In our 2021 in Review post, we predicted that 2022 would not disappoint; it would be another busy year with several investment arbitration-related developments in the European Union (EU). In line with the Blog’s traditional “year-in-review” series, this post is the moment of truth for our prediction. In what follows, I will offer an overview…
In 2022, the international arbitration community took several further impactful steps towards building awareness of diversity challenges in the profession and towards improving existing disparities. As previously discussed on this Blog here and here, an intersectional analysis of diversity is important to evaluate how each minority is faring, individually and when intersected with each other….
In recent years, arbitration in India has grappled with numerous challenges. Recalcitrant parties knocking on the doors of trigger-happy courts ensured, unfortunately, that arbitration was viewed with mistrust in India. However, the changes observed in the last few years, including those discussed in our prior year in review posts focused on India (see here, here…
Amid a push for more decisive action toward energy transition, countries around the world are facing pressure to innovate and adopt sweeping legislative amendments, all while trying to avoid investment claims by foreign investors affected by the changing regulatory frameworks. Among the countries performing this balancing act, Bosnia and Herzegovina and other Western Balkans countries…
2022 witnessed the continued growth and concerted efforts of practitioners within Africa to promote the use of arbitration across the region. A report published by Herbert Smith Freehills in the first quarter of 2022 revealed that the number of arbitrations taking place in the continent, in comparison with those outside the continent, has increased. Despite…
Recently, in the landmark Vidatel case (previously discussed here), the French Court of Cassation (“Court of Cassation”) rejected an appeal for setting aside an arbitral award on the ground, among others, that the tribunal was improperly constituted. This appeal had arisen from a Paris Court of Appeal (“Court of Appeal”) judgment refusing to set aside…
This post highlights the most significant arbitration-related developments in Switzerland in 2022 that are of interest to the international arbitration community at large. Part I focuses on the topic of arbitrator’s independence and impartiality as well as on enforcement of arbitral awards in Switzerland, all from the perspective of the Swiss Federal Supreme Court (‘SFSC’)….
This Part II of the 2022 Year in Review: Switzerland post focuses on decisions of the SFSC providing useful guidance on the remedy of revision (as in force since January 2021) and on the concept of “treaty shopping”. In addition, Part II briefly summarizes the main developments in Swiss legislation and arbitration rules (Supplemental Swiss…
This post provides a review of the most noteworthy arbitration-related developments in France in 2022. In a nutshell, last year, French courts consolidated previous approaches and solutions endorsed in 2020 and 2021, and confirmed major developments of French arbitration law. The Fear of a Substantive Review of Awards by the Annulment Judge Are French…
Now more than ever, technology is an integral part of hearings. Cross-examination of witnesses by videolink and streaming to remote participants are now commonly accepted; real-time transcription has become the norm wherever budget allows; and electronic presentation of evidence (EPE) is frequently used in cross-examinations. These technologies have changed the way in which we present…
The year 2022 saw French and Dutch courts upholding arbitration awards which condemned Russia for breaches of the 1998 BIT between Russia and Ukraine (“Russia-Ukraine BIT”) through actions in the Crimea peninsula after its annexation in 2014. The arbitration cases in the context of which the awards were issued (the “Crimea cases”) have a common…
In 2022, Canadian courts revisited some old issues, like the timeframe for recognizing foreign arbitral awards, but also faced new dilemmas, such as the impact of sanctions on recognition and enforcement. Fostering Canada’s pro-arbitration standing, courts were generally adamant about referring commercial parties to arbitration, although a few exceptions that arose in insolvency contexts are…
The past year has seen several victories for Canada on the ISDS front, a conclusion of a decade-long NAFTA arbitration, and much more. If 2022 is any indication, readers will have many more developments to look forward to during 2023. Canada comes out of 2022 mostly on top in ISDS Of the cases surveyed,…
A recent international arbitration case administered by the Permanent Arbitration Court attached to the Hungarian Chamber of Commerce and Industry (“HCCI Arbitration Court”) demonstrated that Hungary follows the international trend in dealing with the enforceability of pathological arbitration clauses. Arbitration clauses are pathological if they contain defective elements, thus making their interpretation at best uncertain,…
The European Commission has published the Trade and Investment pillar of the Advanced Framework Agreement between the European Union (EU) and Chile (the Agreement), as politically concluded. This seeks to modernise the EU-Chile Association Agreement. Undoubtedly, it represents a success for the EU, as it reinvigorates its trade and investment agenda, particularly in light of…
On November 10, 2022, the Supreme Court of Canada issued its decision in Peace River v Petrowest. Insolvency and arbitration practitioners alike eagerly anticipated the decision, hoping it would provide clarity on how to resolve challenges that arise when these two specialist areas of practice come together in one case. In this post, we review…
This is the fourth consecutive year that we, either together or separately, have reported on trends at the intersection of human rights and international investment arbitration from the prior year (see prior Blog coverage, here, here, and here). As we emphasized last year, developments at this intersection continue directional trends from prior years, but also converge across both…
The School of Law at SOAS University of London is unique among Law Schools in London. We have a distinct ‘Southern’ perspective in our course content, and we take a socio-legal dimension in our engagement with the law and how we teach law to our students. We bring these to our teaching on the international…
By a 4-3 majority, the Irish Supreme Court held in Costello v Government of Ireland that the Constitution precludes Irish ratification of the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its member states. Inevitably, the decision has been compared with Achmea and CJEU Opinion 1/17. This post looks at…
2022 was strongly marked by the change and reform of institutions, treaties, and procedural rules relevant to investor-State dispute settlement (ISDS). This post summarizes the most important institutional and structural reforms that were progressed during 2022 in relation to investment treaty law and ISDS. The focus is on the various reforms pursued under in the…
According to Aviation: Benefits Beyond Borders, statistics from 2018-2020 demonstrate that the general aviation industry supports 87.7 million jobs worldwide and contributes around US$ 3.5 trillion a year to the global GDP (equivalent to 4.1% of global GDP). In parallel, the general aviation industry is increasingly turning to international arbitration. One clear manifestation of this…
2022 was arguably the year when climate change entered the mainstream of policymaking in the investment treaty regime, with a particular focus on aligning the regime with international climate commitments, most notably the Paris Agreement. Nevertheless, debates over the interaction between the investment treaty regime and climate mitigation efforts have been active for around 15…
In July 2022, the African Arbitration Academy launched the Model Bilateral Investment Treaty for African States (‘Model BIT’) with the goal of it serving as a source of cohesion for African States’ Investor-State Dispute Settlement (‘ISDS’) reform strategy. They also expect the Model BIT will promote the codification of Investment Policies and Laws for African…
The last decade was not easy for investment arbitration in general, but it faced particular difficulties within the European Union (‘EU’). In recent years, the European Commission has pursued (with success) eradication of this form of international dispute settlement mechanism between foreign investors from one EU Member State and an EU Member State (host state),…
