was void and incapable of being performed on the basis…
Jan Paulsson once said, “There is a twilight zone. But only a fool would argue that the existence of the twilight zone is proof that day and night do not exist.”1)Jan Paulsson, “Jurisdiction and Admissibility,” Global Reflections on International Law, Commerce and Dispute Resolution, ICC Publishing, Publication 693, November 2005, at 603. Here, the term…
In a recent decision, Court of Cassation No. 585/2023 (Commercial), the Dubai Court of Cassation (“COC”) concluded that the invalidity of a contract extends to the arbitration clause included in the underlying contract. This post blog examines this decision, the outcome of which is contrary to well-established UAE law as well as prior Dubai court…
The question of the validity of unilateral arbitral appointments in the Indian scenario has risen above the surface yet again. The Delhi High Court recently, in Margo Networks Pvt. Ltd. and Another v Railtel Corporation of India Ltd (“Margo”), reiterated the conflict in the existing legal position and the need for finality on this issue….
Arbitration can be defined as a dispute resolution mechanism by which parties submit their case to a specifically chosen decision-maker to render a binding decision. Arbitration is a consensual procedure and can only be initiated if parties have agreed to do so. As most arbitration laws, the Brazilian Arbitration Act (“BAA”) provides for the enforceability…
The international arbitration community has made progress on improving diversity across the field, but continues to fall short on appointing diverse international arbitration tribunals. Experts point to a range of reasons for the lack of diversity in international arbitration tribunals, chief among which is the lack of an experienced pool, coupled with the reluctance of…
In many Arab countries, including Jordan, special legislative and regulatory instruments are in place to provide certain protections for local commercial agents and distributors. The relevant laws regularly vest the local courts with exclusive jurisdiction to rule on disputes between agents/distributors and principals. Such exclusive jurisdiction rules prevent derogation from the jurisdiction of local state courts…
It is critical to invest time to ensure that there are no inconsistencies between multiple dispute resolution/jurisdiction clauses within a particular contractual relationship (whether within a single contract or across multiple related contracts). Such inconsistencies inevitably lead to disputes over how the parties should resolve their disputes – a potentially costly sideshow to the resolution…
At the recent hybrid 7th ICC Asia-Pacific Conference on International Arbitration (the “Conference”), a palpable sense of happiness and community resonated throughout the day. Mr Justin D’Agostino (Global CEO, Herbert Smith Freehills, Hong Kong) moderated the first panel discussion in a quick fire manner on recent arbitration developments in the Asia-Pacific region with leading practitioners…
After a two-year hiatus, the ICC Young Arbitrators Forum (ICC YAF) was back with a fully in-person program in Warsaw. This unique conference included an interview with Claudia Salomon, President of the ICC International Court of Arbitration, followed by a lively panel discussion on “champagne clauses and what comes next”. The event coincided with the…
Environmental concerns now play an increasing role in investment disputes. In this regard, this post analyses the interpretation of an environmental carve-out in an investment treaty in the decision on jurisdiction and liability in Eco Oro Minerals Corp. (“Eco Oro”) v. Colombia. Background and Award This dispute arose from Colombia’s measures adopted in connection…
This blog has previously discussed the illegality of unilateral appointments of sole arbitrators in India. However, a good beginning is only half the battle won. Before one dwells further, it is important to gauge the Indian position on unilateral appointments. First, as stated in TRF Ltd. v. Energo Engineering (“TRF”), if the nominated arbitrator is…
In a recent High Court case, it was held that a reference in a contract to the “court” did not mean a court at all but meant instead – perhaps alarmingly – arbitration. This decision in Helice Leasing S.A.S. v PT Garuda Indonesia (Persero) TbK [2021] EWHC 99 (Comm) may be a cause of concern…
The third edition of the Jeantet “Arbitrating in CEE and CIS” roundtable was held virtually during the Paris Arbitration Week on Wednesday, 8 July 2020. The topic of this year’s edition laid stress upon “Do and Don’t’s When Choosing a Seat and Enforcing in CEE/ CIS/ Russia: State of Play”. Because of both the significant…
In the recent decision of AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Company) [2020] SGCA 33 (“AnAn“), the Singapore Court of Appeal found that when a debtor challenges a winding-up application on the basis of a disputed debt or cross-claim that is subject to an arbitration agreement, the court should apply…
The 1958 New York Convention (“NY Convention” or “Convention”) was adopted in the era when probably the fastest form of communication in which an arbitration agreement could have been concluded was via telegrams. The Convention requires written form for an arbitration agreement (clause) to be valid, but the electronic communication of our times had not…
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…
In my previous post in September 2018, I discussed certain trends in the negotiation of arbitration provisions in derivatives documentation. I mentioned at the outset that the International Swaps and Derivatives Association (“ISDA”) had by then already provided detailed guidance on the use of arbitration clauses in the 2013 ISDA Arbitration Guide. A year on,…
The issue of unilateral appointment of a sole arbitrator by a party has been in the spotlight since the Supreme Court of India’s (“SC”) decision in Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd. (“Perkins”) on 26 November 2019. This case largely puts the issue to rest by rendering unilateral sole arbitrator appointments…
“Recourse to arbitration has now become a right of the competent ministry with the agreement of the Ministry of Finance. Whereas recourse to arbitration was previously an exception, now, this is a clear confirmation by the government of the importance of arbitration and the government’s commitment to participate in more rapid, cost-effective litigation.” – Saudi…
On September 10, 2019, in considering an interlocutory appeal to stay arbitration proceedings, the Espírito Santo Court of Appeals decided to grant an exception to the competence-competence principle on grounds that the arbitration agreement was prima facie “manifestly illegal”. (Interlocutory Appeal No. 0013950-80.2019.8.08.0012, injunctive relief issued on September 10, 2019). Background In 2001, the…
Under China’s arbitration regime for foreign-related arbitration and international arbitration, the concept of a juridical seat is a statutory juncture where, in cases with no express agreement on the applicable law between the parties, Chinese courts must determine the applicable law (statutory text is available in Chinese here and unofficial English translation here).1) See Article…
The assignment of contractual rights is a common business practice. An important question concerning the assignment of rights under a contract is the fate of the arbitration agreement related to those rights and whether it is transferred automatically to the assignee so that such arbitration agreement becomes effective and binding in the relationship between the…
