London Court Of International Arbitration Research Articles

Law reform: the institutional perspective

Abstract The Law Commission was tasked with reviewing the Arbitration Act 1996, to determine whether any amendments to the Act were needed to ensure that the Act remains fit for purpose and continues to promote England and Wales as a leading destination for commercial arbitration. As part of that process, the Law Commission engaged with many different stakeholders across the arbitration community. The London Court of International Arbitration was one of those stakeholders. Accordingly, this article seeks to offer readers an insight into the perspective of an arbitral institution on the topic of reform of the Act. While this article does not address comprehensively all of the Law Commission’s proposals, it provides an insight into the London Court of Arbitration (LCIA)’s responses to the Law Commission’s consultation and the competing considerations that are at play with respect to the duty of confidentiality, the duties of impartiality, independence and disclosure, discrimination, section 67 of the Act, and the law applicable to the arbitration agreement.

The Comparison Of Arbitration Dispute Resolution Process Between Indonesian National Arbitration Board (BANI) And London Court Of International Arbitration (LCIA)

Arbitration is a way of resolving a civil dispute outside the general court based on an arbitration agreement made in writing by the disputing parties. Each country has a different settlement process. In Indonesia arbitration is based on Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. The Indonesian National Arbitration Board (BANI) is an agency established by the Indonesian government for law enforcement in Indonesia in resolving disputes or differences of opinion that occur in various trade, industrial and financial sectors. Likewise in Indonesia, in England there is also an Arbitration Board called LCIA which is one of the oldest arbitration institutions in the world and has resolved 303 cases annually. This agency acts autonomously and independently in upholding law and justice. The purpose of this research is to determine the differences in the dispute resolution process through arbitration in Indonesia and the UK. The research method used in this article is normative legal research and through a literature study approach with secondary assessment of legal materials and juridical data analysis. The results prove that the process and procedures for dispute resolution at the LCIA institution are different from the BANI institution in the process and procedures. as well as the legal basis used in resolving the parties' business disputes.

The Test for Apparent Bias and Arbitrators’ Duties of Disclosure Following Halliburton v. Chubb: Welcome Clarification, but Questions Remain

UK The Supreme Court handed down its judgment in Halliburton v. Chubb in November 2020. The case addressed the test for apparent bias and the issue of arbitrators’ duties of disclosure in English-seated arbitrations. The authors of this article represented the London Court of International Arbitration (LCIA) as interveners in the Supreme Court appeal. This article explores the key points arising out of the judgment and takes stock of the current position under English law. The authors discuss certain issues that remain open following the judgment, including the relationship between the duties of disclosure and confidentiality. They explore the extent to which parties’ adoption of institutional rules can modify the English law position, and comment on the extent to which English law is now in line with that of other jurisdictions. The article notes that Halliburton v. Chubb is one of a number of recent cases globally concerning the scope of arbitrators’ duties. It concludes that while the decision of the Supreme Court provides a welcome degree of clarity as to the English law position, and a necessary confirmation that the English courts take a robust approach to such issues, the judgment itself was necessarily confined to relatively narrow facts. As such, questions relating to arbitrators’ duties are likely to return to the spotlight in future cases, and English law is likely to continue to develop as the relevant principles are applied to different fact patterns and as new norms emerge amongst arbitrators. Halliburton v. Chubb, Arbitrators’ duties, Duty of disclosure, Apparent bias, Conflicts of interest, Impartiality, Challenges to arbitrators, Arbitration Act 1996, Confidentiality, Supreme Court

Implication of International Instruments in ADR Process; an Experience of Nepal

Conciliation, mediation and arbitration are major approaches of Alternative Dispute Resolution (ADR) process. In comparison to arbitration, conciliation and mediation are less binding as the award of arbitration is final if there is no appellate clause. There are different types of arbitration which are domestic and foreign arbitration, Ad-hoc arbitration, institutional arbitration, bi-party and multiparty arbitration etc. UNCITRAL Model Law of Arbitration, 1985, UNCITRAL Arbitration Rules, 1976, International Chambers of Commerce Rules of Arbitration, 1998, International Center for Settlement of Investment Dispute Rules of Procedure for Arbitration Proceeding, 1984, Arbitration Rules of London Court of International Arbitration, 2014, and the Australian Center for International Center for Commercial Arbitration Rules, 2016 are major instruments of international arbitration. Arbitration Act, 1999 (2055 BS) and Arbitration (Court Procedure) Rules, 2002 (2059 BS) are the domestic instruments for arbitration for Nepal. Parties of the agreement can apply any foreign instruments of arbitration as well. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, Geneva Protocol on Arbitration Clause, 1923, Geneva Convention on the Execution of Foreign Arbitral Awards, 1927, Inter-Arab Convention on the Enforcement of Judgment and Awards, 1992 and UNCITRAL Model Law, 1985 clearly mentioned about the applicability of foreign arbitral award. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 was established as a result of dissatisfaction with the Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927. Under Nepalese legislation, a party should submit an application to the High Court along with the original or certified copy of the arbitrator's award, original or certified copy of the agreement, and official translation in Nepali language including any treaty if so within 90 days of award. If all conditions are fulfilled, High Court forwards the award to the District court for its enforcement if the domestic law permits. Although, there are the greater roles of ADR including arbitration, it is not a panacea to solve the disputes. If effectively applied, it is the best and participatory method of dispute resolution system.

Time after Time: Using Data to Inform the Decision to Disqualify an Arbitrator

The decision whether to challenge an arbitrator is among the most sensitive decisions that counsel can make in the course of an arbitration.The consequences of doing so, or not doing so, can be serious for both parties and counsel.To study the success rates and consequences of disqualification challenges, the authors gathered data on such decisions from across four arbitral fora: the International Centre for Settlement of Investment Disputes (“ICSID”); the Permanent Court of Arbitration (“PCA”); the United Nations Commission on International Trade Law (“UNCITRAL”); and the London Court of International Arbitration (“LCIA”).We find that while successful challenges against arbitrators are infrequent across all of these fora, there are nonetheless significant differences in success rates across the fora.We also find that while disqualification challenges are generally decided promptly, there are longer delays in ICSID proceedings.

Impugnação de árbitros: uma análise dos precedentes da London Court of International Arbitration (LCIA)

The London Court of International Arbitration (LCIA) made available digests of 32 LCIA arbitration challenge decisions from between 2010 and 2017, as a part of its commitment to transparency. The aim of this article is to provide critical analyses of the excerpts of the decisions, in order to give guidance for users, counsels, and arbitrators in relation to standards of conduct, and also provide a greater understanding of the reasoning applied by the Court.

Challenge Decisions at the Danish Institute of Arbitration

Arbitral institutions make regular decisions on the required impartiality, independence and qualifications of arbitrators. The decisions and their underlying analyses are rarely available to the public. Therefore, the arbitration community is missing a valuable source of clarification and analysis, and a poor clarification and analysis may ultimately lead to untenable appointments and unfounded challenges. The article and the following decision summaries explain how the Danish Institute of Arbitration approaches the challenge of arbitrators. The article is inspired by the arbitrator challenge digest published by the London Court of International Arbitration a few years ago, but the approach by the Danish Institute of Arbitration is unique in a number of ways. The Institute’s approach reflects a delicate balance between efficiency, flexibility, party autonomy and due process. Based on the fifty-seven challenge decisions outlined below, the article explains how the Institute aims at finding the right balance in a number of different circumstances. The article thereby provides a tool for in-house attorneys, external counsel, arbitrators, institutional staff and other arbitration practitioners to make the right arguments and proper analyses when dealing with issues concerning the challenge of arbitrators.

Opacity in International Legal Texts: Generic Trait or Symbol of Power?

Due to this international character of English, texts in this language –as proffered by several major institutions in the area of public and private law− are deployed as necessary tools of communication in the course of the establishment of transnational commercial and juridical relationships. However, English as the language of the law has been branded as a complex, opaque, kind of discourse. The aim of the present paper is to address the question of the undeniable complexity of legal texts in English as instruments to wield power, their unveiled communicative aim being to separate the ruler from the citizen and the legal message from its user. To demonstrate the validity of such thesis, genre analysis has been applied to three paradigmatic texts, consequential to develop international deals in the transnational contexts: the insurance policies of the London Institute of Underwriters at Lloyd’s, the Rules issued by the London Court of international Arbitration and the Geneva Convention on the Contract for the International Carriage of Goods by Road (CMR). The goal of our study will be carried out through different levels to discern whether there exists any possible equation between power and textual complexity: the formal and discursive level, which will scrutinize lexicon, syntax and textual elements (macrostructure of texts and metadiscourse markers) and the pragmatic level, which will study the texts as peculiar generic types of legal agreements where power and commitment between the parties as a set of directives, i.e. obligations exerted by a powerful party over another, the recipient of the text.

Institutional Arbitration Vis-a-Vis Statutory Law: London Court of International Arbitration

In 1975, the Institute of Arbitrators (later the Chartered Institute) joined the other two administering bodies and the earlier arbitration committee became the “Joint Management Committee”, reduced in size from the original 24 members to 18, 6 representatives from each of the three organizations. In 1981, the name of the Court was changed to “The London Court of International Arbitration” to reflect the nature of its work, which was, by that time, predominantly international. New and innovative rules were also adopted that year. In 1985, not far short of its centenary, new and innovative rules were promulgated and the LCIA Arbitration Court was established, marking the coming of age of the LCIA as an international institution. In 1986, the LCIA became a private not-for-profit company, limited by guarantee, and fully independent of the three founding bodies. It then set about consolidating its position in the international arena, under the guidance of Sir Michael Kerr, the first President of the LCIA Court, and Bertie Vigrass, the first Registrar of the independent LCIA.

Pathological arbitration clauses, good faith and the protection of legitimate expectations

This article examines a recent case decided by the Portuguese courts that dealt with the issue of ‘pathological’ arbitration clauses, the legal mechanisms to construct such clauses, and the relevance of the principle of good faith in arbitration. In this respect, this article endeavours to frame those topics within the context of prior decisions that have been taken by the arbitral tribunal. It also addresses the question of whether the standards of good faith generally applicable to arbitrators are extendable to arbitral institutions when managing arbitration cases. In this context, this article also addresses the significance of institutional arbitration rules that set forth good faith as generally applicable to all participants in arbitration proceedings. Such is the case of the recent London Court of International Arbitration (LCIA) Rules. LCIA (London Court of International Arbitration) Arbitration Rules (2014)Portuguese Arbitration Act (2011) [ Lei no 63/2011 de 14 de Dezembro ]ACL (Arbitration Centre of the Portuguese Chamber of Commerce and Industry-Lisbon) Arbitration Rules (2008)Portuguese Civil Code (1966) [ Decreto-Lei no 47344/66, de 25 de Novembro (Codigo Civil) ]Portuguese Arbitration Act (1986) [ Lei no 31/86, de 29 de Agosto (Arbitragem voluntaria) ] “A” and “B” v “F” – Comercio de Automoveis, S.A. and ors , Case No. 659/13.9YRLSB-2, Lisbon Court of Appeal, Judgment (2013)

The emergency arbitrator: a full-fledged arbitrator rendering an enforceable decision?

Emergency procedures are becoming increasingly popular in international arbitration. Their effectiveness is however disputed, there being uncertainty as to both the proper status of the subject granting emergency relief—so called emergency arbitrator—and the enforceability of his decisions. This contribution aims at shedding light on the above-mentioned issues. To this end, it first describes the general procedural framework in which emergency procedures are carried out. It then delves into the questions of what the proper status of an emergency arbitrator is and whether emergency decisions are capable of being enforced by state courts, suggesting that the emergency arbitrator is a full-fledged arbitrator rendering decisions that may enjoy (at least a certain degree of) enforceability. Finally, it puts forward a proposal for an international instrument on recognition and enforcement of arbitral interim measures, including emergency decisions, which may enhance their effectiveness. (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) Hong Kong Arbitration Ordinance (2013) Singapore International Arbitration Act (2012) ICC (International Chamber of Commerce) Arbitration Rules (2012) LCIA (London Court of International Arbitration) Arbitration Rules (2014) ICDR (International Centre for Dispute Resolution) Arbitration Rules (2009) SCC (Stockholm Chamber of Commerce) Arbitration Rules (2010) SIAC (Singapore International Arbitration Centre) Arbitration Rules (2013) HKIAC (Hong Kong International Arbitration Centre) Arbitration Rules (2013) NAI (Netherlands Arbitration Institute) Arbitration Rules (2010) Yahoo! v Microsoft, US District Court (SDNY) (2013) Total Fina Elf E&P Congo c Société Nationale des Pétroles du Congo et République du Congo, Cour d’appel de Paris (2003) Swiss Code of Private International Law (1987) English Arbitration Act (1996) Dutch Arbitration Act, Code of Civil Procedure, Book IV (1986) [Wetboek van Burgerlijke Rechtsvordering]

O Novo Regulamento de Arbitragem da London Court of International Arbitration

ABSTRACT: This article describes the main changes brought by the New Arbitration Rules of the London Court of International Arbitration ("LCIA"), effective as of October 1, 2014 ("Rules"). The Rules preserve the essence of the consolidated LCIA arbitration procedure, but include practices already established in international arbitration proceedings, such as efficiency boosting measures. Among the most important changes, the inclusion of the emergency arbitrator provisions is a remarkable one. Among the most innovative, the rules on party representation. Finally, the changes introduced by the Rules demonstrate the concern of the LCIA with the celerity and efficiency of the procedure as well as with its cost.

Gaps and changed circumstances in energy contracts: the devil in the detail

Gaps and changed circumstances in energy contracts: the devil in the detail

The Resolution of Disputes at the London Court of International Arbitration (LCIA): Practical Aspects (Moscow, March 21, 2014)

The Resolution of Disputes at the London Court of International Arbitration (LCIA): Practical Aspects (Moscow, March 21, 2014)

Vive la difference? Convergence and Conformity in the Rules Reforms of Arbitral Institutions: The Case of the LCIA Rules 2014

Many international arbitration institutions have reformed their Rules within the last five years, including the International Centre for Dispute Resolution (ICDR (2009)), Stockholm Chamber of Commerce (SCC (2010)), International Chamber of Commerce (ICC (2012)), Singapore International Arbitration Centre (SIAC (2013)), Hong Kong International Arbitration Centre (HKIAC (2013)) and now the London Court of International Arbitration (LCIA (2014)).The LCIA's reform of its Rules appears to be part of an increasing convergence of the procedures of international arbitration institutions. This is particularly apparent in three aspects of the new LCIA Rules: the new availability of emergency arbitrators; the inclusion of consolidation provisions and rules on the treatment of third parties generally; and the imposition of 'soft' ethical standards on arbitrators, experts and legal representatives. This article examines this phenomenon of convergence among arbitration institutions, and assesses its desirability. Are these second generation reforms to institutional rules similar because they are addressing common user concerns and general teething problems with earlier rules? Or are other influences pushing arbitral institutions towards conformity in their procedures? This article analyses empirical data concerning the extent to which choice and flexibility in procedures are desired by users of arbitration. In light of this data, we consider the extent to which the LCIA rule reforms and other institutional rule reforms are catering to user preference and how this might be improved.

A Fair Fight: Professional Guidelines in International Arbitration

Depending on context and content, a regulatory framework can either help or hinder efforts to enhance aggregate social and economic welfare. Lively debate has arisen with respect to the net effects of two recent sets of directives for lawyer comportment in cross-border arbitration: Guidelines adopted by the International Bar Association and new arbitration rules promulgated by the London Court of International Arbitration. Each instrument aims to promote a more level playing field on matters where legal cultures differ, such as document production and counsel independence. Each has caused thoughtful commentators to question the need and the merits of such standards. For now, suspense surrounds the prospect that either set of provisions will find favor in the international community. Only time will tell.

Arbitration & Alternative Dispute Resolution in India: Issues & Challenges in International Commercial Arbitration

Despite the increasing inflow of foreign capital in the Indian economy, India’s potential to attract to attract FDI from the world has not yet been fully trapped most probably due to the lack of an efficient dispute resolution system in the country. Due to the slow pace of the Indian Courts, Indian Arbitration and Conciliation Act 1996 was introduced as a solution to the international commercial settlement disputes in India.Arbitration law in India is modeled on the UNCITRAL Model of arbitration which empowers the parties to resolve disputes without approaching the Court of Law which has made it the preferred mode of dispute resolution in international commercial transactions of India. The 1996 Act provides choices to the parties in international commercial arbitration for deciding the nature of arbitration like ad hoc arbitration, institutional arbitration, where retired judges of High Courts/ Supreme Courts acts as arbitrators. These dispute resolution methods lacks efficiency due to the lack of ability on part of retired judges to work efficiently, or the time consuming factor where it takes 3-5 years for settlement. Even low fees payable at institutional arbitration to arbitrators is a hindrance in the commercial arbitration, as it does not have good arbitrators working in it.Furthermore, International arbitration outside India attracts disputing parties to enlist the services outside India. International arbitration outside India can be held under the auspices of institutions like London Court of International Arbitration (LCIA), the ICC International Court of Arbitration (ICC), the American Arbitration Association (AAA), the World Intellectual Property Arbitration (WIPO), the Stockholm Chamber of Commerce and the International Council for Settlement of Investment Disputes (ICSID) which provide procedural rules, fixed arbitration costs, and various support services which are is big issue/challenge for the dispute resolution for Indian contexts. The paper would provide suggestions with respect to Enforcement of Foreign Awards in India, lowering of bias or fraud in dispute resolution.

European Corporations and the Dubai Legal System

In Dubai, part of the United Arab Emirates, the Dubai Financial Free Zone Law made it possible to create the Dubai International Financial Centre and the Dubai Financial Services Authority. The DIFC is a provider of financial services. It provides an exemption from UAE civil and commercial laws and for arbitration of disputes that may be referred to the London Court of International Arbitration. In 2012 the Luxembourg Central Bank entered into a mutual cooperation agreement with Dubai with a view to developing financial services in the region. This leads the way for other European financial institutions.

Hashwani v Jivraj: London Court of International Arbitration and others intervening: ([2011] UKSC) 40: Supreme Court (England and Wales): Lord Phillips of Worth Matravers PSC, Lord Walker of Gestingthorpe, Lord Mance, Lord Clarke of Stone-cum-Ebony, Lord Dyson JJSC: 27 July 2011

Arbitration – Arbitrator – Appointment – Joint venture for purposes of property investment including arbitration clause – Arbitrators to be members of Ismaili community – Whether person appointing arbitrator “employer” – Whether restriction on eligibility for appointment constituting discrimination on religious grounds – Whether membership of religious community “genuine occupational requirement” – Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660), Regulations 2(3), 6(1), 7(3) – Council Directive 2000/78/EC, Article 3.

The Interplay of International Dispute Resolution Mechanisms: the Softwood Lumber Controversy

The Article discusses the interrelation of ‘competing’ international mechanisms for the settlement of disputes originating from the same factual background. The problem is assessed with reference to the of the fourth and fifth phases of the Softwood Lumber controversy between the United States and Canada—an immense dispute featuring the interplay between domestic litigation, investment arbitration and dispute settlement conducted under the rules of different chapters of the regional trade agreement (North American Free Trade Agreement), WTO dispute settlement, as well as interstate arbitration proceedings conducted within the London Court of International Arbitration under specially ‘customized’ rules of the latter.