The first blog in this two-part series, published last year, discussed the growing concern of arbitration users over “due process paranoia”. In that first blog, due process paranoia was defined as the perceived reluctance by arbitral tribunals to act decisively (for example by rejecting applications for extensions of time, refusing amendments to submissions, rejecting new…

A new development in the third party funding arena prompts an increased analysis of the theoretical foundations of the nature of third party funding. At the moment, there are divergent views on its proper place and treatment, and with increased prevalence a piecemeal approach with little theoretical groundwork risks creating a minefield resulting in unpredictability…

Introduction As noted in Part 1 of this two-part series, the ability to select an arbitrator is widely considered one of the most valuable characteristics of international arbitration. While Part 1 focused on removal of arbitrators for apparent bias, this Part 2 focuses on the parties’ ability to remove an arbitrator if he/she proves unable,…

Introduction The ability to select an arbitrator is widely considered one of the most valuable characteristics of international arbitration.  According to the Queen Mary University and White & Case 2015 International Arbitration Survey, selection of arbitrators was considered its fourth most important characteristic, with 38% of respondents rating it among their top three. Surely, then,…

A few months ago, Queen Mary University of London and White & Case released their third International Arbitration Survey entitled “Improvements and Innovations in International Arbitration”.  One of the many interesting findings of this survey is the apparent growing concern of some users of arbitration with what can be termed “due process paranoia”. Due process…

In a blog earlier this year (see here), I reported on the emergence of the Abu Dhabi Global Market, in shorthand ADGM, as a free zone seat of arbitration in its own right, offering a viable alternative to seating an arbitration in the Dubai International Financial Centre (DIFC). To recap, choice of the ADGM as…

In a recent long-anticipated move, the Emirate of Abu Dhabi has finally expanded its own arbitration offering by adding a further arbitration facility in the Abu Dhabi Global Market (ADGM). More specifically, on 17 December 2015, the Board of Directors of the ADGM enacted the so-called ADGM Arbitration Regulations 2015, following an initial consultation process,…

The views expressed in this article are those of the author alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or the author’s chambers. The legal landscape in Latin America is rapidly changing. Not only has Latin America more bilateral Trade Agreements than any other region in the world, but it…

The recent Court of Appeal of England and Wales (“the Court”) judgment in the case of The London Steamship Owners’ Mutual Insurance Association Ltd v The Kingdom of Spain and The French State [2015] EWCA Civ 333 (“the Judgment”) will make interesting reading for those concerned with the subject of arbitration. The judgment rendered covers…

The Main Approaches Regarding Enforcement of Annulled Foreign Awards The ongoing issue of whether an award that was set aside in the country of origin should be enforced has recently arisen in England and Wales. This issue has divided jurisdictions in two camps: the first camp is comprised of jurisdictions that are ready to enforce…

An often cited advantage of arbitration, as opposed to litigation, is the finality of the process. The grounds for time-consuming and costly challenges and appeals are limited. Under the English 1996 Arbitration Act (the “Act”), parties can only challenge or appeal an arbitration award on three grounds: (i) a challenge on the grounds that the…

The success of international commercial arbitration as a form of alternative dispute resolution much depends on the extent to which parties may vindicate their rights through the enforcement of any arbitral award. For this reason, to date – consistent with the pro-arbitration approach adopted by courts in many jurisdictions – English commercial court judges have…

In the recent case of OMV Petrom SA v Glencore International AG [2014] EWHC 242 (Comm) (07 February 2014) (“Petrom v Glencore”), the English Commercial Court was faced with the question of whether issues arising and decided in an arbitration should be treated as settled in subsequent court proceedings brought by a non-party to the…

I. General Aspects of Enforceability English Worldwide Freezing Order (“WFO”) being called by Matthias Scherer and Simone Nadelhofer one of the “nuclear weapons” of commercial litigation and arbitration, is a preliminary injunction preventing a defendant from disposing of assets pending the resolution of the underlying substantive (arbitration or court) proceedings. Its issue in support of…

The potential intervention of Indian courts over foreign seated arbitrations is a hot topic in international arbitration. On 28 May 2014, the Supreme Court of India (“SCI”) heated up the debate by handing down a judgment in Reliance Industries Limited & Anr v Union of India. The SCI found that Indian courts had no jurisdiction…

Allegations of fraud and corruption are increasingly encountered in international arbitrations but there is at times a perception that international arbitration, which is by nature a private and consensual dispute resolution mechanism, is ill-equipped to handle the challenges thrown up by such allegations. This is particularly so when looking at arbitral procedure. Is this perception…

and Nikki O’Sullivan, Senior Associate at Berwin Leighton Paisner LLP In a recent decision of the English Commercial Court, Flaux J restated the general principle that the focus of an enquiry under Section 68 of the Arbitration Act 1996 (“the Act”) is to ascertain whether due process has been observed in the making of an…

There are many clients who are often engaged in industrious works that result in disputes. Typically, the applicable arbitral agreements requirement submitting claims to international arbitration and, in this author’s opinion, appropriately so. However, these same clients may also be subject to frequent claim assertions that lack any true merit. Despite this, there is not…

A recent Australian case has resulted in a ruling that arbitration clauses, jurisdiction clauses and choice of law clauses in charter parties involving shipments to or from Australia are now unenforceable if such clauses seek to limit the jurisdiction of any Australian court. On 6 October 2009 the Claimant ship owner, Dampskibsselskabet Norden A/S (“DKN”),…

In June 2010 the Court of Appeal’s decision in Jivraj v Hashwani caused dismay in the arbitration community. Does an arbitration agreement which provides criteria for the appointment of arbitrators risk falling foul of the Employment Equality (Religion or Belief) Regulations 2003 (the “Regulations”) or other UK anti-discrimination law? The Supreme Court judgment of 27…

The English Court of Appeal’s recent decision in Sulamerica CIA Nacional De Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638, which is discussed in a recent post by Guy Pendell, underscores an important weakness in the international arbitration system’s legal framework. While everyone accepts that the arbitration agreement is the foundation of an…

On 16 May 2012, the Court of Appeal of England & Wales (“CA”) dismissed an appeal against an anti-suit injunction restraining three insured entities from pursuing proceedings in the Brazilian courts against their insurers (Sulamerica CIA Nacional De Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638). This is the latest in a series…

On 17 July 2012, the Privy Council (UKPC 27) passed a landmark judgment of relevance for creditors of States seeking to enforce against the assets of State-owned corporations. The Privy Council held that only in ‘quite extreme circumstances’ would a State-owned corporation (a separate juridical entity formed by the State for commercial or industrial purposes)…