Conflicts of interest between parties and arbitrators are common in arbitration proceedings. However, the academic community has not yet examined whether arbitral institutions may also run into conflicts of interest. This post will deal with this question and also examine measures that can mitigate any such risks of conflicts of interest for arbitral institutions. The…
An increasing number of anti-arbitration injunctions applications have come before the Malaysian courts within the last two years. Anti-arbitration injunctions can take various forms but are essentially judicial orders restraining the initiation or continuation of arbitration proceedings in Malaysia or, as the case may be, a foreign jurisdiction. What has emerged from the Malaysian courts…
In a judgment dated 22 June 2021, the Paris Court of Appeal ruled that liability claims against arbitrators fall within the “arbitration exception” of Article 1(2)(d) of the Brussels I recast regulation, leading to the application of French private international law rules to determine the competent courts. The Paris Court of Appeal further considered that…
The Singapore Court of Appeal (“CA”) recently handed down CBX and anor v CBZ and ors [2021] SGCA(I) 3 (“CBX”), setting aside, exceptionally, the awards.1)The views expressed in this article are solely the views of the authors, and are not representative of the organisations they are affiliated with. Significantly, the law was clarified, to a…
The institution of emergency arbitration (EA), in general, and its usage in investment treaty-based disputes, in particular, is a relatively new procedural tool. In investment disputes, EA has reportedly been carried out in practice only under the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC Rules”). Conducting EA proceedings in…
There have been significant legal developments in recent times in Australia concerning the proper choice of law applicable to an arbitration agreement. Cases have centred on how to give effect to parties’ choice. But there are other laws which, despite not being chosen by the parties as the law applicable to the arbitration agreement, may…
Where C commences an arbitration against a non-existent entity E, and D defends the arbitration in the guise of E, can an award rendered in favour of E be enforced by D against C?1)This article is written in the author’s personal capacity. The opinions expressed are entirely the author’s own, and do not reflect the…
On 30 May 2021 the fifth webinar of the series “The Rising Arbitrator’s Challenge: Navigating the Premise and Perils of Your First Appointment(s)” covering Australia and New Zealand was presented by ACICA45 in collaboration with the Rising Arbitrators Initiative (RAI). RAI was created in September 2020 to support arbitration practitioners under 45 who have either…
Although Taiwan’s legislative and judicial practices already conform to the spirit of the New York Convention (“Convention”) and the Model Law, it appears that non-Taiwanese parties nevertheless remain hesitant to arbitrate in Taiwan. The necessity of becoming a Model Law jurisdiction arises from Taiwan’s inability to accede to the New York Convention. Hence an institutional…
In 2019, Mainland China and Hong Kong entered into a groundbreaking bilateral arrangement regarding interim measures for arbitration, i.e., Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region (the “Arrangement”).1)Thanks to Lingming Xu for his contribution to…
The economic havoc wreaked by the Covid-19 pandemic has resulted in a 10-year high of corporate bankruptcies in the United States in 2020. While bankruptcy levels across Europe have fallen amid the pandemic, a sharp spike in corporate bankruptcies is expected as economic support programs phase out in the coming months. This will increase the…
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”)….
In March 2021, a major newspaper broke the story that a Hong Kong investor had filed what may be considered the very first investment treaty arbitration claim against Japan under the Hong-Kong Bilateral Investment Treaty (Hong Kong, China SAR – Japan BIT 1997). While it may take anywhere from a few months to a few years…
On 31 May 2021, the Japan Commercial Arbitration Association (“JCAA”), Japan International Dispute Resolution Center (“JIDRC”), and the Japanese Ministry of Justice (“MoJ”) co-hosted a webinar on developments in arbitration in Japan and Japan’s potential as an international arbitration hub. Some of the key takeaways from the event include: positive experiences with the physical and…
Independence and impartiality of an arbitrator are sine qua non in an arbitration proceeding. It is for this reason that jurisdictions, all across the globe, have taken significant measures to elaborate on the circumstances that may raise justifiable doubts as to the independence and impartiality of an arbitrator. However, one sphere remained untapped, until recently….
The issue of dual nationals’ access to investor-state dispute settlement (“ISDS”) has once again taken the center stage through the recently issued Carrizosa v. Colombia award. Resolved under the auspices of the 2013 UNCITRAL Arbitration Rules, the PCA tribunal unanimously dismissed the entire case for lack of jurisdiction ratione personae, in accordance with the provisions…
In the last decade, fifteen cases have been filed by foreign investors against India under various bilateral investment treaties (BITs). Of these, three major cases were spurred by the ill-reputed retrospective taxation by India in 2012, allegedly targeted towards certain foreign investors namely: (i) Vodafone International Holdings BV v. The Republic of India (Vodafone case);…
The story of counsel ethics in international arbitration is very much like Cinderella’s fairytale. Once the clock struck midnight, all that remained was her glass slipper. This left the prince to search the kingdom for a maiden with the perfect fit for a “happily ever after”. Counsel ethics in international arbitration similarly involve an ongoing…
The Vienna International Arbitral Centre (“VIAC”) announces its most recent update to the VIAC Rules of Arbitration and Mediation (the VIAC Rules of Arbitration and Mediation 2021) taking effect on 1 July 2021. The revision of the VIAC Rules of Arbitration and Mediation was triggered by the drafting of the new standalone set of VIAC…
On June 21, 2021, Ecuador’s Ambassador to the United States, Ivonne Juez Abuchacra de Baki, signed the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the “ICSID Convention“) on behalf of the Republic of Ecuador (“Ecuador“). With Ecuador, the number of signatory States to the ICSID Convention is now…
The approach historically taken by Canadian courts to playing the role of guardian with respect to domestic commercial arbitration has sometimes been both confused and confusing, a situation only cofounded by recent Supreme Court of Canada (“Supreme Court”) jurisprudence. With the release of Sattva in 2014 and Teal Cedar in 2017 , the Supreme Court…
On 12 March 2021, a tribunal issued an award in the case of Naturgy v. Colombia (ICSID Case No. UNCT/18/1) under the Colombia-Spain BIT (2005) (the “BIT”). The decision is the first in a wave of four decisions decided in the first half of 2021 in favor of Colombia. Naturgy is noteworthy for its engagement…
Confidentiality is one of the distinctive features of arbitration and is often promoted as an advantage of arbitration. Most arbitral institutions require arbitral tribunals and parties to preserve confidentiality of arbitral proceedings. Having said that, commercial disputes which are subject to arbitration agreements most often do not simply disappear from the limelight. Quite the opposite,…
This blog post examines the approaches of Belarusian law and judicial practice to the application of public policy rules. Considering specific cases, the author makes suggestions for mitigating the risks to challenge of arbitral awards on the grounds of non-compliance with Belarusian public policy. Supreme Court Resolution on Public Policy Under Belarusian law, Belarusian…
