The Law Commission of England and Wales announced in November last year that it will be conducting an 18-month review of the English Arbitration Act. Ever since, there has been much speculation as to what changes the Law Commission might recommend. The Law Commission has announced some broad areas of potential focus. Whilst some of…
Introduction Document production has become a standard phase in international arbitration, but the documents sought and produced often turn out to be voluminous. As such, document production is perceived as a time-consuming, costly, and burdensome process. This has prompted practitioners to come up with the Rules on the Efficient Conduct of Proceedings in International Arbitration (“Prague…
Japan is traditionally the only developed country where foreign investors are reluctant to do business (see R. Katz). The peculiar case of Japan is evident if one looks at the country’s treaty practice, but some recent developments deserve attention. In the last four decades, states have attracted foreign investment through a wide web of about…
In 2005, Julian Lew spoke of his dream of autonomous arbitration – i.e., arbitration that is free from state interference. The theory of autonomous arbitration has remained a much-debated topic, with the most recent observation (by Ralf Michaels) being that autonomous arbitration does not exist and probably could not exist.1) Ralf Michaels, ‘Is Arbitration Autonomous’…
As discussed on the Blog, the international chamber of the Paris Court of Appeal issued on 30 November 2021 a ruling in Boralex Energie France v. Innovent, on a set-aside request based on alleged irregularities related to the signing and dating of the award caused by the pandemic. To the authors’ knowledge, this decision is…
The Paris Court of Appeal has ruled in a Covid-related set aside request that French law does not impose an obligation on arbitrators to sign an award simultaneously on the same page. In a judgment dated 30 November 2021, the international chamber of the Paris Court of Appeal rejected an application to set aside a…
Amidst reeling from the pandemic of 2020, 2021 witnessed a number of arbitration-related transformations, developments and notable decisions issued by the national courts in the Middle East. In this post, we focus in on the Middle East region to reflect on the significant developments that took place in arbitral centres, summarize key judgments issued by…
When States participate in investor-State arbitration and lose, they become award debtors like any other losing party in for instance international commercial arbitration. When it comes to execution against States, however, the plea of sovereign immunity presents a serious obstacle to award-creditors. Assets available for execution (i.e., such used for non-governmental commercial purposes) are not…
The draft of this blog post was prepared before the war in Ukraine began. On 16 November 2021, the Law on Mediation was adopted in Ukraine (the “Mediation Law“). It introduced mediation as an alternative dispute resolution mechanism and allows parties to civil, commercial, labour, administrative and even some criminal disputes to resort to mediation…
State parties’ “mutual actions” over a treaty – including interventions such as interpretation, modification and termination – have flourished in recent investment treaty practice. This trend brings to the fore the question of whether there are any limits to such actions, particularly due to the involvement of non-State entities, such as investors and arbitral tribunals….
On 28 May 2021, for the first time in blockchain arbitration history, Mexican courts enforced an arbitral award relying on a blockchain arbitration protocol (“Blockchain Arbitral Award”), as explored in the report found here (“Carrera Report”) (see the Appendix for the Blockchain Arbitral Award, which is in Spanish). This decision is of great significance for…
The Second Edition of the Washington Arbitration Week took place from 29 November to 3 December 2021, hosting 16 panels, including two hybrid panels with both in-person and virtual attendees. This post highlights the panel on ‘Investment Treaty Arbitration in the Digital Era: Using BITs to protect Cryptocurrency Investments?’ Cristen Bauer (U.S. Department of Commerce)…
At present, Hong Kong lawyers are prohibited from charging outcome related fees in arbitration. As discussed in a previous blog, the landscape started to change since the publication of a Consultation Paper by the Outcome Related Fee Structures for Arbitration Sub-committee (the “Sub-committee“) of the Law Reform Commission of Hong Kong (the “Commission“). The Sub-committee…
All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. (UN Charter, Art. 2.3) The peaceful settlement of international disputes is a fundamental principle of international law. While it can be debated precisely when or where this common principle emerged, it…
International proceedings have already been initiated against Russia by Ukraine in the International Court of Justice. Other proceedings in international tribunals, including the International Criminal Court, have also been commenced as the prosecutor has opened an investigation. This post proposes that another forum, and set of international legal claims, should also be pursued: the historical…
One often maps the path of history as the sordid account of one bloody war after another. But if one were to mark history by the great moments of peace, then the modern era began at 2:00 p.m. on May 18, 1899. From across the globe, representatives of the world’s most powerful nations gathered for…
As the field of international arbitration continues to mature, our community grows alongside it. Last year, Dr Maria Fanou and I wrote about this topic from the lens of virtual platforms. We optimistically opined that the increasingly virtual world presented an opportunity for greater collegiality and equity. In late 2020, Maguelonne de Brugiere and Cherine…
In 2021, ICSID conducted an extensive survey of dispute resolution clauses in bilateral investment treaties (BITs), free trade agreements (FTAs) and other treaties (including model treaties). The data set comprised more than 900 treaties, from which nearly 350 clauses were identified for closer analysis. The overarching goal of the survey was to see to what…
Delos Dispute Resolution (Delos) has introduced its first significant update to the Delos Rules of Arbitration (the 2021 Delos Rules) which entered into force on 1 November 2021. The new rules range from including new provisions which align with other major arbitral institutions, for example on joinder and consolidation, to more radical innovations such as…
The recently surfaced award in IC Power Asia Development Ltd. v. Guatemala dated 7 October 2020 reveals the reasoning of the Tribunal’s majority in dismissing IC Power’s claims on the merits. A majority of Albert Jan van den Berg (chair) and Raúl Vinuesa (Respondent’s appointee) dismissed IC Power’s claims on the merits, while Guido Santiago…
On November 3, 2021, a decision rendered by the Third Panel of the Brazilian Superior Court of Justice in the Special Appeal No. 1.953.212-RJ (OSX Construção Naval v. AGF Engenharia) was published under the opinion of Minister Nancy Andrighi. The decision addresses relevant issues for arbitration in Brazil and demonstrates the support given by Brazilian…
Confidentiality is perceived to be one of the advantages of international (commercial) arbitration. Despite this, institutional arbitration rules are largely (or even completely) silent on the parties’ confidentiality obligations, leaving such issues to be determined by the parties and/or the tribunal or, in many cases, the applicable law. Defining what the duty of confidentiality –…
The Second Edition of the Washington Arbitration Week (WAW) took place from 29 November to 3 December 2021, hosting 16 panels. This post discusses the key issues raised in the panel called ‘Is the EU a Recalcitrant Entity? The Case of Domestic and Regional Judicial Decisions Non-Compliant with Investment Awards’. Gene Burd (Fisher Broyles) moderated…
The second edition of Washington Arbitration Week (WAW) drew attention to areas of synergy between corporate social responsibility (“CSR”), human rights assessments and international arbitration. Consistent with these themes, the panel “What can Corporate Social Responsibility and Human Rights Assessments teach to International Arbitration?” discussed the current legal status of this topic and future developments….
