The COVID-19 pandemic has severely curtailed court access in many jurisdictions. By virtue of its flexibility, arbitration has been offered up as a solution to commercial parties which nevertheless wish to progress the resolution of their dispute. Both institutional and ad hoc arbitrations have been accommodating in terms of virtual hearings and electronic documentation.
In 2016 Joshua Dean Nelson commenced arbitration against Mexico on behalf of Telefacil México, SA de CV and himself under the North American Free Trade Agreement (NAFTA). According to Nelson, the Federal Telecommunications Institute had prevented him from participating in the telecoms market by issuing measures that he alleged violated Chapter 11 of NAFTA. However, the tribunal recently rejected the claims and held that Telefacil owed Mexico $2.05 million in arbitration costs.
The COVID-19 pandemic presents unique challenges to businesses globally. Amid the uncertainty and disruptions to all aspects of life and commerce, many companies are facing disputes with their counterparties. Claims can be preserved in many instances – even strengthened – by carefully considered but simple steps taken now. Companies should settle on an appropriate strategy, tailored to their business and jurisdiction, sooner rather than later.
In a recently published decision, the Supreme Court upheld an arbitral award in which the arbitral tribunal had declined jurisdiction in the absence of a valid arbitration agreement. The court confirmed that it does not review arbitral tribunals' findings as to the parties' actual and common intent to arbitrate. In addition, it held that it cannot review an arbitral tribunal's findings of fact and outlined the exceptional circumstances needed for it to review a challenge of jurisdiction.
States have taken urgent and extraordinary steps to prevent the spread of COVID-19 and address the public health and economic crises that it has caused. Some such measures are aimed directly at the need to treat those affected by the virus, while others aim to address the virus's unprecedented economic impact on the world economy. Inevitably, some of these measures will affect foreign investors and their investments in host states, triggering investor-state disputes.
Where insolvency involves cross-border investments, foreign investors may have additional rights under international investment treaties or agreements (IIAs). IIAs are agreements between states in which the state receiving investment from an investor from the other state commits to provide certain levels of protection to those foreign investors in respect of their investment. Foreign investors often have a direct right under an IIA to commence proceedings against the host state for a breach of such commitments.
The COVID-19 pandemic is forcing businesses of all shapes and sizes to pursue alternate sources of funding to ensure the advancement of pending claims, bring new claims arising out of the pandemic and enhance cash flow where possible to survive. Understanding the range of dispute funding options available is critical to assess whether and, if so, how such funding can be leveraged to help a business weather the current COVID-19 environment and what is yet to come.
This article discusses some of the main considerations that arise when a party considering arbitration or already engaged in arbitration files for insolvency, or has its counterparty file for insolvency, under German insolvency law. It answers key questions such as is an insolvency administrator bound by an arbitration clause agreed to by the insolvent party and what happens to an arbitration if a party files for insolvency in Germany?
For a cross-border system of dispute resolution that frequently involves participants from different countries, the challenge posed by COVID-19 is acute. However, given that arbitration is a flexible and consensual process, it is well positioned to respond swiftly to these challenges. In a short time, the international arbitration community – led by the major arbitral institutions – has collaborated to find ways to maintain access to justice in a timely and efficient manner.
The High Court recently confirmed that the procedure for the registration and enforcement of an award made pursuant to the International Centre for the Settlement of Investment Disputes (ICSID) Convention does not require service of the claim form. The court upheld an order dispensing with service on a state of an order for the enforcement of an ICSID award. In addition, the court upheld an order for alternative service against the state.
The resilience and innovation shown by the international arbitration community in recent months should be applauded. In the face of significant adversity, new and improved ways to resolve disputes and maintain access to efficient and effective justice have emerged. Notwithstanding the terrible circumstances that provided the impetus, recent months have disrupted the status quo and challenged normative beliefs around how disputes can and should be resolved.
The issue of an arbitral tribunal's jurisdiction over set-off claims that are not covered by an arbitration agreement is controversial, with the rules differing from jurisdiction to jurisdiction. In a recent judgment, the Warsaw Court of Appeals held that even if a set-off claim is based on an agreement that is outside the scope of an arbitration agreement, the tribunal must determine the set-off's effects on the main claim raised in the proceedings.
The patent illegality ground was formally introduced to the Arbitration and Conciliation Act 1996 by way of the Arbitration and Conciliation (Amendment) Act 2015. Prior to 2015, the scope of this ground of challenge was set out in various Supreme Court decisions stemming from Oil & Natural Gas Corporation Ltd v Saw Pipes Ltd. This article examines the genesis of patent illegality and tracks its trajectory from Oil & Natural Gas Corporation.
The Hong Kong courts' pro-arbitration attitude is evident from the continuous refinement of their dispute resolution mechanism. Such efforts are distinctly remarkable in commercial contexts, as demonstrated by the dynamics between the statutory company regime and the arbitration regime. Observing such intriguing interplay between the two regimes, this article examines recent decisions in disputes arising from corporate affairs and disputes relating to insolvency.
The Supreme Court recently considered whether a final arbitral award on the reimbursement of costs violated Austrian public policy. The claimant had ultimately succeeded in the arbitration conducted under the rules of the International Court of Arbitration of the International Chamber of Commerce. Nevertheless, the cost decision ordered it to reimburse the respondent's costs. The Supreme Court dismissed the claimant's request to set aside the cost decision.
The freedom to contract principle forms the basis of the Contract Act, and a similar principle is also provided for in the Arbitration and Conciliation Act. However, the question often arises as to what happens when one party – despite a contractual agreement setting out the scope and ambit of arbitration – seeks recourse to remedies provided for under a special statute. This article examines this issue in view of the Micro, Small and Medium Enterprises Development Act.
The enforcement of a foreign arbitral award in India is founded on the fundamental principle of minimal judicial intervention in order to further India's pro-arbitration and consequently pro-foreign investment climate. However, the Delhi High Court recently refused to enforce a foreign arbitral award under the Arbitration and Conciliation Act. This article analyses the court's decision, its reasons for refusing the enforcement of the award and whether this judgment is a step back for Indian arbitration law.
In a recently published decision, the Supreme Court – for the first time – partially annulled an arbitral award issued in an investment arbitration. A Geneva-based arbitral tribunal, which was constituted under the United Nations Commission on International Trade Law Arbitration Rules, had wrongly declined jurisdiction to decide an investment treaty claim brought by Clorox España SL against Venezuela.
The High Court recently dismissed a challenge to a previous decision to grant permission to enforce a Stockholm Chamber of Commerce award on the basis that contrary to the defendant's contention, there was a valid arbitration agreement between the parties and the defendant's arguments as to procedural irregularity had previously been raised in Swedish court proceedings, thereby giving rise to an issue estoppel.
The Bombay High Court recently passed an order in favour of the enforcement of a foreign arbitral award which had been rendered by an arbitral tribunal constituted under the Singapore International Arbitration Centre Arbitration Rules. The award upheld the validity and performance of a put option created pursuant to a share subscription agreement and a put option deed, which provided a foreign investor with an exit from its investment in an Indian company on agreed terms and conditions.