Enforcement, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Ukraine

(Avellum)/ /Leave a comment

Investment arbitrations with respect to Ukrainian assets in Crimea have been in the spotlight of the international arbitration community for some time now1)E.g., see here . After the Claimants in Everest Estate LLC et al. v. the Russian Federation (“Everest”) obtained the merits award in their favour in May 20182)See this post by Mykhaylo Soldatenko., the…

Energy, Energy Charter Treaty, Italy, Oil & Gas

(Bottega Di Bella) and (Galvez Pascual SLP)/ /1 Comment

The Italian Republic – for better or for worse – is cracking down on hydrocarbon explorations and extractions. Kicking off with the regulatory changes recently brought about by the Italian Government, this post gauges their possible consequences for the stakeholders by going through a pending arbitration which may be ripe enough to become a benchmark…

Abu Dhabi, Arbitral seat, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, UNCITRAL Model Law

(Al Tamimi & Company )/ /Leave a comment

The Abu Dhabi Global Market (“ADGM”) is an international financial free zone and an important emerging seat of arbitration in the GCC region. The ADGM’s arbitration law is based on the UNCITRAL Model Law, with a number of significant enhancements relating to the confidentiality of proceedings, the joinder of third parties, and the waiver of the…

Africa, Arbitration, Third party funding

(G. Elias & Co)/ /Leave a comment

Introduction This post addresses the topical issue of Third-Party Funding (“TPF”) in relation to Nigeria-seated arbitrations, and posits in variance with recent work on the subject that there is no extant law prohibiting TPF in Nigeria-seated arbitrations. This post points out that there has been an apparent misapplication of the common law principles of champerty and…

Arbitration Awards, Enforcement, Finality, Middle East, New York Convention, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, United Arab Emirates

(Al Suwaidi & Company, Dubai)/ /Leave a comment

Introduction The United Arab Emirates (the “UAE”) is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the “NYC”), which was adopted into UAE law by Federal Decree No. 43 of 2006. However, there have been instances where the lower courts of the UAE have come…

Arbitrability, India, Intellectual Property

and (West Bengal National University of Juridical Sciences)/ /1 Comment

Arbitration of IP disputes has inherent advantages of saving time and costs and ensuring confidentiality while also maintaining long-term business relations (see here). In India, arbitration will be especially useful in light of the enormous pendency of judicial cases. However, arbitrability of any subject-matter is dictated by a country’s public policy. In India, what forms…

New York, Section 1782 Discovery, Tribunal, U.S. Supreme Court, United States

(Quinn Emanuel Urquhart & Sullivan, LLP)/ /Leave a comment

United States Code Section 1782 has become the weapon of choice for international litigants seeking discovery in aid of foreign proceedings. Section 1782 allows an “interested person” (such as a foreign litigant) to apply for discovery over a person or entity “found” in the U.S. “for use” in a proceeding “in a foreign or international tribunal.”…

ICC, ICC Arbitration, ICC Note to Parties and Arbitral Tribunals

(Herbert Smith Freehills LLP) and (Level Twenty Seven Chambers)/ /1 Comment
Herbert Smith Freehills

ICC’s updated guidance to parties On 20 December 2018 the International Court of Arbitration of the International Chamber of Commerce (ICC) published an updated Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (Note). The Note, which came into effect from 1 January 2019, introduces a…

Europe, International Commercial Courts, Jurisdiction, Language

(Addleshaw Goddard LLP)/ /Leave a comment
Jeantet

A 2018 study commissioned by the European Parliament’s Committee on Legal Affairs concluded that the EU should seek to establish a “European Commercial Court” at the level of the EU1) Study for the European Parliament’s Committee on Legal Affairs (JURI Committee), Building Competence in Commercial Law in the Member States, authored by Prof. Dr. Giesela…

Arbitration, Arbitration Awards, Courts, India

/ /Leave a comment

A legal regime which asks the victim of a frivolous legal proceeding to subsidise the costs of the perpetrator is unjust and is bound to provide incentives for more frivolous proceedings. For a long time, Indian arbitration law had been providing such incentives for a party to make frivolous objections to the arbitration agreement or…

China, Guangzhou Arbitration Commission, Online Arbitration, Online Dispute Resolution, PRC

(Guangzhou Arbitrator Alliance)/ /1 Comment

In recent years, the combination of arbitration and technology has raised great concerns among international arbitration community. Much discussion has centred on online arbitration and use of artificial intelligence in arbitration. In China, the rapid growth of electronic business (including but not limited to internet consumer applications and mobile financial services) has posed challenges to…

Australia, Jurisdiction, Singapore

(Squire Patton Boggs) and (Clifford Chance Asia)/ /1 Comment

The different approaches to arbitration between courts in Australia and Singapore have been illustrated in two cases in the last 2 years – KVC Rice Intertrade Co Ltd v Asian Mineral Resources Pte Ltd [2017] SGHC 32 and Hursdman v Ekactrm Solutions Pty Ltd [2018] SASC 112. The Singapore approach typified by KVC is to…

Arbitral Tribunal, IBA, IBA Rules of Evidence, International Arbitration Procedures, Prague Rules, Tribunal

(Clyde & Co.)/ /1 Comment

On December 2018, the Prague Rules on the Efficient Conduct of Proceedings in International Arbitration (“Prague Rules”) were released. (For related posts on the Prague Rules on Kluwer Arbitration Blog click here, here, here, and here.) The Prague Rules aim to increase efficiency and reduce costs in arbitral proceedings. The project arose from a general…

CIETAC, HKIAC, ICC, SIAC, Singapore International Arbitration Centre

(Zhong Lun Law Firm)/ /Leave a comment

In this post, I will compare and discuss the expedited procedure rules (“EP Rules”) used by various arbitral institutions in deciding on a default number of arbitrator(s) for such expedited procedure. A core concern of Article V(1)(d) of the New York Convention is how to weigh between party autonomy and institutional control in arbitration proceedings….

Corruption, Immunity, Institutional Arbitration

/ /Leave a comment

In November 2018, the former director of the Asian International Arbitration Centre (AIAC) in Kuala Lumpur resigned from his role after being arrested on suspicions that he paid past and present ministers bribes to renew his role at the AIAC. His lawyer argued before Malaysian courts that, by virtue of his role at AIAC, he is…

BIT, ISDS, Latin America, USMCA

, (Von Wobeser y Sierra, S.C.)/ /Leave a comment
Young ITA

On 7 February 2019, Young ITA Talks Mexico conference addressing investor-state dispute settlement (“ISDS”) in Latin America was organized at Greenberg Traurig S.C.’s Mexico City office.1) While the content and subject-matter of this report stem from the discussions at the #YoungITATalks event, the views and analysis expressed herein are those of the authors. The panellists,…

Arbitral seat, Colombia, Commercial Arbitration, ICC Arbitration, Latin America

(Suescún Abogados)/ /Leave a comment

During the last years, Colombia has been taking steps forward towards the consolidation of the country as an attractive forum for international arbitration.1)For a more detailed analysis, see: F. González Arrieta; “Arbitration in Colombia: Two Steps Forward and one Backwards” TDM 5 (2016), www.transnational-dispute-management.com; available at: www.transnational-dispute-management.com/article.asp?key=2382 Within this context, the Supreme Court of Justice…

Case management conference, ICC Rules, International arbitration, International Arbitration Procedures, New York Convention

(Gadens Lawyers)/ /Leave a comment

What are Terms of Reference in the ICC Rules of Arbitration, and what are they for? Article 23(1) of the 2017 ICC Rules provides “As soon as it has received the file [of a new dispute] from the Secretariat, the arbitral tribunal shall draw up, on the basis of documents or in the presence of…

Germany, Public Policy, Res Judicata, Switzerland

(Akıncı Law)/ /Leave a comment

The principle of res judicata is a universal principle recognized by the legal systems of all civilized nations. The res judicata principle should be applied by arbitral tribunals as the arbitral tribunals are alternative to the courts and when an award is enforced it becomes a part of the legal order of the country where…

Baseball Arbitration, Final Offer Arbitration, FOA, Issue-by-Issue, Model Arbitration Clause, Whole Package

(Souto, Correa, Cesa, Lummertz & Amaral Advogados), (Bottega Di Bella), and (Guandalini Sampaio Advogados)/ /Leave a comment

A recent post discussed the upsides and downsides of the so-called Final Offer Arbitration (“FOA”)  also known as Baseball Arbitration. In short, in an FOA, instead of crafting an award from scratch, the arbitral tribunal simply has to pick either party’s final offer on the claims and elevate it to the final award, usually without…

Achmea, CJEU, European Law, International Investment Arbitration, International Law, Intra-EU BITs, Investment, Investment agreements, Investment Arbitration, Investment law, Investment protection, Investment Treaties, ISDS

(Concepción Global, PLLC, Universidad Complutense de Madrid)/ /Leave a comment

The CERSA (CNRS- University Paris II Panthéon-Assas) organized its third event in a series of seminars on selected topics in international investment law and investor-state dispute settlement (ISDS) (for the report of the first seminar, see here). The seminar on Topical issues in ISDS: EU Investment Law was held in Paris on 7 February 2019…

Central Asia, Kyrgyzstan

and (American University of Central Asia)/ /Leave a comment

Arbitration in Kyrgyzstan Historically, arbitration in the Kyrgyz Republic is one of the least studied in Central Asia. Not much attention has been paid to the study of the law and practice of arbitration in the country. One of the recent books on the Law and Practice of International Arbitration in the CIS Region wholly…

Investment, Investment Arbitration, Investment protection, Investor-State arbitration, ISDS, ISDS Reform

(Chartered Institute of Arbitrators)/ /Leave a comment
Chartered Institute of Arbitrators (CIArb)

At the heart of the debate surrounding Investor-State Dispute Settlement (ISDS) Reform is UNCITRAL Working Group (WG) III.  Until two years ago, WG III was dedicated to discussing issues surrounding online dispute resolution.  But in 2017, in response to several significant awards against states in investment arbitration and corresponding public outcry, the WG III was…

Arbitration, BIT, International arbitration, Investment Arbitration, ISDS, ISDS Reform, Multilateral Investment Court

(Hanotiau & van den Berg / KU Leuven) and (Hanotiau & van den Berg)/ /Leave a comment

On 22 November 2018, the Belgian Ministry of Foreign Affairs, Foreign Trade and Development Cooperation hosted a High Level Event on the Reform of Investment Protection. Distinguished panellists from arbitral institutions, international organisations, academia, civil society, arbitration users and legal practitioners presented diverse views on the need for reform of the system of investor-State dispute…