This is Part 2 of a blog published in two parts. Part 1 dealt with the Abu Dhabi Global Market Court of First Instance (“ADGMCFI”)’s rulings in A3 v. B3 [2019] ADGMCFI 0004 (4 July 2019), enforcing an ADGM arbitration agreement, and in A4 v. B4 [2019] ADGMCFI 0007 (8 October 2019), enforcing a foreign…
Significant advances in technology over the last decade have made videoconferencing a viable alternative to traditional, in-person witness examinations in arbitration. As the use of videoconferencing in international arbitration grows more common, we must ask ourselves: do we have the right tools to eliminate the risks that arise with this new technology? This question led…
This post examines the admissibility of investment claim assignments based on the notion of Investor-State arbitration where there is no contractual relationship between the disputing parties. To do so, it draws on Jan Paulsson’s famous article titled Arbitration Without Privity. Contract Assignments, Assignment of Claim and Arbitration Agreements The assignment of international contracts is…
The Middle East Vis Pre-Moot Program (the “Program”), scheduled in Bahrain from 10 to 14 March 2020, was prepared and excited to welcome over 200 students, faculty, and lawyers to celebrate the Program’s 10th anniversary. However, on 25 February, amid the unfortunate COVID-19 global pandemic, Bahrain took precautionary measures to prevent the spread of the…
Many will shy away from this article on account of its mere title. This is understandable considering that document production tends to be seen as a nightmarish phase in arbitration for junior, senior lawyers and arbitrators alike. This is because, if not handled properly, document production can turn into a very costly and time-consuming exercise….
The aftermath of Achmea Since the judgment of the Court of Justice of the European Union (CJEU) in Achmea, defending EU Member States and the European Commission have questioned the validity of the application of the investment arbitration clause in the Energy Charter Treaty (ECT) to intra-EU disputes. Although the motions to challenge jurisdiction on…
On February 4, 2020, ICSID registered a request for arbitration submitted by the company Odebrecth Latinvest Sarl, a Luxembourg-based subsidiary of the Brazilian company Odebrecht SA, against the Republic of Peru (ICSID Case No. ARB/20/04). This post analyzes the background to this dispute, as well as the possible strategies that the parties could use during…
The overwhelming weight of opinion among legal practitioners is that enforcement of foreign arbitral awards in Kazakhstan is theoretically possible under the New York Convention (“NY Convention”), albeit problematic in practice due to ambiguity in the Kazakh legislations. Many problems associated with the recognition and enforcement of foreign arbitral awards in Kazakhstan and the application…
On September 4, 2019, Esso, a subsidiary of the Exxon Mobil Corporation, and Shell Nigeria, a subsidiary of the Shell Oil Company (collectively “Esso”), attempted to enforce a $1.799 billion arbitral award in the U.S. District Court for the Southern District of New York after it had been annulled in the courts of Nigeria (Esso Opinion)….
Afghanistan, in January 2007, enacted its Commercial Arbitration Law to facilitate prompt, fair and neutral resolution of commercial and economic disputes through arbitration. However, despite enactment of the Law, Afghan courts exhibited reluctance to defer to dispute resolution clauses in contracts which directed parties to arbitration. Consequently, till 2013, arbitration was neither considered a viable…
At the time of writing, the number of confirmed cases of COVID-19 passed 600,000, across more than 200 countries and territories. The World Health Organization (the WHO) declared a Public Health Emergency of International Concern on 30 January 2020, i.e. an ‘extraordinary event’ which is ‘serious, unusual or unexpected’ carries trans-national implications, and may require immediate…
We are happy to inform you that the latest issue of the journal is now available and includes the following contributions: Sundaresh Menon, Technology and the Changing Face of Justice The problem of unequal access to justice, also known as the justice gap, has been worsened by rising levels of inequality over the past…
A cursory reading of the mandate of Working Group III reveals that the discussion at UNCITRAL of ISDS (Investor-State Dispute Settlement) reform focuses only on procedural aspects of dispute settlement under investment treaties and excludes any substantive aspects. However, the topic of respondent states’ counterclaims, albeit procedural in itself, is so inextricably intertwined with substantive…
Ahead of the thirty-ninth session of UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), the General Assembly Secretariat issued a note on issues to be considered on the topic of security for costs and frivolous claims. Averting frivolous claims has been a recurring topic in the ISDS debate over the past years, not least in…
One of the topics on the agenda of UNCITRAL Working Group III is the establishment of an Appellate Court system. The system of investor-State dispute resolution therefore now faces the fact that WG III is considering, among other matters, the following: the repeal of local law governing the setting aside of an UNCITRAL award giving…
Arbitrators under the Crossfire While investor-state dispute settlement (ISDS) was created with the purported goal of depoliticizing investment disputes, it is currently at the centre of heated political debates. Investment arbitration follows the commercial arbitration paradigm, with disputing parties playing a direct role in the composition of the tribunal. This is perceived as a tool…
During its last resumed 38th session which took place in Vienna from 20–24 January 2020 the UNCITRAL Working Group III discussed in parallel three reform alternatives, based on the notes prepared by the Secretariat. These alternatives suggested the creation of: (i) a stand-alone review or appellate mechanism; (ii) a standing multilateral investment court (MIC); and/or…
Next week was due to be the 39th session of the United Nations Commission on International Trade Law’s (UNCITRAL) Working Group III, and its sixth session considering the issue of reform to investor-State dispute settlement (‘ISDS’). The session has since been postponed indefinitely, in light of the current global COVID-19 pandemic. In lieu of Working…
For decades, like clockwork, the Willem C. Vis International Commercial Arbitration Moot (‘Vis Moot’) and its sister competition, Vis East Moot, have brought together students, academics, practitioners, and arbitrators to consider emerging and important substantive topics in international arbitration and international sales law. Many of us honed our passion for these fields as student participants in the Vis…
Late last year, Herbert Smith Freehills Seoul and Kim & Chang held a “Women in Arbitration” Networking-Dinner and panel discussion as part of the Seoul ADR Festival 2019. The dinner aimed to provide an opportunity for female professionals in the Korean arbitration community to network with their industry peers and work to advance their position…
On 25 January 2020, India and Brazil signed an Investment Cooperation and Facilitation Treaty, in the presence of the Brazilian president Jair Messias Bolsonaro. Arguably the most prominent of the 3 BITs that India has signed since adopting the model BIT in December 2015. The new treaty articulates several provisions (briefly discussed below) in departure…
In an industry which thrives on lofty ideals of amicable dispute resolution and open debate, it is startling to observe that the environmental impact involved in the conduct of international arbitrations has received little attention. This is not to suggest that the international arbitration community has completely ignored the issue, but the focus has been…
During the recent visit of Brazilian President, Jair Bolsonaro, to India, Brazil and India inked the investment cooperation and facilitation treaty (hereinafter bilateral investment treaty – BIT). From Brazil’s point of view, this BIT is an extension of a novel approach to foreign investment in international law based on investment facilitation and cooperation, not investment protection…
The 15th ICC Turkey Arbitration Day was held on 24 January 2020 in Istanbul. The aims of the conference were to contribute to the development of commercial and investment arbitration in Turkey, to promote Istanbul as a place for arbitration and alternative dispute resolution as well as the work of Turkish arbitration practitioners both on…
