Disclosure in international arbitration: text messages, WhatsApp messages, Skype calls and audio recordings

The arbitral tribunal in Amerra Capital Management LLC and others v. United Mexican States (ICSID Case No. UNCT/23/1) recently issued a procedural order in relation to document production.

The case is a pending legacy NAFTA claim in which the investors assert that Mexico breached the fair and equitable treatment provisions of NAFTA and expropriated their investments, taking the form of two mortgages on real estate in the State of Sinaloa.

In its Procedural Order No. 5 (made public on 11 June 2024), the arbitral tribunal, consisting of Professor Albert Jan van den Berg (presiding arbitrator), Mr Eduardo Siqueiros T. and Professor Jorge Viñuales indicated that the production of relevant documents extended to the production of relevant text messages and audio recordings. Continue reading “Disclosure in international arbitration: text messages, WhatsApp messages, Skype calls and audio recordings”

UK Supreme Court clarifies scope of an appeal under the Arbitration Act

The UK Supreme Court’s decision in Sharp Corp Ltd v Viterra BV [2024] UKSC 14, has clarified the scope of, and limitations to, an appeal of law under section 69 of the English Arbitration Act 1996.

In the earlier Court of Appeal decision the Court had made findings of fact additional to those made by the original Tribunal. These related to a finding that one of the contracts in question had been varied. Further, the Court of Appeal had decided a question of law which had not been put to the Tribunal.

On the second point, the Supreme Court swiftly concluded that a valid appeal requires that “the point has to [have been] fairly and squarely before the arbitration tribunal for determination“. If the issue had not been before the Tribunal in this way the proceedings cannot properly be an “appeal” on that point.

On the question of whether a court hearing an appeal has the authority to make findings of fact, this point was also dealt with quickly by the Supreme Court at [71]:

The court’s jurisdiction under section 69 of the Act is limited to appeals on questions of law. It has no jurisdiction in relation to errors of fact and no power to make its own findings of fact“.

The decision is a clear statement of the limits of an appeal under section 69 of the Arbitration Act and serves as helpful guidance.

United Kingdom Supreme Court Reaches Decision on the Jurisdiction to Grant Anti-Suit Injunctions to Enforce Foreign-Seat Arbitration Agreements

This morning, the United Kingdom’s Supreme Court gave its decision in a case centered on the question of whether the English court can properly grant anti-suit injunctive relief in support of an arbitration seated in another jurisdiction (UniCredit Bank GmbH (Respondent) v RusChemAlliance LLC (Appellant), Case ID: 2024/0015).

Lord Reed of Allermuir, President of the Supreme Court, gave the court’s decision at a short hearing this morning. A full written judgment is to follow: Continue reading “United Kingdom Supreme Court Reaches Decision on the Jurisdiction to Grant Anti-Suit Injunctions to Enforce Foreign-Seat Arbitration Agreements”

The first ever summary dismissal of ICSID annulment grounds for being “manifestly without legal merit”

On 2 February 2024, the ICSID ad hoc Annulment Committee in Nachingwea and others v. Tanzania, ICSID Case No. ARB/20/38 (the “Nachingwea Committee”) issued a Decision dismissing much of Tanzania’s annulment application, having found those parts to be “manifestly without legal merit”.

Issued ten years after the first consideration by an ad hoc Annulment Committee of Rule 41(5) objections to an annulment application,[1] the Nachingwea Committee’s Decision is the first to grant a Rule 41(5) preliminary objection.[2]

Rule 41(5) provides an expedited procedure for the disposal of claims which are manifestly without legal merit at an early stage of proceedings.[3] It is available in ICSID arbitration proceedings, as well as mutatis mutandis in Chapter VII proceedings,[4] including annulment proceedings.[5] Continue reading “The first ever summary dismissal of ICSID annulment grounds for being “manifestly without legal merit””

When does a contract waive a state’s immunity from enforcement?

The decision in General Dynamics (UK) Ltd v State of Libya [2024] EWHC 472 (Comm), turned on whether the sentence “Both parties agree that the decision of the arbitration panel shall be final, binding and wholly enforceable.”, did or did not operate to waive the State of Libya’s immunity from enforcement in accordance with the UK’s State Immunity Act 1978.

The contract was governed by Swiss Law, but the principles of contractual construction under Swiss law were not in dispute. Also not disputed was the fact that no particular form of words are required for a state to waive a part of its immunity.

Continue reading “When does a contract waive a state’s immunity from enforcement?”

English court stays litigation in favour of arbitration

Seven companies have a claim against their former director for breach of fiduciary duties. Three of those companies have an arbitration agreement.

All seven companies bring a claim in the English court against the former director who applies to have the court proceedings stayed in favour of arbitration.

The three claimants with an arbitration agreement concede that they must sue in arbitration, and the question then becomes whether the court claims by the other claimants should be stayed in favour of the arbitration or not.

Continue reading “English court stays litigation in favour of arbitration”

Apparent bias and section 24(1)(a) of the Arbitration Act (1996)

The English court seldom removes an arbitrator due to apparent bias (to be distinguished from actual bias), but in the recent case of H1 & Anor v W & Ors [2024] EWHC 382 (Comm), it did. The arbitration concerned film insurance and a dispute over an accident on the film set. The sole arbitrator, a non-lawyer industry specialist nominated by the British Film Institute, was removed for apparent bias following a successful application under section 24(1)(a) of the Arbitration Act 1996.

The judgment is noteworthy for its treatment of section 24 of the Arbitration Act 1996, but also because of Calver J’s decision to anonymise the parties and the arbitrator. Continue reading “Apparent bias and section 24(1)(a) of the Arbitration Act (1996)”

English court decision on anti-arbitration injunctions

The High Court in London has granted an anti-arbitration injunction to prevent the commencement of an arbitration within the context of a series of long-running disputes between the parties.

The case is Sodzawiczny v Smith (Re Arbitration Claim) [2024] EWHC 231 (Comm). The decision contains a useful and detailed review of the case law regarding anti-arbitration injunctions.

Continue reading “English court decision on anti-arbitration injunctions”

UK Law Commission Publishes Its Review of the Arbitration Act 1996: Final Report and Bill

On 6 September the Law Commission published its final report and recommendations on reforms to the Arbitration Act. The full report is available here.

Below follows a non-exhaustive summary of some of the key changes:

Statutory Rule on Governing Law of an Arbitration Agreement

English law has developed common law rules to determine which law governs an arbitration agreement. These rules were summarised by the UK Supreme Court in Enka Insaat ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38, and largely confirmed in Kabab-Ji SAL v Kout Food Group [2021] UKSC 48. Broadly speaking, absent an agreement to the contrary the choice of law of the main contract would also apply to the arbitration agreement.

The proposed new Section 6A would alter that framework for agreements post-dating the new Act becoming law. The new Section 6A still recognises the parties’ positive choice of governing law in the arbitration agreement as determinative. Failing such choice, however, the law of the seat will be applied as the governing law.

Continue reading “UK Law Commission Publishes Its Review of the Arbitration Act 1996: Final Report and Bill”

ICSID Caseload Statistics (2023 Fiscal Year)

The ICSID Caseload Statistics have now been updated with new data for the fiscal year 2023 (“FY2023”) to capture statistics drawn from cases registered under the ICSID Convention, the Additional Facility Rules and other ICSID-administered cases between 1 July 2022 and 30 June 2023.

The International Centre for Settlement of Investment Disputes (“ICSID”) was established in 1966 by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the “ICSID Convention”) as a means of furthering the World Bank’s objective of promoting international investment through the provision of a neutral and reliable forum for the resolution of disputes between foreign investors and States. To date, the ICSID Convention counts 158 Contracting States and seven signatory States, bringing the total number of ICSID Member States to 165. Continue reading “ICSID Caseload Statistics (2023 Fiscal Year)”

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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