Litigants often enter into settlement agreements without giving much thought to whether those agreements could form the basis for an antitrust claim – and for good reason because most settlement agreements simply resolve a dispute through money payments. However, agreements that restrict rivals' abilities to engage in advertising or other competitive activities could fall foul of the antitrust laws.
The independence and impartiality of arbitrators are crucial to the legitimacy of international arbitration. Arbitration rules typically afford challenged arbitrators the opportunity to comment on a challenge, but they are silent as to the scope of participation permitted. A challenged arbitrator should cooperate with the decision maker and should in no circumstances appear to descend into the fray or display animosity toward the challenging party.
Gambia recently became the fifth nation to ratify the United Nations Convention on Transparency in Treaty-Based Investor-State Arbitration (Mauritius Convention). Eighteen other countries have signed the Mauritius Convention but have not yet ratified it. While no arbitrations subject to the convention have yet been initiated, if the current signatories were to ratify it, at least an additional 39 bilateral and multilateral treaties would become subject to the convention, unless expressly reserved.
It should be anticipated that new types of energy arbitration will emerge in 2018 and beyond, whereas others may decline. As always in the energy sector, an uncertain political landscape combined with cross-border investment in energy projects and fluctuating prices creates the model ecosystem for a whole spectrum of energy disputes to emerge globally, with arbitration remaining a key method of dispute resolution.
California Governor Jerry Brown recently signed into law Senate Bill (SB) 766, Representation by Foreign and Out-of-State Attorneys. The bill, which was passed 69-to-zero by the legislature, clarifies that foreign (ie, not licensed in the United States) and out-of-state (ie, licensed in a US jurisdiction, but not in California) attorneys can represent parties in international arbitrations in California, subject to certain conditions. SB 766 will take effect on 1 January 2019.
Repowering is the process of replacing an energy plant's original components with new ones and reconfiguring the layout in order to boost the plant's yield. Given that the regulatory framework in this regard is ambiguous, repowering works are innovative and the case law on such matters contains gaps, energy producers seeking to repower their plants are advised not to start the simplified deemed-consent procedure without obtaining prior clearance from the competent authorities.
The public policy exception to the recognition and enforcement of international arbitral awards creates uncertainty with respect to the enforcement of these awards – particularly because contracting states have diverse approaches to issues of public policy. While some jurisdictions still maintain a parochial approach, recent trends invite cautious optimism that major jurisdictions are converging in the practice of adopting a narrow interpretation of the public policy exception.
A disgruntled party on the losing end of an award will sometimes seek to have the award annulled or set aside at the seat of arbitration. However, even if such a challenge at the seat is successful, that is not necessarily the end of the matter. Awards that are seemingly 'dead and buried' can sometimes be resurrected or haunt the losing party in other jurisdictions where enforcement of the award is sought.
In recent years, many of the leading arbitral institutions have amended their rules in order to make arbitration more responsive to users' needs. A key development has been the introduction of emergency arbitrator procedures, which enable parties to obtain urgent relief before the substantive tribunal is formed. These new developments are attracting significant attention from parties and arbitrators – but have enforcement mechanisms kept pace?
Although institutional rules arguably empower arbitral tribunals to streamline procedure and summarily dispose of claims or defences as part of their general case management authority, the trend is for institutional rules to expressly recognise such powers. But do these procedural innovations aimed at cheaper and quicker arbitrations come at the price of a binding and enforceable award?
While there are cases that involve claims for declaratory relief or specific performance, disputes are most often about payment. A claimant goes into battle – spending time and money to develop strong arguments and clever case theories – only if it expects the proceedings to result in a payout. There are several strategic steps that in‑house counsel can take throughout the process to maximise their chances of securing payment.
In most jurisdictions, when it comes to enforcing an arbitral award against a non-paying or recalcitrant state or a state-owned entity, the road can be long and full of obstacles. Enforcing parties should be mindful of the jurisdiction-specific nuances of enforcing awards in different countries, as well as the tactics commonly used by recalcitrant parties to obstruct or delay enforcement.
There are two principal treaties which govern the enforcement of international arbitral awards in foreign jurisdictions: the New York Convention and the Washington Convention. The success of international arbitration (both commercial and investment treaty arbitration) can be attributed in large part to the global enforcement regimes created under these treaties. While the New York Convention is broader in scope, it contains more grounds for resisting enforcement than the Washington Convention.
In 2018 the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (known as the New York Convention) will celebrate its 60th anniversary. The New York Convention governs two fundamental aspects of international arbitration – namely, how states will treat arbitration agreements and arbitral awards that were made in other jurisdictions. There are 157 contracting states to the convention, which creates an almost universal regime governing these two important issues.
Even after the retrospective cut in renewable energy incentives in Italy, the acquisition of operating solar photovoltaic (PV) plants under the right conditions still provides strong financial returns to investors. Nonetheless, irrespective of a project's financing structure or size, there are risks associated with such transactions which buyers should be aware of during the due diligence process.
The Third Circuit recently held that non-debtor subsidiaries cannot be liable for allegedly fraudulent transfers under the Delaware Uniform Fraudulent Transfer Act. The case arose out of a mining company's efforts to enforce a $1.2 billion arbitral award that it had obtained against the Bolivarian Republic of Venezuela. This decision is likely to be relevant to other proceedings, including the multiple pending proceedings against Venezuela arising out of its economic nationalisation from 2007 to 2011.
Various innovative procedural features (eg, emergency arbitrators, expedited arbitration and summary procedures) have been introduced in recently adopted institutional arbitration rules in order to increase the efficiency of arbitral proceedings. It is not yet clear how extensively these provisions will be used, nor how resulting decisions and orders will be recognised and enforced. However, the idea of granting tribunals powers to dispose of certain issues by way of summary procedure should be welcomed.
One of arbitration's cornerstone principles is that parties can agree on how to resolve their disputes. However, parties commonly agree on asymmetric, rather than symmetric, rights. The classic case is where only one party has the right to refer disputes to arbitration, but the other must litigate. Parties wishing to include asymmetric arbitration clauses are advised to consider carefully the courts' approaches to such clauses in all relevant jurisdictions.
Smart contracts are a hot topic in almost every industry sector. There is a misconception that, because they perform automatically and their performance cannot be stopped, they remove the potential for disputes. At least for the moment, this is wishful thinking. Although smart contracts provide huge potential benefits in terms of reducing transaction costs and increasing security, disputes can and will arise.
As the number of electronic devices, applications and other technologies increases, there has been a corresponding growth in the volume of potentially disclosable data in a dispute. While parties' disclosure obligations are clearly defined in the context of litigation, international arbitration offers a more flexible approach to disclosure which will often be influenced by the legal jurisprudence of the tribunal.