Tag results for 'dispute resolution'

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Testing the Reliability of Expert Evidence in International Arbitration

In recent years there has been an evolution in expert evidence in international arbitration towards the Anglo-Saxon practice of party-appointed witnesses as the preferred means of evaluating highly technical questions. Yet regardless of the type of expert appointed, the fundamental principles of party autonomy in arbitration have to a certain extent divorced the arbitral procedure for expert evidence from the local framework usually in place to control its reliability. This article explores two areas in which the absence of guidance for expert evidence in international arbitration stands in contrast with the procedural safeguards for expert evidence in litigation: first, as to the admissibility of an expert’s opinion, and secondly, as to the professional and ethical regulation of expert testimony. Most of the research is drawn from common law jurisdictions, but consideration is also given to civil law procedures with the example of France being used as a primary counterpart.

Released on Oct 14, 2022

Commencing the Arbitration: An Arbitrator’s Perspective on Procedural Order No 1

This article discusses, from an arbitrator’s perspective, the approach to preparing the first Procedural Order for the conduct of an Arbitration (Procedural Order No 1), so that it fits with the case specifications. The author advocates the approach discussed at the panel led by Lucy Reed at the 23rd Annual IBA Arbitration Day on 25 March 2022 that arbitrators should consider the specific needs of the case and collaboratively engage with the Parties to identify the relevant issues and appropriate procedure for the case, before circulating Procedural Order No 1. The author gives examples of techniques the Arbitral Tribunal can use to engage in a collaborative approach while retaining the final power to decide upon the procedure, including Procedural Order No 1.

Released on Oct 14, 2022

Procedural Timetable No 1 - Topped and Tailed: Improved Case Management

By including active case management tools in Procedural Order No 1 and Procedural Timetable No 1, the tribunal lays the foundation for maximising efficiency over the life of the proceeding. In this article, the author proposes a number of innovations to be implemented, as the title suggests, to top and tail the process, with additional steps in the middle. The author provides a template Procedural Timetable No 1 and then discusses selected procedural steps with the corresponding text for Procedural Order No 1. The proposals include pre-scheduling several case-management conferences to address procedural issues early and often; holding a mid-stream meeting (aka a Kaplan Early Opening), where parties give short oral arguments and present limited witness evidence; identifying a pre-scheduled mediation window to allow the parties to consider mediation, without either side having to request it; directing the parties to provide a Joint List of Issues and Schedule of References; and scheduling both a pre-hearing Tribunal meeting (aka a Reed Retreat) and deliberation days in the Timetable.

Released on Oct 14, 2022

Tuning Up: Making Arbitration Fit for the Future

This paper was given at the 23rd Annual IBA Arbitration Day in 2022 which considered new and novel ideas for the practice of arbitration. It equates the role of a tribunal in an arbitration to that of the conductor of an orchestra, noting that it is the conductor who unifies the different sections of the orchestra to achieve harmony. By focusing on the role played by tribunals, the paper considers radical ideas to improve the services provided by arbitrators to the users of arbitration. The first innovation debated is the creation of an Arbitrator Academy to teach those necessary skills required by an arbitrator which are not typically learnt as counsel. The paper then turns to acknowledge the importance of appraisals for professionals and considers whether arbitrators would benefit from receiving appraisals and, if so, how appraisals could be given to arbitrators. The paper then considers the utility of peer-to-peer coaching and whether it would be helpful to aspiring and experienced arbitrators before finally considering the importance of cognitive diversity in tribunal deliberations.

Released on Oct 14, 2022

EU, UK & US ‘Sanctions’: Procedural and Substantive Impact on International Arbitration?

There has been tangible change in international commercial relations in light of the 2022 economic sanctions imposed by the EU, UK and US following developments in Ukraine in February 2022. Lord Mance (at a Global Arbitration Review ‘GAR Live London’ in July 2022) made the comment ‘by far the most likely effect of sanctions in international arbitration is to the funding of cases outside Russia where one party is sanctioned and their assets frozen’. This article considers the implications on international arbitration from both procedural and substantive perspectives. It also touches on the implications under international law. In short, there are a number of ‘procedural’ difficulties to ongoing international arbitrations and on the ability to effectively enforce international arbitral awards. There are also risks, although more limited in scope, to substantive provisions of contract which may or may not lead to an increase in arbitration. Although there will be changes and limitations to international arbitration in light of the EU, UK and US sanctions, this article concludes that those limitations and will be minimal in scope and application. This is because arbitral rules and tribunal case management powers can happily regulate the disruption caused by sanctions. The article also concludes that international arbitration will see an increase in the use of orthodox substantive rights and obligations relating to frustration, impossibility, illegality and hardship. Hardship pursuant to various Civil Codes will be especially popular.

Released on Oct 13, 2022

Editorial – Dispute Resolution International – October 2022

Released on Oct 13, 2022

Book Review: Emergency Arbitration

Released on May 30, 2022

Editorial – Dispute Resolution International – May 2022

Released on May 30, 2022

Cross-border Provision of Information under New Chinese Data Protection Legislation

Chinese enterprises and individuals have increasingly become involved in cross-border investigations in relation to extraterritorial enforcement activities or other activities for which provision of information is required by foreign entities. However, under the Chinese legal framework – especially the new 2021 Data Security Law – cross-border provision of information has become increasingly difficult. The provision of such requested information to an entity in a foreign jurisdiction may conflict with mandatory Chinese laws. This article first provides an overview of Chinese legislative framework under the new Data Security Law, the Personal Information Protection Law (PIPL) – both promulgated in 2021 – and the Cybersecurity Law. It includes reference to the definitions of ‘important data’ under the 2017 draft recommended national standard ‘Guidelines for Cross-Border Data Transfer Security Assessments’ and of ‘personal information’ under the PIPL, and the latest consultation on cross-border data transfer security assessment under the Cross-border Data Transfer Security Assessment Measures (Draft for Comment) issued on 29 October 2021. By reference to different scenarios in which a Chinese company or individual may be required by a foreign entity to provide information to it, it then discusses the requirements for evaluating whether any approval from Chinese competent authorities is required, and discusses the criteria for evaluating how, if permissible, the information could be transferred in compliance with Chinese data protection legislation.

Released on May 30, 2022

International Human Rights Law and International Investment Law: Perspectives on International Legal Coherence

International human rights law (IHRL) and international investment law (IIL) are two influential subsets of public international law reflecting distinct purposes and historical evolutions. Nonetheless, the two subsets interact in the context of the investor–state dispute settlement system (ISDS), due to the rise in human rights claims under international investment agreements. This article appraises this interaction from the perspective of IHRL in light of the fragmentation of public international law. It argues for the need to recognise and assess concurrent international legal obligations systematically and coherently, suggesting that the principle of systemic integration could support the consideration of human rights treaty obligations in ISDS and promote legal accountability. Foreign direct investment and human rights are linked in complex and non-linear ways. Furthermore, a predictable, coherent and transparent legal approach is necessary to ensure that IIL respects substantive and procedural human rights. This may also bolster the legitimacy of ISDS by redressing perceived power imbalances. It may attenuate the potential negative externalities of granting broad, asymmetrical rights to investors without any concomitant obligations under investment treaties. This article concludes that to prevent accountability gaps, tribunals must recognise: (1) a home–host state continuum of human rights legal accountability; (2) home state obligations to protect against third party violations by its investors abroad; and (3) host state obligations to respect, protect and fulfil human rights.

Released on May 30, 2022

Artificial Intelligence and Arbitration in China: Where Do We Come From? Where Are We? Where Are We Going?

The Covid-19 pandemic coincidentally fostered the increasing usage of remote digital technologies like online video conferencing, multimedia presentations and real-time electronic texts in dispute resolution. Despite the remote technology boom, when it comes to the application of broadly phrased ‘AI technologies’ in arbitration, the feeling is that we are navigating uncharted waters. This article aims to introduce a Chinese perspective. Exploring the status quo and the prospects of integrating artificial intelligence (AI) technologies into arbitration, it delineates the emerging new legal ecosystem driven by the interaction of AI and law. In particular, it considers to what extent the development of Chinese internet courts and smart courts could shed light on the integration of AI technologies into the realm of arbitration and the challenges – jurisprudential and ethical – such integration might entail. The article ends with the observation that although AI might never become a constitutive part of the legal profession in the sense of AI technologies, independently of humans, providing legal services or making final binding decisions, this remains a technical possibility and its deep application comes with a variety of ethical implications.

Released on May 30, 2022

Artificial Intelligence and Arbitration: A US Perspective

As artificial intelligence (AI) continues to develop, complicated questions arise regarding the scope and role AI technologies play in legal practice. This article identifies and discusses challenges and opportunities that AI’s development pose to legal practice from a US perspective, focusing on AI’s applications to US dispute resolution generally, and to US arbitration in particular. It first discusses problems with defining AI, highlighting competing definitions that conceptualise AI from technical and social perspectives. It then discusses how AI tools currently influence, and will continue to influence, dispute resolution practice in the US. Next, it analyses key US legal considerations influencing how AI will be integrated into US dispute resolution systems, including trends such as how combining a developing technology with an evolving legal landscape is a recipe for uncertainty, and how the variety of relevant actors and sources of law in the US federal system generates complexity when adapting AI tools for use in arbitration. Additionally, it discusses how regulation does not happen in a vacuum, but is coloured by regulatory competition.

Released on May 30, 2022

Arbitration of M&A Transactions: A Practical Global Guide, Second Edition

For legal professionals and graduates active in dispute resolution, especially in the international arbitration field, it is true that every case is unique and there is something fresh to learn every day. The key to winning a case often resides in a legal professional’s in-depth knowledge of each specific industry. Edward Poulton has successfully gathered a group of experienced leading M&A experts around the world to contribute to the second edition of the Arbitration of M&A Transactions: A Practical Global Guide, with publication support from Globe Law and Business.

Released on Oct 20, 2021

A Guide to the CIETAC Arbitration Rules

A Guide to the CIETAC Arbitration Rules, by experts Yu Jianlong and Cao Lijun, is a uniquely comprehensive reference book for practitioners on the Arbitration Rules (the Rules) of the China International Economic and Trade Arbitration Committee (CIETAC).

Released on Oct 20, 2021

The Impact of Brexit on Dispute Resolution: EU and UK Perspectives

The United Kingdom’s withdrawal from the European Union (Brexit) has brought about significant changes to international dispute resolution in the UK and, insofar as disputes have a UK nexus, in the EU. In particular, since the end of the transition period, the Brussels Recast Regulation, which provides, inter alia, for the free circulation of judgments between EU Member States, no longer applies in the UK. Neither does it apply in the EU to judgments rendered by UK courts. Similarly, the UK has lost its access to the Lugano Convention. As the EU-UK Trade and Cooperation Agreement does not include rules on private international law, many important questions for cross-border dispute resolution between the EU and the UK are now determined by other multilateral treaties (notably the Hague Convention on Choice of Court Agreements) and domestic private international law rules. This article discusses the impact of Brexit on the litigation and arbitration of commercial disputes from both EU and UK perspectives. In particular, this article considers the impact of Brexit on the following key issues: jurisdiction agreements and the enforcement of foreign judgments, choice of law and arbitration. The article analyses the changes brought about by Brexit to the legal landscape for dispute resolution and considers the consequences such changes may have for parties’ choice of law and forum.

Released on Oct 20, 2021

Transforming a Black Swan into a Phoenix: the British Virgin Islands’ Solution to Standalone Injunctive Relief

The freezing order, or Mareva injunction, is a powerful tool to combat fraud and dishonest conduct. Since its creation in 1975, the ownership of assets and wealth structuring has become increasingly complex. Rarely will the assets, the underlying cause of action, and the location of relevant individuals all be in the same jurisdiction. The complexities are usually magnified where fraud is involved. The courts must be equipped to respond effectively and swiftly to these scenarios. To its credit, the common law world has demonstrated a keen appetite to develop the jurisdiction of freezing orders to meet the increasing complexities of commerce, and in particular to combat the sophistication of international fraud and money laundering. It has been and continues to be fine-tuned to the demands of the day, whether through common law development or the adoption of statutory remedies. This article considers how the freezing order jurisdiction has evolved since 1975, significant developments in its evolution for both onshore and offshore jurisdictions, and hazards a look into the crystal ball of its future.

Released on Oct 20, 2021

Clash of the Titans: GDPR and International Arbitration – a Look at the Future

There is little guidance for arbitration practitioners on how personal data protection obligations should be complied with in international arbitration. In February 2019, the International Council for Commercial Arbitration (ICCA) and the International Bar Association (IBA) established a Joint Task Force on Data Protection in International Arbitration Proceedings. In March 2020, the Task Force published a consultation draft Roadmap that seeks to provide such practical guidance. This article, focusing specifically on the European Union’s General Data Protection Regulation (GDPR), serves as a commentary on this Roadmap in light of six pertinent issues regarding personal data protection in international arbitration.

Released on Oct 20, 2021

Introduction of the UN Convention on International Settlement Agreements Resulting from Mediation - Third Piece in the International Framework of Dispute Resolution

From modest beginnings and expectations of the process of commercial mediation in the 1970s and the work of Professor Frank Sander, mediation has grown in application internationally, culminating in the introduction of the United Nations Convention on International Settlement Agreements Resulting from Mediation known as ‘the Singapore Convention on Mediation’ (‘the Convention’ or ‘SMC’). Mediation is described in the UN Commission on International Trade Law (UNCITRAL) Model Law as ‘… a process, whether referred to by the expression mediation, conciliation or an expression of similar import, whereby parties request a third person or persons (“the mediator”) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship. The mediator does not have the authority to impose upon the parties a solution to the dispute’. The definition is broad and allows for use across jurisdictions and differing cultural contexts; however, one of the novel features of this convention relates to the conduct of the mediator, in the sense that the mediator’s conduct can affect the enforceability of a settlement agreement. This factor and the central tenets of this convention are examined in this article as is the framework for international settlement agreements in the context of international trade and commerce.

Released on Jun 3, 2021

The Global Impact of the Covid-19 Pandemic on Commercial Dispute Resolution in the First Year

While the pandemic disruption has extended for far longer than initially expected, courts (after the first wave), arbitral institutions and stakeholders in commercial dispute resolution have largely continued operations, increasingly supported by innovative digital technology, flexible scheduling and flexible cost structures, among other tools.

Released on Jun 2, 2021

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