Domestic law

Contract Interpretation, Domestic law, International Investment Arbitration, International Investment Law, Investment agreements, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investment Treaties, Investor-State arbitration, ISDS, Sovereignty

(Hasselt University, KU Leuven)/ /Leave a comment

Balancing the concurrent rights of sovereign states to regulate in their interest and of foreign investors to be afforded certain standards of protection when investing in a foreign jurisdiction often leads to complex questions in investment arbitration claims. One uncommon, but not entirely novel issue, which was again brought to light in Iskandar Safa and…

Domestic Courts, Domestic law, International Investment Arbitration, International Investment Law, Judicial intervention, Legitimate Expectations

(NOVA School of Law and PLMJ Lawyers)/ /Leave a comment

On 12 November 2024, an ICSID tribunal rendered its award in the case of Telefónica S.A. v. Republic of Colombia. At its heart, the case concerns the protection of foreign investors’ legitimate expectations under a bilateral investment treaty (“BIT”), and, more unusually, the international legal consequences of a decision by a national constitutional court affirming…

Arbitration, Arbitration Proceedings, Australia, Commercial Arbitration, Domestic law, Governing Law, International arbitration, UNCITRAL Model Law

(Twenty Essex and Banco Chambers) and (Banco Chambers)/ /Leave a comment

On 7 August 2024, the High Court of Australia (“Court”) delivered judgment in the much-anticipated Tesseract International v Pascale Construction [2024] HCA 24 in which the Court held that proportionate liability statutes apply in arbitration. This post seeks to draw attention to critical aspects of the decision of Australia’s highest court, and suggests that, properly…

Domestic law, International Commercial Arbitration, Israel

(Goldfarb Gross Seligman & Co)/ /Leave a comment

On 12 February 2024, Israel achieved a significant milestone in the promotion of international commercial arbitration with the enactment of the International Commercial Arbitration Law, 2024 (the “ICA Law”). The ICA Law, which is based on the UNCITRAL Model Law on International Commercial Arbitration 1985, with amendments as adopted in 2006 (the “Model Law”), is…

Domestic Courts, Domestic law, Federal Arbitration Act (FAA), United States

(Durham Law School)/ /Leave a comment

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…

Domestic Courts, Domestic law, Insurance, Maritime Arbitration, United States

, (BatesCareyLLP)/ /Leave a comment

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…

ADR, Dispute Resolution, Domestic law, Latin America, Mexico

(CMS)/ /Leave a comment

As a result of a reform of Mexico’s Constitution, on 25 February 2017 a Presidential Decree was enacted, whereby the Congress received the mandate to pass a new law on Alternative Dispute Resolution mechanisms (“ADR Law”) in August  2017.[1]  For the first time, the right to “access to ADR mechanisms” was recognised at constitutional level,…

Arbitrability, Arbitration clause, Consent, Domestic arbitration, Domestic Courts, Domestic law, Enforcement of an arbitration clause, Federal Arbitration Act (FAA), United States

, (Mayer Brown) and (Goldman Ismail Tomaselli Brennan & Baum LLP)/ /Leave a comment

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…

Arbitration Act, Domestic law, Hungary

, (Schoenherr)/ /Leave a comment

The Hungarian arbitration Act (Act LXXI of 1994 on arbitration, “the Act”) has barely “turned 22” and the pressure to replace it with new legislation has popped up. Considering the current, rapid reform of effective laws in Hungary – meaning that relatively new legislation which has been in force for only five to ten years…

Brussels Regulation, Domestic law, Enforcement, European Law, Parallel Proceedings

(Herbert Smith Freehills LLP)/ /Leave a comment
Herbert Smith Freehills

As has been discussed previously on this blog, the recast Brussels Regulation contains a number of important clarifications to the arbitration exception. Paragraph 3 of Recital 12 and Article 73(2) make it clear that the recast Regulation shall not affect the application of the New York Convention (the “Convention”). The recast Regulation should allow a…

Anti-suit injunction, Arbitral Award, Arbitration, Arbitration Proceedings, Brazil, Domestic Courts, Domestic law

(Justen, Pereira, Oliveira & Talamini)/ /2 Comments

Recently, the Kluwer Arbitration Blog published a post regarding the ongoing saga between the The Clorox Company and the Petroplus Companies. That post sought to answer two general questions: 1) the power of international arbitrators to overturn interim measures granted by Brazilian courts, and 2) the power of Brazilian courts to stay international arbitrations. While…

Arbitration Agreements, Domestic law, English Law, India, Jurisdiction

(Clyde & Co. LLP)/ /1 Comment
Clyde & Co.

The potential intervention of Indian courts over foreign seated arbitrations is a hot topic in international arbitration. On 28 May 2014, the Supreme Court of India (“SCI”) heated up the debate by handing down a judgment in Reliance Industries Limited & Anr v Union of India. The SCI found that Indian courts had no jurisdiction…

Arbitration Awards, Domestic law, France, ICC Arbitration, New York Convention, Set aside an international arbitral award, State entity, United Arab Emirates

(Blanke Arbitration LLC)/ /Leave a comment

In a blog earlier this year (see my blog of 12 March 2013), I expressed concerns about a Dubai Court of First Instance ruling (see Case No. 489/2012, ruling of the Dubai Court of First Instance of 18 December 2012) that in complete disregard of the prevailing provisions of the New York Convention (see Convention…

Arbitration, Asia-Pacific, Commercial Arbitration, Domestic law, Hong Kong, International arbitration, Legislation, National Arbitration Laws

(Linklaters)/ /Leave a comment

Hong Kong is one of the major hubs for international arbitration in Asia. Its position was strengthened when, in 2012, India added Hong Kong to the list of so-called “gazetted” states: only arbitral awards rendered in these states will be recognised and enforced in India under the New York Convention. The inclusion of Hong Kong…

Anti-arbitration, Anti-suit injunction, Domestic law, Intellectual Property Rights, Parallel Proceedings

(Herbert Smith Freehills LLP)/ /Leave a comment
Herbert Smith Freehills

In a judgment dated 10 May 2013 (Sanofi-Aventis Deutschland GmbH v. Genentech, Inc., Appeal No 2012-1454) the United States Court of Appeals for the Federal Circuit (the ‘CAFC’) affirmed a first-instance decision refusing the grant of an injunction preventing Sanofi-Aventis Deutschland GmbH (‘Sanofi’) from continuing to participate in an ICC arbitration where issues of infringement…

Domestic law, Enforcement, International arbitration, Jurisdiction, kompetenz-kompetenz, New York Convention

(Leaua & Asociatii)/ /3 Comments

By Crenguta Leaua and Stefan Dudas (Leaua & Asociatii) A new Code of Civil Procedure (CCP) including two separate sections on domestic and international arbitration entered into force in Romania on 15th of February. With this step, Romanian law continues to differentiate between domestic and international arbitration and to allow for a flexible regime for…

Arbitration, Asia-Pacific, Commercial Arbitration, Domestic law, Hong Kong, Legislation, National Arbitration Laws, Pro arbitration

(Herbert Smith Freehills)/ /Leave a comment
Herbert Smith Freehills

by Justin D’Agostino and Briana Young On 28 March 2013, Hong Kong gazetted The Arbitration (Amendment) Bill 2013. The Bill proposes amendments to Hong Kong’s Arbitration Ordinance (Cap. 609) to implement an arrangement for mutual enforcement of awards between Hong Kong and Macao, allow for enforcement of emergency arbitrator decisions in Hong Kong, and provide…

Arbitration, Arbitration Act, Domestic Courts, Domestic law, Enforcement, Europe, Evidence, Interim Orders

(Linklaters)/ /Leave a comment

The recent Portuguese Voluntary Arbitration Law, which has been in force since 14 March 2012, (English version available here), was received with great enthusiasm amongst the legal community, which claimed for a new arbitration law that could bring to Portugal a regulatory framework closer to the UNCITRAL Model Law on International Commercial Arbitration. The goal…

Arbitration, Asia-Pacific, Domestic Courts, Domestic law, Enforcement, Set aside an arbitral award, Set aside an international arbitral award, Uncategorized

(Chapman Tripp)/ /2 Comments

Arbitration is underpinned by natural justice. Article 18 of the Model Law, enshrining the right of the parties to be treated with equality, and given a full opportunity to present their case, was described by UNCITRAL in 1985 as the “Magna Carta of Arbitral Procedure”. Yet the Model Law does not in Articles 34 and…

Arbitration, Arbitration Awards, Arbitration clause, Arbitration Institutions and Rules, Arbitration Proceedings, Commercial Arbitration, Corporate Counsel's view, Domestic law, English Law, Expedited arbitration, ICC Arbitration, ICSID Convention, International arbitration, Investment Arbitration, LCIA Arbitration, New York Convention

(Conway & Partners)/ /Leave a comment

There are many clients who are often engaged in industrious works that result in disputes. Typically, the applicable arbitral agreements requirement submitting claims to international arbitration and, in this author’s opinion, appropriately so. However, these same clients may also be subject to frequent claim assertions that lack any true merit. Despite this, there is not…

Arbitration, Arbitration Agreements, Arbitration clause, Brazil, Domestic law, English Law, International arbitration, Law governing the arbitration agreement, Seat of the arbitration, UNCITRAL Model Law

(McGill University Faculty of Law)/ /2 Comments
Institute for Transnational Arbitration (ITA)

The English Court of Appeal’s recent decision in Sulamerica CIA Nacional De Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638, which is discussed in a recent post by Guy Pendell, underscores an important weakness in the international arbitration system’s legal framework. While everyone accepts that the arbitration agreement is the foundation of an…