Committee publications

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When arbitration and compliance meet up: analysis of their first interplay

Questions have arisen as to the impact of growing compliance requirements on the practice of arbitration, allowing compliance to find its place in the field of arbitration. This growing importance first raises the question of the arbitrability of compliance law, then of the impact of compliance on the arbitration activity itself, and finally demonstrates that arbitrators have become actors in implementing and respecting compliance requirements

Released on Mar 4, 2022

Arbitration clauses and payment orders: practice of UAE courts

A creditor in the United Arab Emirates may apply for what is called a payment order when the debt is established in writing and is due. In other words, there should be no doubt about the existence of the debt. This is a swift and ex-parte procedure, which has become very popular. Given that the debt is not in dispute, a question arises on whether an arbitration clause concluded between the parties should be upheld or not. Also, as the proceedings are ex-parte, the courts may not become aware of the arbitration clause. This article examines how courts treat an application for a payment order when the parties have agreed to arbitrate their disputes.

Released on Mar 4, 2022

Covid-19 and M&A transactions: ordinary course of business in extraordinary times

The Covid-19 pandemic has affected M&A transactions giving rise to disputes and litigation. This article explores how some courts and tribunals interpreted companies’ obligations to keep their “ordinary course of business” during the pandemic

Released on Mar 4, 2022

Arbitrating indigenous disputes: a New Zealand perspective

Tikanga Māori (or Māori customary law) is now largely recognised as the first law of New Zealand, which must sit alongside our common law system. Following extensive treaty based settlements, arising from a failure on the part of the Crown to honour its commitments under the Treaty of Waitangi, intra-Māori disputes have increasingly arisen over how to deal with settlement proceeds and land allocations, with arbitration being a logical approach to such settlement. This article examines the success of arbitration in light of four recent court decisions.

Released on Mar 4, 2022

An empirical study on setting aside proceedings in Italy

With a judicial and arbitration reform upcoming in Italy, a statistical study checks the state of health of Italian-seated arbitrations. Drawing from the analysis of over a thousand setting aside judgements issued by the Italian Courts of Appeal, the study investigates use and success rate of the grounds for annulment, as well as outcome and length of the related proceedings. Also, the recollection of the arbitration contained in the judgements offers a unique insight on many national and international arbitrations seated in Italy. Data follow on the type of the arbitration, profile of arbitrators, subject matter and value of the underlying disputes. The resulting picture is quite comforting, with Italy likely ready to benefit from the imminent reform and on track to become an even more arbitration friendly jurisdiction.

Released on Mar 4, 2022

From modernisation to internationalisation of Luxembourg arbitration law

Luxembourg Bill N°7671 dated 15 September 2020 is a promising bill whose aim is to reform the entire Luxembourg arbitration regime in order to provide Luxembourg with a body of coherent and modern rules adapted to the needs and practices of modern commercial arbitration.

Released on Mar 4, 2022

Court assistance in support of arbitration: interim measures and obtaining evidence - Ukrainian perspective

In this article, firstly, we will provide an overview of the recent court decisions on interim measures to assess if requesting interim measures in Ukrainian courts in support of arbitration is now an efficient mechanism to preclude debtors with assets in Ukraine from defrauding good faith creditors. Then, we will discuss obtaining evidence for arbitration through Ukrainian courts.

Released on Mar 4, 2022

Analysis of a resolution of the High Court of Justice of Valencia regarding the competence to grant interim measures in support of proceedings for the recognition of a foreign arbitral award

In international arbitration, it is not uncommon that the party which has prevailed in the proceedings needs to enforce the award in a jurisdiction other than that of the seat. In Spain, this requires proceedings to recognise the foreign arbitral award (following the provisions of the New York Convention) before it can be enforced. Thus the losing party may have time to take measures to frustrate or hinder the enforcement proceedings. In order to tackle this problem, it is possible to ask for interim measures that remain in place while the recognition proceedings are ongoing.

Released on Mar 4, 2022

Judicial control over arbitration proceedings and arbitration awards in Venezuela

Recent cases conducted in Venezuela have brought up again the question regarding whether the Judicial Power can or cannot review, control or supervise both arbitration proceedings and arbitration awards issued in Venezuela.

Released on Mar 4, 2022

Strasbourg as the guarantor of last resort of due process in voluntary arbitration

The judgment in the Beg S.P.A. v. Italy case acknowledges the role of the European Court of Human Rights in Strasbourg as the ultimate guarantor of the application to voluntary arbitration of some of the procedural guarantees recognised by the European Convention on Human Rights. Availability of the Strasbourg option will depend on the recognition of equivalent guarantees by the arbitration laws of each State, as well as on the diligent conduct of the party to avoid an express or tacit waiver of rights.

Released on Mar 4, 2022

Indian court interference in arbitration: interim measures and urgent reliefs

Indian jurisprudence on court interference in arbitration has gone through a long and painful, almost soul-searching journey. It started out with courts regularly interfering in arbitration proceedings which often made arbitrating in India ineffective as one party could at any time go to the court and agitate the same dispute, notwithstanding an exclusive contractual arbitration provision. Fortunately, common sense prevailed and successive cases have now curtailed interference to more traditional grounds such as public order or demonstrable bias. However, there is one area of interference – interim measures and urgent reliefs - which still retains quite a punch if a party to a contract intends to use dispute resolution as a strategic tool in a contractual relationship.

Released on Mar 4, 2022

The Constitutional Court of the Republic of Turkey's decisive reasoning regarding foreseeable lack of jurisdiction due to arbitration clause

With its decision dated 8 June 2021, the Constitutional Court of the Republic of Turkey ('Constitutional Court') made a significant and conclusive point concerning the effect of arbitration agreements on the jurisdiction of Turkish courts

Released on Mar 4, 2022

The principle of 'in dubio pro arbitrato' under Italian law

The principle of 'in dubio pro arbitrato' aims at expanding the application of the arbitration agreement to any controversy deriving from the contract where the same agreement is inserted. The application of this principle may face uncertainties in case of several contracts connected between them in the ambit of a single transaction.

Released on Mar 4, 2022

UK top judges rule on UNCITRAL model arbitration law - Betamax v State Trading Corporation

Given the importance of the Model Law and the New York Convention in the world of arbitration, any guidance from a top level court on how Article 34 should function may be of interest to a world-wide audience.

Released on Mar 4, 2022

The (in)feasibility of using precedents as a tool to increase consistency in international arbitration

The article begins by introducing the problem of inconsistency and contradictory decisions within the framework of international commercial and investment arbitration. Then, starting from the premises surrounding the use of legal precedents in both national and international contexts, the article considers the possibility of having a precedent value rule as a tool to increase predictability and consistency in international arbitration. After considering the reasons why such a rule does not and could not exist and why it cannot be applied to international arbitration as a whole, the article discusses the options available to increase predictability and consistency in the international arbitration system.

Released on Mar 4, 2022

Judicial review of arbitral awards in Canada: recent developments and trends

In 2019, the Supreme Court of Canada released Canada v Vavilov. That decision reworked the legal framework governing the standard of review by courts of administrative decisions. But Vavilov has also created uncertainty about the continued applicability to domestic arbitral awards of the deferential standard of review articulated in previous (but relatively recent) Supreme Court case law. This article explores recent Canadian decisions on the standard of review in the domestic arbitral award context, and related questions about when courts will step in to review arbitral awards and the standard of review they will apply in doing so, along with other developments in Canadian arbitration law.

Released on Mar 4, 2022

Improving the efficiency of construction arbitration proceedings in Eastern Europe

The fourth edition of the Jeantet 'Arbitrating in CEE and CIS' roundtable was held during the Paris Arbitration Week on Tuesday, 21 September 2021. This year’s panel examined pre-arbitration tools available for resolving disputes in the construction sector as a means to enhance efficiency in the resolution of disputes in this sector.

Released on Mar 4, 2022

The implications of Brexit on taking African claims to the UK: the end of suing British conglomerates in London?

The idea of African group claims against UK-based corporates that have been brought to the English courts is not entirely new, but has seen a spate of claims in the last five years or so, suggesting that it is a trend that may be accelerating.

Released on Feb 25, 2022

Comparative corner - Autumn 2021

A light-hearted (non-academic) comparative discussion of the laws of Canada, Mexico and the United States, by lawyers from each of the three countries. This edition’s discussion focuses on a broad comparative overview of the legal systems.

Released on Feb 11, 2022

The Anti-Money Laundering and Sanctions Experts Subcommittee

Comprising experts in the technical aspects of financial crime regulation and international law frameworks led by the Financial Action Task Force (FATF), the Anti-Money Laundering and Sanctions Experts Subcommittee of the IBA Regulation of Lawyers' Compliance Committee includes private practice, academic and in-house counsel specialists.

Released on Feb 8, 2022

Webinar programme report: How does a firm onboard clients? Unworthy clients – who decides? What are the risks?

On 11 November 2021, the IBA Regulation of Lawyers' Compliance Committee presented its flagship webinar titled ‘How does a firm onboard clients? Unworthy clients – who decides? What are the risks?’ This article summarises the webinar.

Released on Feb 8, 2022

Impact of global changes on emerging countries

A report on a session at the 11th Annual IBA Finance and Capital Markets Tax Virtual Conference. Panellists from India, Korea and South Africa, three leading global emerging countries, discussed four main topics: perspectives on the OECD Pillars One and Two; the promotion of inbound investment contrasted with trends in enforcement; trends in tax treaty negotiations; and next steps on the tax horizon for each country.

Released on Feb 8, 2022

An efficient approach to arbitration in messy multi-party settings: Analysis of the proposal on DIS Supplementary Rules for Third-Party Notices in Arbitration

The German arbitration community is on a quest for practical solutions that can better suit multi-party disputes in arbitration. Prominent German practitioners recently proposed the DIS Supplemental Rules for Third-Party Notices in Arbitration (“SRTPN”), which the DIS and the wider arbitration community are currently scrutinizing. The authors contribute here to the discussion by re-viewing existing practices on multi-party arbitration and the possible advantages of third-party notices, particularly for the stakeholders of the construction industry.

Released on Feb 4, 2022

Update from New Zealand – review of 2021

This update addresses two significant themes influencing New Zealand’s fused profession of barristers and solicitors during 2021.

Released on Feb 2, 2022

Update from Sweden – 2021

This article provides an update on the new Act on the protection of persons who report serious misconduct – so-called ‘whistleblowers’ – in Sweden, which directly affects law firms.

Released on Feb 2, 2022

Russia - Current state of professional regulation - 2021 update

Although the status quo of the regulatory environment for operating professional legal services in Russia has been maintained, there have been a few developments to report in the past year.

Released on Feb 2, 2022

Update from the UK – 2021 in review

In the past, where AML supervision is legal-sector based, there was for many years the perception of a light touch approach being taken unless there were concerns around client money. This is beginning to change.

Released on Feb 2, 2022

Update from the US – review of 2021

This article highlights two sets of developments that took place in the United States in 2021 that are relevant to the work of the IBA Regulation of Lawyers’ Compliance Committee. The first set of developments are related to Covid-19, while the second are related to the Committee’s interest in regulatory issues involving corruption and anti-money laundering compliance.

Released on Feb 2, 2022

From the Co-Chairs of the IBA Regulation of Lawyers’ Compliance Committee – February 2022

A message from the Co-Chairs of the IBA Regulation of Lawyers’ Compliance Committee, published with the Committee’s e-Bulletin in February 2022.

Released on Feb 2, 2022

Geospatial data podcast

Geospatial data are becoming increasingly relevant in our technology-driven world. In this podcast, privacy and data barrister, Melissa Stock, speaks with Kevin Pomfret, an attorney and Executive Director of the Centre for Spatial Law and Policy. They discuss the growing legal complexity surrounding the use of geospatial data and the challenges that it presents for lawyers and policy makers.

Released on Jan 19, 2022