Arbitrability is a fundamental concept of arbitration law which gives an answer to a question which dispute can be submitted to arbitration. Traditionally in Russia the non-arbitrability of a dispute was explained through a public policy consideration. In other words, disputes which have or might have a public interest cannot be submitted to arbitration. The…
With the rise of populist politics in the 2016 U.S. presidential election and the Brexit referendum, it is not surprising that trade in general, and the Trans-Pacific Partnership in particular, have become lightning rods for controversy. The proposed treaty’s provisions on trade, investment, and intellectual property have drawn passionate criticism from both old and new…
Introduction As noted in Part 1 of this two-part series, the ability to select an arbitrator is widely considered one of the most valuable characteristics of international arbitration. While Part 1 focused on removal of arbitrators for apparent bias, this Part 2 focuses on the parties’ ability to remove an arbitrator if he/she proves unable,…
Introduction The ability to select an arbitrator is widely considered one of the most valuable characteristics of international arbitration. According to the Queen Mary University and White & Case 2015 International Arbitration Survey, selection of arbitrators was considered its fourth most important characteristic, with 38% of respondents rating it among their top three. Surely, then,…
Introduction On 12 July 2016, a five-member arbitral tribunal (the Tribunal) constituted under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) issued its long-awaited award on the merits in an arbitration brought by the Philippines against China. The tribunal’s jurisdiction is derived from UNCLOS; all State parties to UNCLOS…
Introduction On 23 May 2016, CIETAC’s Hong Kong Arbitration Center (CIETAC HKAC) issued for public consultation draft Guidelines for third party funding (the draft Guidelines). Third party funding (TPF) is a hot topic in Hong Kong. The draft Guidelines come in the wake of recent initiatives to clarify the law on TPF in the territory,…
The Ukrainian “saga” on the enforcement of the SCC emergency arbitrator’s award continues – the case is pending the second round of cassation review. The arbitration proceedings were initiated by the Dutch and English investors OIL&GAS PLC and POLTAVA GAS B.V. (“JKX” or “Claimants”) on January 7, 2015. The case concerns the alleged Ukraine’s failure…
When allocating costs, investment arbitration tribunals apply two principles: a “pay your own way” principle which provides that each party pays its own legal costs and they effectively share the costs of the proceedings, and secondly a “costs follow the event” or “loser pays” principle which provides that the losing party bears the costs of…
Co-authored with Lucy Greenwood (Norton Rose Fulbright) and Michael McIlwrath (General Electric Company) Earlier this year, we published an article “Puppies or Kittens – How To Better Match Arbitrators to Party Expectations”, which we summarized here on Kluwer, calling for better-informed choices in appointing arbitrators. We highlighted that the lack of available information during the…
The beckoning call for an Institutional Arbitration Centre for the Country with one of the highest number of commercial disputes has finally been answered with the formation of the new Mumbai Centre for Institutional Arbitration (“MCIA”). This move, a furtherance of the Governments recent initiative to boost investment is a natural advancement after the recent…
On 12 April 2016, the Paris Court of Appeal rejected the request for annulment brought by the Greek Company S.A.J. & P. Avax (“Avax”) against an ICC partial award on the ground that the chairman of the tribunal lacked independence. This is the fifth decision rendered in this case by French courts and in all…
The 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“The New York Convention”) is the engine that makes international arbitration an effective mechanism to resolve disputes. The national courts of each signatory state give meaning to the New York Convention’s terms by rendering decisions interpreting the text of the document….
London has long been a city associated with international arbitration. In 2015, even with the UK referendum on EU membership looming, according to analysis by theCity UK, London was the seat or centre of 4,738 international commercial arbitrations, mediations and adjudications in 2015. These were conducted under the auspices of numerous institutions, with the long-established…
As discussed in an earlier post, the Court of Justice of the European Union confirmed that its function is not to review findings of an Arbitrator or his interpretation of a Patent License Agreement: Genentech, Inc. v Hoechst GmbH/ Sanofi Aventis GmbH, Case C-567/14 (Judgment of the Court: 7 July,2016). 1. The Facts The terms…
On the 7th of July 2016 the Court of Justice of the European Union (“Court” or “CJEU”) published the judgment in the Genentech case (Case C 567/14), awaited with great interest both by IP and competition practitioners, on one side, and by arbitration practitioners, on the other. IP and competition law practitioners’ interest lies in the…
In recent years, international arbitration has emerged as a high-growth area for the litigation funding industry. All the major funders now have international arbitration cases in their portfolios, and many are aggressively seeking more – especially investment treaty cases. But the participation of funders in international arbitration raises a number of issues, some national and…
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“NYC“) was drafted in the spirit and with the purpose of encouraging arbitration as a dispute resolution mechanism, by providing for the simple and swift international enforcement of arbitral awards. Today, the NYC’s reach is – with the exception of a few…
Two recent decisions (nos. 14/2015 and 176/2015) delivered by the Greek Supreme Court analyze the issue of annulling arbitral decisions on public policy grounds. Since arbitration is particularly valuable for the contractual freedom, the general tendency is to restrict the powers of civil courts when they (re)consider and overturn an arbitral award, so that private…
The cover of The Hitchhikers Guide to the Galaxy famously features a “Don’t Panic” button. In the weeks leading up to the Brexit vote, some English law firms posted reassuring articles on the possible effects a vote to leave would have for dispute resolution in London. “Don’t panic” seemed to be a common theme. Yet…
In May 2016, DRBF gathered in Santiago, Chile, for its annual international conference. The location is testimony to the rising demand and dispute boards practice in the region. Having served for some years in the management of our organization, it is observable that the purpose of the concept proves to be successfully established. Indeed, the…
As part of its centenary celebrations in January 2017, the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”) will be launching updated rules. Drafts of the revised SCC Arbitration Rules and Rules for Expedited Arbitrations are now available on the SCC website. A public hearing was held in Stockholm on June 9 to discuss the…
Claudia Pechstein, 44, is a well-known speed skater – she has won 60 medals at international championships and at the Olympics since 1992. However, the media coverage on her seven year juridical battle against a two year suspension imposed on her for a disputed doping rules violation has put her into the spotlight even more…
When questioned what the users of arbitration expect from the process and what its main pitfalls are, the answer is usually unequivocal: the need for time and cost-efficient proceedings leading to a well-considered decision is not consistently met. The reason for this complaint is obvious: the ‘Golden Age’ of arbitration has made way for a…
As previously discussed, the U.S. Department of Commerce, the Bosnian Chamber of Commerce and Industry and the Association ARBITRI organized in April 2016 two arbitration events in Sarajevo, Bosnia and Herzegovina [“BiH”], with the aim to promote awareness of modern international practice and developments of law, and to encourage the reform of national laws, regulations…
