We are delighted to preface this new edition of the IBA Arbitration Committee newsletter, which comprises 17 contributions under the theme ‘procedural issues in arbitration’.
Released on Feb 5, 2024
This edition of the Arbitration Committee’s newsletter brings a variety of articles on procedural aspects of the law and practice of arbitration by featuring outstanding contributions from authors across five continents. Considering their growing importance, we considered that the procedural aspects of arbitration were deserving of a dedicated issue.
Released on Feb 5, 2024
Since conflict is inevitable, dispute resolution clauses often become the cardinal clause for any contract. Given the advantages of party autonomy, faster/streamlined process, confidentiality, and flexibility, parties often opt for arbitration as an alternate dispute resolution mechanism. However, when disputes traverse jurisdictions, the complexity of resolution also increases and the conflicting and varying parameters of arbitrability of the dispute in each jurisdiction may become a hinderance to the intent of the parties to opt for arbitration. This article aims to examine the sanctity of parties’ choice to arbitrate through the lens of the Bombay High Court’s recent decision in Anupam Mittal v. People Interactive (India) Pvt. Ltd. & Ors. effectively disregarding an anti-suit injunction (and consequently disregarding arbitration). In the case of Anupam Mittal (Supra), the stay on the anti-suit injunction was granted on the premise that the subject matter of dispute was prima facie non-arbitrable under Indian law, and any award rendered pursuant thereto would thus become unenforceable in India.
Released on Dec 20, 2023
This paper dissects in detail the recently passed Nigeria Arbitration and Mediation Act 2023. Specifically, it analyses and explains provisions introduced into the Act which aligns the Act with global arbitration best practices; and the repeal of old provisions that do not meet the standards of global arbitration best practices, or that can be described as archaic.
Released on Dec 20, 2023
The legal profession's dynamic relationship with technology, from email to virtual courtrooms, is constantly reshaping the practice of law. Welcome to the new frontier—the intersection of technology, artificial intelligence (AI), blockchain, and arbitration. This article explores some interesting applications of technology and AI in arbitration and growing global acceptance around it. Needless to say, innovation brings along a plethora of unresolved questions and challenges, leaving practitioners uncertain about the use or potential misuse of sensitive data. It's time to address the difficult questions on regulatory oversight and transparent usage of AI, to avoid controversies and chart an ethical course for integration of technology in dispute resolution.
Released on Dec 20, 2023
This article explores the dynamic evolution of arbitration in the UAE legislative system, tracing its history from 1951 to the establishment of an initial legislative framework in 1992. The issuance of the Federal Arbitration Law in 2018 propelled Dubai into a global arbitration hub, garnering consistent judicial support for alternative dispute resolution. The article then looks at the recent amendments to the Federal Arbitration Law in 2023, focusing on arbitrator qualifications, governance, and the integration of technology, reflecting the UAE's commitment to enhancing the efficiency and transparency of its arbitration practices.
Released on Dec 20, 2023
It often happens that foreign arbitral awards are not recognised in Italy because they have been, even minimally, annulled upon appeal by the competent state jurisdictional authority. The refusal of recognition by the Italian Courts must not translate into an opposition by Italian jurisprudence to the circulation of foreign decisions, or in the protection of national debtors. The most important aspect for the Italian courts in the exequatur phase is the finality of the provision to be recognised, no longer the award, but the judgment of partial annulment. In other words, in Italy only definitive decisions can be recognised, regardless of whether they arise from an arbitration compromise.
Released on Dec 20, 2023
Issues of jurisdiction and admissibility are raised frequently in arbitrations. However, the two concepts are often misapplied, partly due to unfamiliarity with the significant consequences that may follow. The Dubai Court of Cassation, the highest court in the Emirate of Dubai, for the first time addressed the two principles by drawing a clear distinction between issues that go to the jurisdiction of an arbitral tribunal and those that concern admissibility, and identified the different effects that each may have on arbitral proceedings. The judgment is quite significant because it further signals a pro-arbitration approach by the on-shore courts of the United Arab Emirates, a popular seat of arbitration in the Middle East.
Released on Dec 20, 2023
In a 2020 decision, the Mexican Supreme Court addressed a claim to set aside an award related to arbitral error grounded in violations of arbitral due process, in which the Court defined the scope of arbitral due process requirements and identified certain cases where arbitral error of fact or law may justify setting aside an award.
Released on Dec 20, 2023
In order for an arbitration to be efficient, one of the key factors is the procedural management decisions that drive the arbitration. It is important that such decisions are not only based on sound principles of law but also time-bound to avoid lengthy arbitrations. However, this often leads to indecisive and paranoid arbitral tribunals that fear annulment of an arbitral award on the grounds of due process. In this article, the authors discuss the due process paranoia and how it is an impediment to efficient arbitral proceedings.
Released on Dec 20, 2023
This article analyses the changes and innovations brought about by the recent Cartabia Reform with respect to arbitrators’ precautionary powers in Italian law. The analysis begins with a broader overview of the precautionary powers conferred on arbitrators by international institutions and foreign jurisdictions. It then focuses in more detail on Italian case law, analysing the traditional orientation and then delving into the change of approach.
Released on Dec 20, 2023
A state’s immunity from jurisdiction means that it cannot be involved as a defendant before a foreign court. The Ukrainian Supreme Court has extended tort exemption of state immunity to the Russian Federation, considering that the actions of the latter constitute a set of serious attempts to third party rights, in the due course of a conflict it provoked by invading Ukrainian territory, in breach of the jus bellum principle.
Released on Dec 20, 2023
In its landmark decision of 7 April 2023, the Belgian Supreme Court decided that distribution conflicts falling under the scope of the Belgian Distributorship Law are arbitrable. In the same decision, it held that the Belgian Distributorship Law is not an overriding mandatory provision in the sense of the Rome I Regulation. The decision marks the end of an era and has significant ramifications in the international context.
Released on Dec 20, 2023
The conflict between the ‘place’ and the ‘seat’ of arbitration has been subjected to an ever-growing ambiguity and has thus been greatly discussed by various judicial authorities in a number of landmark judicial precedents. This article seeks to provide a brief insight into the debate, discussions and the underlying ambiguity surrounding the two terms and the issues arising therefrom.
Released on Dec 20, 2023
Matters where stay of court proceedings affect the same factual dispute are an important area where courts and arbitral tribunal compete for jurisdiction. There are two recent decisions in the highest courts of the United Kingdom addressing two types of disputes in which this competition frequently arise: shareholders’ disputes and claims based on fraud. The fraud case in particular shows that an arbitration clause is not a straight way to a stay. A prudent businessperson’s approach and respecting the nature of the pleadings are the guiding factors to finding the most appropriate resolution.
Released on Dec 20, 2023
In two rulings issued on the same day, the UK’s top judges examine how to decide what is a ‘matter’ which has to be sent to arbitration. They go on to consider some of the challenges which arise in making that decision, and touch on circumstances where a ‘matter’ will not be referred to arbitration, before then applying their analysis to the two very different factual situations before them. The decisions are of worldwide interest both because of the eminence of the judges but also because the same need to identify a ‘matter’ arises under the New York Convention. The cases referred to are FamilyMart China Holding Co Ltd v Ting Chuan (Cayman Islands) Holding Corporation [2023] UKPC 33, and Republic of Mozambique v Privinvest Shipbuilding SAL (Holding) and others [2023] UKSC 32, both on 20 September 2023.
Released on Dec 20, 2023
This article looks at the decision in Baffinland Iron Mines LP v Tower-EBC GP/SENC, where the Ontario Superior Court of Justice and Court of Appeal for Ontario considered the ability to appeal an arbitral award made in an arbitration conducted under the auspices of the International Chamber of Commerce (‘ICC’) and pursuant to the ICC Rules. In short, the Ontario courts determined that the parties were bound by the ICC Rules by virtue of their incorporation by reference into the governing arbitration agreement. These decisions confirm the limited rights to appeal an arbitral award in Canada and reinforce its recognition as an arbitration-friendly jurisdiction.
Released on Dec 20, 2023
This article addresses the IBA Guidelines for Drafting International Arbitration Clauses vis-à-vis the competence-competence doctrine, mainly to draw parties’ attention to the extreme importance of the seat of arbitration and the express wording of the arbitration agreement about the authority of arbitral tribunals and state courts.
Released on Dec 20, 2023
The UK Parliament is to consider adding an express power of summary disposal to the English Arbitration Act 1996. Will it be sufficient to overcome due process paranoia, or might express party selection of such a power – or a power to order payment of security – be more effective in tackling unmeritorious defences?
Released on Dec 20, 2023
In the context of its 50th anniversary celebration, the IBA Arbitration Committee is delighted to bring you a very special edition of the Committee’s Newsletter, dedicated to each of its main soft law products: the IBA Rules of Evidence, the IBA Guidelines on Conflicts of Interest and the IBA Guidelines on Party Representation. The purpose of this special edition is to memorialize the history of the creation and revision of the IBA Rules and Guidelines, with its challenges, discussions, doubts, difficult choices, criticism, achievements – and anecdotes, written by those who chaired those initiatives.
Released on Sep 14, 2023
Welcome to this very special edition of the Newsletter entirely dedicated to the main soft law products produced by the IBA Arbitration Committee. In an ever-evolving global legal landscape, soft law has emerged as a dynamic and flexible tool for addressing complex issues in international arbitration. The IBA Arbitration Committee’s commitment to developing and disseminating these soft law products has played a pivotal role in shaping the practice of international arbitration worldwide.
Released on Sep 14, 2023
By Mark Friedman, former Co-Chair, IBA Arbitration Committee. After several years of study and public consultation, a Task Force of 23 senior, diverse lawyers created voluntary, opt-in guidelines for a basic level of party representatives’ conduct in five aspects of international arbitration
Released on Sep 12, 2023
By Julie Bedard, former Chair of the Guidelines Task Force, and Amanda Raymond Kalantirsky. The goal of the project was to prepare guidance for the arbitral community on certain ethical issues that may arise in arbitration in order to level the playing field among counsel in international arbitration in the absence of universally applicable rules. One significant point of debate was the power and jurisdiction of arbitration tribunals to handle counsel conduct issues. The Task Force also wrestled with differences between rules applicable to and practices of common lawyers and civil lawyers on a number of points, including the need to preserve evidence and the duties of candor or disclosure to the arbitration tribunal.
Released on Sep 10, 2023
Ten years ago, the IBA Council unanimously adopted the IBA Guidelines on Party Representation in International Arbitration. Yet, the Guidelines were at the time of their adoption harshly criticised within parts of the arbitration community. This article by Alexis Mourre, former Co-Chair of the IBA Arbitration Committee, considers those criticisms.
Released on Sep 3, 2023
The IBA Guidelines on Conflicts of Interest in International Arbitration were originally published in 2004 and reviewed ten years later. This article by David Arias, Chair of the Conflicts of Interest Subcommittee in 2012 which reviewed the Guidelines, recalls the process
Released on Aug 15, 2023
Otto L.O. de Witt Wijnen, chairman of the Working Group on the Guidelines (2002-2004) explains the origins and drafting of the Guidelines
Released on Aug 13, 2023
By Fernando Mantilla-Serrano, former Co-Chair, IBA Arbitration Guidelines and Rules Subcommittee. The 2020 IBA Rules of Evidence, the second revision of the IBA Rules of Evidence since their inception in 1999, is a thoughtful and delicate exercise in fine-tuning the Rules and ensuring their continued alignment with evolving best practices in international arbitration.
Released on Jun 30, 2023
By Álvaro López de Argumedo Piñeiro, former Co-Chair of the IBA Arbitration Guidelines and Rules Subcommittee. The 2020 review of the IBA Rules on the Taking of Evidence in International Arbitration applied the ‘if it ain’t broke, don’t fix it’ maxim. The existing rules had achieved a successful balance between civil and common law traditions, as reflected in the 2016 IBA report on the reception of the IBA arbitration soft law products. This meant that only minor changes were required, mainly to adjust the rules to new and already widely accepted trends in international arbitration, and to take into account the technological challenges facing the arbitration community.
Released on Jun 30, 2023
The 2020 Revisions to the IBA Rules of Evidence made relatively few changes, but there are several of which practitioners should be aware. This article, by Joseph Neuhaus and Nathalie Voser, former Co-Chairs of the IBA IBA Arbitration Guidelines and Rules Subcommittee, recounts the history of the IBA Rules and highlights the authors’ choices of the most significant changes, including provisions for remote hearings and for objections on the ground that evidence was illegally obtained. The article also discusses several clarifying provisions, such as a clause providing that the tribunal may order oral direct testimony even where witness statements stand as direct testimony. The authors also discuss certain topics that the 2020 revisions intentionally did not address.
Released on Jun 30, 2023
Guido Tawil, former Arbitration Committee Chair and member of the IBA Rules of Evidence Review Subcommittee, revisits the 2010 revision of the 1999 Rules
Released on Jun 30, 2023