The Achmea saga has taken yet another twist. In a recent communication to the Dutch Parliament, the Dutch Ministry of Economic Affairs and Climate disclosed that it initiated “anti-arbitration” proceedings before the German courts on 11 May 2021 to “avert” two ECT-based ICSID arbitrations brought against it by the German energy companies RWE and Uniper (“Communication”)….

Competitive tendering for construction and engineering contracts is an essential element of business for the industry. Huge expenditure is devoted to public infrastructure projects and effective competition is essential to achieve value for money and appropriate use of public funds. The World Bank estimates that Governments worldwide spend US$9.5 trillion in public contracts every year….

Welcome to the Kluwer Arbitration Blog, Mr. Ngugi!  We are grateful for this opportunity to learn more about the Nairobi Centre for International Arbitration – NCIA, the type of disputes it handles and the way it is facing recent developments, such as the COVID-19 crisis. Please give our readers a brief background of yourself and…

This post analyses the recent developments in enforcement of foreign awards in India that were discussed during the Delos’ Tagtime webinar by Mr. Gourab Banerji SA.1) who was “tagged” by Sir Bernard Eder. Mr. Banerji then “tagged” his colleague from the Nigerian Bar Ms. Funke Adekoya SAN to appear in the next Tagtime webinar by…

On June 26, 2020, the Supreme Court of Canada (“SCC”) released a decision with significant implications for international businesses by placing significant limits on the application of arbitration clauses.   Background The case, Uber Technologies Inc. v Heller (2020 SCC 16 ) (“Heller”), involved a challenge to Uber’s standard agreement with drivers requiring disputes to…

Introduction1)Kevin is a member of BCLP’s International Arbitration and Construction Disputes team in London. He is due to be admitted as a Hong Kong solicitor and currently has no right to practice as a solicitor in England & Wales or Hong Kong. In this year’s Willem C. Vis International Commercial Arbitration Moot (the “2020 Vis…

This is the 1st part of the report highlighting the most significant arbitration related decisions of the Swiss Federal Supreme Court (the “Supreme Court”) issued in 2019.   Arbitrability In the decisions 4A_244/2019 and 4A_246/2019 of 12 December 2019, the Supreme Court dealt with the issue of arbitrability. In two arbitrations brought before a tribunal…

This is the 2nd part of the report highlighting the most significant arbitration related decisions of the Swiss Federal Supreme Court (the “Supreme Court”) issued in 2019.   Ne Eat Arbiter Extra Petita In the decision 4A_294/2019 / 4A_296/2019 of 13 November 2019, the Supreme Court dealt with an extra petita appeal against an ICC-award….

In June 2019, the Constitutional Court of Colombia (the “Court”) issued a communication summarizing its decision on the Free Trade Agreement between the Republic of Colombia and the State of Israel (the “FTA”) signed on September 30, 2013.  The Court adjudged that the FTA is compliant with the Colombian Constitution but warned that if the…

In June 2019, Colombia’s Constitutional Court (the “Court”) issued a communication informing its decision on the constitutionality of the BIT between Colombia and France (the “BIT”) signed on July 10, 2014. In an unprecedented decision, the Court adjudged that the BIT is compliant with the Colombian Constitution (the “Constitution”) but conditioned its ratification to the…

On 6 November 2018, the ICC, in collaboration with Al Tamimi & Company, hosted the first Kuwait Arbitration Day. This involved practitioners from across the Middle East and beyond coming together and discussing the latest developments and trends within arbitration. The event attracted over 100 participants who attended despite the day being announced as an…

In a recent decision, Turkey’s Court of Cassation refused to enforce an arbitration clause in an English language contract between a Turkish party and a foreign party based on Turkey’s national language requirement for commercial enterprises, the Code on the Mandatory Usage of the Turkish Language in Commercial Enterprises No. 805 (“Law No. 805”). The…

State Responsibility for State Organ’s Conduct The fact that a state can be held liable for its organs’ conduct is part of a wider notion that sees states as responsible for their internationally wrongful acts. This notion was codified in the ILC Articles of State Responsibility. Article 1 states that “every internationally wrongful act of…

The central point of this note is that the U.S. law of arbitration is not clear from the text of the Federal Arbitration Act (FAA). The FAA is archaic and in need of updating. The FAA is the oldest – but still functioning – arbitration statute in the world. Case law has rewritten much of…

The U.S. Court of Appeals for the Ninth Circuit has enforced an arbitration clause in a maritime insurance policy, finding the policy subject to the Federal Arbitration Act, and not “reverse preempted” by the McCarran-Ferguson Act.  In so holding, the court determined that the policy’s choice-of-law clause and arbitration provision controlled over somewhat different language…

Businesses that are party to an arbitration agreement governed by Nevada law should understand that a little-known Nevada statute renders these agreements unenforceable if a contract lacks so-called “specific authorization” indicating that a person affirmatively assented to the arbitration provision itself. While the Nevada Supreme Court has applied this rule to invalidate arbitration agreements, a…

The first blog in this two-part series, published last year, discussed the growing concern of arbitration users over “due process paranoia”. In that first blog, due process paranoia was defined as the perceived reluctance by arbitral tribunals to act decisively (for example by rejecting applications for extensions of time, refusing amendments to submissions, rejecting new…

  Arbitral tribunals are increasingly faced with allegations of corruption. In these situations, arbitral proceedings and criminal investigations frequently go in tandem. Their findings overlap and may influence one another. Regardless of the many instances where corruption is alleged, there have been only a few investment cases in which a finding of corruption was actually…

Escalation clauses (or multi-tiered dispute resolution clauses) need careful drafting so that the wording is both enforceable and commercially useful – and does not produce unexpected surprises. With regard to clauses that provide for ‘final’ dispute resolution by means of arbitration, in particular, there is uncertainty as to the consequences of the parties’ failure to…

On 22 September 2016, the 1st Instance Court of Jundiaí – São Paulo dismissed a claim under Article 485, VII of the New Brazilian Civil Procedure Code (NBCPC) finding that the court lacked jurisdiction over disputes arising out of a distribution agreement which provided for disputes to be resolved by arbitration. Pursuant to Article 485,…

The situation that the Bundesgerichtshof was recently faced with in a case is not uncommon: whilst a state court still reviews an arbitral tribunal’s preliminary ruling on its competence, the arbitral tribunal delivers its final award on the merits. This raises one question: What are the implications for the pending challenge to jurisdiction? In previous…

According to a recent announcement (see the official DIAC website at http://www.dubaichamber.com/en/news/dubai-international-arbitration-centre-opens-an-office-in-difc), the Dubai International Arbitration Centre, widely known by its acronym as the “DIAC”, is set to open a branch in the Dubai International Financial Centre, in shorthand the “DIFC”. This anticipated move is no doubt a promotional exercise to address concerns that the…

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…

European institutions have established the European Account Preservation Order procedure (“EAPO”) to facilitate the cross-border debt recovery through the attachment of bank accounts (see here the Regulation (EU) No. 655/2014, which will apply from 18 January 2017, except for Denmark and the United Kingdom). The EAPO in particular provides creditors with a measure alternative to national…