International Arbitration Community Research Articles

The temptation of Occam’s Razor: jurisdiction, admissibility and party autonomy

Abstract Since the implementation of the UNCITRAL Model Law on International Commercial Arbitration in 1985, its jurisprudence has been developed in a broad array of aspects amongst which is the distinction between jurisdiction and admissibility. It has been said that the distinction is a useful tool in adjudicating the issue of whether an arbitral award should be set aside by a domestic court—but is it necessarily so? In C v D (2023) 26 HKCFAR 216, the Hong Kong Court of Final Appeal had the opportunity to revisit the usefulness of the distinction. Given that the Court was divided on the issue, C v D not only provides two lines of thought for the international arbitration community to reflect on the distinction between jurisdiction and admissibility but also provides a reference for Model Law jurisdictions in deciding future cases.

The Arbitration Exclusion under the Brussels Regime: A Story of Colliding and Sinking Ships

‘O Captain! My Captain! our fearful trip is done’. In Walt Whitman’s poem ‘O Captain! My Captain!’, the ship arrived at the harbour with cheering crowds awaiting its arrival. In contrast, the ships on which the arbitration exclusion sailed under the Brussels Regime were assigned a different destiny. They either ran into collisions or sank to the bottom of the ocean. In this regard, the Court of Justice of the European Union (CJEU) was requested to rule on the scope of the arbitration exclusion. In particular, the absence of a definition of the term ‘arbitration’ gave rise to uncertainty and controversy which the CJEU was asked to resolve. The approach that the CJEU pursued to resolve this issue changed significantly throughout the history of the arbitration exclusion, reflecting the CJEU’s growing mistrust towards arbitration. This has left a mark on the arbitration landscape within the European Union (EU) that has earned criticism from the international arbitration community. In the wake of the CJEU’s most recent ruling concerning the arbitration exclusion, and the following reaction of the English High Court, this article evaluates whether the arbitration exclusion has followed the ships on which it sailed to the bottom of the ocean, or whether it was handed a lifebelt for its continued existence. Arbitration, Litigation, Award, Arbitration Exclusion, European Union, Brussels I Recast, European Court of Justice, Parallel Proceedings, West Tankers, London Steamship Owners

Article: Into the Future With Eyes Wide Open: International Arbitration in the Digital Age

Technological developments have long had a major impact on the practice of international arbitration. The progression of technological advances in this practice has already provided indisputable benefits, empowering panels and lawyers to handle increasingly complex disputes more quickly and efficiently. However, important issues arise, particularly with regard to procedural fairness and due process. Major institutions such as the International Chamber of Commerce (ICC) and Chartered Institute of Arbitrators (CIArb) have developed guidelines and recommendations designed to help the international arbitration community address potential risks in these areas. This article considers Marshall McLuhan’s analytical method to dig deeper into the impact of technological advances. The future promises more breakthroughs, and professionals are advised to remain aware of how they can inadvertently adapt their thinking and behaviour to risks in procedural fairness and due process.

Viewing our World through a Different Lens: Environmental and Social Considerations in International Arbitration

Climate change is the greatest challenge humanity will face this century, yet the international arbitration community has been slow to recognize its significance and to react to its effects. The international arbitration community was similarly slow to address the under-representation of women in arbitration, with measurable change in this area only being seen in the last five years. We have yet to realize any significant improvement achieving a more diverse community more generally, beyond the narrow issue of the under-representation of women. This article addresses the behavioural changes which have been achieved in these areas and considers those that remain to be implemented to embed environmental and social considerations into the culture of international arbitration. It argues that every dispute should be viewed through a diversity and an environmental lens and identifies the changes that are needed now. We must secure change to ensure that arbitration meets the needs of its users, as we look to a future which looks very different to even the recent past.

Revizija švajcarskog zakona o arbitraži

Arbitration is a popular method for the effective and efficient resolution of commercial disputes. Switzerland, with its tradition of neutrality and cultural diversity, has become one of the leading places for arbitration worldwide. In 2021, Switzerland enacted its revised arbitration law, Chapter 12 of the Swiss Private International Law Act. e revision introduced new provisions, which make the arbitration law more accessible for foreign users. At the same time, the legislator avoided overloading the law with unnecessary provisions. e Swiss arbitration law remains concise and straightforward and will continue to serve the international arbitration community well.

A Tribute to Johnny Veeder

In a number of ways, over a number of years, Johnny Veeder included the two us in the international arbitration community that he did so much to establish. One of his great gifts was to make us, like many others, not just feel but also believe that we deserved to be included. Even though Johnny was the ultimate arbitration insider, because of his immense intellectual authority, his involvement in high-profile cases and committees, and an unparalleled international network of colleagues, it was clear to us that he used his status to not only to welcome new entrants, but also to affirmatively encourage new entrants. That is certainly how he treated us. By way of two examples: When we reread Johnny’s 2001 Goff Lecture, ‘The Duty to Arbitrate in Good Faith’, we wish we had heard him deliver it in person. It is, after all, the foundation for anyone who is...

I now pronounce you ‘null and void’: manner of determination and the applicable law under the New York Convention

Abstract The phrase ‘null and void, inoperative or incapable of being performed’ contained in Article II(3) of the New York Convention has attracted relatively little attention in the international arbitration community. It nonetheless retains the potential to have a significant impact on arbitration agreements. This article considers the meaning of ‘null and void’ and highlights the current varied understandings and applications of this term, before re-iterating support for an application of an internationally neutral understanding of the term. What this article seeks to ultimately achieve is to provoke further consideration of the terms ‘null and void’, with a view to ensuring greater clarity and uniformity in its understanding and application in the long term.

Is Arbitration Helping or Hindering the Protection of the Environment and Public Health?

On the occasion of the sixth edition of the Casablanca Arbitration Days, some leading arbitration practitioners from the Middle East and North Africa (MENA) region and further afield convened to discuss an important and topical issue: ‘is arbitration helping or hindering the protection of the environment and public health?’. This conference examined the various areas where arbitration and the protection of the environment and public health interface. First, from a substantive view point, it is clear that environmental issues have become prevalent in commercial arbitration and that the latter has proven to be well suited to resolve such issues. Secondly, while some steps have already been taken in this respect, the climate change crisis requires the international arbitration community to change its ways and arbitrate in a much more environmentally friendly way. Thirdly, amidst the progressive emergence of environmental issues in investment arbitration and the responses that have already been provided by investment treaty arbitral tribunals, numerous uncertainties remain in respect of the way in which environmental issues should be treated. There is no doubt that environmental issues will give rise to intense debates before investment tribunals (and courts) and in legal literature in the near future. Finally, in addition to the protection of the environment, the arbitration community has already begun addressing (and, we would submit, successfully so) the substantive and procedural issues related to the protection of public health, in particular as a result of the COVID-19 global pandemic. This article provides an account of what was said about these various topics during this edition of the Casablanca Arbitration Days. Arbitration, Environment, Public health, Climate, Challenges, Digitalization, Disputes, Commercial, Investment, COVID-19

Investor State Arbitration in a Changing World Order

Abstract In Investor State Arbitration in a Changing World Order, the authors examine the sustained worldwide challenges to investor state arbitration arising from across the political spectrum. These challenges have led to extensive and thoughtful proposals for reform from the international arbitration community, domestic lawmakers, and international bureaucrats. These reforms play an important role in the continuous evolution of investor state arbitration, and will enhance the quality of justice rendered. However, the authors argue, these reforms are insufficient to resolve the domestic political challenges that investor state arbitration faces. Only political solutions that justify for broad populations the international flow of capital and the independent resolution of disputes arising therefrom can preserve the institution of investor state arbitration. Absent the more equitable distribution of the benefits associated with the international flow of capital, political support for investor state arbitration will remain tenuous, notwithstanding the significant de-escalatory benefits investor state arbitration offers.

International Arbitration: Trends in Mitigating the Effect of COVID-19

Essay examined how the international arbitration community have coped with the effects of the Coronavirus pandemic.

Enforcement of intra-EU investment arbitration awards in the UK: Achmea, Micula and beyond. Comment on “Micula and others v Romania UKSC judgment, 19 February 2020”

The success of any award rests in its enforcement. The judgment of the Court of Justice of the EU (the “CJEU) in the Achmea case has produced difficulties as to the enforceability of intra-EU investment awards. A recent judgment rendered by the UK Supreme Court (the “UKSC”) (the “Judgment”) in the long-running and highly controversial Micula and others v Romania case (the “Micula case”) clarified several questions regarding the enforcement of intra-EU investment awards in the UK at the intersection of Achmea and Brexit. The Micula case has been at the attention of the international arbitration community since the start of ICSID proceedings in 2005. With the UKSC decision to lift the stay on the enforcement of the Award, the UK succeeded to maintain its long-standing position as an arbitration-friendly jurisdiction.

No Longer “Pale, Male, and Stale”? Approaching Diversity and Inclusiveness in International Arbitration

Although international arbitration has become the preferred method for resolving business disputes across multiple jurisdictions and is used in virtually all parts of the world in a wide range of economic, social, and cultural environments, the arbitration community itself has long suffered from a lack of diversity amongst its members. The typical arbitrator has been described as “pale, male, and stale,” meaning a white man of a certain age. This paper represents a humble attempt to build a framework for understanding diversity and inclusiveness in the field of international arbitration. Although during the past two decades the subject has given rise to scores of articles in specialized publications and countless conferences, training programs, and workshops, we feel that academic literature still lacks a holistic approach to understanding the multiplicity of issues and objectives inherent in this topic. Such an approach should address four key questions: (i) What are the main aspects of diversity in international arbitration? (ii) When did this become an important topic in the literature? (iii) Why should we engage in a serious conversation about diversity and inclusiveness in international arbitration? (iv) How can we make the international arbitration community more diverse and inclusive?

Third-party funding na arbitragem contra Estados: a relativização da imunidade executória na execução da sentença arbitral contra Estados

The purpose of this article is to assess the risk for preventing the execution of arbitral awards made against Sovereign States due to the State’s immunity shield. Given the importance of an accurate asset pricing in the business of third-party funding (TPF), the topic entails a particular relevance to the current context of globalized litigation in light of its contribution to the promotion of TPF at the international arbitration community. After reviewing the literature on TPF, on the peculiarities of investment and commercial arbitrations against States and on the evolution of State immunity (also in terms of domestic legislation, considering the local laws passed by the United States, the United Kingdom and Australia), the article aims explore how the funder should incorporate into its risk assessment the risk of not executing awards rendered against Sovereign States.

Reform of Investment Dispute Settlement and Developments in EU Investment Law: Is There Any Future for Investment Treaty Arbitration in Europe? Some Comments in the Light of Achmea Decision

The contribution aims at commenting on the fate of the intra-EU BITs after the recent judgment of the CJEU C-284/16 (Slovak Republic v. Achmea). The judgment produced a shock among international lawyers and members of the international arbitration community. To its better understanding, the judgment needs to be read in a broader political context. It includes, on one hand, the long-lasting effort of the European Commission to push the Members States to terminating or withdrawing from the existing intra-EU BITs and, on the other hand, the contemporary backlash in the European society against the ISDS as such. This judgment clearly stresses the autonomy of the EU legal order. From the international law perspective of the possible implications of Achmea, however, one should not rush to conclusions. One can expect more successful actions on annulment of arbitral awards in the EU Member States. However, a number of investment arbitrations take place in accordance with ICSID rules (where review and interference by national courts does not apply) or outside the ICSID, but tribunals with a non-EU jurisdiction. It is not clear if the tribunals will respect the Achmea judgment. From the point of view of the law of treaties, it results that neither the CJEU judgment itself, nor the underlying provisions of the TFEU can cause the invalidity or termination of the BIT in question, unless the Member States take steps under the law of treaties to terminate the BIT.

The Third-Party Funding Debate:A Misguided Focus on Definitions at the Expense of Policy Considerations

Third-party funding in international arbitration remains a vague and elusive concept. This article posits that the international arbitration community’s struggle to define third-party funding is a consequence of its failure to address broader policy concerns over fairness in international arbitration. The policy concerns over fairness in international arbitration should be seen as a priority and tackled with practical solutions that ensure equality of arms and access to capital. It is only after such policy concerns have been addressed that a rational definition of third-party funding can be achieved.

Kastom: A Public Policy Exception Under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Despite the enormous success of the New York Convention, the Pacific Island countries [“PICs”] are a blank spot on the New York Convention map. Any effort to promote international arbitration law reform in the PICs has to be sensitive to their exciting legal frameworks to be successful. The PICs are plural legal systems in which ‘kastom’ provides a set of norms often equal to positive laws. An obstacle on the PICs’ way to become part of the international arbitration community are fears that their ‘custom’ or ‘kastom’ may be left aside or overridden by the overseas legal principles and paradigms. The paper discusses if and to what extent the PICs’ ‘kastom’ may qualify as ‘public policy’ under Article V(2)(b) of the New York Convention, thereby allowing Pacific Island states to deny the recognition and enforcement of foreign arbitral awards which they deem fundamentally contrary to their ‘kastom’.

China’s 2017 Reform of Its Arbitration-Related Court Review Mechanism with a Focus on Improving Chinese Courts’ Prior-Reporting System

The Chinese Supreme People’s Court has devoted relentless efforts into reforming China’s arbitration regime, before a formal amendment of the PRC Arbitration Law is put on the National People’s Congress’s legislative agenda. In order to address several outstanding issues including the ‘dual-track review system’ existing in Chinese courts’ review process of domestic and foreign/foreign-related arbitrations, the Supreme People’s Court (SPC) issued several judicial documents including two judicial interpretations in 2017, focusing on regulating and unifying Chinese courts’ review of parties’ applications relating to the validity of arbitration agreements, enforcement and/or set-aside of arbitral awards. This reform further aligns Chinese arbitration with international practices, and sends a strong signal to the international arbitration community about China’s commitment to evolve into an arbitration-friendly environment.

Recent Solutions to Old Problems: A Look at the Expedited Procedure Under the Newly Revised ICC Rules of Arbitration

The article addresses the new expedited procedure under the 2017 ICC Rules. Over the last twenty years, the international arbitration community has become increasingly critical of the duration and cost of arbitral proceedings administered by institutions. The expedited procedure constitutes a tool aimed at accelerating and simplifying key aspects of proceedings, with a view to reaching a final decision on the merits in a cost-e ective and reasonably fast manner. Following the introduction of similar procedures in other institutional rules, the ICC expedited procedure builds on the solutions developed by other important institutions and adds several improvements. While changes to the rules alone might not be enough to solve the issues created by the judicialization of international arbitration, the presence of such tools in the newest version of the ICC Rules is a welcome addition.

Getma v Republic of Guinea—implications for African arbitration

Against a backdrop of the increasing activity and prominence of African arbitration institutions, this case note takes a detailed look at a recent high-profile case concerning one of the major African arbitration bodies, the OHADA Common Court of Justice and Arbitration (CCJA), and looks at what lessons may be drawn for African arbitration. In Getma International v Republic of Guinea, a US court refused to confirm and enforce an arbitration award in favour of French company Getma International, which was subsequently annulled by the CCJA. The CCJA annulled the arbitral award after it was found that the arbitrators had breached their mandate and the rules of the court by negotiating directly with the parties to secure an increase in their fee, in breach of the CCJA’s fee scale. A particular feature of this long running saga was the unusual step the arbitrators took in publicly criticizing the CCJA in an open letter to the international arbitration community, spurring extensive comment and discussion. This piece goes further than just commenting on the US court decision and considers some of the wider questions and implications for African arbitration more generally.

An In-Depth Analysis on the Conflicting Decisions in Dallah v. Pakistan: Same Law, Same Principles, Different Decisions

Arbitration is an alternative, to litigation, form of private dispute resolution, a judicial determination by an independent third party to whom the disputing parties agree to hand over their power to decide the dispute to the arbitrator(s). The 'core' merit of arbitration is the international enforceability of its awards by virtue of the Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958 ('The New York Convention'). In line with the NY Convention, an arbitral award is 'portable' and can be enforced to the contracting States simply and without formality. The international applicability of commercial arbitration has inevitably raised questions of conflict of laws or even questions of conflicting decisions based on the same law. The most prominent example of conflicting decisions stemming from the application of the same principles is the case of Dallah v Pakistan which has commanded immense attention in the international arbitration community. In a continued astonishing series of events, the English Supreme Court and the French Cour d'Appel reached contrary decisions on the enforcement of an international arbitral award, despite the application of the same law to the same facts. The focus of this article is to examine in-depth the legal proceedings accrued in Dallah, identify the questions raised and the reasoning of the Courts, including the Tribunal's reasoning, and expose the reasons why the Supreme Court and the Cour d'Appel, whilst considering the same facts and applying the same principles, arrived at such antithetical decisions.