Escalation clauses (or multi-tiered dispute resolution clauses) need careful drafting so that the wording is both enforceable and commercially useful – and does not produce unexpected surprises. With regard to clauses that provide for ‘final’ dispute resolution by means of arbitration, in particular, there is uncertainty as to the consequences of the parties’ failure to…
Readers of this blog will need no reminding that, in the Queen Mary-White & Case 2015 International Arbitration Survey, the seats of Hong Kong and Singapore were amongst the top five most preferred and widely used seats by respondents to that survey. Both jurisdictions are known for adopting competitive and innovative arbitration laws to promote…
Judicature modernisation reforms, which passed through New Zealand’s Parliament in October, represent the most significant revamp of the country’s court system since the Judicature Act 1908. In addition to several changes to court structures and processes, the reforms made two modest amendments to New Zealand’s Arbitration Act 1996 (the Act). First, the definition of “arbitral…
On 22 September 2016, the 1st Instance Court of Jundiaí – São Paulo dismissed a claim under Article 485, VII of the New Brazilian Civil Procedure Code (NBCPC) finding that the court lacked jurisdiction over disputes arising out of a distribution agreement which provided for disputes to be resolved by arbitration. Pursuant to Article 485,…
In Rals International Pte Ltd v Cassa di Risparmio di Parma e Piacenza SpA [2016] SGCA 53 (Rals International), the Singapore Court of Appeal was asked to consider the application of an arbitration agreement in a supply agreement to a dispute arising out of promissory notes provided as payment under the supply agreement. The Court…
The situation that the Bundesgerichtshof was recently faced with in a case is not uncommon: whilst a state court still reviews an arbitral tribunal’s preliminary ruling on its competence, the arbitral tribunal delivers its final award on the merits. This raises one question: What are the implications for the pending challenge to jurisdiction? In previous…
On 4th October, 2016, a Division Bench of the Indian Supreme Court, in A. Ayyaswamy v. A. Paramasivam (“Ayyaswamy”) [2016], sought to clear the muddied waters surrounding the arbitrability of issues relating to fraud, albeit offering little clarity in the end. The uncertainties regarding arbitrability of fraud claims had previously reached a legal impasse following…
Currently, around 190 bilateral investment treaties between EU Member States (“intra-EU BITs”) are still in force. Most of these intra EU-BITs were concluded in the 1990s. Prior to the two enlargement rounds in 2004 and 2007, relatively little attention was paid to the two existing intra-EU BITs. However, after 2004, the status of intra-EU BITs…
The issues of impecuniosity and access to justice arise cyclically in different jurisdictions and under different forms. Recently, the debate has been raised again in France. On 24 May 2016, the Paris Court of Appeal quashed a decision of the French juge d’appui (judge acting in support of the arbitration) enjoining the ICC to reintroduce…
Critics of the TPP, and ISDS protections more generally, have often argued that a particular concern is that the US is not only a large source of FDI, but that it is ‘the nation whose corporations use ISDS the most’ (referring to ANU’s Professor Thomas Faunce). A recent paper by ANU’s Dr Kyla Tienhaara for…
Part I of this two-part blog post summarized the recent judgment of the Singapore Court of Appeal (“SGCA” or the “Court”) in Sanum Investments Ltd. v Government of the Lao People’s Democratic Republic (“Sanum v Laos”). This Part II provides some comments on that judgment and its significance, including its impact on future Singapore court…
On 29 September 2016, the Singapore Court of Appeal (“SGCA” or the “Court”) released its much-anticipated judgment in Sanum Investments Ltd. v Government of the Lao People’s Democratic Republic (“Sanum v Laos”). In a carefully reasoned decision, Singapore’s apex court reversed a decision of the Singapore High Court, which had previously held that an UNCITRAL…
As Professor Luke Nottage and Dr. Jarrod Hepburn have observed in a forthcoming case note,1)Hepburn, J., Nottage, L. (2016), Case Note: Philip Morris Asia v Australia (Forthcoming), Journal of World Investment and Trade the most recent ruling in the long-running case of Philip Morris Asia v Australia has highlighted the consequences of agreeing to arbitrate…
In recent weeks, criticism of the TPP has been increasingly focused on the Investor-State Dispute Settlement (ISDS) mechanism contained in its Chapter Nine. Massachusetts Senator Elizabeth Warren initiated the charge against the TPP’s ISDS mechanism, and her attacks were recently supported by more than two hundred economists and law professors, who addressed a letter to…
In recent weeks, it has become clear that the latest lightning rod for TPP criticism is the Investor-State Dispute Settlement (ISDS) mechanism contained in its Chapter Nine. With Massachusetts Senator Elizabeth Warren leading the charge in this new fight, and a recent letter circulated to members of Congress by more than two hundred economists and…
Lawyers might sometimes wish for Solomonic justice; that parties would agree to “split the difference” or that someone would do it for them. Where, however, it appears that such an approach has been taken by an arbitral panel—in substitution for a carefully reasoned decision—the lack of engagement with their arguments is likely to leave the…
Two years ago, in the case of Banyan Tree v Meydan Group, an arbitral award rendered outside the Dubai International Financial Centre (DIFC) was enforced by the DIFC courts in circumstances where neither party was based nor had assets in the DIFC. The case demonstrated the willingness of the DIFC’s courts to enforce awards rendered…
Authors: Amirhossein Tanhaei, Gheidi & Associates and Shiva Ghahremani, Konrad & Partners As all eyes are focused on the changing political scene in Iran, and notably the lifting of international sanctions in relation to economic activities, thoughts also shift to the legal environment. In particular, what is required to ensure a stable, predictable framework, and…
Iran. The country with enormous trade potential and a juicy market for many foreign companies around the globe. Following partial lifting of sanctions in Iran, it is expected that more and more businesses from different industries will enter the Iranian market. Needless to say, along with the development of international trade in Iran more disputes…
1 September 2016 marks the key date in the long-awaited Russian arbitration law reform, publicly announced by the President of the Russian Federation already in 2013. Since then, the Russian arbitration law reform has been in the public eye attracting significant publicity (previous blog posts on this can be read: here, here, here, and here)….
In the United States, approval prospects may appear bleak for the Trans-Pacific Partnership Agreement (“TPP”) – at least at present. The current political climate appears generally negative on trade, and even Vice President Joe Biden stated recently that he saw “less than an even chance” that TPP would be approved before the new U.S. president…
Arbitration is a creature of contract, and hence one may say that any claim or dispute submitted to arbitration must relate to a contract where the relevant arbitration clause is laid down. In contrast, tort claims do not normally arise from a prior contractual relationship. Broad arbitration clauses classically say that “any and all disputes…
1. In the past weeks, much ink has been spilt over the recent decision of the High Court of Justice in the Essar v. Norscot case. In his decision, J. Waksman QC confirmed the award made by Sir Philip Otto in an ICC arbitration seated in London. A broad description of this case has already…
For more than a decade, Argentina has been living in a permanent crisis, which affected all sectors of the economy and turned out in an avalanche of investment cases, many of them under the ICSID Convention. Thus, Argentina became one of the most active players in the investor-state dispute settlement system, facing almost 60 cases…
