In a judgment of 24 May 2017 (Biogaran v International Drug Development, case n° 15-25.457), the commercial chamber of the French Cour de Cassation (Supreme Court) considered the question of whether a counterclaimant is bound by the requirements of a “multi-tier” dispute resolution clause. The clause in question required the parties to mediate as a…

A recent decision of the Seoul Central District Court provided guidance as to when a party should be considered to have waived its right to object to instances of non-compliance in arbitration proceedings. This post provides a summary of the Court’s judgment case and considers the possible ramifications of the Court’s reasoning for parties involved…

Firms will often write that for effective representation it is best to engage law firms at an early stage in the dispute process. Whilst there may be some merit in this, it may not necessarily be entirely true. It is evident that in-house roles are not what they were initially thought to be. In house…

The Hungarian Parliament recently passed new legislation on arbitration (Act LX of 2017 on Arbitration, the “2017 Act”) that will reform Hungarian arbitration law as of 1 January 2018. The 2017 Act, considering both the shortcomings of the current Hungarian legislation (Act LXXI of 1994 on Arbitration, the “1994 Act”) and the amendment of the…

On the very same day that U.S President Donald Trump announced that the United States would withdraw from the Paris Agreement on Climate Change, the Stockholm Treaty Lab Prize opened for registration. An initiative of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), this global innovation contest aims to crowdsource a model treaty…

The Hong Kong Legislative Council (LegCo) recently adopted a new law permitting the third party funding of arbitration. This comes as a welcome development, bringing Hong Kong into line with other common law jurisdictions and ensuring that it keeps pace with its international rivals. It also strengthens the position of the Hong Kong International Arbitration…

SHYLOCK “Is that the law?” PORTIA “Thyself shalt see the act. For, as thou urgest justice, be assured Thou shalt have justice more than thou desir’st.” (The Merchant of Venice. Act 4.) In the middle of uncertainty over the economic implications of a European Union without Britain and against a continuing rise in the popularity…

So called “emergency arbitration” is raising considerable interest among international arbitration practitioners, as the importance of this tool aimed at protecting the parties’ rights either during the period between the filing of an arbitration request and the constitution of the arbitral tribunal or in the course of the proceedings, before the award is rendered, is…

In an interview given to the Paris Review in 1981, Colombian writer Gabriel Garcia Marquez observed that “Caribbean reality resembles the wildest imagination.” This myth (or reality) of the Caribbean as a wild region declines into various aspects such as its unsettled climate, ruthless history, or multicultural society. This might explain, on top of their…

For a long time, Brazil remained one of the few main economies without foreign investment agreements – in the 1990s, 14 Bilateral Investment Treaties (“BITs”) were signed, but never ratified. This landscape began to change in 2015, with the emergence of the model Agreement on Cooperation and Facilitation of Investments (“ACFI”), promoted by the Brazilian…

Businesses that are party to an arbitration agreement governed by Nevada law should understand that a little-known Nevada statute renders these agreements unenforceable if a contract lacks so-called “specific authorization” indicating that a person affirmatively assented to the arbitration provision itself. While the Nevada Supreme Court has applied this rule to invalidate arbitration agreements, a…

In June 2014, at the ITA Workshop in Dallas, I heard a passionate woman presenting her mission of increasing fairness, transparency, accountability, and diversity in the arbitrator selection process, and how she intended to do this. “I want to support this” is what I thought. Roger Alford was so kind to introduce me to this…

From the mediation of sports disputes to a recent mediation law in Brazil and onto lessons learnt from teaching mediation and negotiation courses in universities in Germany and New Zealand, the past month on the Kluwer Mediation Blog has provided a rich assortment of posts. A short summary of each post follows. In Investing In…

Who Should Regulate the International Bar? The regulation of professional ethics of the international bar is among the most hotly debated issues in international arbitration (inter-state, investor-state, and commercial). It reflects the regulatory gap that has developed as proceedings before international courts and tribunals have proliferated and counsel diversified. Addressing this issue is crucial, as…

On May 30, 2017, Volterra Fietta and the University of Notre Dame hosted a debate of whether foreign investors can sue the United Kingdom for a hard Brexit. The recorded video is now available for viewing. Markus Burgstaller and I presented the case that foreign investors may have viable claims against the UK, while Jeremy…

Mark Twain once wrote that a person with a new idea “is a crank until the idea succeeds.”1)Pudd’nhead Wilson’s New Calendar, in Following the Equator (1897). The Merriam Webster dictionary defines “crank” as “an annoyingly eccentric person.” Innovations and new ideas on the verge of implementation seem to arrive almost weekly in international arbitration. They…

1. I have written elsewhere about the uncertainty that the Portuguese courts have experienced in defining the “international public policy” of the Portuguese State and, more specifically, in finding in some particular cases that there was a situation amounting to a violation of that standard for the purposes of annulment of (or refusal to recognise)…

In April 2010, Professor Jan Paulsson delivered his inaugural lecture as holder of the Michael R. Klein Distinguished Scholar Chair at the University of Miami School of Law where he expressed the view that the practice of unilateral appointments (or nominations) of arbitrators is a moral hazard which should be removed. This lecture sparked debate…

On 24 February 2017, the Government of Vietnam promulgated Decree No.22/2017/ND-CP on Commercial Mediation (the “Decree”). It is the first legislation specifically governing commercial mediation in Vietnam. The Decree is inspired by the UNCITRAL Model Law on International Commercial Conciliation (the “UNCITRAL Model Law”), but includes several local modifications. From the drafting process, the Decree…

On Thursday, the arbitral tribunal in Croatia/Slovenia rendered a final award on the merits of the dispute despite what a previous post on this blog called “severe breaches of duty of confidentiality and impartiality” during the arbitral proceedings. In commercial and investment arbitration, where procedural irregularities arise, either party can seek annulment of the award…

The analysis of Ukrainian court practice enables us to share our thoughts on trends regarding the recognition and enforcement of GAFTA/FOSFA awards in Ukraine, and to provide tips that may help to enforce this type of awards in the future. Seven Trends on the Recognition and Enforcement of GAFTA/FOSFA Awards in Ukraine 1. Ukrainian courts…

SCC was one of the first institutions to provide for emergency arbitrator proceedings in its rules. In 2010, the new Appendix II was added to the SCC Arbitration Rules and the Rules for Expedited Arbitrations (“SCC Rules”), allowing a party in need of prompt interim relief to receive a decision from an emergency arbitrator where…

Wolters Kluwer Legal & Regulatory U.S. today announced its collaboration with Arbitrator Intelligence (AI) to improve resources available to the arbitration community and bring more transparency to the arbitration process. Through this collaboration, Wolters Kluwer will provide AI’s Arbitrator Intelligence reports on Kluwer Arbitration, making highly valuable data widely available and providing users with important…

In a judgment dated 8 June 2017, the Hong Kong Court of First Instance (the “Court”) rejected an assertion of Crown immunity by China National Coal Group Corporation (“China Coal”) (a PRC state-owned enterprise (“SOE”)) and granted a charging order against the shares it held in a Hong Kong company, China Coal Hong Kong Limited…