The Agreement Establishing the African Continental Free Trade Area (AfCFTA Agreement) went into effect on May 30, 2019. The AfCFTA is the next step in a process set in motion in 1994 when the Treaty Establishing the African Economic Community (Abuja Treaty) entered into force. The Abuja Treaty put in place the framework for the establishment…
Introduction Since the enactment of the Argentine Civil and Commercial Code (the “CCCN”),1)The CCCN, Law No. 26.994, is in force since August 1, 2015. Argentina counts on a national statute to regulate the “arbitration agreement”. This legislative milestone has been mostly welcomed by the arbitral community, although some of its provisions have been subject to…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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”…
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…
