Disclosure, Independence and Impartiality, International Commercial Arbitration, Investment Arbitration, Working Group III, WTO

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The strength of any dispute settlement mechanism will depend upon its consistency with the requirements of independence and impartiality. Disclosures made by adjudicators prior to adjudicating a dispute, and challenges raised against adjudicators during the course of dispute settlement, target a perceived absence of independence or impartiality. The purpose of this post is to juxtapose…

Australia, Disclosure, Discovery, Pre-Action Disclosure, Pre-arbitral procedure, Preliminary Discovery

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Herbert Smith Freehills

The availability and scope of ‘discovery’ or document production significantly differs across jurisdictions, most notably when comparing litigation in common law and civil law courts. In the field of international arbitration, the compromise position adopted by the International Bar Association’s Rules on the Taking of Evidence in International Arbitration is to permit disclosure of documents…

Arbitration Agreement, Choice of Law, English courts, Express choice, International arbitration, Law governing the arbitration agreement, Proper law of arbitration agreement

(Mihaela Maravela Law Office)/ /Leave a comment

In the recent ruling of 29 April 2020, the England and Wales Court of Appeal, departing from Sulamérica, has held the seat of arbitration as an implied choice of the law of the arbitration agreement in cases where parties expressly chose the law applicable to the main contract and the seat of arbitration under a…

Business and Human Rights Arbitration, Human Rights, Procedure, Third party funding

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In a recent post, we were told to ‘Roll Out the Red Carpet’ for the Hague Rules on Business and Human Rights Arbitration (the “Rules”). Indeed, the Rules are a new development within the field to assist with disputes relating to human rights and their violations. Following a process of draft reports and public consultations,…

Anti-corruption, Arbitration, Corruption, ISDS, Peru, Protectionism, Transparency

(Sarens)/ /Leave a comment

On January 24, 2020, Peru enacted the Emergency Decree No. 020-2020 (the “Decree”), published in Peru’s Official Gazette, El Peruano.1)Emergency Decree Modifying Legislative Decree Nº 1071, Legislative Decree Norming Arbitration, Emergency Decree No. 20-2020 (Jan. 24, 2020) (Peru). The Decree amends Peru’s Legislative Decree No. 1071 (the “Arbitration Law”), in force since 2008,2)Legislative Decree Regulating…

Interview, Interview of our editors

(Australian National University), (Hogan Lovells), (Dentons & Co, Dubai), and (Peter & Kim)/ /1 Comment

In January 2009, Professor Roger Alford published the first post on the Kluwer Arbitration Blog (the Blog), launching what is now considered an indispensable tool for arbitration practitioners and academics alike. Today, the Blog offers daily perspectives on the latest developments in international arbitration, reflecting our “unique” and “fascinating” international arbitration community. Our 31 editors,…

Africa, New York Convention, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Reciprocity, Recognition and enforcement of arbitral award, Republic of Seychelles, Switzerland

(Taylor Wessing) and (University of Konstanz, Germany)/ /Leave a comment
YIAG

On 3 February 2020, the Republic of Seychelles became the 162nd Contracting State of the New York Convention (already followed by Palau as number 163, reported here). The New York Convention thus comes into force for the Seychelles today (Article XII(2) New York Convention). The Cabinet and the National Assembly had approved the accession on…

Code of Conduct, Conflicts of interest, Disclosure, ICSID, Independence and Impartiality, ISDS, UNCITRAL, Working Group III

(Richmond School of Law)/ /1 Comment
Institute for Transnational Arbitration (ITA)

On May 1, 2020, the Secretariats of ICSID and UNCITRAL released the first draft of the Code of Conduct for Adjudicators in Investor-State Dispute Settlement (ISDS). I had the privilege of working extensively on the drafting of the Code as a Scholar in Residence at ICSID, and I think this is an important development in…

Arbitration Agreement, Arbitration clause, Czech Republic, New York Convention

(Bříza & Trubač)/ /Leave a comment

The 1958 New York Convention (“NY Convention” or “Convention”) was adopted in the era when probably the fastest form of communication in which an arbitration agreement could have been concluded was via telegrams. The Convention requires written form for an arbitration agreement (clause) to be valid, but the electronic communication of our times had not…

Full Protection and Security, Gunboat Diplomacy, Libya, Turkey

(Durham Law School) and (DER Juridik)/ /1 Comment

A widespread debate on the legitimacy of (and backlash against) investor state dispute settlement (ISDS) has been on-going for several years now. Put colloquially, this debate asks essentially whether ISDS in its current form is capable of handling international investment disputes, generally, and such disputes that implicate a public interest element, in particular. Moreover, it…

Arbitration, foreign direct investment, Investment, Investment law, Investment protection, Investment Treaties

(D|R Arbitration & Litigation) and (Roma Tre University; UNIDROIT Centre for Transnational Commercial Law and International Arbitration)/ /Leave a comment

On March 25, the European Commission issued a set of guidelines addressed to Member States, concerning foreign direct investment (FDI) from third countries and the protection of European critical assets. In face of the current crisis caused by the outbreak of Covid-19, the European Commission calls upon Member States to make full use of their…

Arbitration Institutions and Rules, Expert Appointment, Experts, SHIAC, Witness

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Shanghai International Arbitration Center (SHIAC)

The use of expert witness is common in international arbitration. Recent discussions amongst Chinese practitioners have centered on the case related to the world-famous Chinese athlete Sun Yang in which the WADA’s expert opinion was believed to be material to the ruling of the CAS tribunal (“WADA vs. Sun Yang”).1)CAS2019/A/6148, World Anti-Doping Agency v. Sun…

Accession to the EU, Arbitral Award, Border Dispute, CJEU, TFEU

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On 11 December 2019, the Advocate General Priit Pikamäe delivered its Opinion recommending the Court of Justice of the European Union (“CJEU”) to declare that it does not have jurisdiction to rule in infringement of European Union (“EU”) law proceedings concerning the long-running border dispute between Slovenia and Croatia, which the CJEU endorsed in the…

CJEU, Energy Charter Treaty, EU Law, Investment, Paris Court of Appeal, Set aside an arbitral award

(Reed Smith)/ /1 Comment

The Paris Court of Appeal has recently sought a preliminary ruling from the Court of Justice of the European Union (CJEU) on the interpretation of the Energy Charter Treaty (ECT) in the ongoing Republic of Moldova v. Komstroy case.   A 20-Year-Old Tale The Republic of Moldova v. Komstroy case highlights the contradicting approaches to…

Brazilian Arbitration Journal

(Lee Taube Gabardo; Editor in Chief, Brazilian Arbitration Journal)/ /Leave a comment

The Brazilian Arbitration Journal, in its 65th edition, presents, in the National Doctrine section, the reflections of João Pedro Accioly on the arbitrability of conflicts involving the government. In addition, Marcelo Levitinas and Luisa Cabral de Mello Marques Coelho propose a reasonable interpretation of article 10 of the Brazilian Arbitration Law, in regard to the…

Case Management, COVID-19, Efficiency, ICC, ICC Guidance Note, ODR, Virtual hearings

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ArbitralWomen

“Alice again enters a fantastical world, this time by climbing through a mirror into the world that she can see beyond it. There she finds that, just like a reflection, everything is reversed”…and “walking away from something brings you towards it” (Alice’s Adventures in Wonderland, Lewis Carroll). The current worldwide outbreak forced by Covid-19 has…

Arbitration, arbitrators’ conduct, ICC Rules, LCIA Rules, Liability, PCA, UNCITRAL Arbitration Rules

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Young ICCA

There was a time when arbitrators were to a large extent immune from liability and could thus not be sued before national courts for damages caused to the parties to a dispute. This was true mainly in common law jurisdictions and was probably the case in most civil law countries as well. For instance, under…

Achmea, Enforcement, English courts, EU Withdrawal Act, Intra-EU BITs, Intra-EU ISDS, Investment Arbitration, UK, UK Supreme Court

(E&A Law Limited)/ /1 Comment

In its unanimous decision in the Micula case the UK Supreme Court on 19 February 2020 made clear that ICSID arbitral awards rendered by tribunals established pursuant to intra-EU BITs could be enforced in the UK. As explained by Guillaume Croisant in his blog post on 20 February, the UK Supreme Court overruled the Court…

Arbitration Agreement, Contract Drafting, Governing Law, Implied Terms, Interpretation of Contracts

(Singapore Management University)/ /Leave a comment

The significance of an arbitration agreement’s proper law cannot be understated, given its importance vis-à-vis the arbitration agreement’s validity and consequent implications on the tribunal’s jurisdiction and the arbitral award’s enforceability. Notwithstanding this, parties rarely specify the arbitration agreement’s proper law – hence the need for a clear legal framework governing its determination. In BNA…

Association Agreement, European Union, International arbitration, Protectionism, Ukraine

(Vasil Kisil and Partners)/ /Leave a comment

On 28 January 2020, the arbitration panel has been formed in the dispute between the EU and Ukraine regarding Ukraine’s export prohibition of unprocessed timber. Notably, this is the first dispute between the EU and Ukraine under the Association Agreement (“EU-Ukraine AA”), and here, the EU invokes the dispute settlement mechanism provided by the free-trade…

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, Of Lighthouses and Rocks In his first message as ASA President, Felix DASSER points out the challenges and opportunities ASA faces during his term and sets priorities.  …

Arbitration Awards, Due Diligence, Fair and Equitable Treatment, Investment Arbitration, Investment law, Investment protection, Investment Treaties

(Nyenrode Business University)/ /2 Comments

In interpreting one of the most contested investment treaty protection standards – fair and equitable treatment – arbitral tribunals have increasingly referred to the necessity for an investor to conduct a due diligence investigation before investing in a host state. Foreign investors have been required to assess not only commercial, but also general socio-political risks….

COVID-19, Investment, Investment Arbitration, Investor-State arbitration

(Egyptian Ministry of Justice)/ /Leave a comment

COVID-19: Background and Impact on Foreign Investment in the Developing Countries As discussed on the Blog previously, the number of confirmed cases of COVID-19, the disease caused by the virus named SARS-CoV-2, continues to rise globally, as shown on this page from the WHO. Today, the virus has already spread in Western Europe and the…

Discovery, Section 1782 Discovery, United States

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Three Crowns LLP

A California district court held in February that 28 U.S.C. Section 1782 could be used to seek discovery for use in a private, commercial arbitration, becoming the first district court in the Ninth Circuit to do so, and, following recent decisions in the Sixth and Fourth Circuits, potentially teeing up an even more pronounced split…