arbitration – International Arbitration

June 13, 2024 by Paul-Raphael Shehadeh

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”

May 10, 2024 by Mark Handley

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.

April 23, 2024April 23, 2024 by Paul-Raphael Shehadeh

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”

March 5, 2024March 5, 2024 by Mark Handley

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”

February 20, 2024 by Mark Handley

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”

August 11, 2023August 11, 2023 by Paul-Raphael Shehadeh

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)”

August 11, 2023 by Mark Handley

New Code of Conduct for arbitrators in investment arbitration

The UN Commission on International Trade Law (UNCITRAL) has approved a Code of Conduct for arbitrators in international investment arbitration (available here). The Code is intended to apply to members of an ICSID arbitral tribunal or ad hoc committee, and to candidates for such roles, and also to apply to other investor-state arbitrations. The precise mechanics by which this will be achieved is unclear, and the commentary to the Code suggests that it may come to be incorporated into the UNCITRAL Arbitral Rules. Parties are free to agree that the Code should apply in their arbitrations and it is likely that this will become common.

The Code of Conduct is a mixture of codifying existing best practice, such as a prohibition on ex parte communications outside the remit of an initial appointment, and a requirement for independence and impartiality.

The Code also, however, contains a number of far-reaching new rules, in relation to so-called “double-hatting” where the same person acts as both arbitrator and party-appointed counsel in relation to the same actions by particular states or the same treaty provisions; in relation to the a requirement to maintain an arbitration’s confidentiality; and requirements for arbitrator disclosure.

Continue reading “New Code of Conduct for arbitrators in investment arbitration”

May 18, 2023 by Ramsey Schultz

Eleventh Circuit Expands Standards for Vacatur of International Arbitration Awards

On April 13, 2023, the United States Court of Appeals for the Eleventh Circuit overturned decades of precedent in determining the grounds that can be asserted to vacate an arbitral award governed by the New York Convention (the “Convention”)[1]. The Eleventh Circuit in Corporación AIC v. Hidroelectrica Santa Rita, sitting en banc, held that in a case under the Convention where the United States is the governing jurisdiction, the grounds for vacatur of a domestic award are set out in domestic law, currently Chapter 1 of the Federal Arbitration Act[2] (“FAA”).[3] In doing so, the Eleventh Circuit overruled the two prior controlling cases on the issue and settled a circuit split, realigning their opinions with that of its sister circuits. This decision—which expands the grounds for challenging arbitration awards beyond those provided in the Convention—could have significant implications on parties choosing the Eleventh Circuit as the seat of arbitration moving forward.

Continue reading “Eleventh Circuit Expands Standards for Vacatur of International Arbitration Awards”

April 11, 2023 by Julia Jaremko

The Impact of Sanctions on International Arbitrations

One of the most important issues facing the parties (or potential parties) to an international arbitration is whether an award will ultimately be enforceable against opposing parties and their assets. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention”), usually provides the most direct means to enforce an award. And, as a general rule, the Convention’s application makes enforcement of International Arbitral awards a more straight forward process than judgments from foreign courts. But, parties must remain aware of and consider the limited defenses or obstacles to enforcement that still exist under the Convention, including where enforcement of an award would be contrary to public policy. This “public policy exception” is particularly relevant when issues of international sanctions are involved.

Russian Court Ruling Impact on International Arbitrations

After the Russian invasion of Ukraine, dozens of countries, including the United States, introduced or greatly expanded sanctions against Russia, the Russian President Vladimir Putin as well as high-powered Russian government officials and other influential Russian interests. These sanctions have been extensive, going so far as to prevent Russian banks from using the SWIFT international payment system.

The Russian government responded to these sanctions, in part with the introduction of Federal Law No. 171-FZ, which provides Russian parties to an international arbitration (who are also the subject of Russian sanctions) the opportunity to apply to a Russian court for an injunction prohibiting foreign claimants from continuing the arbitration and receiving an award. The Russian court can also award the sanctioned individual a sum of money that equals the sum of the international award against the sanctioned person thereby eliminating the award against the sanctioned person. Continue reading “The Impact of Sanctions on International Arbitrations”

March 30, 2023March 30, 2023 by Ramsey Schultz

Cross-Border Disputes in the Cannabis Industry & International Arbitration

As continued legalization of cannabis across jurisdictions in the U.S. and foreign countries causes the industry to become increasingly lucrative, determining proper avenues for dispute resolution controlling underlying agreements and investments has become a critical consideration for business-owners and foreign investors alike. Foreign investment in businesses involving cannabis is subject to a complex web of oversight that could include any combination of local and foreign laws, agreements, regulations, and practices. Many foreign investors in the cannabis industry have turned to international arbitration as a method for navigating these complexities and resolving disputes that may arise from such investments and business relationships. This post explores high-level considerations for foreign investors in the cannabis industry when assessing the viability of arbitration as a means for dispute resolution.

Continue reading “Cross-Border Disputes in the Cannabis Industry & International Arbitration”