In May 2018, the Cairo Court of Appeals issued an intriguing judgment concerning the enforcement of an arbitral interim measure. In the words of the Court, the arbitral tribunal has issued a procedural order against Damietta International Ports (“DIP”) ordering the latter to refrain from suing the guarantor bank regarding the liquidation of a letter…
1. The Holding in Schein, Inc. v. Archer & White Sales, Inc. Maintains Principles of Arbitration In a recent unanimous decision dated 8 January 2019, Justice Kavanaugh delivered his first opinion of the United States Supreme Court (the “Court”) in Henry Schein, Inc. v. Archer and White Sales, Inc. As set-out below, the Court’s decision…
In recent years, a number of arbitral tribunals adjudicating treaty-based investment disputes have been confronted with the question of what to do when the state party to such a dispute alleges that the investors acquired the investment through corrupt means. In some instances, tribunals have applied the defense as a jurisdictional bar, preventing the investors…
Last year was a busy one for arbitration practitioners in Australia and New Zealand, and 2019 looks set to be even busier. In 2018, both countries initiated a range of arbitration reforms, initiatives and negotiations which give insights into the likely general direction of travel for both countries in the coming year. This post focusses…
Young ITA has organised over fifteen successful events this year all over the world including in Sao Paolo, Buenos Aires, Guatemala City, Miami, Washington DC, New York City, London, and India. The first Dubai Young ITA talk took place on Wednesday 5 December 2018. The event hosted by Vinson & Elkins featured two panel discussions…
A. Introduction The ICSID Convention and the corresponding Arbitration Rules contain certain provisions that, apparently, are not uniformly applied by arbitral tribunals. Article 47 of the ICSID Convention can be considered as one of them. In light of the proposal for new ICSID Arbitration Rules, a discussion about the use of provisional measures in the…
As a development in the arbitration scene and as a bid to attract investment, the UAE modified article 257 of its Penal Code so as to exclude arbitrators from its coverage (Federal Code No. 24 of 2018). The old version of article 257 of the UAE Penal Code (as had been introduced by Federal Code…
Experts play a pivotal role in many international arbitrations. Usually, they are there to testify what went wrong. However, their know-how of the subject matter of the arbitration and their technical expertise may also be used to explain what went right. One approach to giving an arbitral tribunal the benefit of such an explanation, when confronted…
The year of 2018 has seen arbitration as a dispute resolution forum in the resource rich continent of Africa pendulum between boosting countries in the region as a seat of arbitration and reinforcing court sovereignty in disputes. The year began with optimism in the wake of the OHADA reforms. In late 2017, the Organization for…
Very rarely would a single arbitration-related decision produce as significant an impact as the judgment of the Court of Justice of European Union (“EU” and “CJEU” respectively) in the Achmea case did during 2018. We should not doubt that Achmea will remain a cornerstone issue in the world of arbitration for a long period of…
Begin at the Beginning On November 28, Rapper Jay-Z filed a petition in Manhattan Supreme Court pertaining to an ongoing arbitration administered by the AAA-ICDR. He sought (i) a temporary restraining order to halt Iconix from pursuing claims in arbitration; (ii) a preliminary injunction staying arbitration for a period of ninety days for the parties…
In 2013, China proposed to jointly build the “Belt and Road” Initiative. While the international investment agreements (“IIAs”) proposed to be concluded with China and its counterparties along the “Belt and Road” will provide a robust source of potential investor protections, they must be easily understood among investors, states, and international tribunals. IIAs, as the…
One of the main benefits of arbitrating a dispute is obtaining a final binding award. A number of principles work to promote this fundamental building block of the arbitration ecosystem. For example, the functus officio doctrine dictates that, once arbitrators have fully exercised their authority to adjudicate the issues submitted to them, their authority over those…
On the 5th of December 2018, the stake of arbitration amidst the technological evolution was in the spotlight; Sciences Po Law School hosted the first conference of the Arbitration X Technology saga, organized by the Sciences Po Arbitration Society (SPAS), under the framework of the LL.M in Transnational Arbitration and Dispute Settlement (T.A.D.S). The former…
On 17 December 2018, the Prime Minister of Hungary issued a decision entitled “Decision authorizing the conclusion of an Agreement to terminate bilateral agreements on encouragement and reciprocal protection of investments concluded between governments of certain Member States of the European Union”1)see also here at p. 35105. The rather succinct Decision confirms the Prime Minister’s approval…
Article 30 of the 2017 ICC Rules of Arbitration, along with Appendix VI, constitute the Expedited Procedure Provisions (“Provisions”). These new provisions are among the most notable innovations of the 2017 ICC Rules, and are part of the ICC’s efforts to increase the efficiency and transparency of arbitrations. However, certain aspects of this Provisions may…
Pre-arbitration procedural requirements come into operation before the commencement of arbitration proceedings where parties have agreed on a multi-tiered dispute resolution mechanism. They are especially common in construction and engineering contracts. The Islamabad High Court (IHC) in Pakistan has addressed issues related to the nature of these requirements and consequences of non-compliance in its recent…
Confidentiality is frequently promoted as a key advantage of international arbitration. It preserves the information exchanged in the arbitration proceedings and prevents the parties from disclosing information relating to the arbitration. The extent of confidentiality afforded to the parties varies from jurisdiction to jurisdiction. In certain jurisdictions, the law does not recognise the concept of…
On 23 October, Gary Born participated in a Fireside Chat titled “How to Become a Star in International Arbitration in Five (Easy?) Steps, and is it Still Possible?”. The interview took place in Moscow and was conducted by Sergey Usoskin of Double Bridge Law, and Mikhail Kalinin of Norton Rose Fulbright. It was moderated by Alexandra…
Emergency arbitrator (“EA”) applications are fast gaining popularity among both arbitral institutions and international arbitration users. EA provisions were first introduced in the 2010 SIAC Rules to address the need for emergency interim relief before a tribunal is constituted, and many arbitral institutions have adopted relatively similar EA procedures over the past decade. For example,…
On 12 June 2018, the Xiamen Intermediate People’s Court of PRC (“Court”), in Subway International B.V. v Xiamen Woguan Enterprise Management Co., Ltd, upheld an ICDR award made by sole arbitrator Charles J. Moxley Jr., Esq.1)The author would like to thank Judge Chen Yanzhong of Xiamen Maritime Court for his comments on the earlier drafts of…
The discussion about whether and how the arbitral tribunals can apply the iura novit arbiter (INA) principle has been widely debated in different studies of international arbitration. INA allows the arbitrator to amend and to replace wrongly invoked law or the law not invoked by the parties. However, the arbitrator cannot go beyond the request,…
On Friday December 7th, a distinguished panel of government negotiators, experienced investment arbitrators and senior legal advisors gathered in Paris at the law faculty of the University Paris II Panthéon-Assas (Paris II) to discuss the US-Mexico-Canada Trade Agreement (USMCA) also called the “New NAFTA” signed on November 30th. The panel was held as part of…
The Kluwer Arbitration Blog thanks everyone who responded to the New Year Arbitration Quiz, and have decided that all those who responded will receive free subscriptions to this blog for 12 months.1) It is true that the Kluwer blog is already free. In keeping with the theme of arbitration, however, we felt our award should…
