Appeal, Finality, International arbitration, Surveys

(Bryan Cave Leighton Paisner LLP)/ /Leave a comment
Bryan Cave Leighton Paisner LLP

Last week BCLP released the results of its annual International Arbitration survey on the topic of appeals against a tribunal’s decision on the merits. Respondents to the survey comprised arbitrators, corporate counsel, external lawyers, litigation funders, academics and those working at arbitral institutions. Procedures for court challenge of an award on the basis of procedural…

Appointment of arbitrators, BIT, Dutch Model BIT, foreign direct investment, ISDS, Party autonomy, Sustainability

(Albright StoneBridge Group)/ /Leave a comment

On 22 March 2019, the Dutch Government released the text of the new model Netherlands BIT. Its idealism has been applauded: the new model prioritizes gender and regional diversity as well as the United Nations sustainability goals. Yet, what would the effect be of some of the model’s provisions on Foreign Direct Investment (‘FDI’)? For…

Ecuador, Enforcement, Exequatur, International Award, Latin America

(Tobar ZVS)/ /Leave a comment

In 2015, Ecuador changed its General Organic Code of Processes (procedural law or COGEP) and imposed an exequatur procedure for foreign awards. The Law of Productive Development, Attraction of Investment, Employment Generation and Tax Stability (Investment Law) enacted in 2018 repealed this requirement. Nevertheless, despite this amendment, there are still practical difficulties that parties face…

Anti-arbitration, India, Injunction, Jurisdiction, Trust

(JSA, Advocates & Solicitors) and (J. Sagar Associates)/ /Leave a comment

In a recent decision, Bina Modi and Ors. v. Lalit Modi and Ors., CS(OS) 84 and 85/2020, a single judge of the Delhi High Court has cast doubt on the jurisdiction of Indian courts to grant injunctions restraining arbitral proceedings (popularly called anti-arbitration injunctions). While the grant of anti-arbitration injunctions by Indian courts has been…

Arbitration, IBA Guidelines on Conflicts of Interest, Nigeria, Set aside an arbitral award

(AELEX)/ /2 Comments

The ruling given on 25 February 2020 (‘Ruling’) by the High Court of Lagos State in Nigeria (‘Lagos High Court’), setting aside an award in the case of Global Gas and Refinery Limited (‘Global Gas’) and Shell Petroleum Development Company (‘Shell’) on the ground of arbitrator non-disclosure, raises concern to the arbitral community both in…

Efficiency, Powers of the tribunal, SCC, Virtual hearings, Webinar

and (Mannheimer Swartling)/ /Leave a comment

Two recent online seminars, organised in the context of the Online Seminar Series of the Stockholm Chamber of Commerce (SCC), focused on the fast-track digitalisation into which the world of international arbitration is forced as a result of the pandemic. The first, held on 29 April, addressed the current topic of Online Hearings When the…

Arbitration, Dispute, Dispute Resolution, Dispute Settlement, ICSID, Investment Arbitration, Norway

(Bottega Di Bella)/ /Leave a comment

Recently, the first-ever treaty-based arbitration against Norway was registered with ICSID. The Request for Arbitration was submitted by a Latvian investor, Mr. Peteris Pildegovics, and his company, SIA North Star. This post provides a background to the dispute, outlines possible claims, elaborates on its ramifications, and predicts further arbitrations. The dispute at hand is similar…

Austria, Deliberations, Enforcement, Ordre Public, Supreme Court

(Bitterl König Attorneys-at-Law)/ /2 Comments

In a recent decision of November 2019 the Austrian Supreme Court (“OGH” in German) considered whether an arbitral award rendered by the Chamber of Industry and Commerce of Belarus shall be declared enforceable and emphasized the importance of deliberations in the context of the ordre public standard to reach an enforceable award. In a nutshell,…

Arbitration, Arbitration Proceedings, WTO

(OP Jindal Global University, India)/ /Leave a comment

Since 2017, the appointment of members of the Appellate Body (‘AB’) of the Dispute settlement system of the World Trade Organisation (‘WTO’) has been blocked by the United States (‘US’). This has disrupted the functioning of the WTO dispute settlement system. The US claims that it has blocked the appointment for serious reasons: the AB…

International Law, Intra-EU BITs, Intra-EU Investment Arbitration, Intra-EU ISDS, Investment Arbitration, Sunset clauses

(WAGNER Arbitration)/ /Leave a comment

The long-awaited Agreement to terminate intra-EU BITs (bilateral investment treaties) was signed on 5 May 2020 (the “Termination Agreement”). According to the European Commission, the Termination Agreement “implements the March 2018 European Court of Justice judgment (Achmea case), where the Court found that investor-State arbitration clauses in [intra-EU BITs] are incompatible with EU Treaties.” The…

Courts, India, Seat of the arbitration, Venue

(JSA, Advocates & Solicitors) and (AnchayilKumar)/ /Leave a comment
YIAG

This blog has previously discussed the issue of jurisdiction of Indian courts over foreign-seated arbitrations and the issue of Indian parties choosing a foreign seat of arbitration. However, a more fundamental issue concerns the interpretation of arbitration agreements to determine the choice of seat. Since September 2018, the Supreme Court of India (“Supreme Court”) has…

Belt Road Initiative, China, currency, Financial Industry, USA

(Bond’s Chambers)/ /Leave a comment

China’s Belt and Road Initiative (“BRI”) is well known as the largest infrastructure construction program in world history.1)This post is expressed as Michael J. Bond’s personal opinion and does not represent the views of any organization or party. President Xi Jinping announced its two components in 2013; one is a land-based Silk Road Economic Belt…

Corporate Restructuring, Investment Arbitration, Investor, Investor-State arbitration, Investor-state tribunals, Piercing of the Corporate Veil

(British Institute of International and Comparative Law (BIICL))/ /Leave a comment

Traditionally, nationality for corporate entities has been regulated by national law, often by reference to whether a corporation has a seat in a country or was incorporated under its laws. However, international investment law has departed from the generally accepted rules of international law on the nationality of corporate persons. Already in the 1960s, the…

Applicable Law, CISG, Conflict of Laws

(International Centre for Dispute Resolution (ICDR))/ /Leave a comment
International Centre for Dispute Resolution (ICDR)

The year 2020 marks the 40th anniversary of the United Nations Convention on Contracts for the International Sale of Goods (CISG), one of the most important substantive instruments in international commercial law. To celebrate this occasion, the ICDR Young and International (Y&I) group and NYU’s Center for Transnational Litigation, Arbitration, and Commercial Law organized a…

Arbitrability, Brazil, Intellectual Property, Patents, Trademarks

(Salusse, Marangoni, Parente e Jabur Advogados)/ /1 Comment

International background on IP arbitration The past decade has witnessed a substantial growth in the use of arbitration to solve Intellectual Property (“IP”) disputes. To the day, the WIPO Arbitration and Mediation Center (“WIPO Center”) has administered over 650 arbitration, mediation and expert determination cases, a number which grows faster every year, as portrayed by…

Commercial Arbitration, French Law, lex contractus, UNIDROIT Principles

(Laborde Law) and (Talma Dispute Resolution)/ /Leave a comment

The Paris Court of Appeal recently upheld an ICC award where the arbitral tribunal exclusively applied the UNIDROIT Principles of International Commercial Contracts (‘the Principles’) as lex contractus failing any agreement on the applicable law between the parties. This recent development deserves further analysis as it confirms French courts’ favourable attitude towards the application of…

Construction arbitration, Corruption, Latin America, Res Judicata, Standard of Proof, Third Party

, (Philippi Prietocarrizosa Ferrero DU & Uría)/ /Leave a comment

The Ruta del Sol arbitral award was one of the most important awards in 2019 in Colombia and possibly in the entire region. The arbitral tribunal sitting to resolve the Ruta del Sol arbitral proceeding (the “Tribunal”) determined the consequences of securing an infrastructure concession contract in Colombia through corrupt practices and served as pioneers…

Africa, Arbitration, Virtual hearings

(Africa Arbitration Academy ) and (Zulficar & Partners)/ /1 Comment

Necessity is the golden chord that lies at the base of every innovation and invention. As countries around the world continue to implement different measures to combat the COVID-19 pandemic and to contain and deal with its ramifications, all stakeholders (including businesses and institutions) are now forced to innovate and make significant changes to the…

Disclosure, Independence and Impartiality, International Commercial Arbitration, Investment Arbitration, Working Group III, WTO

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The strength of any dispute settlement mechanism will depend upon its consistency with the requirements of independence and impartiality. Disclosures made by adjudicators prior to adjudicating a dispute, and challenges raised against adjudicators during the course of dispute settlement, target a perceived absence of independence or impartiality. The purpose of this post is to juxtapose…

Australia, Disclosure, Discovery, Pre-Action Disclosure, Pre-arbitral procedure, Preliminary Discovery

, , (Herbert Smith Freehills LLP)/ /Leave a comment
Herbert Smith Freehills

The availability and scope of ‘discovery’ or document production significantly differs across jurisdictions, most notably when comparing litigation in common law and civil law courts. In the field of international arbitration, the compromise position adopted by the International Bar Association’s Rules on the Taking of Evidence in International Arbitration is to permit disclosure of documents…

Arbitration Agreement, Choice of Law, English courts, Express choice, International arbitration, Law governing the arbitration agreement, Proper law of arbitration agreement

(Mihaela Maravela Law Office)/ /Leave a comment

In the recent ruling of 29 April 2020, the England and Wales Court of Appeal, departing from Sulamérica, has held the seat of arbitration as an implied choice of the law of the arbitration agreement in cases where parties expressly chose the law applicable to the main contract and the seat of arbitration under a…

Business and Human Rights Arbitration, Human Rights, Procedure, Third party funding

/ /1 Comment

In a recent post, we were told to ‘Roll Out the Red Carpet’ for the Hague Rules on Business and Human Rights Arbitration (the “Rules”). Indeed, the Rules are a new development within the field to assist with disputes relating to human rights and their violations. Following a process of draft reports and public consultations,…

Anti-corruption, Arbitration, Corruption, ISDS, Peru, Protectionism, Transparency

(Sarens)/ /Leave a comment

On January 24, 2020, Peru enacted the Emergency Decree No. 020-2020 (the “Decree”), published in Peru’s Official Gazette, El Peruano.1)Emergency Decree Modifying Legislative Decree Nº 1071, Legislative Decree Norming Arbitration, Emergency Decree No. 20-2020 (Jan. 24, 2020) (Peru). The Decree amends Peru’s Legislative Decree No. 1071 (the “Arbitration Law”), in force since 2008,2)Legislative Decree Regulating…

Interview, Interview of our editors

(Australian National University), (Hogan Lovells), (Dentons & Co, Dubai), and (Peter & Kim)/ /1 Comment

In January 2009, Professor Roger Alford published the first post on the Kluwer Arbitration Blog (the Blog), launching what is now considered an indispensable tool for arbitration practitioners and academics alike. Today, the Blog offers daily perspectives on the latest developments in international arbitration, reflecting our “unique” and “fascinating” international arbitration community. Our 31 editors,…