Legal News

Webuild SPA v WSP USA Inc, Case No. 23-73, 2024 U. S. App. LEXIS 17811, __ F.4th __ (2nd Cir. July 19, 2024) What are the practical implications of this case? This decision builds on the Supreme Court’s ruling in ZF Automotive by concluding that ICSID is not a body wielding any governmental authority. Webuild emphasised that ICSID is a standing institution created by the ICSID Convention; that the Convention prescribes how the Panel of Arbitrators is constituted and how Arbitral Tribunals are formed and operate; that states which have ratified the Convention (the Member States) make and amend ICSID rules that govern arbitrations; and that the Convention obliges ICSID to maintain an official Panel of Arbitrators comprising persons designated by those Member States, a roster from which ICSID will appoint arbitrators if parties who have opted for ICSID arbitration fail to choose their own. The...

What are the practical implications of this case? Article 14, paragraph no 1 of the Brazilian Arbitration Act stipulates that individuals appointed as arbitrators must reveal any circumstances apt to raise justifiable doubts about their neutrality and independence. Despite this rule, until recently Brazilian judicial case law left uncertain (i) the repercussions of an arbitrator’s breach of the disclosure obligation and (ii) how that sat alongside a party’s continuing duty to investigate during the arbitration. On one side, in matters such as Munich Re v Safra ( Appeal No 1055194-66.2017.8.26.0100, 6 August 2021) and Fazon ( Appeal No 1056400-47.2019.8.26.0100, 11 August 2020), the São Paulo Court of Appeals determined that an arbitrator’s non-disclosure suffices to annul an arbitral award, irrespective of the character of the undisclosed point. Conversely, in Raphael Brandão and another v Esho ( Appeal No...

Discover, Visa Inc, Master Card International Corp and Amex are alleged to have moved in lockstep, simultaneously adopting near-identical revisions to their rules that shifted the burden and expense of potentially billions in fraud-related chargebacks onto merchants lacking certified terminals compliant with EMV— Europay, Master Card, Visa—microchip technology by October 2015. On 14 August 2024, US District Judge Margot K Brodie issued an order rejecting Discover’s contention that its motion to compel arbitration was timely and ripe for resolution, and disagreeing with its further claim that merchants with whom Discover has direct contractual relationships—so-called retained merchants—had consented to valid arbitration clauses. The order records Discover’s position that the merchant service agreements entered into by retained merchants incorporated Discover’s operating regulations together with an arbitration provision. Thus, by signing the MSAs, those merchants agreed to be bound by that arbitration clause, Discover said......

In this issue: International Arbitration Institutional and ad hoc arbitration Other arbitration and ADR-related news and developments Daily and weekly news alerts International Arbitration Switzerland— Swiss Supreme Court clarifies grounds for revision of awards On 17 July 2024, the Swiss Supreme Court released two rulings on revision delivered on 11 June 2024. Both stem from the same arbitration and the well-known dispute between an Iranian company and a Bermudan company (whose principal address is in the UAE) concerning gas supplies. Under a 2001 contract, the Iranian company ( A) undertook to deliver and transport gas to the Bermudan company ( B). The Swiss Supreme Court has set out the grounds for seeking revision. See News Analysis: Swiss Supreme Court clarifies grounds for revision of awards, by Prof Nathalie Voser, partner at rothorn legal. USA— Ghana must pay US$111m in power plant dispute, court...

Chief Judge James E Boasberg On 6 August 2024, Chief Judge James E Boasberg held that the court had jurisdiction to enforce the award, notwithstanding Ghana’s absence from the proceedings filed by GPGC Ltd in January 2024. He noted that GPGC had duly notified the state of the claim by sending the necessary documents to Ghana’s minister for foreign affairs and regional integration in Accra, in English—the nation’s official language—and securing confirmation of delivery. Ghana put forward no basis on which the award could not be enforced; and, in any event, none of the relevant grounds were engaged, according to the opinion......

In the subsequent dispute over failure to deliver, a first arbitral award was issued by a London-seated tribunal in 2014. That panel concluded that A had failed to meet its contractual delivery duties. In 2018, B launched a fresh arbitration—this time seeking more than US$18bn in compensation for non-delivery. The new panel comprised three arbitrators: Charles Poncent (chosen by A), Klaus Sachs (chosen by B), and Laurent Aynès, selected by the two co-arbitrators. On 5 May 2020, this second tribunal handed down a partial interim decision titled ‘ Award on Termination’. In that Award on Termination, the tribunal determined that the contract had been lawfully terminated on 18 September 2018. For reasons set out in greater detail below, Mr Aynès and Mr Poncet were successfully challenged by A before the International Chamber of Commerce ( ICC), which delivered its...

More climate change, ESG-related disputes One consistent storyline set to persist through the remainder of 2024 is the rise of disputes concerning climate change, the energy transition and environmental, social and governance principles. Historically, many cross-border arbitration cases concentrated on industries such as oil and gas or mining. Experts told Law360 that, although these sectors will still generate cases, the drivers behind them are evolving as states increasingly adopt alternative energy. On one side, disagreements are expected as international oil majors move away from agreements tied to more carbon-intensive fuels. Wade Coriell, co-head of King & Spalding LLP’s global international disputes practice, links this pivot to a confluence of factors, notably the renewed emphasis within these companies on alternative energy sources, which in turn creates space for national companies from regions including the Middle East to assume control of ongoing projects. He added that many...

In this issue: Arbitration in England & Wales Arbitration under the AA 1996 Act International Arbitration Other arbitration and ADR-related news and developments Daily and weekly news alerts New and updated content Arbitration in England & Wales England & Wales—further guidance on Halliburton test for apparent bias A London court has directed a tribunal to reconsider an arbitral award in a US$2bn dispute stemming from a funding arrangement for Nigerian oil fields, finding that a replacement arbitrator had wrongly failed to disclose the full extent of her connection with Freshfields Bruckhaus Deringer LLP. See: UK—further guidance on Halliburton test for apparent bias. Arbitration under the AA 1996 Act England & Wales—appeals of costs orders in proceedings under the Arbitration Act The matter of P& ID v Nigeria was P& ID’s appeal on a single element of Mr Justice Knowle’s ruling on costs in the P& ID v Nigeria proceedings:...

Higher Regional Court Düsseldorf , decision of 17 June 2024, 26 W 7/24 What are the practical implications of this case? Although the Higher Regional Court Düsseldorf reaffirmed the established approach of German courts to (anti-) anti-suit injunctions, the ruling gains special significance because it addresses Russia. During the last two and a half years, the EU has introduced sweeping sanctions on Russia following Russia’s war of aggression against Ukraine. Since then, arbitration proceedings brought by EU entities against their former Russian business partners have grown significantly. To offset EU sanctions and safeguard their positions, Russian parties possess a potent tool: Articles 248.1 and 248.2 of the Arbitration Procedural Code of the Russian Federation confer a right to seek an anti-suit injunction where foreign arbitration has been commenced against a Russian respondent and either that respondent’s access, or the access to justice of persons...

On 1 August 2024, High Court Judge Richard Jacobs held, in a detailed and lengthy 75‑page judgment, that Dame Elizabeth Gloster DBE ought to have revealed that Freshfields had retained her to give expert advice to one of its clients. The arbitrator — a former Court of Appeal judge now practising from One Essex Court in London — had already previously revealed two other, unrelated Freshfields appointments in arbitrations over the past two years. A third engagement was accidentally left off the disclosure sent to the opposing party, Nigerian energy company Aiteo Eastern E& P Co Ltd; however, Gloster accepted that it was ultimately her duty to ensure the disclosure was correct, the judgment records. The judge added that he addressed the issue by reference to the guidance issued by the administering arbitral body, specifically the International Chamber of Commerce ( ICC), in this case, as...

Sian Participation Corp (in liquidation) v Halimeda International Ltd ( Virgin Islands) [2024] UKPC 16 What are the practical implications of this case? Encouragingly for creditors, a debtor can no longer derail a winding-up petition simply by declining to acknowledge liability at all. Absent a dispute that is bona fide and materially arguable, creditors may proceed to liquidate a company without contrived postponement, facilitating the realisation of assets for return to the wider creditor body. If, however, the indebtedness is truly contested on substantive grounds, the matter must be referred to arbitration in the ordinary course before any winding-up application is properly advanced. Contracting parties should therefore think carefully about the reach of arbitration clauses included within their contracts and agreements. Although this outcome holds where wide, general wording is used, other issues could readily arise if an arbitration clause is drafted expressly to...

What are the practical implications of this case? This ruling is significant for practitioners representing parties in arbitrations and in challenges to arbitral awards. For years there has been uncertainty over whether costs orders are captured by the restrictive appeal routes in AA 1996, ss 67(4) and 68(4). Those provisions state that a party cannot appeal a judgment under those sections without permission from the court that issued it. In P& ID, the Court of Appeal has now confirmed that costs orders sit outside the scope of these sections. Advisers should factor this in when acting for a party that has lost a section 67 or section 68 application: even if the substantive outcome is not appealable, there may still be aspects—such as costs—that remain open to challenge. What was the background? In March 2023, Knowles J held that Nigeria’s challenge to two arbitral awards under AA 1996, s 68...

Spanish solar cases The DC Circuit is set to decide whether to enforce arbitral awards totalling about US$386m against Spain after it scaled back economic incentives for renewable energy projects, a ruling with significant implications for EU investors while the EU’s courts persist in rejecting enforcement of intra‑ EU awards. The court will examine if enforcement is possible even though Europe’s highest court has concluded that the arbitration clause in the Energy Charter Treaty is invalid. The DC Circuit’s judgment will influence not only these awards but also more than a dozen further awards outstanding against Spain, as well as any previous and potential future arbitral awards granted to EU investors against EU Member States. Whatever the appeals court decides, the matter is very likely to be queued for a challenge before the US Supreme Court. In these proceedings, Dutch...

In this issue: Arbitration in England & Wales International Arbitration Investment treaty arbitration Institutional and ad hoc arbitration Sector-and industry-specific arbitration Other arbitration and ADR-related news and developments Lex Talk®Arbitration: a Lexis®Nexis community Daily and weekly news alerts Arbitration in England & Wales Arbitration Bill receives second reading in House of Lords The Arbitration Bill completed its second reading in the House of Lords on 30 July 2024, with a broad discussion covering all elements of the draft. It now advances to a clause-by-clause review at Committee Stage on 11 September 2024. See: LNB News 31/07/2024 29. International Arbitration Annual blog post— Arbitration statistics 2023: rising caseloads and repeat appointments The Lexis Nexis Arbitration Blog has released its seventh annual survey of international arbitration statistics, authored by James Clanchy, FCIArb—an arbitrator in independent practice and member of the Lexis®PSL...

Understanding NFTs and their Impact on Art NFTs are blockchain-verified digital tokens that guarantee the authenticity and singularity of an asset, whether tied to a digital file or a physical item. Each NFT contains unique cryptographic data that sets it apart from every other token, making it well suited to signal ownership of distinctive items such as digital art. Holding an NFT grants rights in the token itself, but does not, on its own, confer rights in the underlying digital or tangible asset. The NFT market is an important arena for art and luxury goods and is expected to keep expanding, though likely not at the transaction levels seen in 2021. In essence, the token and the item it references are separate. Legal Challenges regarding NFTs Intellectual Property Rights A principal legal concern in Europe is the safeguarding of intellectual property rights. Artists and creators...

Manchester Securities LLP v Republic of Poland ECLI: BE: CASS:2024: ARR.20240412.1F.5 What are the practical implications of this case? Modern arbitration frameworks make clear that annulment is not a merits appeal. A well-known, though limited, deviation concerns public policy, where certain legal systems accept broader scrutiny. In this judgment, the Belgian Supreme Court confirmed that, under Belgian law, even when public policy is at stake, the annulment court must not re-examine the dispute, freshly apply the public policy rule, or test whether it would reach the arbitral tribunal’s conclusion. Instead, the court must take the award as delivered and determine whether the solution adopted by the tribunal—recognising that a dispute can legitimately yield several outcomes—contravenes public policy. It follows that simply asserting that the tribunal failed to apply a public policy provision, or applied it incorrectly, is not enough to justify setting aside the...

On 25 July 2024, the sports tribunal reported that a CAS panel of arbitrators had thrown out appeals submitted by the Russian Olympic Committee ( ROC), the Figure Skating Federation of Russia, and skaters Aleksandr Galliamov, Nikita Katsalapov, Mark Kondratiuk, Anastasia Mishina, Victoria Sinitsina, and Kamila Valieva. Those filings contested the International Skating Union’s January re-ranking and sought to have the team event gold medals handed to the ROC. The panel determined Valieva’s score was rightly nullified owing to a four-year ban imposed for an anti-doping violation. The ban was backdated to December 2021, so every competition result after that point was void—covering not only the Olympic Games but also the ISU European Figure Skating Championships 2022. This outcome upholds the ISU’s January statement awarding the gold medal to the US team, more than two years after the squad left the Beijing Games. The...

CASE ANALYSIS: Lexis®PSL Arbitration ( EXC0011421) Douala International Terminal ( DIT) v Port Autonome de Douala ( PAD) Cour de cassation, France, Pourvoi n. 23-10.972 What are the practical implications of this case? This ruling of the Cour de cassation recalibrates how particular connections are assessed in international arbitration and their effect on an arbitrator’s independence and impartiality when the validity of arbitral awards is contested. Crucially, it draws a clearer line between different categories of relationships within the arbitration sphere, indicating which may genuinely threaten neutrality and which are less likely to do so. Professional or academic associations that commonly link members of the arbitration community; Personal connections of greater intensity, which are more prone to undermine an arbitrator’s independence and impartiality. Going forward, arbitrators should exercise heightened care to reveal, at the very outset of the proceedings, any personal...

In this issue: Arbitration in England & Wales International arbitration Investment treaty arbitration Institutional and ad hoc arbitration Other ADR and arbitration-related developments Daily and weekly news alerts Arbitration in England & Wales The Arbitration Bill— Back on the Boil The eagerly awaited reforms to the English Arbitration Act 1996 ( AA 1996) were paused after the decision to hold UK elections in July 2024. However, the King’s Speech on 17 July 2024, outlining the new Government’s first-year legislative programme, confirmed that the broadly settled Arbitration Bill is expected to be introduced to Parliament in the coming months. In this note, we suggest the election-induced hiatus offers legislators a valuable window to revisit and refine several important elements of the Bill. See News Analysis: The Arbitration Bill— Back on the Boil, written by Shai Wade, member of the Lexis Nexis...

The German government has recently unveiled a bill intended to update arbitration legislation. The overhaul is designed to modernise German arbitration rules and to make Germany more attractive as a venue for international arbitration proceedings. The government’s draft is closely modelled on the proposal released by the Federal Ministry of Justice in February 2024, although it also addresses a number of criticisms that had been raised by practitioners. One notable amendment to the existing legal framework is the intention to allow form-free arbitration agreements in the B2B sector. In contrast to the earlier draft bill, however, the government’s version has now removed the ability to demand a written record of such an agreement, and even to bring proceedings to obtain one......