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.
Broadly speaking, the cost of a dispute includes parties' expenses in relation to attorney fees, procedural costs (court or arbitration fees) and additional expenses (eg, transport and food costs). In terms of these costs, on a superficial analysis, arbitration appears costlier than litigation, as the parties must pay arbitrators' fees, while judges are paid by the government of the countries where the dispute occurs. However, on a more careful analysis, it is evident that the inverse conclusion is true.
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.
In January 2018 the single African air transport market (SAATM) was formally launched. Its principal objective stems from the Yamoussoukro Decision, which provided for the full liberalisation of intra-African air transport services in terms of market access. The SAATM is a welcome development; however, to reap the full potential of the initiative, the African Union must do all that is necessary to ensure that the resources, infrastructure and capacity required to grow the aviation sector are available.
The African Union endorsed the Yamoussoukro Decision in 2000 and it became fully binding in 2002. Its rationale was the need to foster socio-economic development in Africa – policymakers recognised that aviation and a competitive aviation market could be decisive for unlocking Africa's economic potential. However, the agreement has not been fully implemented by its signatories.
The International Air Transportation Association (IATA) Dangerous Goods Regulations – the only standard recognised by airlines – contain the globally applicable provisions for shipping dangerous goods by air. A violation of the regulations might lead to criminal proceedings and infringements are a notifiable fact to be reported to the competent authority. In order to assist shippers in understanding the complete requirements, IATA has prepared the Lithium Battery Shipping Guidelines.
A key component which promotes growth in the aviation industry is the availability of capital to finance aircraft transactions. Although the existing methods for financing aircraft are acceptable, they have some notable flaws. Conversely, a number of possible benefits exist for airlines that choose to accept digital currency for financing transactions in the sector.
After years of protracted negotiations, the General Assembly of the International Civil Aviation Organisation recently created the first global market-based measure to attempt to contain aviation emissions. However, the new scheme has significant limitations, leaves questions unanswered and mechanics undetermined, and – in the view of many non-governmental organisations – does not sufficiently address the ongoing dangers posed by aviation greenhouse gas emissions.
Over the past few years, the potential to use distributed ledgers and blockchain technology has seen increasing interest from banks and other financial institutions. However, as companies move from research and development to initial deployment, two of the key questions are: what are the legal and regulatory implications, and what approach will regulators across the globe take to its use in the banking industry?
International Shareholder Services recently released the results of its 2017-2018 global policy survey. The results reveal mixed views on multi-class capital structures, share buybacks and virtual annual meetings, but strong opinions on board gender diversity. However, although almost 70% of investors viewed as problematic the absence of any women on a board, making board diversity a reality seems to be a tougher proposition.
According to traditional antitrust theory, individuals (and firms) maximise utility according to stable preferences and rational expectations, while being well informed. This means that antitrust follows microeconomic bases that lead to the assumption that economic players are rational actors with willpower and self-interest. However, the emergence of behavioural economics shows that people do not necessarily behave in the ways that traditional economic principles would predict.