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Netherlands confronted with €1.4 billion ICSID claim in first Dutch investor-state arbitration
Freshfields Bruckhaus Deringer LLP
  • Netherlands
  • 25 February 2021

A German electricity generation company recently filed a request for arbitration against the Netherlands at the International Centre for Settlement of Investment Disputes. The application is based on the Dutch government's decision to phase out coal for electricity generation. The company has invoked an investor-state dispute settlement clause in the Energy Charter Treaty, which the European Union co-signed on behalf of the Netherlands. This marks the first investment arbitration against the Netherlands.

LCIA Rules 2020: key changes
Norton Rose Fulbright
  • International
  • 25 February 2021

The new London Court of International Arbitration (LCIA) Rules 2020 came into force on 1 October 2020 and apply to all LCIA arbitrations commencing from that date onwards. The amendments are an attempt to streamline and modernise the LCIA rules. This article discusses the key changes introduced by the new rules and their likely impact on parties.

Court of Appeal addresses expert's duties and conflicts of interest
Clifford Chance
  • United Kingdom
  • 11 February 2021

The Court of Appeal recently considered for the first time the question of an expert's duty to avoid a conflict of interest. The court's decision, while not deciding the point finally, means that it is unlikely that a court will now recognise such a duty as a matter of law. The issue is a matter of contract. The judgment contains a useful analysis of when conflicts can arise in related cases and the circumstances in which a large organisation offering expert or litigation support services may find itself conflicted.

Proving corruption allegations – return to balance of probabilities standard?
Norton Rose Fulbright
  • International
  • 11 February 2021

Corruption allegations have blossomed as an area of interest in international arbitration. Numerous published awards show that states are increasingly relying on allegations of corruption to defend treaty and commercial claims. Despite this trend, no established approach exists for the standard of proof that applies to such allegations. However, recent awards show that the standard of proof applicable in arbitration should be no higher than the standard required in other civil cases.

Third time lucky? The Hague Court dismisses Ecuador's defence against tribunal's non-pecuniary order
Freshfields Bruckhaus Deringer LLP
  • Netherlands
  • 04 February 2021

In the ongoing dispute between Ecuador and US energy multinational Chevron Corporation, The Hague District Court was again called upon to consider whether an award issued pursuant to the US-Ecuador bilateral investment treaty could be set aside. The ruling confirms The Hague court's positive view of investment arbitration and orders which are rather unconventional in such arbitration.

Supreme Court annuls award which extended arbitration agreement to third-party subcontractor
Tavernier Tschanz
  • Switzerland
  • 04 February 2021

The Supreme Court recently annulled a partial award on jurisdiction in which an International Chamber of Commerce arbitral tribunal in Geneva had extended the arbitration agreement to a subcontractor based on its implied consent to arbitration. This decision provides some assurances to subcontractors that they will not easily be deemed to have provided implied consent to an arbitration clause contained in a main contract based on the performance of their obligations under a subcontract.

Recent joint venture dispute trends in mining sector
Norton Rose Fulbright
  • International
  • 04 February 2021

This article considers the duties, both express and implied, which joint venture partners may be under when dealing with each other. Can a party simply look out for itself or must it consider its partners' interests when conducting joint venture business? How do arbitrators approach these questions?

Seeking stay or amendment of enforcement of international awards: evolution of courts' approach
Freshfields Bruckhaus Deringer LLP
  • France
  • 04 February 2021

Under Article 1526 of the Code of Civil Procedure, if an award's enforcement is likely to severely harm the rights of one of the parties, such enforcement may be stayed or amended. This article clarifies the conditions which must be met for Article 1526 to apply and sets out the evolution of the courts' interpretation of the notion of severe harm to the rights of one of the parties.

Determining arbitrability of disputes is courts' prerogative
Khaitan & Co
  • India
  • 28 January 2021

The Delhi High Court recently granted an anti-arbitration injunction in relation to an arbitration invoked in accordance with the terms of a family trust deed, which provided for arbitration to be governed under the aegis of the International Chamber of Commerce, by holding that disputes in relation to trusts are non-arbitrable. The court ruled that it is the prerogative of the courts (and not arbitral tribunals) to determine the arbitrability of a dispute, notwithstanding the competence-competence principle.

Conventional wisdom in arbitral proceedings
Obeid Law Firm
  • International
  • 28 January 2021

This article analyses the role of conventional wisdom in the promotion of efficient arbitration proceedings. It identifies numerous ideas and principles which are generally accepted and ensure the functioning of the arbitration process. However, questioning the meaning of conventional wisdom and identifying the principles which constitute it first requires an examination of the foundations of international arbitration.

Lack of funds does not enable parties to escape arbitration
Kubas Kos Gałkowski
  • Poland
  • 21 January 2021

Arbitration does not provide for legal aid or an exemption from paying costs. Some regard this as a disadvantage of alternative dispute resolution. One party's lack of funds to pay for its share of arbitration costs can indeed deprive it of its day in arbitration court. This issue recently came before the Warsaw Court of Appeals, which decided that a party's lack of funds to launch arbitration does not render the arbitration agreement defective.

Disruptive technologies in mining industry: opportunities, risk mitigation and resolving disputes
Norton Rose Fulbright
  • International
  • 21 January 2021

Technological innovation continues to disrupt the status quo in established industries. While new technologies offer many opportunities within the mining industry, the corresponding risks and potential disputes are not far off. Parties must ensure that they incorporate appropriate contractual protections but also effective and enforceable mechanisms for enforcing their contracts and resolving disputes. A robust and broad arbitration agreement remains one important part of risk mitigation.

Conundrum of accord and satisfaction when appointing arbitral tribunals
Khaitan & Co
  • India
  • 14 January 2021

There are several ways in which parties can discharge their contractual obligations – for example, the doctrine of accord and satisfaction. The jurisprudence surrounding this doctrine encompasses contract law, tort law and, more recently, arbitration law, bringing to the fore the issues of whether an arbitration clause in an original contract survives in the substituted settlement and whether an arbitrable dispute exists for the purposes of the appointment of an arbitrator by the courts.

Mining arbitration: recent dispute trends
Norton Rose Fulbright
  • Africa
  • 14 January 2021

Africa's economic growth has historically been linked to the fluctuation of commodity prices and it supplies significant amounts of minerals in global demand. Against this background, some states and state-owned counterparts of mining investors in Africa have taken a series of measures perceived by investors as an attempt to force them to renegotiate their long-term agreements. This has led to an increase in disputes concerning legislative changes, joint venture agreements and environmental issues.

Supreme Court clarifies test of arbitrator impartiality and arbitrators' duty of disclosure
Clifford Chance
  • United Kingdom
  • 07 January 2021

The Supreme Court recently unanimously upheld a Court of Appeal decision to dismiss an application to remove an arbitrator on the grounds of apparent bias. The Supreme Court confirmed the Court of Appeal's decision that arbitrators are under a duty to disclose appointments in references concerning the same or overlapping subject matter with a common party, although the Supreme Court's reasoning differed.

Streaming finance agreements: a dispute resolution perspective
Norton Rose Fulbright
  • International
  • 07 January 2021

Streaming agreements are increasingly relied on by mining companies as a primary source of financing. As always, in parallel with the increase in popularity of particular transactions, there has been a corresponding increase in disputes between counterparties. This article explores the nature of streaming agreements, the types of dispute that can arise and how contracting parties can take steps at the outset to put themselves in the best position to mitigate disputes risk.

Can eye rolling be a reason to challenge an arbitrator?
Graf & Pitkowitz Rechtsanwalte GmbH
  • Austria
  • 24 December 2020

The Supreme Court recently dealt with the challenge of an arbitrator on the grounds that he had rolled his eyes during the pleading of a party's representative. Said arbitrator did not explicitly contest the accusation of having rolled his eyes. Nonetheless, he claimed to be able to objectively give a legal assessment of the facts of the case. This decision adds to the case law on the impartiality and independence of arbitrators, particularly with respect to an allegation of bias based on non-verbal reactions.

Overview of dispute trends in mining and metals sector: volatility as the new normal
Norton Rose Fulbright
  • International
  • 17 December 2020

Considerations of agility, resilience and risk mitigation must feature high on every corporate agenda. This article examines the areas that must be considered when it comes to disputes risk mitigation in the mining sector, including identifying the potential origins of disputes, enforcement of international arbitral awards, contractual disputes and disputes with states or state-owned entities.

Five key changes in the ICC's 2021 arbitration rules
Freshfields Bruckhaus Deringer LLP
  • International
  • 10 December 2020

The International Chamber of Commerce has updated its arbitration rules with effect from 1 January 2021 and applying to all cases registered from that date. These modifications are relatively subtle, aimed at streamlining the overall arbitral process. By expressly outlining certain procedural powers which had been arguably uncertain, the risk of disruption from parties' intent on delay should also be reduced. These updates are consistent with the chamber's efforts to control time and costs.

When can an arbitration tribunal's competence be challenged?
Becerril Coca & Becerril SC
  • Mexico
  • 10 December 2020

By signing an arbitration clause, the parties to the arbitration agreement freely and voluntarily grant an arbitrator or arbitration tribunal full and sufficient competence to resolve conflicts that might arise between said parties due to the execution of a commercial contract. The parties' choice of arbitrator is crucial because the validity and soundness of the final arbitration resolution will depend on their experience.

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