Introduction – the usual reasons Assumptions are made about the reasons corporate counsel choose particular methods of dispute resolution in contracts. It is said that the usual factors of enforcement, confidentiality, flexibility, informality, time, cost and so on are determinative. For some corporate counsel they might be. For others, as I have written elsewhere, the…
Besides the inverted initialism, what does international arbitration (“IA”) and artificial intelligence (“AI”) have in common? Sure, both IA and AI are leading alternatives to the status quo: IA to traditional dispute resolution, AI to traditional methods of production. The former promotes freedom from the judiciary, the latter freedom from cognitive limitations. Beyond that, comparisons…
The IBA Guidelines on Conflict of Interest in International Arbitration (hereafter, Guidelines) have gained widespread legitimacy across jurisdictions and types of arbitrations. The Guidelines lay down General Standards (Part I) and provide Practical Application List (Part II). Its soft law nature is an example of codification by compilation (Part I) and innovation (Part II). The…
The views expressed herein are the personal views of the authors and do not reflect those of their law firm. In France, until recently, rules governing the issue of sovereign immunity from enforcement, and in particular those setting out the scope and conditions under which such immunities apply, derived from case law. Although relevant international…
Issue 35/1 Guilherme Rizzo Amaral, Burden of Proof and Adverse Inferences in International Arbitration: Proposal for an Inference Chart Abstract: This article addresses two subjects that are relevant to the finding of facts in international arbitration, namely, the burden of proof and the power of the arbitral tribunal to draw adverse inferences. Regarding the burden…
The (Indian) Arbitration and Conciliation Act, 1996 does not specify which disputes are arbitrable and which are not. The arbitrability of disputes is a contested issue and has been left for the courts to decide on a case-by-case basis. In Himangni Enterprises v. Kamaljeet Singh Ahluwalia (“Himangni Enterprises”), the arbitrability of disputes under a lease…
Founded 20 years ago, the Organization for the Harmonization of Business Law in Africa (OHADA) is a group of 17 African States who have joined efforts to enact unified legislation in all areas of business law in order to promote investments by fostering legal certainty across member States. The OHADA Treaty acknowledged the importance of…
The Comprehensive Economic and Trade Agreement (CETA) made waves in a post-Trump era of hostility towards free trade. But not all press is good press and CETA’s investor–state dispute settlement (ISDS) mechanism has come under fire. While all chapters of the CETA entered into force at midnight on September 21, 2017, one didn’t: the controversial…
Introduction Consolidation means combining two or more arbitrations that are pending under a specific set of rules into a single arbitration proceeding. In appropriate circumstances, consolidation has various advantages. Most importantly, it eliminates the risk of having contradictory awards rendered in different proceedings on closely related sets of facts. Additionally, it makes for procedural and…
The new arbitration rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit – “DIS”) will enter into force on 1 March 2018 (“DIS Rules 2018”). It is the first revision of the DIS Rules since the current version was adopted in 1998 (“DIS Rules 1998”). The revision process involved nearly 300 persons sitting…
In 2010, the Commercial Court of Paris created a specialised international and European court chamber in order to judge all international complex commercial cases in the first instance. Although French procedural rules continue to apply before this court chamber, evidence and oral debates can take place in a foreign language, if the judges and 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…
From lessons learnt from Lord Hope’s diaries and the memoirs of Ken Newell (a Presbyterian Church minister in Northern Ireland) to a debate at the recent Lex Infinitum competition on whether the role of the mediator can be overrated, the first month of 2018 has offered up the usual variety of posts on the Kluwer…
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…
This post covers the main topics broached in my lecture given in Oxford, in the Conference “II Oxford Symposium on Comparative International Commercial Arbitration”, which took place on November 20, 2017. The question is: are arbitrators bound by precedents or by a clear line of case law, when parties have decided, in the arbitration agreement, that…
On 31 December 2017, Israel’s Supreme Court published an important precedential decision concerning enforcement procedures of ‘made in Israel’ commercial arbitral awards. In Request for Appeal 1739/17, Michael Flacks v. Stephan Bisk (in Hebrew), the Israeli Supreme Court denied a motion for service of process abroad in a petition to confirm an arbitration award issued…
The U.S. Court of Appeals for the Ninth Circuit has enforced an arbitration clause in a maritime insurance policy, finding the policy subject to the Federal Arbitration Act, and not “reverse preempted” by the McCarran-Ferguson Act. In so holding, the court determined that the policy’s choice-of-law clause and arbitration provision controlled over somewhat different language…
INTRODUCTION Germany is considered as one of the most arbitration friendly jurisdictions in Europe if not world-wide, not least because the 1998 arbitration law is almost a verbatim translation of the UNCITRAL Model law. This arbitration-friendliness always encompassed also corporate disputes, safe for one minor, but important exception: arbitrations concerning the validity of shareholder…
Increased investment in South East Asia has led to a growth in the supply and demand for dispute resolution services in the region. Indonesia is no exception, with disputes increasingly submitted to the Badan Arbitrase Nasional Indonesia (“BANI”) – the country’s most popular and well recognised arbitration centre. Recently however, BANI has seemingly split into…
On December 12, 2017, the Supreme Court of Japan rendered its first decision on the setting aside of an arbitral award based on an arbitrator’s failure to disclose facts allegedly constituting a conflict of interest, reasoning that, in order for the award to be set aside on this ground, it is necessary that the arbitrator…
The present analysis critically focuses on some aspects of the Opinion on the intra-EU BITs issued by AG Wathelet in the Achmea case (Case C-284/16) in September 2017. The Opinion has been extensively commented on in previously published posts on this blog. As such posts have noted, the AG’s position that intra-EU BITs are…
Critics of international arbitration often express concerns about the quality of legal reasoning in arbitration, even though conventional wisdom within the international community suggests that international arbitral awards reflect relatively robust reasoning that is often on a par with that of decisions rendered by commercial courts. Why the discrepancy? I have written elsewhere about…
The progress in the development, acceptance and understanding of third-party financing of dispute resolution costs by lawyers and clients, will undoubtedly continue in 2018. The model of third-party based financing of arbitration costs will be no exception, it being generally accepted that it is here to stay and that it provides a solution, in particular,…
Critics of the current investor-state arbitration regime may yet have their best days ahead of them. In the midst of tarnished FTA negotiations and in times of political uncertainty, they have captured a global audience. Their message is disconcerting: Investor-State Dispute Settlement (ISDS) is a system designed by and for multinational corporations. It allows faceless…
