Res judicata in international arbitration
In-depth examination of the role and application of the res judicata principle in international arbitration
Released on Feb 19, 2025
From the Co-Chairs - Arbitration Committee bulletin September 2024
We are delighted to welcome you to this special edition of the IBA Arbitration Committee newsletter, which celebrates 25 years of Annual IBA Arbitration Days.
Released on Sep 12, 2024
From the Editors - Arbitration Committee bulletin September 2024
this edition contains ten articles from co-chairs of past IBA Arbitration Days and offers their reflections on the evolution of international arbitration through the lens of the events that they chaired. The articles traverse the dynamism of our field and the continued relevance of the discussions that have taken place during IBA Arbitration Days. We have also included a link to a short video featuring twelve of the former chairs and co-chairs that was shared with the arbitral community at the 25th Annual IBA Arbitration Day in Singapore.
Released on Sep 12, 2024
Video: Celebrating the IBA Arbitration Day's 25 years
This video, which was prepared for the 25th Annual IBA Arbitration Day in Singapore on 23 February 2024, celebrates the quarter of a century that the Arbitration Day has been held. David Rivkin and Wolfgang Kühn, co-chairs of the first Arbitration Day in 1997, together with ten other chairs and co-chairs from the event’s history, reflect on the diverse topics covered in previous editions, consider the impact that the Arbitration Day has had on the development of arbitration across the world, and share their ambitions for its future.
Released on Sep 12, 2024
The healthy path to a healthy award
What is a deliberation? Should it be structured or otherwise regulated? Should there be transparency in the tribunal’s deliberative process? Can there be a good award without a well-structured and organized deliberation? Should there be a status of the dissent? This article addresses how the 2013 IBA 16th Arbitration Day debated these fascinating issues which still are at the core of the most fundamental stakes of modern international arbitration.
Released on Sep 12, 2024
Recovery of third-party funding in international arbitration
The determination and allocation of cost in international arbitration was a hot topic at the first IBA International Arbitration Day in 1997. It reflected a clash between civil law and common law procedural rules in international arbitration and no general view or opinion with respect to recovery of cost had yet been established. This situation has not substantially changed to this day and the “Recovery of Third Party Funding in International Arbitration” is still a hot topic affecting the basis of international arbitration for its users as well as the international business community. It is also a key issue that might affect corner stones of international arbitration, which are predictability of risk (including cost risk) and enforceability of cost awards. In dispute in particular is whether laws and rules should be amended to prohibit the recoverability of third party success-contingent premiums or fees.
Released on Sep 12, 2024
Arbitration of corporate disputes
This article presents Bernardo Cremades' reflection on the profound implications of the discussions that took place during the 2002 International Arbitration Day in Brussels, an event over which the author presided. It specifically focuses on the repercussions these discussions have had on the legal landscape of corporate arbitration.
Released on Sep 12, 2024
Has China met the expectations that were set during the 2016 IBA Arbitration Day?
Nearly a decade has passed since the IBA Arbitration Day in Shanghai in March 2016, the first and to date only IBA Arbitration Day held in the People’s Republic of China. Multiple speakers expressed the view during the conference that, as a jurisdiction that is rapidly globalizing with an international outlook, China’s place in the international arbitration community was established and would only expand in importance. Justice Shen Hongyu of the People’s Supreme Court gave an address describing China as an enforcement-friendly jurisdiction. Not long after the 2016 IBA Arbitration Day, one commentator addressed how China might soon become an ‘international arbitration superpower’. Today, in 2024, we reflect on whether these expectations have been met. The answer is: more ‘no’ than ‘yes’.
Released on Sep 12, 2024
Innovation in arbitration: The technological revolution in dispute resolution
Samaa Haridi: The International Bar Association’s 23rd Annual Arbitration Day, which I had the honor of co-chairing in Istanbul in 2022, focused on a theme that has become increasingly significant: "Innovation 360: New and Novel Ideas for the Practice of Arbitration." As we navigate the complex and evolving field of international arbitration, one thing is clear—technology is revolutionizing the way we resolve disputes, bringing efficiency, accessibility, and transformative change to our practice. Although disputes are an inevitable part of global commerce, we now have the tools to handle them in ways that were previously unimaginable. Arbitration, already a preferred alternative to litigation for its flexibility and efficiency, is on the cusp of even greater innovation. This article explores the ways in which technology is driving this change and how the arbitration community can thoughtfully embrace it.
Released on Sep 12, 2024
A changing arbitration world and the IBA role
Claus von Wobeser, Arbitration Committee Chair 2005-2006 and organiser of the IBA Arbitration Day during that time, reflects on the evolution of international arbitration and the role of the IBA in supporting its development.
Released on Sep 12, 2024
Plus ca change...
David W Rivkin: As I look back on the programs for the first and second IBA International Arbitration Days, I am struck by how relevant the programs would remain today but also by how much the practice of international arbitration has changed.
Released on Sep 12, 2024
Burden and standard of proof in international arbitration and related proceedings
Anne-Veronique Schlaepfer: Evidence and its use in international arbitration is as relevant today as it was at the 20th Annual IBA International Arbitration Day in Milan. In this short article, I revisit the topics highlighted by the IBA Arbitration Committee and addressed by experienced and talented practitioners in our continued efforts for excellence in the practice of international arbitration.
Released on Sep 12, 2024
Sanctions and commercial arbitration: The impact of the invasion of Ukraine on questions of jurisdiction and merits
Julie Bedard: When we participated in the 22nd IBA Arbitration Day in March of 2019, few could have predicted the five years to come. A mere twelve months after the Conference, a global pandemic forced much of the world’s population into lockdown, taking millions of lives along the way. Two years later, Russia invaded Ukraine.
Released on Sep 12, 2024
The role and responsibilities of an arbitrator
Audley Sheppard KC: The theme of the 10th IBA International Arbitration Day held in Madrid in March 2007, being ‘The Role and Responsibilities of an Arbitrator’, is as relevant today as it was then.
Released on Sep 12, 2024
Site visit model protocol for international arbitration
In the experience of the Working Group for the Site Visit Model Protocol (the ‘Working Group’), site visits can be a helpful procedural tool in international arbitrations. They serve two general purposes.
Released on Sep 10, 2024
From the Co-Chairs - Arbitration Committee bulletin February 2024
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
From the Editors - Arbitration Committee bulletin February 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
Stay of anti-suit injunction: upholding public policy over comity of courts
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
The Nigerian Arbitration and Mediation Act 2023: A comparison with the Arbitration and Conciliation Act 2004 and global practices
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
Technology and artificial intelligence: Reengineering arbitration in the new world
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
Recent update of the UAE Federal Arbitration Law
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
Partially annulled foreign arbitral awards: how to recover money in Italy?
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
Arbitration in the Middle East: Dubai Court of Cassation clarifies the distinction between jurisdiction and admissibility for the first time
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
Due process violations or arbitral error? The Mexican Supreme Court’s perspective
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
Due process paranoia – an impediment to efficient arbitral proceedings?
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
Italy is becoming more arbitration-friendly: New developments in the area of arbitrators’ precautionary powers
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
The limits of the state liability exemption in wartime
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
Belgian landmark decision on the arbitrability of disputes regarding the termination of exclusive distributorship agreements
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
Determining the seat of arbitration
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
Stay of court proceedings – when do matters relate to an arbitration agreement?
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