The recent decision issued by the United States Court of Appeals for the District of Columbia in Pao Tatneft v. Ukraine reopened the door to whether a country waives sovereign immunity under the Foreign Sovereign Immunities Act (the “FSIA”) by signing the New York Convention or other international treaties. In Pao Tatneft v. Ukraine, Tatneft,…
Introduction In a previous post, I had surmised whether the Indian courts’ tryst with the group of companies doctrine (“Doctrine”) in the arbitration context is a harbinger or aberration. If the Indian Supreme Court (“SC”) decisions in Reckitt Benckiser v. Reynders Label Printing, decided on 1 July 2019 (“Reynders Label”), and MTNL v. Canara Bank, decided on 8…
It is said that states lose more times than investors in investment arbitration. Indeed, ICSID surveys reveal that while investors receive an award of costs in 41.4% of the cases, states receive a similar award of costs only in 23% of the cases, even when jurisdiction is fully declined. A case where a state prevails…
Background In early June 2017, Banco Popular Español S.A. (‘Popular’) was placed into resolution under the European Union’s (‘EU’) Bank Recovery and Resolution Directive (‘BRRD’) and the Single Resolution Mechanism Regulation (‘SRMR’). It was the first – and only, to this day –case where the Single Resolution Board (‘SRB’), as the European resolution authority, intervened…
This August, Kenya hosted the 7th annual East African International Arbitration (EAIAC) conference. This year’s theme was Government Contracting and Investment Disputes: Lessons for States and Investors. The conference explored the full spectrum of government contracting from procurement and PPPs (public-private partnerships), tender disputes, dispute mitigation in government contracts, investment arbitration and arbitrating with governments…
Introduction The topic of Investor-State Dispute Settlement (“ISDS”) has never been more trending in Vietnam than now. The year 2019 witnessed two of the most noticeable events pertaining to ISDS that involved Vietnam: the end of over-twenty-year Trinh Vinh Binh v Vietnam saga 1)Global Arbitration Review, ‘Dutch national wins moral damages against Vietnam’. and the…
On 1 October 2019, Mainland Chinese and Hong Kong bodies brought into force a reciprocal arrangement with significant implications for Hong Kong as a seat of arbitration. The arrangement allows the courts of each jurisdiction to award interim measures in support of arbitrations seated in the other territory. Parties to Hong Kong-seated arbitrations have been…
Introduction Ms Winnie Tam SC is a leading intellectual property specialist in Hong Kong, and was the first female specialist of the field to be appointed Senior Counsel by the Chief Justice of Hong Kong in 2006. After her elected term as Chairman of the Hong Kong Bar Association (“HKBA”) between January 2015 and January…
Introduction The fourth annual Harbour Lecture took place on 21 October 2019, with hundreds of attendees packed into the Eaton Club, Hong Kong to hear a thought-provoking lecture delivered by Sophie Lamb QC, global co-chair of the international arbitration practice at Latham & Watkins. The theme of this year’s lecture was whether arbitration is sustainable….
As Hong Kong Arbitration Week 2019 hits the midway point, we asked three next-generation arbitration practitioners: how do you see the future of arbitration in Hong Kong? These are their answers: Joyce Leung: As a construction lawyer, I am seeing an increase in arbitrations arising from the construction sector in light of the completion of…
Introduction Even a cursory analysis of the history of the procedural rules of leading arbitral institutions demonstrates that procedural rules are increasing in number and becoming ever more comprehensive in their scope. Institutional rules now cover, largely without exception, joinder, consolidation, emergency arbitrator provisions, and expedited procedures. And adding to this, as institutions seeking to…
Introduction Kicking off Hong Kong Arbitration Week (“HKAW”) 2019 on Sunday was a joint seminar hosted by KCAB INTERNATIONAL and Freshfields Bruckhaus Deringer (“Freshfields”) titled: “Private Equity, Financial Services and Insurance Disputes: Don’t hesitate to arbitrate!” The seminar was an Oxford-style debate of the motion: “this house believes that private equity, financial services and insurance…
Joe is the longest-serving counsel in HKIAC, having been at HKIAC since January 2014. He holds LLMs from New York University and London School of Economics and Political Science. His previous stints included private practice as well as that in SIAC. In January 2019, he was appointed as the Deputy Secretary-General of HKIAC. Our Blog…
Arbitrators and tribunal-appointed experts are at all times obliged to disclose any and all circumstances that might give rise to doubts as to their impartiality and independence. This is one of the most fundamental duties to safeguard the legitimacy of arbitration. Yet, what are the consequences if they fail to do so? This question has…
Introduction With less than a month to go before the latest EU-UK divorce date, the UK Supreme Court resumed its hearing in Micula et al. v Romania 2018/0177, relating to the enforcement of the widely discussed ICSID award against Romania. With the UK grappling with its future relationship with the EU, it is interesting timing…
Introduction An ongoing discussion in the world of international arbitration concerns the conflict of interest of arbitrators and how such issue should be addressed. In this regard, the Egyptian Court of Cassation has very recently enriched this discussion by evincing its perspective on this matter, particularly, with respect to the standard of impartiality and independence…
In the recent judgment of AIC Limited v The Federal Airports Authority of Nigeria [2019] EWHC 2212, the English High Court adjourned the decision to enforce a Nigerian arbitral award in exercise of its discretion pursuant to section 103(5) of the Arbitration Act 1996 (which gives effect to Article VI of the New York Convention)…
One effective way to manage risk allocation and especially political risk in state contracts consists of delegating dispute resolution and contract interpretation to arbitrators. With the aim to entice more private investors to develop infrastructure, Brazil has taken one positive step to expressly allow arbitration in public contracts concluded in these sectors. On 20 September…
This post analyses a series of ICSID arbitration awards against Venezuela since 2014 to understand a pressing concern in many investment arbitrations today: how to deal with the risk of expropriation in quantum calculations. Getting this right is critical to ensure that host states do not benefit from their own wrongful conduct and that investors…
With over $3 billion invested by Vedanta Resources in Zambia since it became a shareholder in Konkola Copper Mines (KCM) in 2004, it is a less optimistic turn of events with Vedanta Resources and fellow shareholder, the government-owned Zambian State Mining Company ZCCM-IH (ZCCM), being at loggerheads in arbitration. In this post, we examine what…
On August 26, 2019, Brazil’s President sanctioned Statute # 13.867/2019, which inserts provisions in the Brazilian expropriation for public utility statute (Federal Decree 3.365/41). One of the most innovative provision of Brazil’s new law is the possibility of submitting disputes related to expropriations to mediation and arbitration, according to Brazil’s mediation Statute and arbitration Statute….
Writing in 2015 about the need to study the intersection between insurance and dispute resolution, Professor Robert H. Jerry II concluded as follows: “The business of insurance is first and foremost the business of providing financial security against the risk of loss, but when loss occurs, the business of insurance becomes the business of resolving…
The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘New York Convention’) stipulates in Article III that enforcement of foreign arbitral awards should not be subject to more onerous conditions, higher fees or charges than those that are imposed on enforcement of domestic arbitral awards. However, the Czech Supreme Court (‘CSC’)…
As the world marched in support of global action on climate change, the German DIS40/below 40 arbitrators’ group showed its support for the cause at a conference on Arbitration and Climate Change on 10 September 2019. After a warm welcome by DIS federal coordinator Jennifer Bryant (Noerr) the conference started off with a panel discussion…
