2021 in Review, International Investment Law, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investor-State arbitration, Ukraine

(Visiting Lawyer at Linklaters) and , (AVELLUM)/ /Leave a comment

The year 2021 has been the busiest year for Ukraine since 2008, with four investment arbitrations initiated against Ukraine. The odds were not always in Ukraine’s favour. Having secured the dismissal of the case for lack of jurisdiction in Littop and others v. Ukraine, Ukraine was defeated by the investor in Olympic Entertainment v. Ukraine….

ASA Bulletin

(Editor in Chief, ASA Bulletin; LALIVE) and (LALIVE)/ /Leave a comment

We are happy to report that the latest issue of the ASA Bulletin is now available and includes the following articles and case; we also add a brief glimpse of the articles of the first issue of 2022.   ARTICLES Felix DASSER, Calling a Spade a Spade In his message ASA President Felix DASSER invites…

Arbitration Act, Arbitration Agreements, Arbitration institution, Belt Road Initiative, China, judicial review

(Tsinghua University Faculty of Law, Institute for International Dispute Settlement)/ /Leave a comment

A key characteristic of an international commercial arbitration award is its binding nature, although parties may still consent to non-binding arbitration. A consent to non-binding arbitration is problematic when the applicable law explicitly prescribes arbitration to be binding. Mainland China is such a jurisdiction. Thus, the issue of the validity of a non-binding arbitration agreement…

Achmea, Enforcement, EU Law, Europe, European Law, European Union, Intra-EU BITs, Intra-EU Investment Arbitration, Intra-EU ISDS

(Lenz & Staehelin)/ /Leave a comment

The extent to which different dispute resolution fora are willing to pay deference to the Court of Justice of the EU’s (“CJEU”) seminal (and controversial) Achmea decision is being closely observed by investors and States alike. 1) Not to mention the European Commission, which has sought to make itself heard in numerous proceedings relating to intra-EU…

Admissibility, Arbitrability, Jurisdiction, Singapore

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The distinction between jurisdiction and admissibility (the “Distinction”) has important consequences in international arbitration. Chief among these is the determination of the permissible extent of a national court’s intervention regarding a final award;1)Gretta Walters, “Fitting a Square Peg into a Round Hole: Do Res Judicata Challenges in International Arbitration Constitute Jurisdictional or Admissibility Problems?” (2012)…

Journal of International Arbitration

(WilmerHale & Queen Mary University of London)/ /Leave a comment

We are happy to inform you that the latest issue of the journal is now available and includes the following contributions:   Kimberley A. Wade & Ula Cartwright-Finch, The Science of Witness Memory: Implications for Practice and Procedure in International Arbitration Witness evidence plays a lead role in international arbitrations, yet the reliability of witness…

Arbitration Agreement, Conflict of Laws, Hungary

(SMARTLEGAL Schmidt & Partners)/ /Leave a comment

Conflict of laws issues can have a pivotal effect on the effectiveness of arbitration when state courts are asked to enforce arbitration agreements. Has the approach of Hungarian courts crystalized in the last few years in this respect? Can the contemporary Hungarian judicial practice and the new domestic legislation be characterized as arbitration friendly? This…

Arbitration Agreement, Canada, Non-signatory

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Canadian courts are frequently asked to rule upon the effects of arbitration agreements in the context of potential class actions. For example, the Supreme Court of Canada (“SCC”) has upheld arbitration clauses for most, if not all issues, disallowing class action recourse in Dell Computer Corp. v. Union des consommateurs(2007), Rogers Wireless Inc. v. Muroff…

Arbitration Tech Toolbox, Innovation, Metaverse, Online Dispute Resolution, Technology, Videoconferencing, Virtual hearings

(MetaverseLegal) and (Longriver Investment Partners)/ /Leave a comment

A lot has been said about virtual reality (VR) and the metaverse in recent months, but what is it like to actually use it? With one of the authors having recently organised the first-ever gathering in VR for international arbitration practitioners, we share some thoughts on the potential and limitations of this new medium for…

Corporate Restructuring, ICSID, ICSID contract-based disputes, ICSID Convention, ICSID denunciation, MFN extension, Peru, Sunset clause

(GST LLP) and (B. Cremades & Asociados)/ /Leave a comment

Before winning Peru’s presidential race in June 2021, Peruvian President Pedro Castillo vowed to withdraw Peru from the ICSID Convention and to renegotiate several of the country’s Bilateral Investment Treaties (“BIT’s”). According to the then-presidential candidate’s government plan (chapter XXI), ICSID tribunals are biased and “at the service of the multinational companies” in prejudice of…

Arbitrability, Arbitration, Corporate disputes, Turkey, Turkish Court of Cassation

, (Koç University Law School)/ /Leave a comment

Arbitration of commercial disputes is a common practice in Turkey, especially for those with an international element. The same, however, cannot be said for corporate law disputes, i.e. intra-corporate claims based on or concerning statutory rights, articles of association (“AoA”) or corporate resolutions. This has been the case due to a couple of judgments rendered…

Recognition and enforcement of arbitral award, Statistics, Ukraine

(Integrites), (Avellum), and (AVELLUM)/ /Leave a comment

In 2019 – 2020 a group of Ukrainian arbitration practitioners set out on an ambitious study of Ukrainian court decisions on recognition of arbitral awards. In this blog post, members of the group describe the background and methodology of the study and, most importantly, share its results.   Ukraine as an Arbitration Jurisdiction Ukrainian law…

Additional Facility Rules, ICSID, International Investment Arbitration, Jurisdiction, Most Favoured Nation (MFN)

(Coz & Blavi)/ /Leave a comment

Introduction On November 2021, an Arbitral Tribunal issued the award in an investment arbitration case commenced by three subsidiaries of Kimberly-Clark against Venezuela. The claims where brought under the BITs between Venezuela and the Netherlands (Dutch BIT), Venezuela and Spain (Spanish BIT), and Venezuela and Belgium (Belgium BIT). The award, which is highly case-specific, established…

2021 in Review, Anti-arbitration Injunction, arbitration rules, Confidentiality, Investor-State arbitration, Malaysia, Maritime Arbitration, Regional Comprehensive Economic Partnership, Set aside an arbitral award, Singapore, Singapore International Arbitration Centre, Vietnam

(Clifford Chance Asia) and , / /1 Comment

In 2021, Southeast Asia saw institutional progress, arbitration-related court decisions, and investment treaty developments. All in all, it was an eventful and, at times, surprising year for the region in terms of arbitration developments.   Institutional progress Some Southeast Asian arbitral institutions revamped and revised their arbitration rules as part of their strategic institutional development….

Investment Arbitration, Third party funding, UNCITRAL, VIAC, Working Group III

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In early 2021, we wrote a post on this blog welcoming the inclusion of specific provisions on third-party funding (TPF) in the 2021 ICC Arbitration Rules. Recent regulatory developments in TPF in investor-State dispute settlement (ISDS), including publication of the VIAC Rules of Investment Arbitration and Mediation (VIAC Investment Arbitration Rules), have enticed us to…

Arbitration institution, Arbitration Proceedings, arbitration rules, Innovation, Latin America, Paraguay

(FERRERE Abogados)/ /Leave a comment

On November 12, 2021, the new arbitration rules (the “2021 Rules”) of Paraguayan Arbitration and Mediation Center (“CAMP” for its acronym in Spanish) –the main arbitration institution in Paraguay –came into effect. The 2021 Rules include new developments that modernize CAMP’s practice, especially with regards to international arbitration. In other cases, the new provisions reflect…

Arbitration, DIAC, DIFC, Dubai, MENA

(Blanke Arbitration LLC)/ /Leave a comment

The recent adoption of Decree No. 34/2021 (see Dubai Government Decree No. 34 of 2021, which entered into force with effect from 20 September 2021) provides for the consolidation of local arbitration centers into a single institution, the Dubai International Arbitration Centre 2.0 (DIAC 2.0). Some perspectives on Decree No. 34/2021 have already been shared…

BIT, Counterclaims, ICSID, ICSID Amendments, ICSID Arbitration, ICSID Convention, ICSID Proceedings, International arbitration, Investment Arbitration, Investment law, ISDS, ISDS Reform, Third party funding

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On January 20, 2022, ICSID submitted its amended rules to the Administrative Council for a vote, marking the end of the five-year-old process of modernizing the ICSID Rules. ICSID members are expected to cast a vote on the amended rules by March 21, 2022, and if approved, the rules will enter into force on July…

2021 in Review, AfCFTA, AfCFTA Investment Protocol, Africa

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2021 was significant for Africa with respect to the African Continental Free Trade Area (‘AfCFTA’) and the Agreement establishing it. The aftermath of the COVID-19 pandemic generated a global economic crisis at a very critical phase of the AfCFTA and resulted in a delay in its implementation. This post seeks to place into perspective the…

Costs, Costs in arbitral proceedings, Third party funding

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

The recent English Commercial Court decision in Tenke Fungurume Mining SA v Katanga Contracting Services SAS [2021] EWHC 3301 (Comm) has provided an interesting further comment on the broad discretion available to tribunals in English-seated arbitrations to award the costs of third party funding as part of costs awards. The decision by Mrs Justice Moulder…

Appeal, Canada, Set aside an arbitral award, UNCITRAL Model Law

(Norton Rose Fulbright Canada LLP)/ /1 Comment

In the legal world, countless hours are spent choosing, weighing and defining words, expressions and phrases, and linguistic precision is instilled as a virtue from the first day of law school. It is therefore rather concerning when courts use both inaccurate and inapt language to address a specific issue, such as when Canadian courts consider…

Achmea, CJEU, Intra-EU BITs, Intra-EU ISDS, Investment Arbitration, Micula

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In its judgment rendered today, the Court of Justice has quashed the General Court’s decision having ruled that the European Commission was not competent ratione temporis to assess whether the compensation paid by Romania to the Micula brothers, in implementation of a 2013 ICSID award rendered under the 2002 Sweden-Romania BIT, was constitutive of state…

2021 in Review, Achmea, ECJ, Energy Charter Treaty, EU Law, Europe, European Union, Micula, Multilateral Investment Court

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Looking back on 2021, one realizes that for those interested in the intersection between EU law and investment arbitration, it was a busy year. As part of our customary “year-in-review” series, this post offers a brief overview of the key investment arbitration-related developments in Europe and their coverage on the Blog. I have grouped these…

Arbitration, Climate change, COP 26, Sustainability, Sustainable economy

(Peking University)/ /Leave a comment

As the climate crisis has intensified, much has been said about the roles that arbitration can play in the collective global response – including during the recent BVI Arbitration Week, which coincided with the Glasgow climate conference. Arbitration has been utilised as a tool for resolving disputes as market mechanisms have developed to deliver greenhouse…