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This edition of the Arbitration Committee’s e-newsletter introduces an extensive variety of articles and other content of timely interest in the law and practice of arbitration by featuring, as always, outstanding contributions from authors around the world.

We begin with dispatches from our rapporteurs to key sessions of the IBA’s 2019 Annual Conference, held this past September in Seoul.

Next is our section of general interest content, meaning that which is not specific to developments in arbitration law within any particular national jurisdiction.  

Here we have an article that considers the proper threshold of disclosure obligations in cases of third-party funding in order to obviate persistent questions of independence and integrity.  In this edition we have also included a new section (‘Materials and documents’) which features previously published IBA content that we consider to be deserving of greater diffusion. This section consists first of a podcast discussion considering so-called due process paranoia in arbitration, namely the concern that any aggressive procedural decisions by arbitrators may result in awards that are unenforceable or subject to set-aside. The issue is weighed by three esteemed panelists speaking from their respective jurisdictional perspectives.Lastly, the section includes a reflection paper on consultations by the UN’s Office of the High Commissioner for Human Rights on accountability and remedy for business-related human rights harms.

We then have an article dedicated to the field of investment treaty arbitration, which considers effects upon pending arbitrations following termination of intra-European Union bilateral investment treaties under which arbitral jurisdiction has been invoked.

Our regional coverage begins in Africa, with an article reviewing a recent decision by the Mauritian courts regarding application of the public policy exception in instances of public contracting, and in Asia, with an article on confidentiality under the Indian Arbitration and Conciliation Act of 1996.

Next, we go to Europe, where we feature a contribution from the Netherlands that also reviews a recent court decision with respect to the public policy exception, this time in the case of corruptly concluded private contracts.  An input from Germany addresses the importance of the right to be heard in that country’s legal tradition, and how the German Federal Court of Justice has set aside an arbitral award for violation of this right. We include an article from Italy that analyses the effectiveness of the Revised Rules of the Milan Chamber of Arbitration (2019) as contrasted to that institution’s prior body of rules. We feature a contribution from Russia that discusses effects upon arbitrability of the bankruptcy of a party to an international arbitration. We also include coverage of the well-known Halliburton Company v Chubb Bermuda Insurance Ltd case in the United Kingdom and its impact upon the matter of arbitrators’ disclosure as the Supreme Court´s judgment is finally forthcoming. Two articles from Ukraine address the novelties of arbitration in that country, and an article from Turkey considers the viability of arbitrating with a Turkish party on the basis of a non-Turkish-language contract. The last contribution in this section surveys recent developments in the arbitration sphere in Austria.

From Latin America, we present an article concerning arbitration with state entities in the port and transportation sectors in Brazil in view of a recently enacted decree.  Our coverage of the Middle East features an article on unilateral option agreements in international arbitration from the perspective of the Abu Dhabi Global Market. From North America, our readers will find an article on the state of discovery in aid of international arbitration in the US courts in view of two recent decisions.

Finally, we share with our readership an article from Oceania that considers the impact of the latest decision on arbitration from the High Court of Australia in the much-awaited Rinehart v Hancock Prospecting case, which concerns two applications for the stay of proceedings in favour of arbitration.

I express my gratitude to all contributors and to the members of our diverse and capable Editorial Board for their efforts in realising this edition.  In this issue, I have had the added privilege of working for the first time with Nania Owusu-Ankomah, a respected member of the arbitration community in Africa, who was recently appointed Junior Editor. We wish her a warm welcome.

Jose Daniel Amado
Publication and Newsletter Editor, IBA Arbitration Committee

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