Committee publications

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Sports and ethics – IBA Annual Conference Paris, 2 November 2023

In this session at the IBA Annual Conference in Paris, a group of experts from various backgrounds addressed topics such as doping, bribery, governance and social responsibility, and offered a comprehensive examination of the complex issues plaguing the world of sport.

Released on Jan 12, 2024

Creating and implementing a diversity and inclusion strategy for the law firm – IBA Annual Conference Paris, 31 October 2023

In this session, Antonia Verna and Pavla Prikrylova presented the European Regional Forum Diversity & Inclusion Working Party with the Diversity and Inclusion Toolkit for Lawyers. The Toolkit was developed by the International Bar Association (IBA) to provide law firms with an action plan to embed the core principles of diversity and inclusion into their organisations.

Released on Jan 12, 2024

New global norms on responsible AI beyond the EU: the G7 Hiroshima Process international guiding principles for developing advanced AI systems and its application in Japan

Through the rapid development of advanced AI systems, such as generative AI, however, the need for ensuring responsible AI has increased. In October 2023, the leaders of the Group of Seven (G7), chaired by Japan, agreed on the Hiroshima AI Process Comprehensive Policy Framework. The framework includes the adoption of the International Guiding Principles on AI and the International Code of Conduct for AI developers, based on the OECD’s report Towards a G7 Common Understanding on Generative AI.

Released on Jan 11, 2024

Russian customs inspections: recent trends and compliance pitfalls

The-Russian-customs-inspections-recent-trends-and-compliance-pitfalls Abstract: Russia is a Member State of the Eurasian Economic Union (EAEU) which includes the customs union of the Member States. For this reason, many aspects of customs law are delegated by the Member States to the EAEU level, such as the Customs Code of the EAEU, technical and sanitary regulations of the EAEU, etc. The authorities of the Member States are working on harmonisation of customs related matters, at the same time, there are specifics in local customs laws and procedures of the Member States. This is particularly so in respect of customs audits and inspections.

Released on Jan 10, 2024

Australia’s new era of employee ownership

It has been a big year for employee share schemes (ESS) in Australia. While there have been some tax reforms, on 1 October 2022, legislation was passed that brought about a tectonic shift in the regulatory plumbing that underpins the operation of ESS in Australia. Following the passing of these reforms, all companies that operate ESS in Australia – whether listed or unlisted, large or small – need to pause to consider how the new regulatory rules will impact on the operation of their ESS plans.

Released on Jan 10, 2024

Pioneering Pakistan’s Technological Ascent: A Comprehensive Analysis of the 5G Deployment Landscape

Pakistan, a country rich in cultural diversity and history, is leading the way in the rollout of 5G networks, a technological revolution, particularly for the Global South. With the world striving for technological superiority, Pakistan is preparing to become one of the countries providing the next wave of connectivity. This article examines the current regulatory frameworks, recent policy announcements and the role of financial institutions in facilitating this revolutionary transition. It also delves into the intricate details of the legal, financial and strategic aspects surrounding the introduction of 5G in Pakistan.

Released on Jan 9, 2024

Digital Services Act & Digital Markets Act: Europe regulates big digital platforms

This article reviews the recent European Union regulations, namely the Digital Services Act and the Digital Markets Act which regulate digital platforms with operations in Europe, from different perspectives. Likewise, the article revises some regulatory projects in Brazil and the United States, before turning to Argentina, where the regulation of the intermediaries’ responsibility is an issue of current relevance. Due to the lack of an ex-ante regulation regarding these topics, this article goes over some of the cases treated with consumer protection regulations as well as with antitrust law and data privacy provisions.

Released on Jan 9, 2024

Challenges of structuring pre-migration planning for high-net-worth individuals and families (2023)

Multiple factors compel high-net-worth individuals to consider relocation, such as entrepreneurial ventures, educational opportunities or tax considerations. The discussion by the panel delved into these complex migration considerations and their subsequent ramifications for affluent individuals.

Released on Jan 3, 2024

From the Mediation Committee - December 2023

We want to thank all of you for your steadfast support and extensive efforts in making 2023 a highly successful year for the Mediation Committee, which we expect to build on going into next year

Released on Dec 20, 2023

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

What’s the ‘matter’?

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

Canadian courts confirm that ICC Rules preclude appeals from arbitral awards

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

Drafting the arbitration agreement: the importance of express provision about the authority of the arbitral tribunal and the state courts

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

An express power of summary disposal – a panacea for arbitration’s ills?

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

Unpacking Vietnamese law on e-transaction 2023: a thorough exploration of key points

The law on e-transactions in Vietnam was recently amended in 2023. In this article we have analysed seven outstanding regulations in the amendment, namely: the scope of applications; data and data message; e-certificates; the use of e-signature and trust services; legal framework for applying e-contracts; synchronising the rights and obligations of the owner of the information system and the use of e-transaction accounts; and regulations on data collection, management and sharing among state agencies.

Released on Dec 12, 2023

Evolution of workplace harassment laws in Pakistan: the Protection Against Harassment of Women at the Workplace Act 2010 and the 2022 Amendment

The Protection Against Harassment of Women at the Workplace Act 2010 is a seminal legislation in Pakistan, providing victims of workplace harassment with an opportunity to pursue legal recourse. However, the law is subject to some limitations: primarily a narrow definition of ‘workplace’ and ‘employee’ with a focus only on sexual harassment of women, limiting the effectiveness of the law in addressing all forms of harassment faced by any employee in different types of workplaces. In 2022, an amendment to the Act was introduced, expanding its scope, addressing the limitations of the initial Act and making justice for victims of workplace harassment more accessible. This article explores the original law’s merits and limitations in addition to the changes brought about by the amendment, thus highlighting the importance of strong legal protections against workplace harassment in Pakistan.

Released on Dec 12, 2023

Enhancing enforcement of international arbitration agreements and foreign arbitral awards in Pakistan: a positive shift

In recent years, the process for the enforcement of international arbitration agreements and foreign arbitral awards in Pakistan has significantly improved, largely due to the influence of the New York Convention. Courts now exhibit a pro-enforcement bias and embrace global jurisprudence, creating a favourable environment for international arbitration. However, the duration of enforcement proceedings remains a concern. Streamlining procedures and expediting recognition are crucial for Pakistan to solidify its reputation as an arbitration-friendly jurisdiction, attracting global businesses and boosting economic growth.

Released on Dec 12, 2023

Ethical implications of artificial intelligence at the Indian workplace

Artificial Intelligence (AI) has rapidly emerged as a pivotal force in the contemporary workplace, redefining the facets of business operations, workforce management and employees’ interaction with technology. The profound impact of AI on the Indian workplace has emphatically transgressed its ethical and legal concerns, underscoring the need for comprehensive legislation or well-defined directives to regulate the use of AI effectively. In this article, we aim to highlight the legal and ethical complexities related to the use of AI at the Indian workplace and the requirement to have robust legislation/directives in place to regulate the use of AI.

Released on Dec 12, 2023