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Arbitration of Cross-Border M&A Disputes

In recent years, the mergers and acquisitions (M&A) market has shown steady signs of recovery from the effects of the Global Financial Crisis. According to a survey of over 735 M&A professionals recently conducted by KPMG, 82% of survey participants said they were planning acquisitions in 2015.  Respondents cited large cash reserves, opportunities in emerging markets and the availability of credit on favourable terms as some of the key drivers of deal activity.  Research conducted by Deloitte in 2014 suggests that a surge in deal activity is set to continue into 2015.  84 per cent of 2,500 corporate and private equity respondents anticipated a sustained pace of M&A activity over the next [...]

The Hidden Amiable Compositeur

by Anya George, Schellenberg Wittmer Ltd

for YSIAC

 

An arbitrator who decides a case by reference to general notions of fairness and equity, rather than in accordance with a strict application of legal rules, is generally referred to as an amiable compositeur or as deciding ex aequo et bono (even though these notions are not completely synonymous, the terms will be used interchangeably here). In such cases, the arbitrator will, as a rule, be acting with the express authorisation of the parties.

 

However, there may be situations in which arbitrators, without being so empowered, take it upon themselves to depart from the terms of the contract or a rigorous application of the law and, in ef [...]

Appointing the Dispute Board – Why It Differs from Arbitration Appointments

As contracts containing Dispute Adjudication Boards (“DAB’s”) as a mandatory prerequisite to arbitration are on the increase (and being recognised as such by many legal systems) what issues are there around enforcing the establishment of such a Board? There is always, especially when a contentious situation has arisen, a party more reluctant to engage in resolving matters. In contracts which provide for dispute boards this is evident where one of the party which refuses to agree the appointment of a board and will not sign a dispute adjudication agreement. Can a dispute board be properly constituted by only one party? Is it any different to appointment of an arbitration tribunal and i [...]

30th Anniversary of the School of International Arbitration Live Streamed at Kluwer Arbitration Blog

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We are pleased to announce the 30th Anniversary of the School of International Arbitration, Queen Mary University of London. To commemorate its anniversary, the School of International Arbitration will be presenting in London a Celebration Conference on the “The Evolution and Future of International Arbitration: The Next 30 Years”.

Kluwer Arbitration Blog will be live streaming on the 20th & 21st April, both days from 9:15 am to 6:00 pm British Summer Time (here).

The event features some of the School of International Arbitration Academics: Professor Julian Lew QC, Professor Loukas Mistelis, Professor Stavros Brekoulakis, Norah Gallagher and Dr Remy Gerbay.

The Anniversary will also hav [...]

The New Slovak Arbitration Act Applicable From January 2015: Has It Progressed Sufficiently?

The new Slovak Arbitration Act (“SAA”) was adopted by the Parliament (Act. No. 336/2014 Coll.), and is in force as of January 1, 2015. In order to see whether the SAA will promote Slovakia as an arbitration venue, main novelties and amendments brought by this new act are analysed in this blog entry.

Arbitrability: Under the old law, parties were allowed to arbitrate disputes, which were subject to settlement in courts under art. 99 of the Slovak Code on Civil Procedure. The amendment provides under art. 1(2) that arbitrable disputes are those, which are related to legal relations and “can be settled by an agreement of the parties [under art. 585 of the Slovak Civil Code (“SCC”)] in [...]

From Iura Novit Curia to Zeno’s Paradox of Motion

The recent annulment decision in Tza Yap Shum v. Peru (ICSID Case No. ARB/07/6) has brought back the discussion regarding the ‘pure’ adversarial nature of investor-state arbitration system.

Mr. Shum, a Chinese investor claimed indirect expropriation under the Agreement on Promotion and Reciprocal Protection of Investments (APPRI) between the Governments of Peru and China arising out of several measures taken by Peru’s tax authority SUNAT. Peru challenged the jurisdiction of the tribunal arguing that the claim regarding the unlawfulness of the expropriation was not within the scope of the offer to arbitrate. However, the tribunal upheld its jurisdiction, found a violation of the APPRI a [...]

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