International arbitration, International Investment Arbitration, International Mediation, investor-State arbitration and mediation

(Centre for International Law)/ /Leave a comment

As has been previously reported in this blog (e.g., here and here), there exists a rising interest globally for alternative forms of dispute resolution (ADR) for investor-state disputes. Indicative examples from investment treaty-making confirm this, including the USMCA, CPTPP, the EU’s investment agreements with Canada, Singapore and Viet Nam, ACIA, and the China-Hong Kong CEPA…

International arbitration, International dispute resolution, International Mediation, Investment Arbitration, Investment Disputes, Investment law, Investment Treaties, investor-State arbitration and mediation, Mediation, Mediation and Dispute Management

(Australian National University)/ /1 Comment

In their reform discussions, States and arbitration institutions have been exploring the potential for investor-State mediation to work alongside arbitration, or even to replace it altogether for some disputes. While investor-State mediation has strengths relative to arbitration, any reform must carefully integrate mediation with existing processes and reform efforts.1)This post builds on: Esmé Shirlow, ‘The…

Arbitrator Intelligence, Artificial Intelligence

(MIDS - Geneva Center for International Dispute Settlement)/ /2 Comments

 “Lo que yo sostengo es que el sol no durará eternamente”, fue la verdad resumida que uno de los personajes del cuento de ciencia ficción de Isaac Asimov, llamado “La última pregunta”, expresó a otro, mientras hablaban sobre qué pasaría con la humanidad cuando el sol se quede sin brillo. Su discusión sucedió durante el…

Enforceability, International Mediation, investor-State arbitration and mediation, Singapore Convention on Mediation

(Singapore International Dispute Resolution Academy)/ /1 Comment

The Singapore Convention on Mediation entered into force on 12 September 2020. Its entry into force compels a deeper look at dispute resolution design for investor-state disputes, and encourages a reconsideration of the common choice of arbitration in favour of mediation for two main reasons. The first reason relates to enforcement as the entry into…

International Investment Arbitration, International Mediation, Investment Arbitration, Investment Disputes, Investment Treaties, investor-State arbitration and mediation, Mediation, Mediation and Dispute Management

(Australian National University)/ /1 Comment

Arbitration has undoubtedly become the dominant international procedure for settling investor-State disputes. Over the years, we have published various posts on the Blog that have considered intersections and tensions between arbitration and other, alternative, forms of investor-State dispute settlement (‘ISDS’). To mark this month’s entry into force of the Singapore Convention on Mediation, our series…

Enforcement, ICSID, ICSID Arbitration, ICSID Convention, Investment Arbitration, Ukraine

, (Asters)/ /Leave a comment

There have been six Ukrainian proceedings concerning the enforcement of ICSID awards to date. All have been successful, but Ukrainian courts have erroneously applied the New York Convention’s regime for this purpose. In this post, the authors analyze the inconsistency of such an approach with the ICSID Convention regime and related implications, suggesting options to…

Arbitration Agreement, Brazil, Cayman Islands, Enforcement, Implied Consent

(Rossi, Maffini, Milman & Grando Advogados)/ /Leave a comment

On August 11th, 2020, the Cayman Islands Court of Appeals overturned the decision that denied the enforcement of the arbitral award that ordered the MatlinPatterson Global Opportunities Partners private investment fund (“MP Funds”) to pay approximately USD 55 million to Gol Airlines. The amount refers to the purchase of the airline Varig by Gol.  …

Arbitrator Intelligence, Arbitrators, Artificial Intelligence

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Arbitrator Intelligence

Artificial Intelligence (“AI”) follows the logic that if all attributes of learning and intelligence is accurately traced in-depth, it can be simulated through a computer program. In other words, ‘what holds good for [Human Intelligence], also applies to AI’.1)See H.J. Snijders, Arbitrage en AI: Van arbitrage naar robotrage en van menselijke arbiter naar robotarbiter?, Tijdschrift…

Construction, Construction arbitration, Pre-arbitral procedure, Pre-arbitration Dispute Settlement Procedures, technology industry

(Al Tamimi & Company)/ /Leave a comment
Asian International Arbitration Centre (AIAC)

Over the past decade, technology has been seeping into our everyday life at an exponential rate. Accordingly, much like any other industry with rapid growth, contractual agreements are required to form the framework in which lasting relationships can be maintained and provide for mutually beneficial dispute resolution mechanisms (“DRMs”). As we introduce technology into almost…

COVID-19, Cybersecurity

(CyberArb) and / /Leave a comment
Young ICCA

The COVID-19 pandemic has led to an increase in the interest in alternative dispute resolution, especially arbitrations conducted online. The greater utilization of online platforms and digitization has coincided with the growing frequency and sophistication of cyber-attacks. Reportedly, by 2021 a business will fall victim to cyber-attacks every 11 seconds. Therefore, it is critical for…

AfCFTA, Africa, Investment, Protocol

(United Nations Conference on Trade and Development, UNCTAD)/ /1 Comment

Negotiations on the Investment Protocol of the African Continental Free Trade Area (AfCFTA) are set to start later this year. An AfCFTA Investment Protocol would provide significant opportunities for African countries. However, the negotiations will be complex, taking place amidst a backdrop of existing African international investment agreements (IIAs) already negotiated at the bilateral and…

Arbitration Agreement, Arbitration institution, China, Recognition and enforcement of arbitral award

(JunHe LLP) and (Altenburger)/ /Leave a comment

Since the enactment of the People’s Republic of China (“PRC”) Arbitration Law (1994), Chinese arbitration commissions have had exclusive access to the mainland China arbitration market. This is primarily because the establishment and operation of arbitration institutions are subject to the prior approval of the “administrative department of justice of the relevant province, autonomous region…

Corruption, Latin America, Peru, Red flags standard, Standard of Proof

(GST LLP) and (Georgetown University Law Center)/ /Leave a comment

The Rutas de Lima v. Metropolitan Municipality of Lima case shows how arbitral tribunals deal with corruption allegations in disputes related to government contracts. The tribunal, chaired by current ICC International Court of Arbitration President, Alexis Mourre, issued its Award this May, which came to light when the Metropolitan Municipality of Lima (the “Municipality”) requested…

International arbitration, kompetenz-kompetenz, Lithuania, National Courts, National Treatment, Seat of the arbitration

(Ellex Valiunas ) and (TGS Baltic)/ /Leave a comment

Global arbitration centers such as Paris or London are well known and need no introduction. In contrast, there are many other arbitration sites around the world that seek a larger role on the international stage of dispute settlement. Lithuania and its capital Vilnius in particular is no exception. In 2014 the Vilnius Court of Commercial…

Conference, Diversity

(Greenwood Arbitration) and (Advocate, Arbitrator and Mediator)/ /1 Comment

Like many other industries, the field of international arbitration has adjusted to the Covid-19 pandemic. Hearings have gone virtual; arbitrators, counsel and experts have adapted to working from home; and conferences have become webinars. The transition from in-person conferences to online webinars has brought great opportunities. Rather than being limited to candidates that would be available in a particular…

Applicable Law, Arbitration Agreement, Set aside an international arbitral award, Sweden

(University of Aberdeen)/ /Leave a comment

In a recent judgement in the proceedings for setting aside an arbitral award, the Swedish Court of Appeal addressed issues concerning the law applicable to an arbitration agreement, the validity of an arbitration agreement, the due process standard applicable in cross-examination, and the procedural error of rendering an award without considering all the arguments raised…

China, Civil Procedure, Court Proceedings, Discretion, Fair and Equitable Treatment, Procedural Fairness

(Zhong Lun Law Firm)/ /Leave a comment

The “right of clarification” (in German: Aufklarungsrecht) is a product of the inquisitorial method of hearing. It refers to a judge’s right to ask, suggest to or require the parties to clarify or supplement their ambiguous, insufficient or improper claims, submissions or evidence. In international arbitration, which is strongly influenced by the adversarial system, arbitral…

Arbitration, Arbitration Institutions and Rules, Expedited arbitration, Reform, UNCITRAL, UNCITRAL WG II Series, Working Group II

(Greenberg Traurig, LLP)/ /Leave a comment

Expedited arbitration is often associated with smaller value disputes. For example, the International Chamber of Commerce suggests expedited arbitration for disputes of $2 million or less, while the Hong Kong International Arbitration Centre has a $3 million threshold for expedited arbitration. Expedited arbitration makes procedural tradeoffs that are deemed warranted because there isn’t that much…

Arbitration, Arbitration Institutions and Rules, Early Determination, Early Dismissal, Expedited arbitration, Reform, UNCITRAL, UNCITRAL WG II Series, Working Group II

(University of Oslo)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

Introducing a regulation of early determination in the context of expedited proceedings, highlights a series conflicting interests. Therefore, the UNCITRAL Working Group II on dispute resolution has not yet taken a final position on whether such a regulation should be inserted in the context of expedited arbitration, or whether it should rather be considered as…

Arbitration, Arbitration Institutions and Rules, Efficiency, Expedited arbitration, Reform, UNCITRAL, UNCITRAL WG II Series, Working Group II

, (Chaffetz Lindsey LLP)/ /Leave a comment

UNCITRAL’s Working Group II (“WGII”) resumes next week its work on drafting expedited arbitration provisions (“EAPs”) for use with the UNCITRAL Arbitration Rules (“UARs”).  One of the key “aims” underlying development of these procedures is “to improve the efficiency and quality of arbitral proceedings.”  This post examines why efficiency matters, how the EAPs encourage efficiency,…

Arbitration, Arbitration Institutions and Rules, Due process, Expedited arbitration, Reform, UNCITRAL, UNCITRAL WG II Series, Working Group II

(New York International Arbitration Center)/ /Leave a comment

60 member states and several more non-governmental organizations (NGOs) will soon gather (in person in Vienna and virtually) to commence the 72nd Session of UNCITRAL Working Group II (WGII).  The topic and issues of Expedited Arbitration Procedures (EAPs) was primed at the 69th Session of the WGII in New York, including how best to improve…

Arbitration, Arbitration Institutions and Rules, Consent, Expedited arbitration, Reform, UNCITRAL, UNCITRAL WG II Series, Working Group II

(Stockholm University)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

The UNCITRAL Working Group II (“WG II”) will continue its work on drafting expedited arbitration provisions (EAPs) at its next session in Vienna on September 21 – 25, 2020. This post briefly considers some of the key points that will be addressed at the session relating to the form and scope of the EAPs. This…

Arbitration, Arbitration Institutions and Rules, Efficiency, Expedited arbitration, ICSID, Investment Disputes, ISDS, Reform, UNCITRAL, UNCITRAL WG II Series, Working Group II

(Stockholm University)/ /Leave a comment

Arbitrating investment disputes has its peculiarities stemming out of the nature of the dispute, as well as from the parties involved, which become relevant when assessing the feasibility of implementing expedited arbitration provisions. ICSID Arbitration Rules and UNCITRAL Arbitration Rules, the main arbitration rules currently used for investment arbitration proceedings, are in the process of…

Arbitration, Arbitration Institutions and Rules, Efficiency, Expedited arbitration, Reform, UNCITRAL, UNCITRAL Arbitration Rules, UNCITRAL WG II Series, Working Group II

(Mihaela Maravela Law Office)/ /Leave a comment

Next week, the seventy-second session of the United Nations Commission on International Trade Law’s (“UNCITRAL”) Working Group II (“WG II”), considering the issue of expedited arbitration, will be held in a hybrid system, with participants being able to take part in the session either in person, in Vienna, or remotely, via an online platform. The…