Jurisdiction

Chile, COVID-19, Emergency Law, International Commercial Arbitration, Santiago, Suspension of Proceedings

, (Ugarte & Correa)/ /Leave a comment

Chile confirmed its first case of COVID-19 on March 3, 2020. Since then, Chilean institutions have designed several solutions to adjust their operation during the sanitary crisis.1) Specifically, the President declared a “state of constitutional exception of catastrophe”, which allows the Executive branch to take an array of measures to face the sanitary crisis. See:…

Arbitrability, Fraud, India

(School of Law, Christ University)/ /Leave a comment

The Supreme Court of India (“Supreme Court”) recently ruled on the arbitrability of fraud in the case of Avitel Post Studioz Ltd. v. HSBC PI Holdings [2020] (“Avitel”). The judgement lays down the tests to determine “serious allegations of fraud” and thereby disputes which cannot be resolved through arbitration. Various developments in the jurisprudence of…

Appointment of arbitrators, Arbitration, Court Assistance, International arbitration, Provisional measures, Removal of arbitrator, Swiss Civil Procedure Code, Swiss Private International Law Act, Switzerland

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The draft bill for the revision of the 12th Chapter of the Swiss Private International Law (“PILA”) was recently approved by the Swiss legislator (as analyzed previously on this blog). Besides permitting the filing of set-aside motions in the English language, the provisions regulating the court assistance have also been revised and adjusted with the…

Additional Award, Arbitral Award, Arbitration, Functus Officio, New York, Partial award, United States

(Chaffetz Lindsey LLP)/ /1 Comment
International Centre for Dispute Resolution (ICDR)

In a recent decision, New York State’s highest court (the New York Court of Appeals) rejected an argument that a tribunal exceeded its authority, as to warrant vacatur, when it reconsidered and corrected an earlier decision rendered in a “partial final award.”  The Court concluded that arbitrators are not functus officio to reconsider an interim…

China, CIETAC, Hong Kong, Party Representation

(Zhong Lun Law Firm)/ /Leave a comment

The arbitration laws of many established arbitral jurisdictions, for instance, the English Arbitration Act 1996, German Code of Civil Procedure, the Swedish Arbitration Act 2019 (see post on the revised Act here) and the US Revised Uniform Arbitration Act, place no restrictions as to who may act as a party representative in an arbitration. The…

Arbitrability, Brazil, Franchising Contracts

(Salusse, Marangoni, Parente e Jabur Advogados) and (CAM-CCBC)/ /Leave a comment
Young ICCA

Brazil’s new Franchising Law (Law No. 13.966/19) was published on December 27th, 2019 and became effective as of March 27th, 2020. One of the innovations (more of a confirmation) set forth by the new legislation is the provision contained in article 7, paragraph 1, which states that “the parties may resort to arbitration to resolve…

Arbitration, Brexit, European Union, UK

(Schoenherr)/ /Leave a comment
Schoenherr

In early September 2020, the United Kingdom (‘UK’) Secretary of State for Northern Ireland, Brandon Lewis, conceded in no uncertain terms that the UK Internal Market Bill would violate public international law, albeit only in “a very specific and limited way“. This immediately caused controversy, to put it mildly. The EU Commission did not take…

AfCFTA, Africa, International Investment Law, International Mediation, Investment Arbitration, Investment law, Investor-State arbitration, investor-State arbitration and mediation, ISDS

(Swiss Chamber of Commercial Mediation)/ /2 Comments

Many see the Pan-African Investment Code (PAIC), a model instrument adopted by the African Union (AU) in 2015, as the first step toward the ‘africanization’ of international investment law. While several national and regional instruments on foreign investments had been adopted by African States and Regional Economic Communities (RECs) prior to the PAIC, the latter’s…

Enforcement, ICSID, ICSID Arbitration, ICSID Convention, Investment Arbitration, Ukraine

, (Asters)/ /Leave a comment

There have been six Ukrainian proceedings concerning the enforcement of ICSID awards to date. All have been successful, but Ukrainian courts have erroneously applied the New York Convention’s regime for this purpose. In this post, the authors analyze the inconsistency of such an approach with the ICSID Convention regime and related implications, suggesting options to…

Arbitration Agreement, Brazil, Cayman Islands, Enforcement, Implied Consent

(Rossi, Maffini, Milman & Grando Advogados)/ /Leave a comment

On August 11th, 2020, the Cayman Islands Court of Appeals overturned the decision that denied the enforcement of the arbitral award that ordered the MatlinPatterson Global Opportunities Partners private investment fund (“MP Funds”) to pay approximately USD 55 million to Gol Airlines. The amount refers to the purchase of the airline Varig by Gol.  …

AfCFTA, Africa, Investment, Protocol

(United Nations Conference on Trade and Development, UNCTAD)/ /1 Comment

Negotiations on the Investment Protocol of the African Continental Free Trade Area (AfCFTA) are set to start later this year. An AfCFTA Investment Protocol would provide significant opportunities for African countries. However, the negotiations will be complex, taking place amidst a backdrop of existing African international investment agreements (IIAs) already negotiated at the bilateral and…

Arbitration Agreement, Arbitration institution, China, Recognition and enforcement of arbitral award

(JunHe LLP) and (Altenburger)/ /Leave a comment

Since the enactment of the People’s Republic of China (“PRC”) Arbitration Law (1994), Chinese arbitration commissions have had exclusive access to the mainland China arbitration market. This is primarily because the establishment and operation of arbitration institutions are subject to the prior approval of the “administrative department of justice of the relevant province, autonomous region…

Corruption, Latin America, Peru, Red flags standard, Standard of Proof

(GST LLP) and (Georgetown University Law Center)/ /Leave a comment

The Rutas de Lima v. Metropolitan Municipality of Lima case shows how arbitral tribunals deal with corruption allegations in disputes related to government contracts. The tribunal, chaired by current ICC International Court of Arbitration President, Alexis Mourre, issued its Award this May, which came to light when the Metropolitan Municipality of Lima (the “Municipality”) requested…

International arbitration, kompetenz-kompetenz, Lithuania, National Courts, National Treatment, Seat of the arbitration

(Ellex Valiunas ) and (TGS Baltic)/ /Leave a comment

Global arbitration centers such as Paris or London are well known and need no introduction. In contrast, there are many other arbitration sites around the world that seek a larger role on the international stage of dispute settlement. Lithuania and its capital Vilnius in particular is no exception. In 2014 the Vilnius Court of Commercial…

Applicable Law, Arbitration Agreement, Set aside an international arbitral award, Sweden

(University of Aberdeen)/ /Leave a comment

In a recent judgement in the proceedings for setting aside an arbitral award, the Swedish Court of Appeal addressed issues concerning the law applicable to an arbitration agreement, the validity of an arbitration agreement, the due process standard applicable in cross-examination, and the procedural error of rendering an award without considering all the arguments raised…

China, Civil Procedure, Court Proceedings, Discretion, Fair and Equitable Treatment, Procedural Fairness

(Zhong Lun Law Firm)/ /Leave a comment

The “right of clarification” (in German: Aufklarungsrecht) is a product of the inquisitorial method of hearing. It refers to a judge’s right to ask, suggest to or require the parties to clarify or supplement their ambiguous, insufficient or improper claims, submissions or evidence. In international arbitration, which is strongly influenced by the adversarial system, arbitral…

China, Interviews with Our Editors, Online Dispute Resolution, Shanghai International Arbitration Center, SHIAC

(Clifford Chance Asia)/ /Leave a comment
Shanghai International Arbitration Center (SHIAC)

Dr Ma Yi is the Vice Chairman and Secretary-General of the Shanghai International Arbitration Center (“SHIAC”) – SHIAC is also one of our Blog’s newest Permanent Contributors. Before joining SHIAC, he was actively involved in the growth of Shanghai’s legal scene as a Director at the Shanghai Municipal Bureau of Justice and the Deputy Secretary…

Enforcement, Investment Arbitration, Sovereign Immunity, Sweden

(SCC Arbitration Institute) and (MAGNUSSON)/ /Leave a comment
YIAG

The latest decision in the long running investment dispute saga of Stati, Ascom and others v. Kazakhstan came in June 2020, when the Svea Court of Appeal (Svea hovrätt) in Sweden annulled the Swedish Enforcement Agency’s (Kronofogden) (EA) attachment decisions. In this case, the Court of Appeal’s decision effectively expanded the definition of property covered…

Annulment, Brazil, Conflicts of interest, Duty to Disclose, Multiple appointments

(Souto, Correa, Cesa, Lummertz & Amaral Advogados)/ /Leave a comment

On 11 August 2020, the Court of Appeals of the state of São Paulo, Brazil, annulled an arbitral award1)1ª Câmara Reservada de Direito Empresarial do Tribunal de Justiça de São Paulo. Apelação Cível no. 1056400-47.2019.8.26.0100 [Appeal no. 1056400-47.2019.8.26.0100]. on the grounds that the chair of the arbitral tribunal had failed to timely disclose his appointment…

Applicable Law, Arbitration Agreement, Conflict of Laws, France, French Law, International arbitration, Non-signatory, Third Party

, (LALIVE)/ /Leave a comment

Almost a decade after the Dallah saga, the French and English courts are once again considering the enforcement of the same award yet reaching conflicting solutions. On 29 March 2019, the High Court of England and Wales, followed on 20 January 2020 by the England and Wales Court of Appeal both refused to enforce an…

Arbitration, Data Protection, Disclosure, Egypt

(School of Law, Christ University)/ /Leave a comment

Egypt recently set out a legal framework for the protection and regulation of personal data. The legislation was brought about to regulate the protection of personal data which is stored and processed electronically. However, the law is silent on its application to arbitration and arbitral proceedings. The intersection between arbitration and data protection is not…

Costs in arbitral proceedings, Interest, KCAB, Korea, SIAC, Singapore

(Peter & Kim) and / /Leave a comment

The allocation of pre-award interest is a standard feature of most international arbitration proceedings and is often contested before a tribunal. The complexity is accentuated when a tribunal is unable to render a timely award for procedural reasons beyond its own control and beyond the parties’ control. The delay caused by the rescheduling of evidentiary…

foreign direct investment, Investment, Investment agreements, Investment Treaties, Japan, VCLT, WTO

(Nagoya University)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

The years since 2017 have witnessed a global trend of tightening foreign direct investment (FDI) screening processes. Major economies, including the United States, Germany, France, the United Kingdom, and the European Union have moved towards stricter FDI rules. In all of these cases, security concerns and, in particular, the need to protect cutting-edge technologies against…

Annulment, Enforcement, Indonesia, Interim measures, New York Convention, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, UNCITRAL Model Law

(Asian International Arbitration Centre) and (KarimSyah Law Firm)/ /Leave a comment
Asian International Arbitration Centre (AIAC)

12th August 2020 marks the 21st anniversary of the Indonesia’s Law Number 30 Year 1999 on Arbitration and Alternative Dispute Resolution (“Arbitration Law”).1)Any comments/views expressed in this article are those of the authors only. They do not reflect the views of KarimSyah Law Firm or AIAC unless otherwise stated. Culture wise, many countries, especially Indonesia, venerate…