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…

Arbitration, ECT Modernisation, Energy Charter Treaty, Investment Arbitration

(Energy Charter Secretariat)/ /Leave a comment

Modernisation of any multilateral treaty is a category of tasks on its own. There are several prerequisites which shall be in place, apart from obsolete language and provisions. The most crucial element is a steady political will of a critical mass of countries based on the strong motivation, which will break inertia and create new…

COVID-19, Online Arbitration, SCOTUS, Supreme Court, Virtual hearings

(Richard Levin Arbitration)/ /Leave a comment

The impact of the pandemic on arbitration has been the subject of several posts on this Blog (see here and here). Rightly so, this is a seismic event in history that certainly has shaken the dispute resolution process, both state sponsored judiciaries as well as arbitration tribunals and practice generally. Entities which fall victim during…

Arbitration, Arbitration Institutions and Rules, ECT Modernisation, International arbitration, Investment Arbitration, ISDS, ISDS Reform, Reform

(Australian National University) and / /Leave a comment

The Energy Charter Treaty (‘ECT’) opened for signature in 1994, entered into force in 1998, and now boasts some 50 member States. The ECT has since given rise to some 130 investor-State arbitrations, making it “the most frequently invoked international investment agreement”. This high use, coupled with a perception that the ECT is frequently invoked…

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 cases:   ARTICLES Felix DASSER, The Times They Are A-Changin’ (Fine – But How Much and For How Long, Exactly? And What Does It All Mean For Us? In his message, ASA President,…

Annulment, Egypt, International Investment Arbitration, Investor-State arbitration, Libya, MENA

(Riad & Riad; Cairo University School of Law)/ /1 Comment

In a ‘ground-breaking’ precedential decision, Al-Kharafi v Libya (Judgment No. 39 of 130 JY, 3 June 2020), the Cairo Court of Appeal in Egypt ruled that it can review an arbitral award for fundamental errors of law that amount to a violation of public policy or equity and justice notions. The decision relates to an…

COVID-19, Hearings, New York Convention, Procedural Fairness, Videoconferencing, Virtual hearings

(Kim & Chang) and (Nishimura & Asahi)/ /Leave a comment

Conducting all or parts of a hearing in the form of a virtual hearing has become a daily reality for many arbitrators, parties, and witnesses as the COVID pandemic continues to disrupt the legal practice. But as countries gradually ease out of lockdown and find their way into a “new” normal, it may be worth…

Investment agreements, Investment Arbitration, Non-Disputing Parties

, / /Leave a comment

On 27 February 2020, Canada availed itself of the opportunity provided by Article 827(2) Canada-Colombia FTA (“FTA”) to make a non-disputing party submission 1)Accessing the link requires a subscription.(“NDPS”) in Eco Oro Minerals v Colombia. The case concerns issues arising out of a mining restriction imposed to establish an environmental conservation zone. It was initiated…

ADR, Arbitration Proceedings, Data Protection, GDPR, IBA, ICCA, International arbitration, Videoconferencing

, (RF Arbitration)/ /2 Comments

Previous posts have already covered various aspects of data protection in international arbitration proceedings and also in view of cybersecurity. Meanwhile, new and crucial data protection aspects have arisen with regards to video conferencing. The ICCA / IBA’s Joint Task Force on Data Protection (“Joint Task Force”) in International Arbitration Proceedings has joined forces to…

China, Enforcement, Hong Kong, Limitation period, PRC

(CIETAC (HK))/ /Leave a comment
CIETAC Hong Kong Arbitration Center

For awards issued in cases administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) Hong Kong Arbitration Center, parties can enforce them in the Chinese mainland and Hong Kong out of the many other possible jurisdictions. What they cannot do, however, is to simultaneously enforce the award in both jurisdictions. This is expressly prohibited under…

COVID-19, Remote hearings

(3 Verulam Buildings & ArbTech) and (ArbTech)/ /Leave a comment

The travel restrictions and social distancing measures imposed by the COVID-19 pandemic have brought about an exponential increase of virtual get-togethers, including hearings via video conferencing in both litigation and arbitration proceedings. Courts and tribunals in England and Wales reported an increase of audio hearings by over 500% and video hearings by 340% during the…

Annulment, Interpretation, Investment, Jurisdiction, Nationality

(Ernesto Tzirulnik Advocacia (ETAD))/ /Leave a comment

Serafín García Armas and Karina García Gruber v. Venezuela and Clorox Spain v. Venezuela are different in many aspects. García Armas relates to dual nationality, while Clorox relates to protected investment. However, they have a common feature: Article 1(2) of the Spain–Venezuela BIT was key to their developments. That article defines investments as “any kind…

Best practices, COVID-19, ODR, Online Arbitration, sociology of international arbitration, Virtual hearings

(University of Sydney & Williams Trade Law)/ /Leave a comment

Travel and other restrictions due the COVID-19 pandemic have meant that virtual hearings have become the “new normal” for international commercial arbitration, and even perhaps for investor-state arbitrations. But what are the longer-term prospects for virtual hearings or “e-arbitration” more generally, and even for the relative popularity of arbitral seats, in the wake of the…

Construction, Construction arbitration, COVID-19, Denmark, Energy, Infrastructure, Paris Arbitration Week, Prague Rules, United Arab Emirates, USA, Webinar

(Hogan Lovells)/ /Leave a comment

How severely are international construction projects affected by global COVID-19 pandemic? What does the COVID-19 pandemic mean for international construction disputes? As with so many other questions arising in relation to the pandemic, these questions will only be answered definitively in retrospect. For construction arbitration practitioners though, one of the immediate and graspable effects has…

Arbitration Institutions and Rules, Asia, China, Hong Kong, India, Intellectual Property, Paris Arbitration Week, Set aside an arbitral award, Singapore, South Korea, Webinar

(Schellenberg Wittmer Pte Ltd)/ /Leave a comment
YSIAC

On 10 July 2020, a panel of arbitration practitioners discussed the topic of “Recent Developments and Key Arbitration Trends in Asia” as part of the 2020 Paris Arbitration Week. The panel discussion covered the distinctive features of and the latest developments in five different jurisdictions: Singapore, China, Hong Kong, South Korea and India. Hosted by…

Arbitrability, Arbitral seat, Arbitration Award, Arbitration clause, Arbitration institution, Arbitration Institutions and Rules, Enforcement, Paris Arbitration Week, Seat of the arbitration, Virtual hearings, Webinar

(Addleshaw Goddard LLP)/ /Leave a comment

The third edition of the Jeantet “Arbitrating in CEE and CIS” roundtable was held virtually during the Paris Arbitration Week on Wednesday, 8 July 2020. The topic of this year’s edition laid stress upon “Do and Don’t’s When Choosing a Seat and Enforcing in CEE/ CIS/ Russia: State of Play”. Because of both the significant…

Climate change, ICC Arbitration, ICC Note to Parties and Arbitral Tribunals, Paris Arbitration Week, Virtual hearings, Webinar

(ICC International Court of Arbitration)/ /1 Comment

The 4th ICC European Conference on International Arbitration took place on Tuesday 7 July 2020, during the second day of the Paris Arbitration Week. This first-ever digital edition saw record numbers with 1,450 participants connecting from all corners of the world. Alexis Mourre, President of the ICC International Court of Arbitration, acknowledged in his welcome…

Arbitral Award, Arbitral seat, Arbitral Tribunal, Arbitration, Arbitration Institutions and Rules, Arbitration Proceedings

(Kabine Law Office) and (Equanimity Arbitration)/ /Leave a comment

The COVID-19 pandemic catapulted discussions on online dispute resolution methods like no other phenomenon. With this, determining the proper seat for online arbitration has become the center of conversation. As the world adapted to the challenges presented by the pandemic, so too did international arbitration. Suddenly, there was a wave of virtual hearings, webinars and…

Enforcement of an award that was set aside, France, New York Convention, Public Policy, Set aside an international arbitral award

(PwC Legal)/ /Leave a comment

An award set-side underlines that it has been annulled in the jurisdiction in which it has been rendered. The grounds for setting aside an award are provided by the UNCITRAL Model Law and are quite similar throughout numerous jurisdictions. Article V of the New York Convention (‘NYC’) presents a set-aside award as one of the…

Canada, Commercial Arbitration, Employment arbitration, Uber v. Heller, UNCITRAL Model Law

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Most individuals with involvement in international arbitration—as a scholar, practitioner, arbitrator, or as a brave student participating in a moot competition—have cited Gary Born for some legal principle. Indeed, sometimes this name is cited by opposing sides in support of their contrary legal arguments. While this has been a common practice among students and, in…

Annulment, Appointment of arbitrators, Conflicts of interest

(Galvez Pascual SLP) and , / /Leave a comment

In a recent decision, in Eiser Infrastructure Limited and Energia Solar Luxemburg S.À.R.L. v Kingdom of Spain (ICSID Case No. ARB/13/36), an International Centre for Settlement of Investment Disputes (ICSID) ad-hoc committee decided to annul an award in its entirety. The reason being a conflict of interest. For the first time in ICSID’s history, an…

Enforcement, India, Public Policy, Set aside an international arbitral award

/ /2 Comments

In a recent decision, National Agricultural Co-operative Marketing Federation of India (NAFED) v. Alimenta S.A. (“NAFED”), the Indian Supreme Court (“SC”) refused to enforce a foreign award on the ground of it being opposed to public policy under Section 7 (1) (b) (ii) of the Foreign Awards (Recognition and Enforcement) Act, 1961 (“the 1961 Act”)….

Access to Justice, COVID-19, Cybersecurity, Due process, Virtual hearings

(Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre of UNSW Law)/ /1 Comment
Institute for Transnational Arbitration (ITA)

In addition to the serious implications for people’s health and public healthcare services, the COVID-19 pandemic also imposes challenges for the administration of justice.   Increasing Demand for Amicable Methods of Dispute Resolution The current crisis creates a need for business and its legal representatives to consider carefully appropriate and alternative options for the efficient,…

Document Production, Efficiency, International arbitration

(De Brauw Blackstone Westbroek N.V.)/ /Leave a comment

Document production is widely regarded as one of the most time-consuming and costly elements of international arbitration.1)The 2018 International Arbitration Survey: The Evolution of International Arbitration by the School of International Arbitration at Queen Mary University of London and White & Case lists “cost” as arbitration’s worst feature, followed by “lack of effective sanctions during…