Non-disputing Party submissions (“NDPs”) have been a prominent part of the U.S. investor-State dispute settlement (“ISDS”) practice over the last twenty-five years, with an uptick in the number of recent filings. With almost a hundred NDPs filed in investment arbitrations to date (not including oral submissions, which have become a more regular practice), NDPs have…
The confidentiality of arbitrations seated in England is long-established in English law. In the absence of an express agreement to dispense with confidentiality, English law recognises an implied obligation on parties and arbitrators to maintain the confidentiality of the hearing, the award and other materials produced in the proceedings (Dolling-Baker v Merrett [1990] 1 WLR…
On 26 July 2024, the Russian Supreme Court issued a landmark ruling (the “Ruling”) outlining a novel stance on the recognition and enforcement of foreign arbitral awards. This jurisprudential shift, which is decidedly not pro-arbitration, erects new barriers for persons domiciled in countries deemed “hostile” or “unfriendly” by Russia to obtain their consideration in the…
In Fujitsu Semiconductor Ltd. v. Cypress Semiconductor Corp., No. 22-mc-80313-VKD, 2023 U.S. Dist. LEXIS 97717 (N.D. Cal. June 5, 2023), the court ruled that arbitration was proper for the parties. The court found that the parties’ arbitration clause clearly delegated power to the arbitrators to decide on the question of arbitrability, and thus, it was…
Artificial Intelligence (“AI”) is the buzzword of the day. It has crept into every pore of society, and arbitration has not evaded this trend. The main question raised by commentators and the public is whether AI will render human involvement obsolete, or at least reduce it to a bare minimum. In the context of arbitration,…
Ethiopia has been on the pursuit of market liberalization in an effort to boost economic growth. We have been witnessing a wave of new laws in Ethiopia with significant implications to a market that has long been closed to foreigners. In April 2024, a law passed by the Investment Authority opened the import, wholesale, retail…
On 12 July 2024, the Dutch Supreme Court (the “Supreme Court”) rendered its much anticipated decision on whether clauses providing for mediation as a procedural step before arbitration (or court litigation) are binding upon the parties, requiring an arbitral tribunal (or court) to decline jurisdiction to hear the case or, at least, requiring a stay…
The recent decision by the Bahrain Court of Cassation (“COC”) in Case No. 31 of 2023, issued on 8 January 2024 (“COC Judgment”), marks a significant development in the application of arbitration clauses to non-signatories for Bahrain-seated arbitrations. The case centred on the interpretation of an arbitration clause in a sub-subcontract (“Sub-Subcontract”) and its applicability…
What happens when an arbitrator refuses to answer fundamental questions about their impartiality that only they can address? Questions like, “Have you received any promises or gifts from any of the parties: Ms Aphrodite, Ms Hera or Ms Athena?” or even “Do you have any interest in or connection to Ms Helen, a person associated…
We are happy to inform you that the latest issue of the journal is now available and includes the following contributions: Markus Burgstaller & Dmytro Galagan, Contributory Fault in International Investment Arbitration As a general rule, if a state commits a wrongful act, it is under an obligation to make full reparation for the…
The Institute of Transnational Arbitration (ITA), in collaboration with the ITA Board of Reporters, is happy to inform you that the latest ITA Arbitration Report was published: a free email subscription service available at KluwerArbitration.com delivering timely reports on awards, cases, legislation, and current developments from over 60 countries and 12 institutions. To get your free subscription to the…
Through Ruling No. 3232-19-EP/24, Ecuador’s Constitutional Court (“Court”) settled a long-standing discussion and confirmed that recognition prior to the enforcement of foreign arbitral awards is an unreasonable requirement in light of the Ecuadorian legal system. In this post, we describe the factual background of the Court’s ruling and examine the procedural issues underlying the recent…
In the case of Sharp Corp Ltd v Viterra BV (formerly known as Glencore Agriculture BV [2024] UKSC 14, the UK Supreme Court has decided the proper measure of damages under the Grain and Feed Trade Association (“Gafta”) default clause and reaffirmed the interpretation of section 69 of the Arbitration Act 1996 (“AA 1996”). Whilst…
We are happy to inform you that the latest issue of the journal is now available and includes the following contributions: Klaus Peter Berger, The UNIDROIT Principles of International Commercial Contracts as a System of Transnational Contract Law: Two Recent Arbitral Awards Are the International Institute for the Unification of Private Law (UNIDROIT) Principles…
The Supreme Court of India in Oil and Natural Gas Corporation Ltd. vs Afcons Gunanusa JV ruled that the unilateral determination of arbitrators’ fees contradicts the fundamental principle of party autonomy. Decisions such as this one raise important questions such as: What is a reasonable fee for an arbitrator? How should these fees be determined…
We are happy to inform you that the latest issue of the journal is now available and includes the following contributions: Adam Tahsin & Marius B. Gass, Codification, Convenience, and the Common Law: The Rationales Underpinning the Law Commission’s Proposed Reforms to the English Arbitration Act 1996 The Arbitration Act 1996 has regulated arbitrations…
On 7 June 2024, the Dutch Arbitration Association (“DAA”) held its annual conference (the Dutch Arbitration Day “DAD”). Themed “Arbitration for the Next Generation”, this year’s edition highlighted the challenges and opportunities in future arbitral disputes faced by the next generation of arbitrators and practitioners. Tomorrow Must be a Better Day In his keynote…
The Irish High Court (“the High Court”) in a recent decision in Jephson & Jephson v. Aviva Insurance Ireland DAC [2024] IEHC 309 (“the Jephson decision”) made an Order to lift a stay previously made on court proceedings where there was an arbitration agreement. The judgment to lift the stay previously granted is an unusual…
The Institute of Transnational Arbitration (“ITA”), in collaboration with the ITA Board of Reporters, is happy to inform you that the latest ITA Arbitration Report was published: a free email subscription service available at KluwerArbitration.com delivering timely reports on awards, cases, legislation and current developments from over 60 countries and 12 institutions. To get your free subscription…
For the first time under Rule 54(2) of the ICSID 2022 Arbitration Rules, the Tribunal in Ruby River Capital LLC v. Canada (ICSID Case No. ARB/23/5) had to decide on a request for suspension of the proceeding. In its Request for Suspension, Canada asked the Tribunal to suspend the proceeding until the Tribunal in TC…
The judgment of the Singapore Court of Appeal (“Court”) in Voltas Ltd v York International Pte Ltd [2024] SGCA 12 (“Voltas v York”) helpfully settles the question of whether or not an arbitrator is able to impliedly reserve his or her jurisdiction after rendering a final award as a matter of Singapore law. Additionally, the…
The present post focuses on the latest European development on the modernization of the Energy Charter Treaty (“ECT”). It will do so by putting it in a broader geopolitical context and linking it to the fossil fuel-related investments carve-out, not originally envisaged in the EU proposal. It will then analyse carve-outs in investment treaties in…
On 23-24 May 2024, the vibrant city of Warsaw, Poland, hosted the highly awaited 7th Conference on Dispute Resolution in M&A Transactions. The event was organized by ICC Poland, ICC International Court of Arbitration, and GESSEL Attorneys-at-Law. The conference brought together more than 230 leading practitioners, experts, and scholars from around the world to explore…
The chasm between the Section 1782 and arbitration worlds just got wider. In Webuild S.p.A. v. WSP USA Inc. (“Webuild S.p.A.”), the Second Circuit determined that a tribunal in an arbitration administered by the International Centre for Settlement of Investment Disputes (“ICSID”) was not a “foreign or international tribunal” under Section 1782, the U.S. federal…
