In a post dated March 2, 2011, I reported about a Swiss Supreme Court decision of February 20, 2009 where the Supreme Court had confirmed a CAS award which deemed an appeal withdrawn after the appellant had failed to pay the advance on costs. I indicated that I did not know what had happened to…
On March 22, the United States Court of Appeals for the Second Circuit held in Bechtel do Brasil Construções Ltda. v. UEG Araucária Ltda., 638 F.3d 150, that the question whether a claim subject to arbitration was time-barred was for the arbitrator, not the district court, to decide, notwithstanding a New York state law that…
Last week I had the pleasure of working with Business Roundtable and a wonderful group of international law scholars–Rudolf Dolzer, Burkhard Hess, Herbert Kronke, Julian Ku, Davis Robinson, Christoph Schreuer, and Janet Walker–on a Second Circuit amicus brief addressing the propriety of antisuit injunctions under international law. The amicus brief addresses an appeal of Judge…
This post addresses the U.S. Supreme Court’s misadventures with class arbitration over the past decade. Those misadventures have resulted in striking confusion and waste of resources by litigants, courts and arbitral institutions. More broadly, the Court’s conflicting and often ill-considered decisions on the subject now threaten to undermine U.S. arbitration law more generally – turning…
This article provides a brief background on the provision allowing for non-disputing State Party participation under Chapter Ten of the Dominican Republic – Central America – United States Free Trade Agreement (CAFTA-DR), specifically Article 10.20.2, including the relationship between non-disputing State Party submissions and the transparency provisions of CAFTA-DR as well as the implementation of…
The Court of Appeal of England and Wales ruled last month that where parties have entered into an arbitration agreement, one party can obtain an anti-suit injunction to prevent the other party from initiating proceedings in a foreign court, even where no arbitration is underway or indeed even contemplated. In AES Ust-Kamenogorsk Hydropower Plant LLP…
There are two legal jurisdictions in Qatar with laws containing specific provisions related to arbitration: the State of Qatar and the Qatar Financial Center (the “QFC”). The latter is a separate jurisdiction with its own laws within the state. The QFC Law provides for the arbitration of commercial disputes in relation to contracts that have…
CIETAC’s Vice Chairman and Secretary General recently announced at a conference in London that CIETAC may soon permit parties to select arbitrators from outside the CIETAC list. As the CIETAC Rules currently allow parties to appoint off-list only if they have agreed to do so, this announcement suggests that CIETAC may in the future allow…
In a landmark provisional judgment in Democratic Republic of the Congo v. FG Hemisphere Associates FACV Nos. 5, 6 & 7 of 2010, the Hong Kong Court of Final Appeal (CFA) has held by a majority of 3:2 that absolute sovereign immunity applies in Hong Kong, with no exception for purely commercial transactions or assets….
As a journalist, I miss out on all the fun of nominating arbitrators. And I also refrain from counseling others as to whom they should nominate to arbitral tribunals. But, today I’d like to make an exception. Recently, Zimbabwean President Robert Mugabe engineered the effective demise of the regional tribunal of the Southern African Development…
The four most recent ICSID disqualification decisions (Universal Compression v. Venezuela, OPIC Karimum v. Venezuela, Tidewater v. Venezuela and Urbaser v. Argentina) have unanimously rejected applications to disqualify arbitrators on ICSID tribunals. This post addresses an issue raised in three of the most recent decisions—disqualification based on repeat appointments by the same party or counsel—and…
The seventh round of TPP negotiations will take place in Vietnam the week of June 20 but caution on the part of U.S. negotiators makes it highly unlikely that after fifteen months of ongoing negotiations any of the major issues will be resolved or even fully opened to discussion. In particular, the United States Trade…
There was no shortage of coverage of the recent English Supreme Court case Jivraj v Hashwani, the case concerning whether an arbitration clause was contrary to anti-discrimination legislation applicable to employees. But there was one issue which received little attention before the Supreme Court – whether or not the nature of the relationship between the…
I am posting this CIArb’s press release for the benefit of our readers: The Chartered Institute of Arbitrators (CIArb) has launched a major survey into the costs of international arbitration. The ‘Costs of Arbitration’ survey will gather data to inform parties, legal representatives and arbitrators about the overall costs of international commercial arbitration and how…
The Islamic Republic of Pakistan is not foreign to defending investment claims. In order to restore investors’ confidence in its country, the Pakistani government has enacted on April 28, 2011 a law to secure foreign investment. The International Investment Disputes Act (the “Act”) has been qualified by the Pakistani president, Mr. Asif Ali Zardari, as…
[Editor’s Note: The following blog is re-published free of editorial errors in the original publication.] In the current zeitgeist focusing on the need for efficiency and speed in arbitration, we are at risk of over-correcting to the point of diminishing important functions of the arbitral process. There is little doubt that the arbitral process generally…
I write this post on a train on the way home from a seminar held by the Milan Chamber of Arbitration (CAM) to introduce a new rule and guidelines that could be seen as a necessary next step in the trend towards greater efficiency in arbitration. Before commenting on where these new developments might take…
José Augusto Fontoura Costa of the São Paulo Law Faculty has just published a fascinating paper analyzing the process by which WTO panelists and ICSID arbitrators are nominated. What is most interesting about his thesis is that he offers a different conception of why we have elite arbitrators, but not an elite cadre of WTO…
Costa Rica has a new Arbitration Law, which is based on the 2006 version of the UNCITRAL Model Law. The relative speed with which the new Arbitration Law was adopted came as a surprise to many. Only a few months ago, at the Second International Arbitration Congress organized by the ICC Costa Rica in San…
In the current zeitgeist focusing on the need for efficiency and speed in arbitration, we are at risk of over-correcting to the point of diminishing important functions of the arbitral process. There is little doubt that the arbitral process generally has become too much like litigation, and needs to be more efficient and less costly….
The new Hong Kong Arbitration Ordinance (Cap. 609) (the “Ordinance”) comes into effect today, having been approved by the Hong Kong Legislative Council at the end of last year. The Ordinance represents the culmination of many years of discussion and consultation and marks a significant milestone in the development of Hong Kong as a world-class…
“…there are known knowns; these are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know” Former US Defense Secretary Donald Rumsfeld. One of…
In The Invisible Gorilla, Christopher Chabris and Daniel Simons explore a classic experiment that won them an Ig Nobel Prize (2004). Their research considers how our own perceptions and memories can fool us into thinking something is true (when it is false) or lead us to miss things that are far more profound. This research…
One of the key issues that now awaits the decision of the U.K. Supreme Court in Jivraj v. Hashwani is whether there is a contract between the parties and the arbitrators, such that the arbitrators may be considered “employees” of the parties (and thereby subject to the law prohibiting discrimination by employers)? If there is…
