This post considers Practice Direction 57AC (“PD57AC”), which changes the approach to witness evidence in the English Courts, and its potential impact on London-seated arbitration.   The New Approach to Witness Statements in English Litigation On 6 April 2021, the English Business and Property Courts marked a significant change in the approach that lawyers, and…

The Investor-State Dispute Settlement regime is at the centre of a long-standing debate, subsequent reform efforts, and, more in general, great innovation. In this context, on 14 May 2021, a LIDW member-hosted event – organised and co-hosted by Clifford Chance, EFILA, Herbert Smith Freehills, Queen Mary University’s School of International Arbitration, and White & Case…

In November last year, the UK Supreme Court (the “Court”) pronounced judgment in Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48. It held, among other things, that there was a duty of disclosure for arbitrators in English law. Recognizing the importance of the principle of party autonomy, the Court concluded that parties could,…

It is important for parties to arbitration agreements to understand to what extent they might be able to obtain effective interim relief from the courts. While parties may provide in their arbitration agreement, whether through express drafting or (more often) by incorporation of institutional rules, that the parties shall be permitted to seek interim relief…

On 27 November 2020, the U.K. Supreme Court in Halliburton Company v. Chubb Bermuda Insurance Ltd (formerly known as Ace Bermuda Insurance Ltd) [2020] UKSC 48 ruled on the approach under English law to determining whether an arbitrator’s failure to make disclosure of appointments in multiple arbitrations with overlapping subject matter and only one common…

Many of the free trade agreements that the UK has signed or that are currently under negotiation include a requirement for the parties to create rosters of individuals who could act as arbitrators for disputes launched under the state-to-state dispute settlement mechanisms within those agreements. The Department for International Trade (DIT) is seeking to appoint…

As countries continue to grapple with the ongoing effects of COVID-19, the effects of the ongoing waves on parties vary widely. There have been recent discussions on force majeure and international arbitration on the Blog: see here, here, and here. This article will address the following points in relation to four key jurisdictions, being the…

In early September 2020, the United Kingdom (‘UK’) Secretary of State for Northern Ireland, Brandon Lewis, conceded in no uncertain terms that the UK Internal Market Bill would violate public international law, albeit only in “a very specific and limited way“. This immediately caused controversy, to put it mildly. The EU Commission did not take…

The Supreme Court of Canada’s recent decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 potentially poses an inadvertent, yet serious, threat to judicial deference to domestic commercial arbitration in Canada. Until Vavilov, courts hearing appeals on questions of law from arbitral tribunals applied the deferential “reasonableness” standard of review. Vavilov…

In A and B v C, D and E [2020] EWCA Civ 409, the English Court of Appeal issued on 19 March 2020 an order compelling a non-party to arbitration proceedings seated in New York to give evidence in support of the arbitration.   The Arbitration The dispute arose under two settlement agreements between A…

In its unanimous decision in the Micula case the UK Supreme Court on 19 February 2020 made clear that ICSID arbitral awards rendered by tribunals established pursuant to intra-EU BITs could be enforced in the UK. As explained by Guillaume Croisant in his blog post on 20 February, the UK Supreme Court overruled the Court…

Introduction Whenever the court is confronted with the task to determine the governing law of an arbitration agreement on the basis of knowing only (1) the stipulated governing law of the main contract and (2) the seat, a three-folded test will be applied. It inquires into (i) express choice, (ii) implied choice and (iii) closest…

On 20 January 2020, the Court of Appeal delivered its judgment in Kabab-Ji SAL (Lebanon) v. Kout Food Group (Kuwait) [2020] EWCA Civ 6. This post will focus on the Court’s findings on “no oral modification” (“NOM”) clauses and the impact that such clauses have on whether non-signatories to a commercial contract can be bound…

The Brexit clock is ticking and, under the current circumstances, the no deal scenario is being increasingly regarded at least as a concrete option – although the situation is changing on a daily basis and the extension of the two-year term under Article 50 TFEU could provide some breathing room. In the context of the…

Background UK courts senior courts have the power to issue an anti-suit injunction in favor of arbitration where a party commences foreign court proceedings in breach of a valid arbitration agreement (Senior Courts Act 1981 s.37(1)). At the heart of this controversial remedy lies a concern that anti-suit injunction is an indirect interference with the…

In the first part of this article, we discussed the need to broaden the debate about the UK’s future trading relationships, touched upon some potential advantages of the UK joining the NAFTA and traced the idea’s limited history. Is there political will? These days, the idea remains on the periphery, even out of sight. Each…

To many, it would seem foolish even to ask whether the UK might join the North American Free Trade Agreement. Yet, the UK should explore all possibilities open in a post-Brexit world. As we explain, the idea that the UK might join the NAFTA is not only conceptually interesting, but also merits entertaining with a…

On the heels of a year that has seen the rise of populist nationalism, skepticism of multilateral trade agreements and calls to tighten in some ways the flow of people across borders – perhaps most visibly in the United States and across Europe, but with manifestations elsewhere – many communities saw a retreat from international…

On May 30, 2017, Volterra Fietta and the University of Notre Dame hosted a debate of whether foreign investors can sue the United Kingdom for a hard Brexit. The recorded video is now available for viewing. Markus Burgstaller and I presented the case that foreign investors may have viable claims against the UK, while Jeremy…

In international arbitration, as in other fields of law, the divide between private and public—commercial arbitration and public international (including investment) arbitration—traditionally has been the generally, if uncritically, accepted belief. When public bodies are involved in commercial contracts, the traditional point of distinction has been whether the state operated jure imperii or jure gestionis. Apart…

Last week, Theresa May delivered her long-awaited speech setting out Britain’s broad objectives in forthcoming Brexit negotiations with the EU. She confirmed the rumours of a “hard Brexit” by indicating Her Majesty’s Government’s intention to see the UK out from the Single Market and the Custom Union and to seek “a new and equal partnership…

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…

To investors’ relief, in a recent ruling (see Case No. 384/2016, ruling of the Dubai Court of Cassation of 19 June 2016), the Dubai Court of Cassation reversed the lower court’s refusal to enforce an award rendered under the Rules of Arbitration of the International Chamber of Commerce (ICC) in London, England, on the basis…

London has long been a city associated with international arbitration. In 2015, even with the UK referendum on EU membership looming, according to analysis by theCity UK, London was the seat or centre of 4,738 international commercial arbitrations, mediations and adjudications in 2015. These were conducted under the auspices of numerous institutions, with the long-established…