Seven years ago, Germany’s Federal Court of Justice (Bundesgerichtshof, BGH) set off an avalanche that buried most of the European investment arbitration landscape. The BGH’s order of June 3rd 2016 referred to the Court of Justice of the EU (CJEU) a long debated question: Are intra-EU investment arbitrations compatible with EU law? They are not,…
On June 10, 2022, the Superior Court of Justice in Brazil (“STJ”) ruled on the conflict of competence No. 185.702/DF (“CC 185.702/DF”) under the premise that arbitration has a jurisdictional nature and, therefore the STJ has jurisdiction to decide conflict of competences between arbitral tribunals constituted pursuant to the rules of the same arbitral institution…
Pathological clauses are not an infrequent occurrence in the arbitration world. We often see arbitration clauses which are poorly drafted and may result in rendering the clause inoperable. Being able to predict how a court would treat a pathological clause would help the parties and specifically the party wishing to file proceedings decide whether they…
In the forest of reform deliberations at the UNCITRAL Working Group III (ISDS Reform), the development of a draft Code of Conduct for decision-makers in investment disputes (Draft Code) was considered a low-hanging fruit. WGIII delegates and commentators frequently used this metaphor to reflect on the consensus among the key stakeholders that the Code should…
The Delhi High Court has resoundingly acknowledged the viability of third-party funding (“TPF”) in providing access to justice for claimants in arbitrations. In a welcome judgment, the Court ruled that a funder was not liable for an arbitral award and therefore need not furnish security in the enforcement thereof. The Court said the funder could…
Mr. Süleyman Boşça is a Türkiye-based lawyer specialized in international arbitration and energy law, currently acting as Chairman of the Energy Disputes Arbitration Center (EDAC). Mr. Boşça is also the founder and managing partner of Bosca Law Firm. Among other professional activities, he is the Chairman of the Energy Law Research Institute and a member…
On 4 February 2023, Law 5016/2023 (the “2023 Law”), Part A of which is entitled “International Commercial Arbitration”, was published in Greece’s Official Government Gazette (see an unofficial English translation here). Prior to the 2023 Law, Greek-seated international arbitral proceedings were governed by Law 2735/1999 (the “1999 Law”), which was based on the 1985 version…
On 28 February 2020, two Dutch investors obtained a favourable arbitral award against Spain. The tribunal found that Spain had violated the Energy Charter and ordered Spain to pay damages of EUR 15.4 million to AES Solar Energy Coöperatief U.A. (AES) and EUR 11.1 million to Ampere Equity Fund B.V. (AEF). Despite Spain’s attempts to…
Despite being a relatively young market at just over 20 years old, Brazilian arbitration has experienced rapid growth. As of 2020, Brazil ranked second in the number of arbitrations filed with the International Chamber of Commerce (ICC), surpassing all European, African, and Asian jurisdictions. Brazil is also among the top five nationalities represented among arbitrators,…
Mock arbitrations are an excellent way for clients and counsel to refine their hearing presentation and prepare witnesses to testify so the key arguments, evidence and themes resonate with the tribunal. Having served as both mock arbitrator and counsel in mock arbitrations, I have seen first-hand the positive impact that mock arbitrations can have on…
As most other arbitration laws, section 86(3)(b) of the British Virgin Islands (“BVI”) Arbitration Act 2013 provides that enforcement of arbitration awards may be refused where “it would be contrary to public policy to enforce the award.” This provision mirrors Article V(2)(b) of the New York Convention 1958 and section 103(3) of the English Arbitration…
Judge Charles N. Brower has combined extensive practice at the bar with distinguished public service. He has served for forty years as a judge of the Iran-United States Claims Tribunal in The Hague (‘IUSCT’), sat as judge ad hoc on the Inter-American Court of Human Rights, and is the most-appointed American judge ad hoc of…
The energy transition lies at the heart of climate change mitigation efforts. A new survey by Queen Mary University of London (QMUL) in collaboration with Pinsent Masons, the Future of International Energy Arbitration Survey Report, (“the Energy Report” or “the 2022 QMUL Survey”) (see also here) offers guidance to anticipate and mitigate those risks for…
With 17 minutes to spare before the end of the 45th Session, the chair of UNCITRAL Working Group III (WGIII), Mr Spelliscy, announced that a workable compromise had been reached on the last remaining outstanding issue (how to regulate double hatting) and that, therefore, an agreement was reached on a text of the Code of…
Despite the good results obtained for several years in its defense from investment arbitration claims, the Republic of Peru has become one of the countries with the highest number of arbitration claims filed against it. To date, nineteen cases have concluded, and twenty-three cases are pending resolution. In December 2022, an award was issued in…
The Panel “The Future of Major Energy Projects Crises, Challenges, and Opportunities” took place on the penultimate day of the London International Disputes Week 2023 (“LIDW 2023”) on 18th May 2023 in the London office of McDermott Will & Emergy with panellist Armando Neris from McDermott Will & Emery, Lucian Ilie from Outer Temple Chambers,…
On 6 January 2023, the Singapore Court of Appeal (the SCA) passed a judgment in Anupam Mittal v Westbridge Ventures II that redefines existing notions of the law applicable to subject matter arbitrability at the pre-award stage (the Westbridge Judgment). The High Court’s decision which was appealed before the SCA is discussed here. National courts…
A black box artificial intelligence (“AI”) model is one “created directly from data by an algorithm, meaning that humans, even those who design them, cannot understand how variables are being combined to make predictions” (see a more detailed discussion here). That we do not understand the way an AI reaches its conclusions is creating discomfort…
For the first time ever, a Sri Lankan law school won the 20th Vis East Moot in Hong Kong. The team representing the Royal Institute of Colombo, comprised of Treshan Fernando, Abinesha Rajaratnam, Janithri Panditharatne, Naika Gooneratne and Lalinka De Silva, were awarded the prestigious Eric E. Bergsten Award as the champion team. Another Sri…
In an India-seated arbitration, if your contract is unstamped or insufficiently stamped, the Supreme Court of India has now confirmed in its authoritative judgement passed on April 25, 2023, in N N Global Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. (“NN Global”) that this would be a valid ground to disallow acting…
Recently, a ripple has created a current through the usually calm waters of the litigation funding world: Reports in the media of disputes between funders, clients and lawyers. Over the past months, cases have featured prominently in the public eye, including for example the dispute between Burford and Sysco. At the heart of these disputes…
On 1 May 2023, the Saudi Center for Commercial Arbitration (“SCCA”) introduced its latest edition of the SCCA Rules, following an extensive public consultation process and input from the SCCA Rules Advisory Committee chaired by Richard Naimar and the SCCA’s General Counsel, Christian Alberti. This post provides an overview of the modernizations and innovations reflecting…
This post summarizes two events held as part of Day 3 of the 2023 London International Dispute Week (“LIDW”). First, the panel “Developments in the Arbitration Law of England & Wales: Impact on Arbitration Globally and London’s Place in the World” organized by Debevoise & Plimpton. Second, the joint special event organized by the School…
Days 2 and 3 of the LIDW 2023 saw insightful discussions on three hot topics in international arbitration, i.e. corruption, diversity and efficiency. This post summarizes discussions held during two events: “Corruption in International Arbitration: Challenges and Approaches” held on Day 2, and “Increasing Diversity and Efficiency in the Resolution of Construction and Engineering Disputes”…
