Arbitration in Brazil has come a long way since the passing of the Brazilian Arbitration Act in 1996 (the “BAA”). The BAA has its origins in the UNCITRAL Model Law and even though it preceded Brazil’s ratification of the New York Convention by six years, the BAA is consistent with the New York Convention, at…
There is a saying in Bosnia and Herzegovina: “A tree does not grow from the sky”. In the same vein, an arbitration-friendly legal environment does not come about without much persistence and hard graft. As expert consultants tasked with assisting the Commercial Law Development Programme (CLDP) division of the U.S. Department of Commerce with its…
On 4 April 2016, the Singapore Court of Appeal heard an appeal from Sanum Investments Limited (“Sanum“) (a Macanese company) against the High Court’s decision holding that an arbitral tribunal hearing Sanum’s claim against Laos for expropriation under the China-Laos bilateral investment treaty (the “BIT“) had no jurisdiction. The issue of the tribunal’s jurisdiction turns…
In a ruling of earlier this month (see CFI 017/2015 – Emirates NBD Bank PJSC v. Infospan Gulf Inc., ruling of the DIFC Court of First Instance of 3rd April 2016) H.E. Justice Ali Al Madhani, one of the UAE-national resident judges of the DIFC Courts, sitting in the DIFC Court of First Instance, found…
The recent decision of the Paris Court of Appeal on the annulment of the ICC award in the case De Sutter P. – K., DS2 S.A., et al. v. Republic of Madagascar brings the “iura novit curia” issue back into the limelight. The dispute arose in 2012 when the Attorney General of the Malagasy Supreme…
Preliminary determinations provide a potential mechanism to streamline proceedings, but should be used with caution. This article examines the increased attention given to preliminary determinations in international arbitration. First, it explains what preliminary determinations are and how they differ from summary judgment procedures. Second, it examines the change in recent years, in the use of…
A recent order of an ICSID tribunal in the US$1.4 billion dispute regarding Argentina’s nationalisation of two airlines brings to the focus the ways and means of States to conduct the arbitration proceedings in bad faith. Indeed, the complaints by the Claimants highlight some of the tools of the toolbox which are available to…
A tribunal in an investor-state arbitration under the SCC rules issued an award on 21 January 2016, in Charanne B.V, & Construction Investments S.A.R.L vs The Kingdom of Spain, the first of a series of cases arising from reforms Spain made in the renewable energy sector. The tribunal found that regulatory measures modifying the feed-in…
Historically, there has been no binding uniform code of ethics governing the conduct of counsel appearing before international arbitral tribunals or dictating how issues of counsel conduct are to be resolved in international arbitration. Recently, however, efforts have been made to fill this void by international organizations and arbitral institutions. For example, in 2013, the…
Discussions of arbitrators’ powers have riveted the international arbitration community. Practitioners increasingly face situations where arbitrators seem cautious and reluctant to rule on procedural issues. While such a careful approach may be advisable where arbitrators prudently avoid overstepping their powers, it may, at times, also frustrate parties and practitioners alike. This phenomenon has fostered endeavours…
The Hearing, the Secret Opinion and the Decision to Strike Down the Gas Deal in Israel On 27 March, in a highly controversial decision, the Supreme Court of Israel struck down the gas deal the government of Israel promoted with the oil & gas companies for the extraction and sale of gas from the Leviatan…
Although maritime arbitration is now considered to be distinct from both international commercial arbitration and investment arbitration, the procedures have common legal roots as well as many common procedures. As a result, specialists in commercial and investment proceedings may be interested in certain recent amendments to Lloyd’s Standard Salvage and Arbitration Clauses, particularly with respect…
There are a multitude of jurisdictional issues being faced by the newly developed Sports arbitration sector, which has gained popularity primarily since nearly all major Sports Bodies have made it a mandatory part of participating in events. This issue has been a constant bone of contention between athletes, who wish to be given more choice…
Harris Bor, Barrister, Wilberforce Chambers, London On 9 March 2016, Lord Thomas, the Lord Chief Justice of England and Wales, delivered the Bailii lecture on “Rebalancing the Relationship between the Courts and Arbitration”. In it he claims that arbitration is hindering the development of the common law by taking cases away from national courts and…
Not long time ago the Supreme Court of Canada upheld a refusal to grant an enforcement of an US$950,000 award, rendered on 6 September 2002 and issued in favor of the Russian oil company Yugraneft at the International Commercial Arbitration Court at the RF Chamber of Commerce and Industry (“ICAC”). The enforcement application was filed…
Under Chinese law, disputes may only be submitted to arbitration outside China and/or under the auspices of foreign arbitral institutions if the dispute is “foreign related.”1)Chinese arbitration law adopts a two-track approach, applying different rules to domestic arbitrations and “foreign” or “international” arbitrations. This is consistent with the New York Convention and most national arbitration…
It has become customary for governments and other organisations to issue “Qs and As” to dispel myths about trade agreements. They usually contain categorical statements made to correct the record and reassure the concerned. The following ten “Qs and As” would likely not be issued by the EU Commission, as too many answers to the…
As you may (or may not) already know, a team of researchers recently concluded a study for the European Parliament on arbitration across the European Union and Switzerland. As part of this study the researchers undertook a large-scale survey of arbitration practitioners across Europe, including 871 respondents from every country in the European Union and…
European institutions have established the European Account Preservation Order procedure (“EAPO”) to facilitate the cross-border debt recovery through the attachment of bank accounts (see here the Regulation (EU) No. 655/2014, which will apply from 18 January 2017, except for Denmark and the United Kingdom). The EAPO in particular provides creditors with a measure alternative to national…
No less than two years ago, in a series of related judgments (the NML Ltd et al. v the Republic of Argentina saga), the French Court of cassation gave greater protection to state immunity from execution.1)G. Travaini, State 1 – Investor 0: Recent French Decisions regarding Sovereign Immunity from Execution, Kluwer Arbitration Blog (27 August…
On 1 March 2016, the European Court of Human Rights (“ECtHR” or the “Court”) rendered a decision in the case of Tabbane v. Switzerland (application no. 41069/12). In that decision, which was published on 24 March 2016, the Court, for the first time, examined the compatibility of a waiver of recourse against an arbitral award…
The Hong Kong International Arbitration Centre (the “HKIAC”) has recently published a new Practice Note on Consolidation of Arbitrations (the “Practice Note”), which came into force on 1 January 2016. It is applicable to cases where a party submits a request for consolidation under Article 28 of the HKIAC Administered Arbitration Rules 2013 (the “HKIAC…
Arbitration of patent disputes in the United States is on the rise. While, perhaps, somewhat behind the U.S. in that respect, the evidence is that this pattern is being paralleled in Europe. Indeed, there is reason to believe that the volume has already significantly increased over the past few years and is likely to increase…
Two recent Dubai Court of Cassation cases shed light on the question of the liability of arbitrators in the UAE (see Case No. 212/2014 – Meydan Group LLC v. Alexis Mourre, ruling of the Dubai Court of Cassation of 8 October 2015; and Case No. 284/2015 – Meydan Group LLC v. Doug Jones, Humphrey Lloyd…
