ADR Clauses, Agreement in writing, Arbitration, New York Convention, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

(University of Alberta Faculty of Law)/ /Leave a comment

A 2018 decision rendered by the U.S. Court of Appeals for the 11th Circuit in Outokumpu Stainless USA, LLC, et al. v. GE Energy Power Conversion France SAS, Corp has recently put on the agenda of the U.S. Supreme Court the interpretation of the “in writing” requirement under Article II(2) of the New York Convention…

Arbitration, England, English Arbitration Act, English courts, English Law, International arbitration, Precedent

(Beechey Arbitration)/ /1 Comment

The topic of precedent in international arbitration is not an idle one. It is widely accepted that the existence and use of precedent in any legal system leads to predictability, consistency and equality of treatment. Indeed, one of the eight strands that according to the late Lord Bingham (as summarised by Lord Neuberger) make up…

Appellate Body, Canada, Dispute Settlement, EU Law, Trade, WTO

(Kaufman Trade Law)/ /Leave a comment

Introduction The World Trade Organization (the “WTO”) is at an inflection point. As global dynamics shift, members must consider whether the institution, as it is currently configured, has passed its prime. The success of the WTO to date epitomizes the pinnacle of an apparent ideological consensus. However, the current recession of that consensus is forcing…

Applicable Law, Arbitration Agreement, Singapore

(Drew & Napier LLC)/ /3 Comments
YSIAC

When a party seeks to challenge the jurisdiction of the arbitral tribunal on the basis of the substantive invalidity of the arbitration agreement, the proper law of the arbitration agreement governs the inquiry. The prevailing approach adopted to determine the proper law of the arbitration agreement is the three-stage choice-of-law analysis set out in Sulamérica…

Due process, Employment arbitration, Human Rights, International legal organisation, International tribunals

, (Jipyong LLC)/ /Leave a comment

Immunity from lawsuits afforded to international organizations, such as the United Nations, the World Bank Group and International Labour Organization, may have the beneficial effect of ensuring their freedom from the influences of the governments of their host nations, but it may also have the side effect of depriving hundreds of thousands of international civil…

Enforcement, India, Monetary Award

, (Nishith Desai)/ /Leave a comment
YSIAC

With cross-border dispute resolution on the rise, currency variations and exchange rate fluctuations remain a concern in enforcement of foreign awards and decrees. It is not unusual for courts and arbitral tribunals to render judgments and awards in a foreign currency,1)For example, Section 48(4) of the UK Arbitration Act 1996 provides that: “The tribunal may…

Arbitrability, Brazil, Brazilian Arbitration Act, Latin America, Public Entities

, (Nanni Advogados)/ /Leave a comment

The development of the Brazilian Arbitration Act concerning the Public Administration Under the original wording of article 1 of Law no. 9.307/96 (“Brazilian Arbitration Act”), any capable person was entitled to resort to arbitration to settle disputes relating to patrimonial and disposable rights. By referring to capable persons, article 1 of the Brazilian Arbitration Act…

Journal of International Arbitration

(ArbBoutique & 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, Artificial Intelligence and Legal Decision-Making: The Wide Open? The article explores the use of Artificial Intelligence (AI) in arbitral or judicial decision-making from a holistic point of view, exploring the technical…

Antitrust arbitration, Competition Law, Merger

(Notre Dame Law School)/ /Leave a comment

It is a pleasure to return as General Editor of the Kluwer Arbitration blog after two years serving as Deputy Assistant Attorney General for the Antitrust Division of the Department of Justice (the “DOJ”). For those interested in learning about my experience at the DOJ, a brief summary is available here. My congratulations and thanks…

Arbitrability, Arbitration Agreement, China, Company Law, Corporate disputes, Non-arbitrability, PRC, Scope of an arbitration agreement, Shareholders Agreement, Shareholders Arbitration

(Pepperdine Caruso School of Law, Straus Institute for Dispute Resolution)/ /Leave a comment

Introduction1)All citations of People’s Republic of China (“PRC”) sources refer to original Chinese language materials, except for the Tsinghua China Law Review. Title translations are provided by the author. Agreements governing the relationship of shareholders to each other and to the company (e.g., shareholders’, investment or subscription agreements) (collectively, “SHAs”) frequently address matters of corporate…

Arbitration, Enforceability, Human Rights, International arbitration, The Hague Rules, Transparency

(Pinsent Masons )/ /Leave a comment
Young ICCA

Recently, focus has been brought upon the use of international arbitration to solve human rights abuses caused by businesses (“BHR Arbitration“). Disputes involving human rights violations often occur between parties of unequal financial means and commercial sophistication, and in countries which cannot offer an efficient and free from corruption judicial system. Arbitration has the potential…

Arbitration Agreement, Choice of Law, International arbitration, Portugal

(CMS Portugal )/ /Leave a comment
Young ICCA

With as many as nine identified approaches to the potential applicable law to the arbitration agreement, Marc Blessing, as an experienced author, arbitrator and lawyer, could not help but ask: “Are we thus faced with a magnificent confusion?”.1)“The Law Applicable to the Arbitration Clause” 1999, in Improving the Efficiency of Arbitration Agreements and Awards: 40…

Arbitral Award, Courts, Enforcement, Hungary, International arbitration, International Commercial Arbitration, New York Convention

(SMARTLEGAL Schmidt & Partners)/ /Leave a comment

This post analyses the decisions of Hungarian courts rendered under the New York Convention (“Convention”) and published in the last two decades. The decisions were initially made available to the international arbitration community in the ICCA Yearbook of Commercial Arbitration series. This case law of 20 years is summarized below by identifying the main directions…

ADR, International arbitration, Interview

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Young ICCA

Amanda is an independent arbitrator and a Consultant at Seymours, based in London. Her practice focuses on international commercial arbitration, domestic and international commercial litigation and Privy Council appellate procedure. Her experience includes disputes arising in relation to a variety of sectors, including the recycling, construction, automotive and finance sectors. She has acted and participated in…

Common Law, English Arbitration Act, English courts, Evidence, International arbitration

(Advocate, Arbitrator and Mediator) and (Herbert Smith Freehills)/ /Leave a comment
Clyde & Co.

It is often said that flexibility is a cornerstone of international arbitration and that the tribunal (typically in consultation with the parties) is the master of how the proceedings are to be conducted. Yet, it remains unsettled whether certain specific rules of procedure or evidence must be complied with in arbitration – sometimes, at the…

Accountability, ADR, Arbitration institution, Arbitration Proceedings, Arbitrators, Data Protection, Dispute Resolution, GDPR, Transparency

(Dimitrov, Petrov & Co.)/ /Leave a comment

The new EU data protection framework, in particular the General Data Protection Regulation (GDPR) applicable as of May 2018, dramatically shifted the focus of all organizations towards ensuring transparency and accountability in their data processing operations. The broad material scope of GDPR practically affects any private organization and practitioner within the EU. Moreover, in certain…

Arbitration institution, China, Foreign arbitration institution, Free Trade Zones

(Davis Polk & Wardwell LLP) and (Davis Polk & Wardwell, Hong Kong Solicitors)/ /1 Comment

On 6 August 2019, the State Council of the People’s Republic of China (PRC) (the “State Council”) published the “Framework Plan for the New Lingang Area of the China (Shanghai) Pilot Free Trade Zone” (the “2019 Framework Plan”). Under Article 4 of the 2019 Framework Plan, reputable foreign arbitration and dispute resolution institutions may register…

Commercial Arbitration, Conflict of Jurisdiction, Egypt, National Arbitration Laws, Nature of Arbitration

, , (Matouk Bassiouny Law Firm)/ /1 Comment

Introduction Although the nature of arbitration is still a matter of debate in the Egyptian legal system, the arbitration-friendly jurisprudence of Egyptian courts now supports the idea that the arbitration process is indeed of a judicial nature. A clear example is provided by the Supreme Constitutional Court (“SCC”),1)Supreme Constitutional Court, Challenge No. 95 of 20…

Agency, Arbitration Agreement, Arbitration clause, China, Validity

, (Shanghai International Arbitration Center)/ /Leave a comment
Shanghai International Arbitration Center (SHIAC)

Under China’s arbitration regime for foreign-related arbitration and international arbitration, the concept of a juridical seat is a statutory juncture where, in cases with no express agreement on the applicable law between the parties, Chinese courts must determine the applicable law (statutory text is available in Chinese here and unofficial English translation here).1) See Article…

Arbitration Institutions and Rules, Early Determination, Financial Services Arbitration, LCIA Arbitration, Summary procedure

, (Herbert Smith Freehills LLP)/ /Leave a comment
Herbert Smith Freehills

In 2018, financial services disputes accounted for the largest share of disputes referred to the London Court of International Arbitration (LCIA). With indications that the LCIA may adopt a form of summary dismissal procedure in its revised Arbitration Rules this autumn, the LCIA could become an even more important forum for banking and financial services…

Applicable Law, Non-State Law, OAS Guide, Party autonomy, Uniform Law

(Altra Legal)/ /Leave a comment

The Guide on the Law Applicable to International Commercial Contracts in the Americas (the “Guide”) was recently approved by Resolution 249 of 2019 of the Inter-American Juridical Committee (CJI) of the Organization of American States (OAS). The instrument particularly takes into account the OAS Mexico Convention of 1994 “on the law applicable to international contracts”…

India, Shareholders Agreement, Shareholders Arbitration

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YIAG

Class action suits were introduced in India by the 2013 Companies Act, with the hope that costs of litigation might reduce in comparison to individual cases. However, not a single class action case has been filed in the past five years. This suggests that litigation is currently not serving the interests of shareholders. Given arbitration’s…

ADR, Mediation, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Singapore Mediation Convention

(Singapore Attorney-General’s Chambers)/ /Leave a comment

International arbitration and mediation are often viewed as opponents in an antagonistic battle for the hearts, minds and wallets of disputants. The fear of arbitration losing its status as the most preferred form of alternative dispute resolution is palpable: Mediation’s key disadvantage has long been the difficulty of enforcing mediated settlement agreements. But the United…

ADR, Enforcement, International arbitration, International Mediation, New York Convention, Singapore Mediation Convention

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If the number of signatories at the launch of a convention is any measure of success, then the Singapore Convention on Mediation (Singapore Convention) had close to five times the signatories as the New York Convention (NYC) which had 10 signatories (by the time the NYC came into force there were 24 signatories). The NYC…