international arbitration – International Arbitration

June 25, 2026June 25, 2026 by Mark Handley

English Court of Appeal rules that signing the New York Convention does not waive state immunity from adjudication

Yesterday, the Court of Appeal in England handed down a significant judgment on the question of the enforcement of arbitral awards against sovereign states.

In CC/Devas (Mauritius) Ltd & Ors v The Republic of India [2026] EWCA Civ 797, the question for the court was whether by signing the New York Convention India had agreed to waive its immunity from adjudication in England.

If there had been no waiver, then India would be able to run an argument that because the tribunal in the underlying investment treaty arbitration had not had jurisdiction, then the “arbitration exception” to state immunity did not apply. It would give India an opportunity to fight the issue of jurisdiction which had been lost in the arbitration.

If there had been a waiver, then questions based on the “arbitration exception” would not arise. There would be no adjudicative immunity and the case could proceed to enforcement or execution.

The case turned on Article III of the New York Convention, which reads:

“Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles” (emphasis added).

For the Court of Appeal, if sovereign immunity fell within “the rules of procedure” then there had been no waiver by signing the Convention.

The Court of Appeal in a fairly strident and unanimous judgment followed a range of Supreme Court decisions, decisions of the International Court of Justice, and a recent decision of the High Court of Australia, to hold that state immunity does fall within the rubric of “rules of procedure”.

Accordingly, there had been no waiver by India of its sovereign immunity by prior agreement, and it will be able open to India to now argue that because the tribunal had been wrong to find it had jurisdiction, the “arbitration exception” to the state’s immunity does not apply.

June 11, 2026June 11, 2026 by Mark Handley

English High Court issues final anti-suit injunction to restrain US proceedings in breach of arbitration agreement

In Chubb Bermuda Insurance Ltd v Fertitta Entertainment Inc & Ors [2026] EWHC 1392 (Comm), the London Commercial Court has issued judgment granting a final anti-suit injunction restraining proceedings in the US brought in breach of an arbitration clause that read in part:

“Any dispute arising out of or relating to this Policy, or the breach thereof, shall be fully and finally determined in London, England under the provisions of the Arbitration Act of 1996 (as amended or supplemented) by an Arbitration Board composed of three arbitrators. Each arbitrator shall be an active Queens Counsel or retired judge of the English High Court or Court of Appeal familiar with insurance and the Act. All matters relating to the existence of the agreement to arbitrate and the selection of arbitrators shall be determined under the laws of England and Wales”.

The Defendants did not appear at the final hearing despite belatedly applying to contest English jurisdiction having previously agreed to several consent orders continuing the initial interim anti-suit injunction.

The Defendants’ three arguments were: i) the arbitration clause was invalid as a matter of Louisiana law based on a mandatory statute; ii) the case had no connection to England and the Defendants had not submitted to the jurisdiction; and iii) Louisiana was the more suitable forum.

The judge gave arguments ii) and iii) short shrift (at [44]): “If the arbitration agreement is valid, then points (2) and (3) do not matter”.

In relation to argument i), the judge held that the arbitration agreement was governed by English law and that as regards the scope of that agreement, “Because the parties have expressly agreed that this falls to be determined under English law, Louisiana law is irrelevant”.

The judge also ordered damages in the amount of the legal fees incurred by the Claimant in England in resisting the various US proceedings, as well as its costs in England on the indemnity basis.

November 14, 2024November 14, 2024 by Mark Handley

English court rejects arbitral appeal as out of time and refuses to grant 5 day extension

The decision in Friedhelm Eronat v CNPC International (Chad) Limited [2024] EWHC 2880 (Comm) underlines, with some emphasis, the strictness of the deadlines applied in relation to appeals brought under the Arbitration Act.

In this case the parties had contractually varied the period for making an appeal. They agreed on 30 days, overrising the 28 days in section 70(3) of the Arbitration Act.

The contractual 30-day period (as with the Act’s 28 day period) ran from the date the award was “made”, and not from when the parties received a copy of the award.

In this case the Award was made on 11 April, and was received on 16 April. The appellant to the English court filed its appeal on 16 May, which would have been 30 days from notification of the award, but outside that period when counting from the date of the award itself

The court granted an application to summarily dismiss the appeal as being time barred. The court also refused an application for a retrospective extension, holding that it was an “archetypal” case where no such extension should be given. This was in part because the party had not put in evidence explaining the delay, or why it was appropriate to grant the extension.

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 12, 2024 by Paul-Raphael Shehadeh

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””

April 11, 2024 by Mark Handley

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?”

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”

June 26, 2023 by Chris J. Chasin

Supreme Court Rules on When RICO Standing Exists to Protect Domesticated International Arbitration Awards

The federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) and international arbitration are strange bedfellows at first glance. But one of the largest challenges in international disputes can be enforcing judgments, and RICO can be a powerful tool to guard against illegal conduct designed to hinder the enforcement of judgments giving effect to international arbitration awards.

On June 22nd, the Supreme Court issued its Opinion in Yegiazaryan v. Smagin and CMB Monaco v. Smagin, consolidated cases that questioned whether a foreign individual could sue for RICO violations impairing his ability to recover on a domestic judgment enforcing a foreign arbitration award. The issue before the Supreme Court was whether the injury alleged—interference with a federal court judgment—was “domestic in nature” and therefore conferred standing to bring a RICO claim under RJR Nabisco Inc. v. Eur. Cmty., 579 U.S. 325 (2016).

The Court’s decision resolves a circuit split regarding how to determine the location of injury associated with a judgment enforcing an arbitration award for purposes of RICO. In Armada (Singapore) PTE Ltd. v. Amcol Int’l Corp., 885 F.3d 1090 (7th Cir. 2018), the Seventh Circuit adopted what has come to be known as the “residency test,” concluding that an injury to intangible property occurs solely at the plaintiff’s place of residence. Applying that standard, the Court concluded that a Singapore company could not bring a RICO claim based on injuries to its ability to enforce a domestic judgment enforcing an arbitration award, because any harm to the plaintiff’s “intangible bundle of litigation rights” was suffered in Singapore and therefore was not a domestic injury conferring standing to bring a RICO claim.

The Ninth Circuit, in Smagin v. Yeglazaryan, 37 F.4th 562 (9th Cir. 2022), reached a different conclusion, deciding that efforts to impair a judgment to enforce a foreign arbitration award entered by a federal district court constituted an injury in the state where the Court was located. The Ninth Circuit reasoned that the federal judgment to enforce the award only provided rights within California and did not provide any rights in the plaintiff’s place of residence, and further noted that much of the conduct underlying the alleged injury occurred in or was targeted at California.

The Supreme Court’s decision affirms the Ninth Circuit’s reasoning, concluding that “in assessing whether there is a domestic injury, courts should engage in a case-specific analysis that looks to the circumstances surrounding the injury. If those circumstances sufficiently ground the injury in the United States, such that it is clear the injury arose domestically, then the plaintiff has alleged a domestic injury.” In applying that analysis, the Court noted that many of the racketeering acts alleged (including creation of shell companies to hide assets, submission of forged documents to a federal court, and witness intimidation) occurred in the United States and that the injurious effects of the racketeering activity largely manifested in California, where they thwarted rights conferred in California by a District Court judgment.

Although this decision does not establish a bright-line rule, it provides a clear roadmap for determining when conduct intended to prevent the domestic enforcement of an international arbitration award establishes standing to bring a RICO claim. The articulation of this standard and resolution of the circuit split will provide a powerful tool to litigants seeking to enforce international arbitration awards domestically.

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”