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
The African Continental Free Trade Area (AfCFTA) is one of the 13 flagship projects of the Agenda 2063 of the African Union. Its aim is to create a single integrated African market and boost intra-Africa trade. To achieve this, AfCFTA will need to address some factors that have dwarfed intra-Africa trade for decades. Among these factors are anti-competitive conduct by private enterprises operating on the African continent. The focus of this article is on the remedy advanced by AfCFTA to address the problem of less meaningful trade and integration on the African continent posed by anti-competitive conduct of private enterprises. A Competition Protocol (CP) has been adopted pursuant to Article 4 of AfCFTA to address this problem. This article interrogates whether the CP is a necessity, or it is simply an overzealous endeavour.
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
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
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
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
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
Franchising, as a business model and business expansion concept, has grown significantly in Den-mark over the recent decades as a result of foreign franchise systems being established in Denmark as well as Danish companies expanding globally via the use of the franchise model. The franchise model is therefore now a commonly used business model in Denmark.
Released on Dec 7, 2023
This panel addressed the main developments in fiscal planning concerning startup investments, focusing on the tax implications arising from various investment structures. The challenges and innovative solutions to these challenges were also part of the discourse. The complex relationship between taxation policy, investment growth and startup expansion was analysed, providing valuable insights for investors, entrepreneurs and tax law practitioners.
Released on Dec 5, 2023
Due to the ways in which digital technology allows non-residents to do business without creating a physical taxable presence, countries are rushing to amend their tax codes and treaties to address this gap. This panel began their discussion with an example and tried to tackle the questions arising from their respective tax legislation and highlighted the potential gaps. Furthermore, the panel discussed which transactions should see taxes arise in regard to cryptocurrency, digital platforms and the metaverse.
Released on Dec 5, 2023
This panel covered several important and current topics on the taxation of professional sports, with a special focus on football. The topics covered included: the international taxation of player transfers and loans; image rights; TV quotas; licensed products and bets; agent remuneration; tax residency issues and incentives; Brazilian ‘anonymous football societies’ and investment opportunities; and tax issues arising from investment structures.
Released on Dec 5, 2023
This panel focused on defining corporate taxes and tax benefits, which is crucial for calculating the effective tax rate within the Organisation for Economic Co-operation and Development’s Pillar Two Model Rules framework.
Released on Dec 5, 2023
The panel covered important and current matters involving the role of taxation in regard to energy transition goals, from fossil-based resources to renewable energy sources. The topics covered included: the current context and green policy aspects, the corporate counsel perspective, national fiscal policy initiatives, carbon trading, and impact investing.
Released on Dec 5, 2023
The increasing importance of ESG issues for lawyers generally, and especially for litigators, is a key focus of this issue. We’re delighted to publish contributions on this topic from jurisdictions as varied as Chile, France, Poland, South Africa, and Spain [...]
Released on Dec 1, 2023
On Friday, 15 September 2023, during the 4th IBA Litigation Committee Conference on Private International Law in Milan, the final session of the day sought to take stock of the post-Brexit position on jurisdiction and enforcement as well as service and evidence taking, and what that has meant (and will continue to mean) for cross-border litigation in the EU and UK.
Released on Dec 1, 2023
On the occasion of the 4th IBA Litigation Committee Conference on Private International Law in Milan, on 14 September 2023, the IBA Young Litigators Forum presented a seminar on Advocacy. The seminar took place in the office premises of the firm ADVANT Nctm, which is the Italian member firm of ADVANT, a European association of independent law firms.
Released on Dec 1, 2023
The Young Litigators came out in force on the occasion of the annual IBA Litigation Committee Conference that took place in Buenos Aires between 3 and 5 May 2023.The IBA Young Litigators Forum presented a seminar on how to deal with expert evidence within the framework of international commercial disputes. The seminar was hosted at the offices of leading Argentinean law firm Marval O’Farrell Mairal and we were able to attract a staggering 60 young professionals from all around the globe (including Argentina, Brazil, The Netherlands and Japan!), who are active within the international dispute resolution field.
Released on Dec 1, 2023
One of the panel discussions at the IBA Litigation Committee Forum in Buenos Aires, in May 2023, focused on the latest issues in transnational litigation. The panel considered a wide range of topics.
Released on Dec 1, 2023
On May 4, 2023, the IBA’s Litigation Committee held an interactive session which touched on various topics involving e-commerce. The panel was chaired by Andreas Frischknecht of Chaffetz Lindsey acting as moderator along with experts from different jurisdictions, namely Karina Goldberg (Attorney-at-law, Ferro Castro Neves Daltro & Gomide Advogados, São Paulo), Antoine Laniez (Attorney-at-law, NautaDutilh, Luxembourg City), Francisco Javier Muñoz (Legal counsel, Mercado Libre, Buenos Aires) and Lucinda Orr (an employed barrister with Enyo Law, London).
Released on Dec 1, 2023