Jurisdiction

Arbitration, Arbitration Institutions and Rules, Arbitration Proceedings, Costs, Costs in arbitral proceedings, International arbitration, Investment Arbitration, Sweden, Third party funding

, , (Roschier Attorneys, Ltd.)/ /Leave a comment

Introduction Despite a rapid emergence at a global stage, third-party funding (TPF) appears yet as unfamiliar to businesses in the Nordic region. According to a survey included in the 2018 edition of the Roschier Disputes Index, merely 5 per cent of the Nordic companies have used TPF for financing litigation or enforcement proceedings. Arguably, these…

Arbitrator Intelligence, Arbitrators, Latin America, Peru

(Bocconi University) and (Bullard Falla Ezcurra +)/ /Leave a comment
Arbitrator Intelligence

One of the most critical moments in any international arbitration is the appointment of arbitrators. As Rusty Park has explained, “just as ‘location, location, location’ comprise the three key elements in sustainable real estate value, so it has been observed that ‘arbitrator, arbitrator, arbitrator’ endure as the most critical factor in the integrity of any…

Achmea, Arbitration, BIT, European Union, Investment Arbitration, Principle of proportionality, Slovakia

(University College Cork)/ /1 Comment

Introduction The judgment of the Court of Justice of the European Union (CJEU) in Case C-284/16, Slovak Republic v. Achmea B.V. (Achmea) has attracted much comment in many fora, including the Kluwer Arbitration Blog (See e.g., articles authored by Florian Stefan, Clement Fouchard and Marc Krestin, and Vivek Kapoor). This is not surprising. The CJEU…

Brazil, CFIA, Development, foreign direct investment, Investment agreements, Investment law, Latin America

(University of São Paulo, Institute of International Relations)/ /Leave a comment

Brazil has recently executed two new Cooperation and Facilitation Investment Agreements (“CFIAs”) with the Federal Democratic Republic of Ethiopia on April 11, 2018; and with the Republic of Suriname on May 2, 2018. These are, respectively, the 7th and the 8th CFIAs that Brazil has executed since 2015 (the former ones were executed with Chile,…

Argentina, Development, Latin America, UNCITRAL Model Law

, , (Freshfields Bruckhaus Deringer)/ /1 Comment

On 4 July 2018, the Argentine National Congress passed a new arbitration act modernizing the framework for the conduct of international commercial arbitrations in Argentina (the Arbitration Act or the Act), based on the UNCITRAL Model Law and its 2006 amendments (the Model Law). The development comes in response to calls from the arbitral community…

Set aside an arbitral award, Set aside an international arbitral award, Spain

(Independent Lawyer (Spain/Argentina))/ /1 Comment

Part I In a judgment dated 5 April 2018 (Case nº 6/2017), the Madrid High Court of Justice (“TSJM”), the competent court to hear applications to set aside an award when the seat of the arbitration is Madrid, set aside an arbitration award on public policy grounds after finding that the tribunal “[…] unjustifiably omitted…

Chile, Interim measures, National Courts, Seat of the arbitration

(Morales & Besa) and (University of Heidelberg)/ /Leave a comment

Throughout the years, Chilean courts and legislation have fostered a pro-arbitration and a pro-enforcement environment, favoring arbitration and recognizing the benefits that are generally attached to it. In such regard, the Civil Procedure Code, the Code on the Organization of Tribunals, the New York Convention on the Recognition and Enforcement of Arbitral Awards and Law…

Arbitration, Arbitration Awards, Arbitration Proceedings, BIT, Bolivia, Clean Hands Doctrine, General Principles of International Law, International arbitration, Investment Arbitration

, (Aceris Law)/ /Leave a comment

The arbitral tribunal in Glencore Finance (Bermuda) Limited v. Bolivia has recently hinted at its intent to address an old question: What is the doctrine of “clean hands” in investment arbitration? On 31 January 2018, an arbitral tribunal composed of Professor Ricardo Ramírez Hernández, Professor John Gotanda and Professor Philippe Sands issued a Procedural Order…

India, Interim Award, Singapore, Uncategorized

/ /1 Comment

Introduction The 2018 International Arbitration Survey: The Evolution of International Arbitration undertaken by the Queen Mary University and White and Case LLP found flexibility to be the third most valuable characteristic of international arbitration. The flexibility inherent in the arbitral process allows tribunals to conduct the proceedings (ideally) in an expeditious manner. One common method…

Arbitration Proceedings, Respondents, Singapore, UNCITRAL Model Law

(Norton Rose Fulbright)/ /1 Comment
YSIAC

It is not uncommon for practitioners acting for claimants in an arbitration to encounter a respondent who chooses to boycott the arbitral process.  In cases involving such ‘non-participating’ respondents, what are the rights and obligations of each party? Specifically, insofar as Model law jurisdictions are concerned, if a Tribunal decides on jurisdiction as a preliminary…

Arbitration clause, Derivate Contracts, Financial Industry, HKIAC, India, LCIA Arbitration, Singapore International Arbitration Centre

/ /Leave a comment

Part I   Over recent years we have seen an uptick in requests to insert arbitration clauses in derivatives and other financial product documentation, and most particularly in the Asia Pacific region. Indeed, the International Swaps and Derivatives Association (ISDA), which is responsible for producing the most widely-used industry template of the master agreement, has…

China, Emergency Arbitrator

(Zhong Lun Law Firm)/ /1 Comment

Last year, I was appointed by Beijing Arbitration Commission (“BAC”) as the emergency arbitrator in an emergency arbitrator proceeding (“EA proceeding”), the first EA proceeding ever requested by the claimant in mainland China. Since the entire arbitration procedure has recently been concluded, I am delighted to share some of my thoughts on how to conduct…

Arbitral seat, Arbitration, United States

(Musick, Peeler & Garrett LLP)/ /4 Comments

“Why don’t you go on west to California? There’s work there, and it never gets cold. Why, you can reach out anywhere and pick an orange.  Why, there’s always some kind of crop to work in. Why don’t you go there?” – John Steinbeck, The Grapes of Wrath Introduction For many years, the answer for international…

Awards, China, Courts, HKIAC, Interim measures, Uncategorized

(Fangda Partners)/ /Leave a comment
HK45

Under the current Chinese legal framework, while PRC Courts are granted exclusive power to grant interim relief measures in support of arbitration 1) Chinese courts are granted the exclusive power to grant interim relief measures pursuant to the following provisions under PRC law: Article 28 of the PRC Arbitration Law (hereinafter “Arbitration Law”) provides that:…

Arbitration, Australia, Confidentiality

and (Herbert Smith Freehills LLP)/ /Leave a comment

Australia has been known for taking a somewhat controversial approach to the confidentiality of arbitral proceedings. However, the legislature, to the international arbitration community’s sigh of relief, has intervened to change the law and bring opt-out confidentiality to international commercial arbitrations seated in Australia (see Michael Pryles, ‘National Report – Australia’ in The ICCA International…

Annulment, Arbitration Act, Argentina, UNCITRAL Model Law

(M & M Bomchil)/ /Leave a comment

In what should be deemed as an authentic legislative milestone, on July 4, 2018 the Argentine House of Representatives approved the International Commercial Arbitration bill (previously passed by the Senate in 2017). The bill became a law and entered into force as Act 27,449 after its publication in the Official Gazette on July 26, 2018….

Arbitrator Challenges, Arbitrator's mandate, Ethiopia, Jurisdiction of the arbitral tribunal

(Aman Assefa & Associates Law Office)/ /Leave a comment

Arbitration is one of the preferred modes of private dispute settlement. Off its several traits, the cornerstone is the fact that it is based primarily on party autonomy and enables the parties to control almost all aspect of it. On the other hand, States put in place a different review and/or control mechanism on the…

Africa, BIT, Conference

(Independent Arbitrator), , (Jeantet), and (Reed Smith)/ /Leave a comment

For AfricArb The evolution of foreign direct investment in the African continent The African continent has been an important recipient of foreign investment for many decades, with a significant rise in such investment being witnessed in the last 15 years. The economic growth, the limitation of regulatory barriers and importantly the high rates of return…

Africa, Arbitral Award, Arbitral seat, Arbitration institution, Arbitration Institutions and Rules, Ethiopia, Uncategorized

(Equanimity Arbitration)/ /1 Comment

Five years after filing the Permanent Court of Arbitration (PCA) Case No. 2013-32 under the European Development Fund Arbitration Rules (EDF Rules), the claimant, Consta JV (an Italian contractor), would have hoped for a successful award against the CDE (a joint enterprise between the Ethiopian and Djibouti government) that would be upheld by the local…

Africa, Arbitral Tribunal, Arbitration, Arbitrators, Counsel

(SOAS, University of London)/ /Leave a comment

Diversity in arbitration is currently topical, and this drove our engagement with it in relation to race (particularly African) in this survey. Related to this, is the entrenched perceptions against African arbitration practitioners which has negatively impacted on their participation in international arbitration (including Africa-connected disputes). The primary perception is that African arbitration practitioners are…

Admissibility, Criminal law and arbitration, ICSID, ISDS, Jurisdiction

(British Institute of International and Comparative Law (BIICL))/ /1 Comment

Investor-state tribunals frequently face allegations of economic crimes, especially in jurisdictions with a weak rule of law. For instance, the largest ever investor–State award of $50 billion in Yukos v Russian Federation, primarily concerned a criminal investigation of alleged tax evasion, fraud and embezzlement by what was then the largest Russian oil company. The tribunal…

India, Injunction, Investment Arbitration

(Wadia Ghandy & Co)/ /2 Comments

A plethora of business transactions today have evolved into complex structures of multi-faceted sub-transactions. Multiple parties enter into several distinct, yet interconnected and interdependent agreements towards achieving a common commercial goal. Every so often, however, one or more of these interconnected agreements will lack an arbitration agreement; whereas the others will contain similar/related arbitration clauses….

Investment Arbitration, Investment protection, ISDS, Mexico, NAFTA

(Cooley LLP)/ /Leave a comment
Young ICCA

Mexico held its general elections (including presidential election) on July 1st. The Government of the country has shifted from a center-right president, Enrique Peña Nieto from the Partido Revolucionario Institucional (Institutional Revolutionary Party), to the favorite candidate for the recent elections, the left-wing politician Andrés Manuel López Obrador (“AMLO”). AMLO, a member of the Movimiento…

Annulment, Arbitral Award, Public Policy, Spain

(Linklaters)/ /1 Comment
Linklaters

On 5 April 2018, the Civil and Criminal Chamber of the Madrid High Court of Justice (Tribunal Superior de Justicia de Madrid, TSJM) set aside an arbitral award as contrary to public policy, because the challenged award contained “an unreasonable assessment of the evidence and unreasonable failure to apply applicable rules”.1) Competent Court to deal…