Access to Justice, Jurisdiction, Russia, Sanctions

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On 19 June 2020, the new sanctions-related amendments1)Federal Law No. 171-FZ dated 8 June 2020, introducing the amendments (text in Russian). to the Russian Commercial (Arbitrazh) Procedure Code entered into force. The main objective of the law is to protect the interests of Russian natural and legal persons who are unable to effectively resolve their…

Arbitration Act, New York Convention, Recognition and enforcement of arbitral award, Tonga

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On 12 June 2020, the Kingdom of Tonga (“Tonga“) acceded to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “Convention“), being the 164th state party to do so. In the context of the Pacific region, Tonga is the 6th state to accede to the Convention after the Marshall…

Arbitral Tribunal, Arbitrator's decision-making, State, Treaty Amendment, Treaty Interpretation, Tribunal duties, VCLT

(WilmerHale)/ /Leave a comment

The lack of a binding effect of a State’s right to interpret treaties has been raised as one of the reasons to reform the current Investor-State Dispute Settlement (“ISDS”) regime. The movement to reform the current ISDS regime led to the UNCITRAL Working Group III discussion (“WG III discussion”), which has been addressed in this…

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: Maxi SCHERER, Remote Hearings in International Arbitration: An Analytical Framework Remote hearings are nothing new, but the Coronavirus Disease-19 (COVID-19) crisis has forced international arbitration out of its comfort zone. Parties, counsel, and arbitrators…

ICSID Convention, India, ISDS Reform

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The relationship between developing countries and the International Centre for Settlement of Investment Disputes (ICSID) has not been smooth, to say the least. Several developing countries such as Bolivia, Venezuela and Ecuador have pulled out from the ICSID Convention. India is one of the prominent developing countries that has refrained from joining the ICSID Convention,…

COVID-19, Hearing protocol, Hearings, Videoconferencing, Virtual hearings

(Kirkland & Ellis)/ /Leave a comment

Virtual hearings are not a new idea. The arbitration community only started to seriously discuss the benefits and the logistics of having virtual hearings in lieu of physical hearings when the world was put on pause by COVID-19 in around February 2020. It is not easy to organize a virtual hearing, let alone all the…

Interview, Interview of our editors

(Herbert Smith Freehills), , , and (Equanimity Arbitration)/ /Leave a comment

We continue our series with four of our fellow editors sharing their perspectives on working on the Blog and predictions concerning the future of the arbitration world: Daniela Páez (Assistant Editor for Latin America), Ashutosh Ray (Assistant Editor), Christine Sim (Assistant Editor for Southeast Asia), and Sadaff Habib (Assistant Editor for Africa).   Daniela Páez…

Ad hoc arbitration, Arbitration Agreements, China

(Zhong Lun Law Firm)/ /1 Comment

It is undisputed that the Arbitration Law of the People’s Republic of China (“the Arbitration Law”) has greatly contributed to the establishment, development and improvement of China’s current arbitration system. However, due to the fast-moving socio-economic realities and the ever-developing legal system of China, the provisions of the Arbitration Law have gradually begun to lag…

Corruption, International arbitration, Paris Arbitration Week, Webinar

(Reed Smith)/ /Leave a comment

On Monday 6 July 2020, during the first day of the Paris Arbitration Week, Reed Smith held a webinar on ‘Arbitrating allegations of corruption in international business transactions – problems and solutions‘, a highly controversial topic which has gained much attention in the arbitration community in the last decade. The event focused on a series…

Anti-enforcement Injunction, Anti-suit injunction, Comity, Conflict of Laws, Enforcement, English courts, Situs of a Debt

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In the recent decision in SAS Institute Inc v World Programming Limited [2020] EWCA Civ 599 (“SAS”), the English Court of Appeal addressed issues including the situs of a debt, the proper approach to anti-enforcement injunctions, and how considerations of comity arise in the enforcement of foreign decisions.   Facts In 2009, SAS, a North…

COVID-19, Security for Costs, Third party funding

, (Squire Patton Boggs)/ /1 Comment
Young ICCA

The COVID-19 pandemic has already created market volatility and adversely affected the financial position of companies and individuals around the world. This post explores two main ideas: (1) whether the pandemic is likely to result in an upturn in recourse to third party funding arrangements; and (2) whether arbitrating parties should anticipate increased exposure to…

Access to Justice, Jurisdiction, Russia, Sanctions

(Kulkov, Kolotilov and Partners)/ /Leave a comment

As a result of coronavirus, sanctions, for once, have not been grabbing the headlines. Unlike the media, the Russian legislative bodies have recently shown keen interest in the topic of sanctions as they have adopted a draft law from last year granting persons and companies affected by the sanctions against Russia with a right to…

kompetenz-kompetenz, United States, United States Courts, USA

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Young ITA

Awards are final—mostly. Many institutional rules allow arbitrators to correct clerical errors in their awards, but prohibit revisions to the merits of their decisions. The U.S. Court of Appeals for the Fifth Circuit signaled in a recent case that it will defer to arbitrators in interpreting institutional rules regarding the scope of their correction authority,…

Enforcement, Foreign arbitral awards, India, Limitation period

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Indian courts have pronounced inconsistent decisions regarding the limitation period on applications for enforcement of foreign arbitral awards. This blog post discusses the conflicting jurisprudence and advocates adoption of purposive interpretation for its redressal. Sections 47 to 49 of the Indian Arbitration and Conciliation Act 1996 (“the Act”), which forms part of the chapter on…

Arbitration, Arbitration institution, Arbitration Institutions and Rules, England, LCAM

(Osborne Clarke)/ /Leave a comment

On 26 May 2020, the London Chamber of Commerce and Industry (LCCI), a networking and business support organisation that caters to the London business community, launched the London Chamber of Arbitration and Mediation (LCAM). The LCAM is a new organisation offering arbitration, expedited arbitration and mediation services. This post will explore selected features of the…

Announcement, Colombia, Due process, Latin America, New York Convention

(Universidad del Norte) and (Refinería de Cartagena S.A.S.)/ /Leave a comment

On February 27, 2020, the Third Division of the Colombian Council of State (“Court”) issued a judgment resolving an annulment petition submitted by a state-owned company’s subsidiary against an international arbitral award. In its judgment, the Court decided to annul the award due to the Tribunal’s failure to comply with the agreed arbitral procedure. In…

Arbitration Pledge, Arbitrator Intelligence, Diversity, Gender equality

, (Asian International Arbitration Centre)/ /1 Comment
Asian International Arbitration Centre (AIAC)

Arbitration’s international character is derived from it being a melting pot of individuals from divergent academic, professional, age, gender, racial and ethnic backgrounds. But how far have we come from the adage that arbitration is “pale, male and stale”? The Asian International Arbitration Centre (“AIAC”) launched its inaugural Diversity in Arbitration Week (“DAW”) as part…

Arbitration, ECT Modernisation, Energy Charter Treaty, EU Law, European Union, Investment Arbitration, Reform

(University of Bedfordshire)/ /Leave a comment

The Energy Charter Treaty (ECT) has recently become a household name, moving from the oblivion of the 1990s, when the treaty was drafted, to one of the most hotly debated topics in legal (and other) circles nowadays. Some have demonized it as an instrument for the corporate usurpation of democratic functions, such as the host…

ECT Modernisation, Energy Charter Treaty, Environment, European Union

(Boies Schiller Flexner LLP) and (Charles University)/ /Leave a comment

The signatories of the Energy Charter Treaty (“ECT”) have begun the process of the Treaty’s modernisation. This is by no means a small task given the complexity of the Treaty’s scope which covers energy trading, efficiency, transit, investment protection and dispute resolution. Additionally, in order to amend it, all the signatories need to be on…

Arbitration, ECT Modernisation, International arbitration, Investment Arbitration, Reform

(Concepción Global, PLLC, Universidad Complutense de Madrid) and / /1 Comment

In the absence of a uniform standard of compensation under the Energy Charter Treaty (“ECT”), tribunals have been tasked with filling the gap and have done so by exercising an important margin of appreciation for the assessment of damages. Such wide discretion has resulted in divergent approaches in assessing damages. Since the first ECT decision,…

Arbitration Institutions and Rules, Code of Conduct, ICSID, ISDS, UNCITRAL, Working Group III

(Law Offices of Charles H. Camp) and (De Brauw Blackstone Westbroek)/ /Leave a comment

Today, there is no universal code of conduct, no single professional regulatory organization or global certification process in the field of investor-state dispute settlement (“ISDS”). Instead, the field of international arbitration is didactically governed by self-policing, episodic, and distinct ad hoc measures serving to collectively safeguard the integrity of the international arbitration process. On the…

ECT Modernisation, Energy Charter Treaty, Fair and Equitable Treatment, International arbitration, Investment Arbitration

(Durham Law School) and (Magnusson Minds)/ /Leave a comment

The investment protection mechanism in the Energy Charter Treaty (ECT) is meant to, among other things, promote, attract, and protect foreign investments in the member states’ energy sectors. In 2018, the Energy Charter Conference announced its list of approved topics for the modernization of the ECT. The list included several substantive investment protection provisions. This…

Africa, Arbitration institution, Arbitration Institutions and Rules

(Wilmer Cutler Pickering Hale and Dorr LLP) and (Herbert Smith Freehills LLP)/ /Leave a comment

On 1 July 2020, the Arbitration Foundation of Southern Africa (“AFSA”), a leading arbitral institution in South Africa, launched its new draft International Arbitration Rules for public comment.  The International Arbitration Rules were launched via a webinar co-hosted by Professor Dr. Maxi Scherer, chairperson of AFSA’s Drafting Committee and Advisory Board, and Patrick Lane SC,…

Denial of Benefits, ECT Modernisation, Energy Charter Treaty, ISDS

(Stockholm University) and (School of International Arbitration, Queen Mary University of London (QMUL))/ /Leave a comment

Denial of benefits clauses (DoB) have gained considerable traction in the past prolific years of Investor-State Dispute Settlement (ISDS), and more specifically, with the growing number of Energy Charter Treaty (ECT) arbitrations. UNCTAD’s Investment Policy Hub still lists a considerably small number of international investment agreements (IIAs) providing for DoB: little above 200 which would…