From the Editors - Arbitration Committee bulletin September 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
From the Co-Chairs - Arbitration Committee bulletin September 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
Reflections on the IBA Guidelines on Party Representation in International Arbitration
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
The creation of the IBA Guidelines on Party Representation in International Arbitration
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
The Party Representation Guidelines’ tenth anniversary
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
IBA Guidelines on Conflicts of Interest in International Arbitration: brief account of the review process and of special interest issues
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
In the beginning was chaos (or: The creation of the IBA Guidelines on Conflicts of Interest in International Arbitration)
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
The history of the 2020 revision of the IBA Rules on the Taking of Evidence in International Arbitration
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
The 2020 amendments to the IBA Rules on the Taking of Evidence in International Arbitration
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
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
The 2010 revisions of the IBA Rules of Evidence
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
Drafting the original IBA Rules of Evidence
Former IBA President and former Chair of the Arbitration Committee, David W Rivkin, remembers the origins and development of the IBA Rules on the Taking of Evidence, first published in 1999.
Released on Jun 30, 2023
24th Annual IBA Arbitration Day, 2023 - Opening remarks and session 1: Third-party funding and investment arbitration
The Arbitration Day 2023 took place in Lisbon, 13-14 April, and was attended by more than 500 delegates. Portuguese Deputy MInister for Justice Jorge Alves Costa gave the welcome remarks. The first session dealt with the impact of third-party funding (TPF) on investment arbitration.
Released on May 1, 2023
24th Annual IBA Arbitration Day, 2023 - Session 2: Sanctions
Session 2 was focused on the implications of sanctions for international arbitration. The panel sought to explore the practical effects on arbitral institutions, arbitrators and parties, and how to ensure enforcement of arbitration agreements entered into by parties located in sanctioned countries.
Released on May 1, 2023
24th Annual IBA Arbitration Day, 2023 - Keynote address: Transparency
The keynote speaker of the 24th Annual IBA Arbitration Day was Fernando Mantilla-Serrano. He delivered an interesting speech about the promises and perils of transparency in international arbitration. Fernando kicked-off by addressing the positive connotations of transparency. He explained that the need for transparency is obvious so that the practice of international arbitration would not be viewed with suspicion over the public eye . The main issue shortfall in the transparency debate, however, is it tends to remain theoretical.
Released on May 1, 2023
24th Annual IBA Arbitration Day, 2023 - Session 3: Disclosure
The third session of the 24th annual IBA Arbitration Day addressed the duty of disclosure and the matter of self-regulation versus statutory regulation.
Released on May 1, 2023
24th Annual IBA Arbitration Day, 2023 - Session 4 and closing remarks: Corruption
The final panel of the 24th IBA Arbitration Day addressed the issues of dealing with corruption in international arbitration. After the panel, Xavier Favre-Bulle, Conference Co-chair, closed the conference, highlighting the discussions and thought-provoking questions that remained from the four panels and the keynote speech
Released on May 1, 2023
From the Co-Chairs - Arbitration Committee bulletin October 2022
We hope that you enjoy reading these articles, and as always, we thank our contributors, our Newsletter Editors, and our Editorial Board members for their hard work in bringing this new issue of the Newsletter to our readers.
Released on Oct 21, 2022
From the Editors - Arbitration Committee bulletin October 2022
It is a pleasure to open year 2022 with a solid edition of the IBA International Arbitration Committee’s Newsletter, with articles covering a wide range of topics of interest to the arbitration community.
Released on Oct 21, 2022
Recognition and enforcement of international arbitral awards in Turkiye
It is undeniable that an arbitral award is nothing but a pyrrhic victory without a successful enforcement. This most certainly puts a premium on the jurisdiction(s) where an enforcement would be sought and urges the parties to be aware of the enforcement regime therein. The Turkish arbitration regime, as well as the regulations regarding the recognition and enforcement of awards, is parallel to the legal regimes of the prominent arbitration hubs as it is based on the Model Law
Released on Oct 21, 2022
The conduct of the parties in international arbitration: the current state of play
In recent times, arbitrators have been under the microscope but what about the conduct of parties in international arbitration? Generally, less has been published on this topic although there are repeated complaints in the international arbitration community about party conduct and whether there is a lacuna which requires increased regulation. In the authors’ opinion, the conduct of party representatives is being – and will continue to be – increasingly scrutinised in international commercial arbitration. With this in mind, this article provides insight into key international ethical rules and guidelines (including the sanctions available for misconduct), assesses the current state of play and outlines ideas to improve the state of play to ensure that party representatives are held accountable for their actions and to protect the fair and effective resolution of disputes. None of the opinions in the article refer to specific cases and none should be implied. The comments are only intended to be by way of general background and should not be construed otherwise.
Released on Oct 21, 2022
Enforcement post-Brexit: big win for arbitration?
Enforcement is rightly recognised as a key advantage of arbitration. That advantage has either been preserved or amplified in post-Brexit England. This article considers four significant changes in that regard. First, the English Courts are no longer bound by the recent judgments of the CJEU regarding the incompatibility of investment treaty arbitration with EU law. Second, the English Courts may have broader powers to compel arbitration. Third, it remains the case that the UK remains a party to the New York Convention in relation to enforcement of awards. Finally, England may be a favourable destination for enforcement of awards against sanctioned assets. Accordingly, Brexit is likely to be a big win for Arbitration.
Released on Oct 21, 2022
Legal “existence” of an arbitration agreement: Constitution Benches of the Indian Supreme Court to revisit previous decisions on ‘group of companies’ doctrine and enforceability of unstamped agreements
Two issues of prime significance to the Indian arbitration regime have recently been referred by the Supreme Court of India (hereinafter “the Court”) to its Constitution Benches for resolution. In this article, the authors examine the underlying issues at stake and the legal context in which these questions assume significance.
Released on Oct 21, 2022
Group of Companies doctrine in arbitration: time to re-visit the Indian approach?
The application of ‘Group of Companies’ doctrine in arbitration has been criticized by jurists and arbitration practitioners in both civil and common law countries for diluting consent and allowing addition of parties thus changing the manner in how arbitrations should be conducted. The doctrine has found its usage especially in multi-party proceedings and is intrinsically linked to piercing the corporate veil. In this article, we have attempted to trace the evolution of this principle in the Indian context (domestic and international commercial arbitrations) and discuss some scenarios which could call for its application in future.
Released on Oct 21, 2022
An arbitration seated in India – what can you expect?
While the arbitration regime in India is consistently developing, inevitably, it has become a tedious task for parties situated in jurisdictions outside of India to stay abreast of on-ground developments (judicial and statutory). To aid stakeholders associated with an India-seated arbitration, we aim to chart through the course of an arbitration seated in India which could be initiated by/ against a foreign entity.
Released on Oct 21, 2022
Crypto winter disputes: Navigating the intersection of crypto, arbitration and insolvency
The advent of a ‘crypto winter’ in early 2022, characterised by a sharp decline in the value of cryptocurrency assets and significant market volatility, has caused major crypto hedge funds, exchanges and lenders to experience financial distress with several entering insolvency proceedings. Since arbitration is the dispute resolution forum of choice in many crypto-related contracts, with the Hong Kong International Arbitration Centre (“HKIAC”) arbitration rules being particularly popular, the coming months are likely to see an increase in the number of parties seeking to arbitrate disputes against financially distressed crypto companies. This article first provides an overview of the current state of the crypto disputes landscape, which arises at a novel intersection of crypto, arbitration and insolvency. It then looks at the type of legal and practical factors that may be relevant to a creditor in deciding on a dispute strategy when faced with a financially distressed crypto company, including in the context of arbitration and liquidation proceedings.
Released on Oct 21, 2022
Public policy and its implications on the enforcement of arbitral awards in Thailand
As Thailand is a party to the New York Convention and has enacted legislation based on the UNCITRAL Model Law, a Thai court may refuse to recognize and enforce an arbitral award based on the public policy exception. Although many courts and practitioners around the world advocate for a narrow construction of this ground for non-recognition and enforcement, Thai courts have interpreted this exception relatively liberally. This brief article examines recent developments in this area to provide guidance to practitioners on how Thai courts have interpreted the public policy exception for recognition and enforcement of arbitral awards.
Released on Oct 21, 2022
Addressing corruption allegations in international commercial arbitration and investment arbitration
Neither investment arbitration nor international commercial arbitration are isolated from the phenomenon of corruption as a repeated but globally sanctioned conduct. Considering this, allegations of corruption may arise in the context of a dispute in both areas. The purpose of this article is to contrast the treatment given to such allegations, including the sanctioning of corruption by arbitrators, which is clearly determined by the specificities of each of these mechanisms, as well as by the nature of the disputes addressed.
Released on Oct 21, 2022
The Full Protection and Security Standard: A view from Latin America
During the last few years we have seen how several countries in Latin America have suffered social, political and economic crisis, which were only made worse by the Covid-19 pandemic. Faced with changing circumstance, the so called "Full Protection and Security Standard” contained in most free trade agreements and bilateral investment treaties (“BITs”) becomes of greater relevance and importance.
Released on Oct 21, 2022
Enforcement of foreign arbitral awards in Australia: where does 'recognition' end and where do 'enforcement' and 'execution' begin?
With the Australian Centre for International Commercial Arbitration labelling Australia a “geographically attractive, neutral location to arbitrate disputes”, Australia continues its efforts to become a global arbitration destination – both a desirable seat of arbitration and a jurisdiction known for the efficient enforcement of arbitral awards. However, with Australia’s apex court recently granting special leave to the Kingdom of Spain in relation to its resistance of the enforcement of a foreign arbitral award – representing the culmination of a series of recent judgments concerning the recognition and enforcement of foreign arbitral awards – all eyes will be on the court’s decision, and what it means for future enforcement of international arbitral awards in Australia.
Released on Oct 21, 2022