Consistency, efficiency and transparency in investment treaty arbitration (Nov 2018)
This report examines the current state of investment treaty arbitration, and seeks to address criticisms identified by investor-state arbitration users. It is produced by the IBA Subcommittee on Investment Treaty Arbitration. Based on the findings of a 2014/15 survey, the report proposes potential solutions to the problems discussed, with the goal of affirming the overall legitimacy of investment treaty arbitration. Read the report
Annulment of arbitral awards by state court: Review of national case law with respect to the conduct of the arbitral process (Oct 2018)
There is a perception by many stakeholders that, for fear of having their award set aside, arbitral tribunals often allow a party to succeed in procedural applications that should be denied. This is sometimes referred to as ‘due process paranoia’, but it is far more fundamental. It is a question of who, in practice, is leading the process: arbitrators or the party that is trying to derail proceedings. This draft tabular-based report analyses 13 jurisdictions. Read the report
Editor’s Note – September 2018 newsletter
A message from Craig Miles, King & Spalding, Houston.
Message from the Co-Chairs
A welcome message from Eduardo Silva Romerto, Dechert, Paris and Julie Bédard, Skadden Arps, São Paulo.
21st Annual IBA Arbitration Day: introductory remarks and first session
A summary of the 21st Annual IBA Arbitration Day introduction and first session.
To be or not to be in the docket: confidentiality of international arbitrations in Chile
Confidentiality is one of the most valued advantages of international arbitration vis à vis transnational litigation before domestic courts. According to the 2006 Queen Mary University of London and PricewaterhouseCoopers study, privacy of proceedings is one of the four main advantages of international arbitration, as perceived by leading global corporations that frequently use this dispute resolution mechanism.
The (un)popularity of emergency arbitrators: SIAC and LCIA compared
For some time, arbitral institutions have faced calls from users to address cost and efficiency concerns in arbitration. Several institutions have taken steps in their arbitral rules to address these concerns by providing quicker access to arbitral tribunals, either through the expedited appointment of the tribunal or the appointment of an emergency arbitrator.
Environmental matters and international arbitration: has the time come?
In February 2018, the Inter-American Court of Human Rights released an opinion recognising the right of a heathy environment as a free-standing human right. From this landmark opinion, the author gives an overview of the enhancement process of human rights, including the right to a healthy environment, in international business and investigates the role that international arbitration might play in settling human rights and environmental disputes.
Recent US Court of Appeals rulings on interim relief pending international arbitration proceedings
One method of obtaining interim relief to support an international commercial arbitration is through pre-award attachment. Efforts to obtain some measure of security or avoid potential dissipation of assets pending resolution of an arbitration proceeding on the merits raises issues within the arbitration itself, as well as in the jurisdiction where the assets are located. Depending on where the relief is sought, this may implicate federal procedural law and underlying state statutory law.
India’s arbitral dreams – the push inwards
Delays within the Indian legal system are not unknown, so in order to address the issue of a more efficacious resolution of commercial disputes, the Indian government amended the Arbitration and Conciliation Act, 1996 on 1 January 2016, with retrospective effect from 23 October 2015.
Arbitration reform in the OHADA space: will it achieve its objectives?
The Organisation for the Harmonization of Business Law in Africa’s recently revised Uniform Act on Arbitration and the Arbitration Rules of the Common Court of Justice and Arbitration revolutionise ‘the OHADA’s legal arsenal on alternative dispute settlement’ and should ‘strengthen the confidence of local and foreign investors, and significantly improve the business climate’ in the 17 Member States of the OHADA.
The Brazilian Superior Court of Justice’s views on public policy in the recognition and enforcement of foreign arbitral awards
Since its adoption, Article V(2)(b) of the New York Convention has long been the object of controversy in its interpretation and application. That article provides that foreign arbitral awards may be denied recognition and enforcement ‘if the competent authority in the country where recognition and enforcement is sought finds that the recognition or enforcement of the award would be contrary to the public policy of that country’.
The use and abuse of soft law instruments and good practice protocols in international commercial arbitration
Proceedings before international arbitral tribunals are usually less rigidly organised than those before state courts. Subject to minimum requirements of fairness and due process, parties and arbitrators are largely free to devise and adapt procedures to meet the needs of a particular case.
The rules of interpretation of contracts and treaties created by international arbitrators
In this well-attended session, the panel described, analysed and criticised the rules of interpretation of contracts and treaties commonly applied by international arbitrators, including the principles of pacta sunt servanda and bona fide, and the participation of non-signatories of the arbitral agreement as parties to the arbitration.
Interviewing three stars of international arbitration about the creation of the rule of law by international arbitrators
Moderator Fernando Mantilla Serrano introduced this interactive session by emphasising that the three panellists represented the perspectives of practitioners from a boutique (Dominique Brown-Berset), an institution (Alexis Mourre) and a solo practice (Jose Emilio Nunes Pinto).
What’s French for backflip? French decision overturned to align with legislation and earlier jurisprudence on enforcemen
On 10 January 2018, the Cour de Cassation handed down a final, eye-opening decision in the Commisimpex saga. In doing so, the Cour de Cassation reversed its own earlier decision in the same case, arguably applied Sapin II retroactively, and moved French law away from the position under customary international law.
The Indian Arbitration and Conciliation (Amendment) Act and its prospective applicability – conflicting judicial interpretation
India’s bid to transform itself into an arbitration hub with pro-arbitration laws akin to those of more sophisticated arbitration jurisdictions led it to amend the (Indian) Arbitration and Conciliation Act of 1996 (the ‘Principal Act’) by enacting the Arbitration and Conciliation (Amendment) Act of 2015 (the ‘Amendment Act’). This came into force on 23 October 2015 and brought about various changes relating to, among other things, the appointment of arbitrators, interim measures and enforcement of arbitral awards.
The 2018 VIAC Rules of Arbitration and Mediation
The latest revision of the VIAC Rules of Arbitration and Mediation was prompted by the change of law that extended the jurisdiction of VIAC to encompass domestic arbitration and mediation cases in addition to international cases (Article 1 VIAC Rules of Arbitration and Article 1 Rules of Mediation).
The official launch of KCAB International and expansion of the Seoul International Dispute Resolution Center
South Korea’s ambition to become a leading international arbitration hub in Asia has been strengthened by the launch of the international division of the Korean Commercial Arbitration Board (KCAB): KCAB International.
Green light to interim measures in support of arbitration: novelties of Ukrainian procedural rules in action
The ultimate purpose of most arbitral proceedings is to obtain an arbitral award capable of being enforced. Such enforcement at the end of the ‘arbitration ride’ will depend greatly on whether the debtor possesses sufficient assets to enforce against.
Arbitration under intra-EU BITs and the Achmea judgment of the ECJ
There is much dispute between the European Commission and Member States of the European Union over the validity of certain bilateral investment treaties (BITs) that were concluded in the early 1990s.
The 2018 Arbitration Rules of the German Arbitration Institute (DIS)
On 1 March 2018, the new 2018 DIS Arbitration Rules took effect. Twenty years since the last revision, the 2018 DIS Arbitration Rules are state-of-the-art arbitration rules, suitable both for international and domestic arbitration proceedings.
London arbitration after Brexit
The Brexit process is assuming the quality of an epic voyage, like the Odyssey. The analogy is apt, not least because Homer’s poem is one of the foundations of European civilisation.
Proposed changes to the arbitral legal framework in Nigeria for modern regulation
The Nigerian Arbitration and Conciliation Act of 1988 – the legal framework for arbitration practices in Nigeria – has become outdated when compared with international trends and practices.
Russia: brief results of the arbitration reform
Comprehensive reforms to Russian laws on international and domestic arbitration were introduced on 1 September 2016 (the ‘Reform’). According to official statements of the Russian authorities, the Reform modernises international and domestic arbitration laws based on leading achievements of both national and foreign jurisprudence.
The Chinese Supreme People’s Court takes the lead in reforming the arbitration framework in China
The Arbitration Law of the People’s Republic of China, which forms the cornerstone of the legal framework of arbitration in China, has not been amended since its issuance in 1994. Yet, the need for reform is real and pressing in view of the economic growth and increasing internationalisation of Chinese companies. It is in this context that the Chinese Supreme People’s Court has taken the lead in reforming the arbitration framework through the issuance of extensive interpretations and guidelines. This article seeks to provide an overview of the latest efforts undertaken by the Court.
German Regional Court of Dortmund finds cartel damages claims can be arbitrated
The Regional Court of Dortmund held that, if a cartel damages claim is brought on the basis of a contract that is subject to an arbitration agreement, the cartel damages claim is subject to arbitration. This decision is somewhat surprising.
Country guides to arbitration - 2018
The Arbitration Committee has prepared a guide to the law and practice of arbitration in more than 50 countries around the world. The material is intended as a high-level practical overview for practitioners and others seeking an introduction to arbitration in particular jurisdictions. The vast majority of the chapters were updated as of January 2018.
Arbitration Newsletter - February 2018
In this edition, the Committee Co-Chairs outline work to analyse and respond to perceived shortcomings in efficiency and quality of decisions in international arbitration. There's also regional coverage from Asia-Pacific, Europe and North America, plus updates on investment arbitration, and institutional and procedural matters. Click here
Compendium of arbitration practice – IBA Arb40 Subcommittee (Oct 2017)
The IBA Arb40 Subcommittee interviewed leading practitioners in the field to identify how cost and efficiency in the arbitration process could be improved, and to highlight innovative or creative practices that could be shared with other practitioners. Click here
Report on public policy and enforcement of arbitral awards (Oct 2015)
Oct 2015. The Recognition and Enforcement of Arbitral Awards Subcommittee conducted in 2014-2015 a comparative study on 'public policy' as a defence to the recognition and enforcement of arbitral awards under the New York Convention. For such purpose, the Subcommittee solicited and received reports from Arbitration Committee members reporting jurisdiction by jurisdiction on the treatment of public policy by the domestic courts in the context of enforcement of foreign arbitral awards.
Do we need special rules for energy disputes? - Arbitration Committee newsletter article, March 2015
By Peter D Cameron, Andrew Mackenzie and Brandon Malone. Do we need special rules for energy disputes?
Portuguese Chamber of Commerce & Industry Arbitration Centre approves new institutional rules - Arbitration Committee March 2015
By Pedro Sousa Uva and Sofia Martins. Portuguese Chamber of Commerce and Industry Arbitration Centre approves new institutional rules.
The independence and impartiality of arbitrators: How much disclosure is enough? - Arbitration Committee, March 2015
By Michael Peer. Institutions, associations and procedure – The independence and impartiality of arbitrators: How much disclosure is enough?
US court holds that Mexican annulment of arbitral award violates basic notions of justice - Arbitration Committee, March 2015
By James Graham and Leonel Pereznieto Castro. US court holds that Mexican annulment of arbitral award violates basic notions of justice.
Brazil: Foreign judgment referring parties to arbitration recognised, despite local judgment that arbitration is null and void - Arbitration Committee newsletter article, March 2015
By Olympio J M L de Carvalho e Silva and Camilla Queiroz Werneck. Brazil: Foreign judgment referring parties to arbitration recognised, despite local judgment that arbitration is null and void.
Court of Appeals of Helsinki rules on the validity and operation of optional arbitration clauses - Arbitration Committee, March 2015
By Markus Kokko and Tero Kovanen. Court of Appeals of Helsinki rules on the validity and operation of optional arbitration clauses.
Third-party beneficiary obliged to arbitrate according to the Supreme Court of Finland - Arbitration Committee, March 2015
By Marko Hentunen and Markus Muurman. Third-party beneficiary obliged to arbitrate according to the Supreme Court of Finland.
Independence and impartiality: key factors for choosing an arbitral tribunal in India - Arbitration Committee, March 2015
By Meenakshi Iyer and Advaya Legal. Independence and impartiality: key factors for choosing an arbitral tribunal in India
BIT by BIT: Indonesia’s push-back on foreign investment - Arbitration Committee newsletter article, March 2015
By Kayla Feld, Remco Smorenburg, Jessica de Rooij, Rick Beckmann, Emir Pohan. BIT by BIT: Indonesia’s push-back on foreign investment.
Dispute Resolution International
Dispute Resolution International is the journal of the IBA's Dispute Resolution Section. It provides in-depth discussion of current developments and topical issues in all areas of dispute resolution, including litigation, arbitration, mediation and other areas of alternative dispute resolution, as well as negligence and damages.
Ten Years of WTO Dispute Settlement
Dan Horovitz, Daniel Moulis, Debra Steger
To mark the tenth anniversary of the dispute settlement system of the World Trade Organization (WTO), the Trade and Customs Law Committee of the IBA has authored this book.
IBA Mediation Techniques e-book
The IBA is pleased to announce the launch of its first e-book entitled Mediation Techniques. Although there are many books about mediation, most of them concentrate on a single topic or have a bias towards the theoretical or philosophical. This e-book offers a practical collection of tips from and for practising mediators of different styles facing different sorts of issues. It aims to be usable by mediators at an early stage in their career but to contain sufficient variety to still be interesting to more experienced mediators.
Guidelines on Conflicts of Interest in International Arbitration (2014)
The Guidelines on Conflicts of Interest represent the most comprehensive work to date defining the framework by which the impartiality of arbitration in the international arena can be most effectively assured. The publication sets out a series of seven general standards of independence and disclosure to govern the selection, appointment and continuing role of an arbitrator. The most recent version of the Guidelines was adopted by resolution of the IBA Council on Thursday 23 October 2014. This version updates and clarifies the original Guidelines, which were approved by the Council of the IBA on 22 May 2004. The Guidelines are intended for use around the world.
IBA Guidelines on Drafting International Arbitration Clauses (2010)
The IBA Guidelines for Drafting International Arbitration Clauses were approved by the IBA Council in October 2010. The Guidelines were developed by a Task Force appointed by the Arbitration Committee and composed of Paul Friedland (chair), Doak Bishop, Karim Hafez, Adriano Jucà, Carole Malinvaud, Sundaresh Menon, Jean-Claude Najar, William (Rusty) Park, Anne-Véronique Schlaepfer, Eduardo Silva Romero, Stephen E Smith, Matthew Weiniger and Damien Nyer (Secretary).
IBA Rules on the Taking of Evidence in International Arbitration (2010)
On 29 May 2010, the International Bar Association adopted the new IBA Rules on the Taking of Evidence in International Arbitration, which superceed those of 1999. The revised rules will apply to all arbitrations in which the parties agree to apply the IBA Rules after 29 May 2010, whether as part of new arbitration agreements or in determining the rules of procedure in a pending or future arbitration.