In BBA and others v BAZ and another appeal [2020] SGCA 53, the Singapore Court of Appeal (“SGCA”), in refusing to set aside an arbitral award, held that issues of time bar which arise from the expiry of statutory limitation periods go towards admissibility and not jurisdiction. Such issues cannot therefore be reviewed de novo…
On 19 June 2020, the new sanctions-related amendments1)Federal Law No. 171-FZ dated 8 June 2020, introducing the amendments (text in Russian). to the Russian Commercial (Arbitrazh) Procedure Code entered into force. The main objective of the law is to protect the interests of Russian natural and legal persons who are unable to effectively resolve their…
On 12 June 2020, the Kingdom of Tonga (“Tonga“) acceded to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “Convention“), being the 164th state party to do so. In the context of the Pacific region, Tonga is the 6th state to accede to the Convention after the Marshall…
The relationship between developing countries and the International Centre for Settlement of Investment Disputes (ICSID) has not been smooth, to say the least. Several developing countries such as Bolivia, Venezuela and Ecuador have pulled out from the ICSID Convention. India is one of the prominent developing countries that has refrained from joining the ICSID Convention,…
It is undisputed that the Arbitration Law of the People’s Republic of China (“the Arbitration Law”) has greatly contributed to the establishment, development and improvement of China’s current arbitration system. However, due to the fast-moving socio-economic realities and the ever-developing legal system of China, the provisions of the Arbitration Law have gradually begun to lag…
As a result of coronavirus, sanctions, for once, have not been grabbing the headlines. Unlike the media, the Russian legislative bodies have recently shown keen interest in the topic of sanctions as they have adopted a draft law from last year granting persons and companies affected by the sanctions against Russia with a right to…
Awards are final—mostly. Many institutional rules allow arbitrators to correct clerical errors in their awards, but prohibit revisions to the merits of their decisions. The U.S. Court of Appeals for the Fifth Circuit signaled in a recent case that it will defer to arbitrators in interpreting institutional rules regarding the scope of their correction authority,…
Indian courts have pronounced inconsistent decisions regarding the limitation period on applications for enforcement of foreign arbitral awards. This blog post discusses the conflicting jurisprudence and advocates adoption of purposive interpretation for its redressal. Sections 47 to 49 of the Indian Arbitration and Conciliation Act 1996 (“the Act”), which forms part of the chapter on…
On February 27, 2020, the Third Division of the Colombian Council of State (“Court”) issued a judgment resolving an annulment petition submitted by a state-owned company’s subsidiary against an international arbitral award. In its judgment, the Court decided to annul the award due to the Tribunal’s failure to comply with the agreed arbitral procedure. In…
The Energy Charter Treaty (ECT) has recently become a household name, moving from the oblivion of the 1990s, when the treaty was drafted, to one of the most hotly debated topics in legal (and other) circles nowadays. Some have demonized it as an instrument for the corporate usurpation of democratic functions, such as the host…
The signatories of the Energy Charter Treaty (“ECT”) have begun the process of the Treaty’s modernisation. This is by no means a small task given the complexity of the Treaty’s scope which covers energy trading, efficiency, transit, investment protection and dispute resolution. Additionally, in order to amend it, all the signatories need to be on…
On 1 July 2020, the Arbitration Foundation of Southern Africa (“AFSA”), a leading arbitral institution in South Africa, launched its new draft International Arbitration Rules for public comment. The International Arbitration Rules were launched via a webinar co-hosted by Professor Dr. Maxi Scherer, chairperson of AFSA’s Drafting Committee and Advisory Board, and Patrick Lane SC,…
In a ‘ground-breaking’ precedential decision, Al-Kharafi v Libya (Judgment No. 39 of 130 JY, 3 June 2020), the Cairo Court of Appeal in Egypt ruled that it can review an arbitral award for fundamental errors of law that amount to a violation of public policy or equity and justice notions. The decision relates to an…
For awards issued in cases administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) Hong Kong Arbitration Center, parties can enforce them in the Chinese mainland and Hong Kong out of the many other possible jurisdictions. What they cannot do, however, is to simultaneously enforce the award in both jurisdictions. This is expressly prohibited under…
Serafín García Armas and Karina García Gruber v. Venezuela and Clorox Spain v. Venezuela are different in many aspects. García Armas relates to dual nationality, while Clorox relates to protected investment. However, they have a common feature: Article 1(2) of the Spain–Venezuela BIT was key to their developments. That article defines investments as “any kind…
How severely are international construction projects affected by global COVID-19 pandemic? What does the COVID-19 pandemic mean for international construction disputes? As with so many other questions arising in relation to the pandemic, these questions will only be answered definitively in retrospect. For construction arbitration practitioners though, one of the immediate and graspable effects has…
On 10 July 2020, a panel of arbitration practitioners discussed the topic of “Recent Developments and Key Arbitration Trends in Asia” as part of the 2020 Paris Arbitration Week. The panel discussion covered the distinctive features of and the latest developments in five different jurisdictions: Singapore, China, Hong Kong, South Korea and India. Hosted by…
An award set-side underlines that it has been annulled in the jurisdiction in which it has been rendered. The grounds for setting aside an award are provided by the UNCITRAL Model Law and are quite similar throughout numerous jurisdictions. Article V of the New York Convention (‘NYC’) presents a set-aside award as one of the…
Most individuals with involvement in international arbitration—as a scholar, practitioner, arbitrator, or as a brave student participating in a moot competition—have cited Gary Born for some legal principle. Indeed, sometimes this name is cited by opposing sides in support of their contrary legal arguments. While this has been a common practice among students and, in…
In a recent decision, National Agricultural Co-operative Marketing Federation of India (NAFED) v. Alimenta S.A. (“NAFED”), the Indian Supreme Court (“SC”) refused to enforce a foreign award on the ground of it being opposed to public policy under Section 7 (1) (b) (ii) of the Foreign Awards (Recognition and Enforcement) Act, 1961 (“the 1961 Act”)….
From practically the moment the Supreme Court of Canada’s (SCC) decision in Uber Technologies v Heller was released, commercial arbitration practitioners and scholars—including on this blog—have criticized it for weakening the cherished competence-competence principle. We submit that those who defend Uber’s problematic arbitration clause in the name of protecting competence-competence love arbitration not wisely, but…
Despite the fact that Bosnia and Herzegovina (BiH) has two arbitration courts – The Arbitration Court attached to the Foreign Trade Chamber of Bosnia and Herzegovina which has existed since 2003 and the Foreign Trade Court of Arbitration of the Republika Srpska (‘RS’) Chamber of Commerce and Industry since 1998 – arbitration still remains an…
Arbitration in Japan recently received a domestic boost when two Japanese industry titans agreed to arbitrate their dispute over a South African coal plant, with claims worth several billion US dollars, before the JCAA. However domestic arbitration in Japan tends to be used sparingly and this is often cited as a reason for many Japanese…
While Hong Kong and Singapore legislated in 2017 to allow third party funding of arbitrations (“TPF”),1)In Hong Kong, the amendments to the Arbitration Ordinance (Cap. 609) ultimately took effect in February 2019. both jurisdictions presently still bar “No-Win, No-Fee” and other outcome related fee arrangements between parties to arbitration and their lawyers. This is out-of-step…
