Prime Minister Theresa May has repeatedly said, “Brexit means Brexit.” But what does Brexit actually mean? When is Brexit going to happen? And is Brexit going to happen at all? And if it will happen, what will be the consequences for international dispute resolution? The Kluwer Journal of International Arbitration’s Special Issue on “Brexit” analyses…
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…
In William Lim and Another v. Hung Ka Hai Clement and Others [2016] HKCFI 1439; HCA 1282/2016 (24 August 2016), the Hong Kong Court of First Instance ordered a stay of court proceedings and referred an ongoing dispute to arbitration pursuant to s 20 (1) of the Arbitration Ordinance (Cap 609). The Court found that…
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…
One of the perceived advantages of arbitration is that it allows parties to select one or more decision makers (arbitrators) with a level of technical or scientific expertise and professional experience higher than that of the average judge. Arbitration has always been welcomed as a fitting alternative to traditional litigation, where the judges tend to…
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…
The Trans-Pacific Partnership free trade agreement, signed on 4 February 2016 among 12 Asia-Pacific economies, faces a rocky road to ratification. In the run-up to the US presidential election in November, both Donald Trump and (for now) Hillary Clinton say they are opposed. Yet Australian Prime Minister Turnbull urged President Obama to put the FTA to a vote in Congress…
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…
In the past two to three years the critics of investor-to-state dispute settlement (ISDS) have been tremendously successful in setting up an effective propaganda, which has managed to scare and misinform the general public, media, and politicians. This propaganda has not only turned around once pro-ISDS countries like Germany, The Netherlands and France, but has…
Introduction After recent amendments to the Polish Arbitration Law (part five of the Polish Code of Civil Procedure, Official Journal of Laws of the Republic of Poland, No 43, item 296, as amended, available in Polish here) (“CCP”) , which were a subject of my previous posts, the Polish legislator commenced in June 2016 the…
A new development in the third party funding arena prompts an increased analysis of the theoretical foundations of the nature of third party funding. At the moment, there are divergent views on its proper place and treatment, and with increased prevalence a piecemeal approach with little theoretical groundwork risks creating a minefield resulting in unpredictability…
On 28 July 2016, in a judgment of Justice Sir Jeremy Cooke (see CFI 020/2016 – Brookfield Multiplex Constructions LLC v. (1) DIFC Investments LLC (2) Dubai International Financial Centre Authority, ruling of the DIFC Court of First Instance of 28 July 2016), the DIFC Court of First Instance ruled, in principle, in favour of…
Arbitration has long been the favorite of the ADR family. Mediation, however, has established an increasingly relevant position for itself when it comes to resolving (international) commercial disputes quickly, cost-efficiently, and successfully. Efforts to render mediated settlement agreements enforceable persist and will likely further bolster mediation as an independent and, possibly, even superior alternative to…
There has been a lot of attention paid to the various innovations in the new SIAC Rules 2016 such as the possibility of an early dismissal of claims under the new Rule 29. One of the changes to the Rules which has generally been overlooked is that they now require consent of the parties and…
On 11 April 2016, the Democratic Republic of Timor-Leste (“Timor-Leste”) commenced the first ever compulsory conciliation proceedings under Annex V, section 2 of the United Nations Convention on the Law of the Sea (“UNCLOS”). The proceedings concern the disputed maritime boundary between Timor-Leste and Australia in the Timor Sea. Australia objected to the conciliation on…
Much has been written about iura novit curia or, as it has been rephrased for arbitration purposes – the iura novit arbiter principle in international arbitration. There are three main areas of debate. The first of these areas deals with the different approaches to the role and duties of the decision-making body and the parties…
Climate change is a serious threat to humankind. The sources of the problem are many, requiring a multidimensional approach to find practical and viable solutions. In the last several years, awareness of the issue has been addressed in the public domain, by international community, and civil society. This publicity has resulted in States taking concrete…
Recent developments indicate there may be increasing interest in the creation of alternative forms of dispute resolution for investor-State disputes. One potential alternative is mediation. This post outlines how 2016 has been an important year for investor-State mediation, considers how mediation interacts with investment treaty arbitration, and the benefits and risks associated with such a…
Can an international arbitral tribunal admit emails and documents as evidence if these documents were obtained by hacking a computer network? The ICSID tribunal in Caratube International Oil Company and Mr Devincci Saleh Hourani v Kazakhstan (ICSID Case No. ARB/13/13) held, “in principle Yes”, in a decision which is not yet published but has been…
On a rainy Monday 19 September 2016, Freshfields Bruckhaus Deringer LLP hosted an ICC YAF event at its London offices on the importance of women in our arbitration world. The issue of gender diversity was at the forefront of the agenda, and taking the Pledge for Equal Representation in Arbitration (www.arbitrationpledge.com). The YAF coincided with…
In a 2014 speech delivered in Sydney entitled “Commercial Courts and International Arbitration – Competitors or Partners?”, Michael Hwang SC, referring to the New York Convention on the Recognition and Enforcement of Arbitral Awards (‘New York Convention’), described the Hague Convention on Choice of Court Agreements (‘Hague Convention’) as “a sort of mini version of…
The Court of Appeals for the Second Circuit, which covers the district courts of New York, Connecticut and Vermont, was recently called to decide the effect that a vacatur of an award in the seat of arbitration (in that case, Mexico) had in an ongoing enforcement proceeding in New York. The Court of Appeals held…
The last decade has seen a concerted effort by the Indian legislature, the executive and the judiciary to promote alternative dispute resolution in India. The Arbitration and Conciliation (Amendment) Act, 2015 (‘Amending Act’) marks an important milestone in the development of arbitration law in India. Some of the important changes brought about by the Amending…
Under Article V(1)(e) of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“The New York Convention”), a court presented with an action to enforce an arbitral award “may refuse” to enforce the award “only if” the opposing party can prove that an award “has been set aside or suspended…
