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…
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…
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…
Introduction There are parallel initiatives currently considering a potential reform of the international Investor-State Dispute Settlement (“ISDS”) system. Particularly, the work presently taking place at the United Nations Commission on International Trade Law (“UNCITRAL”) by its Working Group III (WGIII) is one of the forums that continues to attract attention as we get closer to…
Tribunal Directions re GDPR in Tennant Energy vs. Canada A NAFTA tribunal in the Tennant Energy vs. Canada case recently issued directions by email to the parties stating that “the Tribunal finds that an arbitration under NAFTA Chapter 11, a treaty to which neither the European Union nor its Member States are party, does not,…
In July, San Jose, Costa Rica and Monterrey, Mexico hosted the latest Young ITA Talks forum, which was also carried via videoconference. Panelists from all over Central America and Mexico gathered to discuss and share current trends in their respective countries regarding the recognition, enforcement and annulment of arbitral awards. The in-person panels were held…
This post analyzes the problem stemming from the different form requirements established by the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“NYC”) and the 1980 United Nations Convention on Contracts for the International Sale of Goods (“CISG”) with respect to the formation of the agreements the two Conventions regulate….
In the case of ZL Offshore [translation] (“ZL”) v PICC P&C Shipping Insurance Operation Centre [translation] (the “Operation Centre”) and PICC P&C Zhoushan City Branch [translation] (the “Zhoushan Branch”) pronounced on 20 March 2019 (2019 Min 72 Min Chu 149), the Xiamen Maritime Court (the “Court”) of People’s Republic of China dismissed the challenge against…
The Arbitration & Conciliation (Amendment) Act, 2019 (“the 2019 Amendment”), which amends the Indian Arbitration & Conciliation Act, 1996 (“the Act”), came into force with effect from 9 August 2019. The Law Minister of India was recently quoted as saying in one of the press releases (after the Bill in support of the 2019 Amendment…
Introduction The lex arbitri of Switzerland is well-known for affording parties maximum autonomy and procedural flexibility. In line with these principles, parties to international arbitration proceedings have the possibility to opt out of the otherwise applicable Chapter 12 of the Swiss Private International Law Act (“PILA”) and to opt into the statutory rules governing Swiss-seated…
Introduction There have, more recently, been a number of views on the proper scope of the jurisdiction of the Abu Dhabi Global Market (“ADGM”) as an arbitral seat. According to one view, there are no limitations to the scope of arbitration in the ADGM, according to another, more cautious view, arbitration in the ADGM requires…
The interplay between the principle of party autonomy and procedural flexibility in arbitration greatly accounts for the growth of international arbitration as the preferred method of dispute resolution for cross-border commercial disputes. The growing trend of this preference is reflected in the most recent International Arbitration Survey conducted by the School of International Arbitration at…
With the rise of e-contracts and smart contracts in commercial transactions globally, it becomes important to analyse developments in ADR such as blockchain arbitration. The concept of blockchain arbitration is very recent and it seeks to use the advantages of the technology in dispute resolution (how blockchain arbitration works can be read here). However, one…
On 19 July 2019, Beijing Arbitration Commission a.k.a. Beijing International Arbitration Center (the “BAC/BIAC”) released its amended Arbitration Rules (the “Rules”) and Fee Schedule (the “Fee Schedule”), both of which will take effect on 1 September 2019. An Overview of BAC/BIAC’s New Fee Schedule The amendments introduced many reforms to reduce the time and…
Kazakhstan has been making concerted efforts to increase foreign investment and to reduce its dependency on extractive industries which have long dominated production. In 2015, when it was ranked 77th out of 190 countries for doing business, the then President introduced a “100 Concrete Steps” Plan to make the country one of the top 30…
The tendency of arbitral tribunals constituted under the Energy Charter Treaty (ECT) to reject intra-EU jurisdictional objections, despite contrary views expressed by most EU member states, was recently continued in the case of Landesbank Baden-Württemberg (LBBW) and others v. Kingdom of Spain (ICSID Case No. ARB/15/45).1)Decision on the Intra-EU Jurisdictional Objection, dated 25 February 2019,…
The assignment of contractual rights is a common business practice. An important question concerning the assignment of rights under a contract is the fate of the arbitration agreement related to those rights and whether it is transferred automatically to the assignee so that such arbitration agreement becomes effective and binding in the relationship between the…
