The Crimea crisis has received attention by UNCLOS and investment tribunals, as well as by the Swiss Federal Tribunal in appeals and annulment proceedings. However, their analyses have been limited to jurisdiction. The implicated issue was whether the (bilateral) investment treaties (BIT) of the occupying, and a fortiori annexing, State could be applied extraterritorially. These…
On 19 May 2020 the London Court of International Arbitration (hereinafter the LCIA or the Court) issued its annual casework report for 2019. This paper aims to present and analyse the numbers revealed in the report. The focus will be on the development of international arbitration in terms of market, diversity and inclusion, and applicable…
The investor-state dispute settlement (ISDS) arrangements provided in Chapter 14 of the United States-Mexico-Canada Agreement (USMCA) are a radical shift from those that have been in force for the past 25 years under Chapter 11 of the North American Free Trade Agreement (NAFTA). As explored in Wednesday’s post, Canada has effectively opted-out of ISDS under…
On July 1, 2020, the United States – Mexico – Canada Agreement (USMCA) will enter into force. Although the media widely refers to the treaty by its American name, USMCA, it also carries two other names: Canada has adopted it as the Canada – United States – Mexico Agreement (CUSMA), while Mexico has settled on…
Reforms Are Afoot Calls for investor-State dispute settlement (“ISDS”) reform have catalyzed efforts to evolve the regime. Concurrently, the ISDS system continues to wrestle with tensions between an investment regime primarily oriented towards protecting investor rights, and the human rights normative architecture for protection of individual rights and associated State obligations for protection of such rights. ISDS…
Not all technology is born equal. In 1739, the French inventor and artist Jacques de Vaucanson unveiled a head-scratching automaton that fascinated contemporaries for more than a century. It was a ‘digesting duck’, which had the apparent ability to eat kernels and actually digest them. The invention was a trick, of course, and it was…
Recent years have seen an uptick in the expansion and enforcement of anti-corruption laws worldwide. In 2017, China amended its Anti-Unfair Competition Law, broadening the scope of bribe recipients covered by the law, and increasing penalties. In 2019, Italy widened its anti-bribery law, No. 3/2019, increasing penalties for both individuals and companies found guilty of…
Long before the now-popular phrase “pale, male, and stale,” leading arbitrators were instead often referred to as a “club,” a “cartel,” or even a “monopoly.” Those references were meant metaphorically, even jokingly. The irony is that they turn out to hold important truths that are promiscuously intertwined with the pale-male-stale moniker. To understand both, we…
Background There is much public discourse on the impact of the ongoing pandemic on international arbitrations. Commentators and scholars have provided perspectives on how to navigate and find safe harbours in the uncharted waters of COVID-19. In the “new normal” of wide-ranging travel advisories and restrictions, there is an emerging consensus to better integrate the…
It is not uncommon to encounter international arbitration cases in which one party, usually the respondent, refuses to pay the advance on costs set by the institution. This may occur when that party objects to the jurisdiction of the arbitral tribunal or there is a risk that the advance will not be recovered after the…
Remote hearings are nothing new, but the COVID-19 crisis has forced international arbitration out of its comfort zone. Parties, counsel, and arbitrators must adapt to the new reality of conducting proceedings in the face of travel restrictions and social distancing measures. One particularly thorny question is whether and to what extent planned physical hearings that…
During a vivid “virtual” presentation delivered by the well-known arbitrator, professor and practitioner, Gary Born, the topic of virtual hearings was addressed. Another well-known international arbitrator, Elena Gutierrez García and the President of the AMCHAM-Peru Arbitration Center, José Daniel Amado, moderated the discussion. At the outset, Mr. Born clarified that virtual hearings are not a…
Last week BCLP released the results of its annual International Arbitration survey on the topic of appeals against a tribunal’s decision on the merits. Respondents to the survey comprised arbitrators, corporate counsel, external lawyers, litigation funders, academics and those working at arbitral institutions. Procedures for court challenge of an award on the basis of procedural…
In the recent ruling of 29 April 2020, the England and Wales Court of Appeal, departing from Sulamérica, has held the seat of arbitration as an implied choice of the law of the arbitration agreement in cases where parties expressly chose the law applicable to the main contract and the seat of arbitration under a…
On 28 January 2020, the arbitration panel has been formed in the dispute between the EU and Ukraine regarding Ukraine’s export prohibition of unprocessed timber. Notably, this is the first dispute between the EU and Ukraine under the Association Agreement (“EU-Ukraine AA”), and here, the EU invokes the dispute settlement mechanism provided by the free-trade…
Although some might have considered 2019 a bit “lackluster”,1)Th. Clay, Panorama – Arbitrage et modes alternatifs de règlement des litiges: novembre 2018-décembre 2019, Dalloz, 26 December 2019. a number of noteworthy decisions by the Paris Court of Appeal and French Supreme Court have come to refine on the now well-established French case law on international…
On September 4, 2019, Esso, a subsidiary of the Exxon Mobil Corporation, and Shell Nigeria, a subsidiary of the Shell Oil Company (collectively “Esso”), attempted to enforce a $1.799 billion arbitral award in the U.S. District Court for the Southern District of New York after it had been annulled in the courts of Nigeria (Esso Opinion)….
Readers of the Kluwer Arbitration Blog will be very familiar with the drama surrounding the European Union’s (EU) pushback against intra-EU investor-state dispute settlement (ISDS) as contained in intra-EU bilateral investment treaties (BITs) and in particular the “clap of thunder” Achmea (C-284/16) judgment (on this blog see, e.g. here). According to the Court of Justice…
Gender and ethnic inequalities in the workplace have been the norm for decades with no effective measures been taken to address them, despite mounting evidence of discrimination and disadvantage faced by women and ethnic minorities across the world. Globally, most corporations, law-firms, government agencies, public offices recognize the need for diversity to enhance decision-making and…
In the last few years, the international arbitration community has started to engage in discussions on the digital transformation of dispute resolution and on artificial intelligence (also on this blog). Scholars and arbitration practitioners have been speculating on how artificial intelligence might be used in arbitral proceedings and the potential impact it might have on…
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,…
On November 22, 2019, the acting government of Spain passed a long-anticipated legislation in response to more than four dozen of international arbitrations that, since late 2013, have been filed continuously against the country.1)See Clifford J. Hendel & María Antonia Pérez, ‘The Past, Present and Possible Future of the Spanish Renewable Energy Arbitration Saga,’ New…
2019 has been a busy year for international arbitration in Sub-Saharan Africa. Indeed, the year has brought an interesting wave of precedents, new domestic statutes, modern international investment agreements, and arbitration events. This post highlights and summarises some of the African developments covered in the Blog in 2019, with many thanks to the authors who…
The swift and far-reaching development experienced by arbitration in Spain over the past few decades is unprecedented in the context of other arbitration-friendly jurisdictions. In little more than 40 years, a fully-fledged arbitration system was set up virtually from scratch. In 1977 Spain ratified the New York Convention without reservation, thus entering the international arbitration…
