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…
“Too many cooks spoil the broth” – this expression works in both personal and professional situations. Everyone can relate to this universal concept that where each of many people involved in a common project adds his or her own idea, it actually makes it very hard, if not impossible, to work efficiently and can even…
Italy’s leading arbitral institution, the Milan Chamber of Arbitration (“CAM”), issued its new rules (“CAM Rules”) on 1 March 2019. The new rules, superseding the previous CAM Rules of 2010 (“2010 CAM Rules”), apply to arbitration proceedings commenced after 1 March 2019, unless the parties have agreed otherwise under Article 45(2) of the CAM Rules…
Introduction Abdul Latif Jameel Transportation Co. Ltd. v. FedEx Corp., decided by the U.S. Court of Appeals for the Sixth Circuit earlier this month, is arguably the first post-Intel decision from the U.S. Court of Appeals that “permits discovery for use” in a “private commercial arbitration” under 28 U.S.C. § 1782(a). (Case No. 19-5315, at…
Introduction Since the enactment of the Argentine Civil and Commercial Code (the “CCCN”),1)The CCCN, Law No. 26.994, is in force since August 1, 2015. Argentina counts on a national statute to regulate the “arbitration agreement”. This legislative milestone has been mostly welcomed by the arbitral community, although some of its provisions have been subject to…
Introduction The World Trade Organization (the “WTO”) is at an inflection point. As global dynamics shift, members must consider whether the institution, as it is currently configured, has passed its prime. The success of the WTO to date epitomizes the pinnacle of an apparent ideological consensus. However, the current recession of that consensus is forcing…
When a party seeks to challenge the jurisdiction of the arbitral tribunal on the basis of the substantive invalidity of the arbitration agreement, the proper law of the arbitration agreement governs the inquiry. The prevailing approach adopted to determine the proper law of the arbitration agreement is the three-stage choice-of-law analysis set out in Sulamérica…
With cross-border dispute resolution on the rise, currency variations and exchange rate fluctuations remain a concern in enforcement of foreign awards and decrees. It is not unusual for courts and arbitral tribunals to render judgments and awards in a foreign currency,1)For example, Section 48(4) of the UK Arbitration Act 1996 provides that: “The tribunal may…
The development of the Brazilian Arbitration Act concerning the Public Administration Under the original wording of article 1 of Law no. 9.307/96 (“Brazilian Arbitration Act”), any capable person was entitled to resort to arbitration to settle disputes relating to patrimonial and disposable rights. By referring to capable persons, article 1 of the Brazilian Arbitration Act…
Introduction1)All citations of People’s Republic of China (“PRC”) sources refer to original Chinese language materials, except for the Tsinghua China Law Review. Title translations are provided by the author. Agreements governing the relationship of shareholders to each other and to the company (e.g., shareholders’, investment or subscription agreements) (collectively, “SHAs”) frequently address matters of corporate…
With as many as nine identified approaches to the potential applicable law to the arbitration agreement, Marc Blessing, as an experienced author, arbitrator and lawyer, could not help but ask: “Are we thus faced with a magnificent confusion?”.1)“The Law Applicable to the Arbitration Clause” 1999, in Improving the Efficiency of Arbitration Agreements and Awards: 40…
This post analyses the decisions of Hungarian courts rendered under the New York Convention (“Convention”) and published in the last two decades. The decisions were initially made available to the international arbitration community in the ICCA Yearbook of Commercial Arbitration series. This case law of 20 years is summarized below by identifying the main directions…
On 6 August 2019, the State Council of the People’s Republic of China (PRC) (the “State Council”) published the “Framework Plan for the New Lingang Area of the China (Shanghai) Pilot Free Trade Zone” (the “2019 Framework Plan”). Under Article 4 of the 2019 Framework Plan, reputable foreign arbitration and dispute resolution institutions may register…
Introduction Although the nature of arbitration is still a matter of debate in the Egyptian legal system, the arbitration-friendly jurisprudence of Egyptian courts now supports the idea that the arbitration process is indeed of a judicial nature. A clear example is provided by the Supreme Constitutional Court (“SCC”),1)Supreme Constitutional Court, Challenge No. 95 of 20…
Under China’s arbitration regime for foreign-related arbitration and international arbitration, the concept of a juridical seat is a statutory juncture where, in cases with no express agreement on the applicable law between the parties, Chinese courts must determine the applicable law (statutory text is available in Chinese here and unofficial English translation here).1) See Article…
