DIFC, Financial Industry, Uncategorized

(Blanke Arbitration LLC)/ /Leave a comment

To the great excitement (some may say consternation) of the local legal profession, by adoption of a decree earlier this year (see Decree No. (19) of 2016 forming the Judicial Committee of the Dubai Court and the DIFC Courts, dated 9 June 2016), which entered into immediate effect (see Art. 8, Decree No. (19) of…

Arbitration, Arbitration Act, New Zealand

, (Chapman Tripp)/ /Leave a comment

Judicature modernisation reforms, which passed through New Zealand’s Parliament in October, represent the most significant revamp of the country’s court system since the Judicature Act 1908. In addition to several changes to court structures and processes, the reforms made two modest amendments to New Zealand’s Arbitration Act 1996 (the Act). First, the definition of “arbitral…

Arbitral Tribunal, Arbitrators, Surveys

(University of Arizona, James E. Rogers College of Law )/ /1 Comment
Institute for Transnational Arbitration (ITA)

Are international arbitrators biased in favor of the nominating party? The answer is: probably yes! This is in part the result of what some scholars refer to as selection and affiliation effects. Selection effect: Because the parties nominate the arbitrators, they can choose party-appointed arbitrators with the maximum predisposition towards their case. The litigant can…

Arbitration Agreements, Arbitration Clause Incorporated by Reference, Brazil, Domestic Courts

, (Clyde & Co.)/ /Leave a comment
Clyde & Co.

On 22 September 2016, the 1st Instance Court of Jundiaí – São Paulo dismissed a claim under Article 485, VII of the New Brazilian Civil Procedure Code (NBCPC) finding that the court lacked jurisdiction over disputes arising out of a distribution agreement which provided for disputes to be resolved by arbitration. Pursuant to Article 485,…

Arbitration Agreement, Court of Appeal, Singapore

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In Rals International Pte Ltd v Cassa di Risparmio di Parma e Piacenza SpA [2016] SGCA 53 (Rals International), the Singapore Court of Appeal was asked to consider the application of an arbitration agreement in a supply agreement to a dispute arising out of promissory notes provided as payment under the supply agreement. The Court…

Admissibility, Arbitral Award, Domestic Courts, Enforcement, Germany, Interim Ruling on Jurisdiction, Parallel Proceedings, Set aside an arbitral award

(Herbert Smith Freehills LLP) and , , (Herbert Smith Freehills)/ /Leave a comment
Herbert Smith Freehills

The situation that the Bundesgerichtshof was recently faced with in a case is not uncommon: whilst a state court still reviews an arbitral tribunal’s preliminary ruling on its competence, the arbitral tribunal delivers its final award on the merits. This raises one question: What are the implications for the pending challenge to jurisdiction? In previous…

Arbitration, England, State Immunity

(Clyde & Co.)/ /Leave a comment
Clyde & Co.

James Crawford described the principle of state immunity as “…a rule of international law that facilitates the performance of public functions by the state and its representatives by preventing them from being sued or prosecuted in foreign courts…it precludes the courts of the forum state from exercising adjudicative and enforcement jurisdiction in certain classes of…

Arbitrability, Fraud, India

(Legislation & Policy Research Group) and / /2 Comments

On 4th October, 2016, a Division Bench of the Indian Supreme Court, in A. Ayyaswamy v. A. Paramasivam (“Ayyaswamy”) [2016], sought to clear the muddied waters surrounding the arbitrability of issues relating to fraud, albeit offering little clarity in the end. The uncertainties regarding arbitrability of fraud claims had previously reached a legal impasse following…

BIT, European Union, Intra-EU BITs

(Schoenherr) and / /Leave a comment
Schoenherr

Currently, around 190 bilateral investment treaties between EU Member States (“intra-EU BITs”) are still in force. Most of these intra EU-BITs were concluded in the 1990s. Prior to the two enlargement rounds in 2004 and 2007, relatively little attention was paid to the two existing intra-EU BITs. However, after 2004, the status of intra-EU BITs…

France, Impecuniosity

, (Castaldi Partners)/ /1 Comment

The issues of impecuniosity and access to justice arise cyclically in different jurisdictions and under different forms. Recently, the debate has been raised again in France. On 24 May 2016, the Paris Court of Appeal quashed a decision of the French juge d’appui (judge acting in support of the arbitration) enjoining the ICC to reintroduce…

Arbitration, Australia, CETA, Trans-Pacific Partnership

(University of Sydney & Williams Trade Law)/ /Leave a comment

Critics of the TPP, and ISDS protections more generally, have often argued that a particular concern is that the US is not only a large source of FDI, but that it is ‘the nation whose corporations use ISDS the most’ (referring to ANU’s Professor Thomas Faunce). A recent paper by ANU’s Dr Kyla Tienhaara for…

Uncategorized

(Blanke Arbitration LLC)/ /1 Comment

On 20 September 2016, in a somewhat unanticipated move, the Dubai International Arbitration Centre (DIAC) and the Dubai International Financial Centre (DIFC) Dispute Resolution Authority (DRA) – which comprises both the DIFC Academy of Law and the DIFC Courts, the autonomous common law judiciary based in the DIFC – signed a Memorandum of Understanding to…

BIT, China, Customary international law, Expropriation, Fair and Equitable Treatment, Investment, Investment Arbitration, Investor, Laos, Macau, Singapore, Singapore Court of Appeal, Vienna Convention on the Law of Treaties

, , (Wilmer Cutler Pickering Hale and Dorr LLP)/ /1 Comment
WilmerHale

Part I of this two-part blog post summarized the recent judgment of the Singapore Court of Appeal (“SGCA” or the “Court”) in Sanum Investments Ltd. v Government of the Lao People’s Democratic Republic (“Sanum v Laos”). This Part II provides some comments on that judgment and its significance, including its impact on future Singapore court…

BIT, China, Customary international law, Expropriation, Fair and Equitable Treatment, Investment, Investment Arbitration, Investor, Laos, Macau, Singapore, Taxation, Vienna Convention on the Law of Treaties

, , (Wilmer Cutler Pickering Hale and Dorr LLP)/ /Leave a comment
WilmerHale

On 29 September 2016, the Singapore Court of Appeal (“SGCA” or the “Court”) released its much-anticipated judgment in Sanum Investments Ltd. v Government of the Lao People’s Democratic Republic (“Sanum v Laos”). In a carefully reasoned decision, Singapore’s apex court reversed a decision of the Singapore High Court, which had previously held that an UNCITRAL…

Arbitration, Cost allocation mechanisms, Costs, Security for Costs, Third party funding

(University of Aberdeen)/ /4 Comments

Security for costs, a measure which is perceived as a savior for those who are forced to arbitrate with (allegedly) impecunious parties, can have several connections with the industry of third party funding. Third party funding, as a new trend in international arbitration, has certainly disturbed many waters, including those related to security for costs….

Hong Kong, ICSID Arbitration, Permanent Court of Arbitration, Singapore

(Herbert Smith Freehills LLP) and (Herbert Smith Freehills)/ /3 Comments
Herbert Smith Freehills

As Professor Luke Nottage and Dr. Jarrod Hepburn have observed in a forthcoming case note,1)Hepburn, J., Nottage, L. (2016), Case Note: Philip Morris Asia v Australia (Forthcoming), Journal of World Investment and Trade the most recent ruling in the long-running case of Philip Morris Asia v Australia has highlighted the consequences of agreeing to arbitrate…

ISDS, NAFTA, TPP, Trans-Pacific Partnership, United States

(Lalive) and (Dechert)/ /1 Comment

In recent weeks, criticism of the TPP has been increasingly focused on the Investor-State Dispute Settlement (ISDS) mechanism contained in its Chapter Nine. Massachusetts Senator Elizabeth Warren initiated the charge against the TPP’s ISDS mechanism, and her attacks were recently supported by more than two hundred economists and law professors, who addressed a letter to…

Arbitration, Arbitration Proceedings, Arbitrators, IBA Guidelines on Party Representation, Investment Arbitration, Secretary of the Arbitral Tribunal, The Pledge, Third party funding

(Bocconi University)/ /3 Comments
Arbitrator Intelligence

If James Bond practiced law, it would be international arbitration. Don’t believe me? Just consider how many international arbitration cases could be great plots for a James Bond movie. Take, for example, the case in which an Israeli investor was arrested in Tbilisi and jailed following a cognac-laced sting operation that caught the investor on…

Uncategorized

/ /1 Comment

In February 2016, the Egyptian Conseil d’État rejected a draft sports law (the “Sports Law” or the “Law”) proposed by the Egyptian Ministry of Youth and Sports (the “Ministry”) because its dispute resolution provisions did not comply with the Egyptian Constitution. Among its many responsibilities, the Conseil d’État is the authority in charge of reviewing…

ISDS, Trans-Pacific Partnership, United States

(Lalive) and (Dechert)/ /Leave a comment

In recent weeks, it has become clear that the latest lightning rod for TPP criticism is the Investor-State Dispute Settlement (ISDS) mechanism contained in its Chapter Nine. With Massachusetts Senator Elizabeth Warren leading the charge in this new fight, and a recent letter circulated to members of Congress by more than two hundred economists and…

Law Firms, Third party funding

(Arizona State University, Sandra Day O'Connor College of Law)/ /7 Comments
Institute for Transnational Arbitration (ITA)

The line between third-party funders and law firms is blurring. Originally, there were only two traditional types of third-party funding arrangements. In the first type, the third-party funder makes an agreement to finance the legal expenses of the claimant or respondent in a case in exchange for a portion of the claimant’s awarded amount, if…

Arbitration, Arbitration institution, Liability

(The Hague University)/ /3 Comments

Liability in international arbitration is a recurrent yet unsettled issue. Occasionally, we hear of a fearless party that dares to sue an arbitrator and/or an arbitral institution based on allegations of a conflict of interest, procedural irregularity, error of law, or a failure to oversee the good conduct of the arbitration proceedings. The discussions prompted…

New Zealand, Reasoned Awards

(Shortland Chambers, New Zealand)/ /1 Comment

Lawyers might sometimes wish for Solomonic justice; that parties would agree to “split the difference” or that someone would do it for them. Where, however, it appears that such an approach has been taken by an arbitral panel—in substitution for a carefully reasoned decision—the lack of engagement with their arguments is likely to leave the…

Women in arbitration

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ArbitralWomen

On 19 September 2016, Freshfields hosted an ICC YAF event at its London offices on gender diversity in arbitration and the Pledge for Equal Representation in Arbitration (“Pledge”), a topic which has been the centre of discussions on panels organised by ArbitralWomen around the world. The Pledge initiative, orchestrated by Sylvia Noury of Freshfields and…