Appeal, Arbitration Procedure, Australia, Bifurcation of proceedings, Commercial Arbitration, Functus Officio, Interim Award

(Quayside Chambers) and (Quayside Chambers, Fountain Court Chambers)/ /2 Comments

Winston Churchill said in 1942 that the war was not at the end, adding: “It is not even the beginning of the end. But it is, perhaps, the end of the beginning”. When it comes to international arbitration, the beginning is easy enough to discern from the notice of arbitration. Divining the end can be…

Damages, India, Liquidated Damages, Supreme Court of India, UK, UK Supreme Court

and (Cyril Amarchand Mangaldas)/ /Leave a comment

Arbitral tribunals are often faced with questions concerning the interpretation and enforcement of liquidated damages clauses; in such cases, the law governing the contract can significantly affect what damages can be claimed, the standard for proving such damages, and consequently the outcome of the dispute. This blog post examines the differences between English law and…

ECT Modernisation, Environment, ESG, EU Law, Investment Arbitration, Investment Disputes, Investment law, Investor-State arbitration, ISDS Reform

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Negotiations towards a modernized Energy Charter Treaty (ECT, Treaty) ended on 24 June 2022, with the States Parties reaching an agreement in principle following discussions towards reform that began in November 2017. While the final text of the modernized Treaty has not yet been published, the Secretariat of the ECT in June issued a public…

Code of Conduct, Conflicts of interest, Disclosure, double hatting, ICSID, Independence and Impartiality, Institutional Rules, Investment Arbitration

(Chaffetz Lindsey LLP) and (Holland & Knight LLP)/ /Leave a comment

The New York International Arbitration Center’s (“NYIAC”) annual Grand Central Forum took place on 13 July 2022. The event coincided with the 55th session of the United Nations Commission on International Trade Law (“UNCITRAL”) held in New York which, among other topics, focused on the recent fourth draft of the joint ICSID-UNCITRAL Code of Conduct…

Environment, ISDS Reform

(University of Reading ) and (Independent Counsel and Arbitrator)/ /1 Comment

States’ international obligations to reduce emissions, on the one hand, and to protect foreign investment, on the other, suggest a collision course between climate activists’ desires and foreign investors who rely on treaty protection to safeguard their investments. Recent investment treaties, especially bilateral investment treaties (BITs) have tended to expand the rights of States to…

Yearbook Commercial Arbitration

(General Editor, ICCA Publications; Amsterdam Center for International Law, University of Amsterdam)/ /Leave a comment

Subscribers to KluwerArbitration.com enjoy access to the ICCA Yearbook Commercial Arbitration. The second upload of materials for the 2022 volume of ICCA’s Yearbook Commercial Arbitration is now available on the KluwerArbitration website. It consists of 33 court decisions from 14 countries and includes, among others, 11 decisions rendered by the courts of the People’s Republic of China on…

Canada, Investment Arbitration, NAFTA, USMCA

(University of Ottawa Faculty of law)/ /Leave a comment

This question of first impression under the United States-Mexico-Canada Agreement (USMCA) has been brought to the fore with the spring 2022 publication of the Request for Arbitration (“Request”) submitted by TC Energy Corporation and TransCanada PipeLines Limited against United States (dated November 22, 2021) and the Notice of Intent (“Notice”) submitted by Alberta Petroleum Marketing…

German Federal Constitutional Court, Germany, Pechstein case, Sport arbitration

(King & Spalding LLP)/ /Leave a comment

The arbitration world’s most famous ice skater, Claudia Pechstein, has won a stage victory in her long-lasting and widely discussed struggle against the international sports arbitration system. On June 3, the German Federal Constitutional Court (Bundesverfassungsgericht (BVerfG), Beschluss vom 3.6.2022, 1 BvR 2103/16) sided with Pechstein in her constitutional complaint against a ruling of the…

Consolidation, M&A, Multiple parties, Renewable energy

(GESSEL) and (Queritius)/ /Leave a comment

On 26-27 May 2022, a record turnout of over 200 experts from around the world gathered in Warsaw for the sixth iteration of the “Dispute Resolution in M&A Transactions” Conference. It has become the world’s largest event on M&A dispute resolution – thanks to the involvement of Prof. Beata Gessel-Kalinowska vel Kalisz, the Conference chair….

BIT, Fair and Equitable Treatment, ICSID Arbitration, Intra-EU ISDS, Investment Arbitration, Spain

(University of Montreal) and (Ho Chi Minh City University of Law)/ /Leave a comment

The Spanish Cases Saga illustrates the arduous task of balancing the host state’s right to regulate and an investor’s economic interests. This post summarizes the tribunal’s reasoning in Novenergia v. Spain and Stadtwerke München v. Spain regarding FET breaches in the energy sector. The post argues that the latter case adopts a clearer analysis of…

ALARB, Due process, Latin America, Technology, Virtual hearings

(Bomchil) and (Pérez Bustamante & Ponce)/ /Leave a comment
Asociación Latinoamericana de Arbitraje (ALARB)

While prior to the COVID-19 pandemic it was usual for international arbitration practitioners to conduct videoconferencing or telecommunications remotely for certain procedural events (i.e., initial case management conferences or witness examinations), pandemic restrictions imposed in early 2020 led to a substantial change in the way international arbitration proceedings are conducted—forcing practitioners to hold any kind…

Achmea, Energy Charter Treaty, Enforcement, EU Law, Germany, Intra-EU BITs, Intra-EU ISDS

, (WAGNER Arbitration)/ /1 Comment

Germany found itself as the hotseat of the “battle” between EU law and investment arbitration in May 2016 when the Federal Court of Justice (Bundesgerichtshof) referred questions relating to the compatibility of EU law with the arbitration clause in the Slovakia-Netherlands BIT to the Court of Justice of the European Union (“ECJ”) in Slovakia v….

Chile, Enforcement, Investor-State arbitration, Pey Casado, Spain

, (Herbert Smith Freehills)/ /Leave a comment

The case involving Mr. Víctor Pey Casado, the President Allende Foundation, the 1960s Chilean newspaper “El Clarín” and the Republic of Chile – once the longest-running dispute in ICSID history – is certainly a complex one. The dispute has spanned more than twenty years, encompassing three different arbitration proceedings with three separate arbitral awards issued…

Adhesion Contracts, Brazil, Brazilian Superior Court of Justice, Competence-Competence, Enforcement of arbitration agreement, Pathological arbitration agreement

(Centro Brasileiro de Mediação e Arbitragem)/ /Leave a comment

This article addresses the Brazilian Superior Court of Justice (STJ) ‘s precedents on the exceptions to the Competence-Competence principle due to pathological arbitration agreements present in contracts of adhesion. In addition, it approaches the Court’s position on the enforcement of a pathological (empty) arbitration clause. The decisions below are landmark precedents and clarify crucial points…

ACICA, Australia, Expert evidence

(King & Wood Mallesons )/ /Leave a comment
ACICA, ACICA 45

Expert evidence is a feature of almost every arbitration. At the very least, parties will likely need to adduce expert evidence concerning the quantification of a claim for damages. However, depending on the subject matter of the dispute, a party may need to adduce expert evidence on any number of topics, ranging from aerodynamics to…

Amicus Curiae, Arbitration, Arbitration Award, empirical data, Empirical Research, Procedure, Transparency, transparency, Transparency in investment arbitrations

(WilmerHale)/ /Leave a comment

On 5 May 2022, Young ITF hosted its launch event, covering a debate on the motion that “[t]his House believes that greater use of Amicus briefs will address the legitimacy crisis that [Investor-State-Dispute-Settlement (“ISDS”)] is facing”. The selection of this topic seemed reasonable as the legitimacy crisis of ISDS particularly affects the upcoming generation of…

Arbitration Tech Toolbox, International arbitration, Technology, UNCITRAL

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From 28 March to 1 April 2022, Working Group II of the United Nations Commission on International Trade Law (UNCITRAL) held a Colloquium to explore legal issues related to dispute resolution in the digital economy and to identify the scope and nature of possible legislative work. Forty-eight member States, 27 observer States and 57 invited…

Group of Companies Doctrine, India

, (Shardul Amarchand Mangaldas & Co.)/ /Leave a comment

The group of companies doctrine in arbitration has always been contentious in India. The doctrine was first recognised by the Indian Supreme Court in Chloro Controls India Private Limited v. Severn Trent Water Purification Inc. (2013) 1 SCC 641 (hereinafter Chloro Controls). Since then, Indian courts have applied the doctrine to bind group companies of…

Court of Arbitration for Sport, Duty of Curiosity, Duty to Disclose, Federal Supreme Court of Switzerland

, (Archipel)/ /Leave a comment

In Decision 4A_520/2021 of 4 March 2022, the Swiss Federal Tribunal (“SFT”) was requested to determine whether the chairperson of a panel in proceedings before the Court of Arbitration for Sport (“CAS”) lacked independence or impartiality given his repeat appointments by FIFA. The SFT declared the challenge inadmissible under R34(1) CAS Code, yet still proceeded…

Bribery, Corruption, Evidence, Fraud

, (NautaDutilh N.V.)/ /Leave a comment

After two years of absence due to COVID-19, the Dutch Arbitration Association held its eighth conference on 2 June 2022 in Amsterdam. The main theme of this year’s conference was fraud and corruption in arbitration. This blog reflects the main issues of the keynote speech and the panel debates of the conference. We will not…

Canada, International arbitration, VanIAC

(Farris LLP, VanIAC), , (Blake, Cassels & Graydon LLP, VanIAC), and (Fasken LLP, VanIAC)/ /Leave a comment

Canada’s west coast has long welcomed arbitration as a means of dispute resolution and provided a venue for arbitrations of all kinds. The Vancouver International Arbitration Centre (VanIAC) – established in 1986 under the name British Columbia International Commercial Arbitration Centre (BCICAC) – has recently made further strides in providing parties with workable and efficient…

Arbitration clause, Dispute resolution clause, Inconsistent clauses

, (Herbert Smith Freehills LLP)/ /Leave a comment
Herbert Smith Freehills

It is critical to invest time to ensure that there are no inconsistencies between multiple dispute resolution/jurisdiction clauses within a particular contractual relationship (whether within a single contract or across multiple related contracts). Such inconsistencies inevitably lead to disputes over how the parties should resolve their disputes – a potentially costly sideshow to the resolution…

Deep Sea Mining, Uncategorized

(University of Antwerp)/ /Leave a comment

Various Pacific Island states have become involved in deep seabed mining (“DSM”) in order to reap the allegedly significant benefits to be obtained from extractive activities in the international seabed (“the Area”). According to the government of Nauru, such gains include “employment; training; capacity building; technology transfer; foreign investment; increased tax revenue; and national self-determination”….

Investment, Investment Arbitration, Investment Disputes, Investment protection, Russia, Ukraine

, (Binder Grösswang)/ /Leave a comment

Following the Russian military invasion of Ukraine, dozens of states imposed sanctions against Russia. In response, Russia imposed or threatened to impose severe countermeasures on foreign investments associated with such “unfriendly states”. In this regard, several news outlets reported that Russia is in the process of implementing legislation that will interfere with foreign investments in…