Legal News

Honduras rejects the ICSID Convention In recent weeks, Honduras announced it would repudiate the international treaty under which it consented to submit disputes to the World Bank’s International Centre for Settlement of Investment Disputes ( ICSD), better known as the ICSID Convention. The move followed the country being hit last year with nine distinct ICSID claims, among them a politically charged action brought by a US-based developer seeking up to US$10.7bn in compensation. Honduras now mirrors three other Latin American states that have denounced the ICSID Convention: Ecuador, Bolivia and Venezuela. Across Europe, parliament have also been keen to jettison investment arbitration in favour of a new investor court, promising reforms they believe could rebalance a regime that critics often say tilts towards investors. India, South Africa and New Zealand have likewise taken steps in recent years to curb their exposure to...

Although decided less than two years ago, the case has already drawn hundreds of citations in federal district courts, by every circuit other than the US Courts of Appeals for the First and Federal Circuits, and by seven state supreme courts. Those references show that Sundance has had swift effects in federal courts on whether a party has forfeited the right to arbitrate, though its reach into other federal questions and state courts may emerge more gradually—potentially producing harmony in waiver analyses or divergence in waiver doctrine, depending on whether a motion to compel arbitration is pursued in state or federal court. A careful practitioner should not confine Sundance to waiver alone. It makes plain that courts must not assess arbitration agreements through any special lens. Ordinary principles of contract interpretation apply...

The legend of Thermopylae, retold across films, books and podcasts, and still taught in history lessons worldwide, spotlights the feat of 300 Spartan fighters, who managed to resist thousands of Persians by sealing a narrow pass the invading army had to traverse. In arbitration, even when you act for a sophisticated business or a high net worth individual, your opponent may at times command a larger war chest. Just as the Spartans used terrain to their benefit, there are measures available both before and after proceedings begin to neutralise pressure or delay that a well-financed adversary might seek to engineer in the arbitration. This article distils strategies and procedures that anyone anticipating a dispute with a better-resourced party should bear in mind. Crafting the Arbitration Clause If the arbitration provision has yet to be drafted, the first way to counter superior resources is to frame an...

The latest funding will support the Ray Corollary Initiative ( RCI) in tackling the shortfall of diversity in the selection of ADR professionals, while also providing tools and research to aid the appointment of a wider pool of neutrals. RCI outlines a comprehensive plan to raise the number of people of colour and women serving as arbitrators and mediators—positions historically dominated by older white men. Named in honour of Charlotte Ray, a Howard University School of Law graduate in 1872 and the first Black woman admitted to the bar in the US, the RCI is advocating for arbitrator slates to be at least 30% diverse nationwide. The initiative launched in 2022......

In this issue: Arbitration under the Arbitration Act 1996 International arbitration Institutional and ad hoc arbitration Investment treaty arbitration Other ADR and arbitration-developments Daily and weekly news alerts Arbitration under the Arbitration Act 1996 AA 1996, s 24—apparent bias—successful challenge In H1 and H2 v W, D and F [2024] EWHC 382 ( Comm), the court carefully addressed a challenge to a sole arbitrator for apparent bias under section 24(1)(a) of the English Arbitration Act 1996, arising from the film industry. Applying the Halliburton landmark test, the court concluded that the arbitrator’s conduct would cause a fair-minded and informed observer to see a real possibility of bias on the facts of the reference. Aligned with Halliburton, the court’s treatment of this dispute stands as a compelling example of the factual scenarios that may support a successful plea of apparent bias within the...

What are the practical implications of this case? This judgment offers practical direction to counsel weighing an application to the court to displace an arbitrator for apparent bias under section 24(1)(a) of the Act. At the same time, it spells out for arbitrators the kinds of objective conduct that may point towards apparent bias, irrespective of their own subjective opinions or any self-imposed discipline exercised when scrutinising the underlying evidence. The court underlined that allegations of apparent bias will be assessed through a measured and pragmatic lens. Its conclusion that mere professional acquaintanceship in a relatively small market will not, of itself, constitute a problem is encouraging for arbitration in sectors such as maritime and sport, where disputes routinely involve parties together with their factual and expert witnesses, and dispute resolution professionals who are professionally familiar with one another. The decision also serves as a...

Delhi High Court—an arbitral award must reach the contracting parties, not their agents or counsel, to constitute valid service commencing limitation under the Indian Arbitration and Conciliation Act, 1996 ( Ministry of Health & Family Welfare v M/s Hosmac Projects Division) Ministry of Health & Family Welfare and another v M/s Hosmac Projects Division of Hosmac India Private Ltd [ FOA( OS)( COMM) No 326 of 2019 and CM No 49717 of 2019] What are the practical implications of this case? Expiry of the limitation period is a frequent issue in section 34 petitions under the A& C Act. The ruling is significant as it addresses this through a mandatory preliminary step to any challenge: delivery to the parties to the arbitration agreement of a signed award copy, together with any...

In this issue: Arbitration under the Arbitration Act 1996 International arbitration Institutional and ad hoc arbitration Investment treaty arbitration Other ADR and arbitration-related developments New Law Journal Daily and weekly news alerts New and updated content Arbitration under the Arbitration Act 1996 AA 1996, s 9—trust disputes—replacing trustees—stay of claim In Grosskopf v Grosskopf [2024] EWHC 291 ( Ch), the court granted a section 9 Arbitration Act 1996 application, staying a claim that sought the appointment of a Judicial Trustee under the Judicial Trustees Act 1896 to replace the defendants as trustees of a family trust. It concluded that disagreements over the administration of the trust and the trustees’ conduct fell within the scope of the arbitration agreement. The claimant’s contentions—that the matter was non-arbitrable because it was a trust dispute, and that appointing a Judicial Trustee is a...

Case of Iliria SRL v Albania App no 31011/09 What are the practical consequences of this case? This judgment vividly illustrates that the Article 6(1) ECHR guarantee of a fair hearing operates as a tool to examine and assess national procedures for recognising and enforcing international arbitral awards in practice within domestic legal systems. Where extended holdups in exequatur proceedings are not the applicant’s fault, the ECt HR can step in and declare a breach of Article 6(1). That is exactly what occurred in Iliria v Albania. The ruling is a positive addition to the framework governing member state courts’ recognition and enforcement of arbitral awards, offering welcome support to the overall regime applied by those courts......

The UK Minister of State for Energy Security and Net Zero, Graham Stuart, justified the move by saying the ECT is outdated and urgently needs reform; discussions have stalled and a sensible update now seems improbable. Remaining a party would not aid the transition to cleaner, cheaper energy, and could even penalise the UK for its world‑leading drive to achieve net zero. Background to the ECT The ECT is a multilateral treaty concluded in 1994 and entering into force in 1998. It counts 50 states as signatories, including the European Union and its Member States. The treaty was designed primarily to facilitate investment by Western European economies into energy production in Eastern Europe after the dissolution of the Union of Soviet Socialist Republics ( USSR). More specifically, one aim was to guarantee Western Europe a dependable energy supply—mainly...

In this issue: International arbitration Investment treaty arbitration Institutional ad hoc arbitration Other arbitration and ADR-related news and developments Lex Talk®Arbitration: a Lexis®Nexis community The Arbitration Blog Daily and weekly news alerts International arbitration France—arbitral award—compliance with French international public policy— EU competition law breach allegations On 23 January 2024, in GBO v CAI, the Paris Court of Appeal rejected an application to set aside an international arbitral award. The challenge rested on the assertion that, by giving effect to a distribution arrangement allegedly contrary to EU competition rules—particularly Article 101 TFEU—the award offended French international public policy. Applying its maximalist approach to review of compliance with French international public policy, and in particular with EU competition law, the court reaffirmed its earlier position that EU competition rules form part of that public policy. Having regard to the...

Chaim Saul Grosskopf v (1) Yechiel Grosskopf (2) Jacob Grosskopf (as trustees of the M. Grosskopf 1974 Settlement Trust) [2024] EWHC 291 ( Ch) What are the practical implications of this case? The judgment confirms that disagreements between beneficiaries and trustees over the running of the trust and the trustees’ behaviour—including whether they should be replaced—can, if the parties agree, be decided by arbitration. This will be appealing where there is a wish to keep the dispute and/or the trust arrangements confidential, given that court proceedings may not be private because of the presumption of public hearings in CPR 39.2(1) and (3). More broadly, the decision demonstrates that the English courts’ pro‑arbitration outlook extends to trust matters, which may foster increased use of arbitration where it is appropriate... What was the background? The claimant and the defendants are brothers and, together with others, are...

1 March 2024 Commission proposal to the Council of the EU A Commission proposal dated 1 March 2024 sets out a Council of the EU decision on the optimal route for member states to leave the Energy Charter Treaty while delivering their climate aims. It advises that, at an upcoming conference, parties endorse the treaty’s modernisation, and thereafter permit the EU and the aligned nuclear power market, Euratom, to withdraw. Endorsing this year the modernisation effort launched in November 2018 would, the decision states, align the Energy Charter Treaty with contemporary investment protection standards and with EU positions expressed in other fora. According to the text, the revised ECT includes fresh investment protection rules consistent with modern benchmarks and EU stances, and it reaffirms contracting parties’ right to adopt measures pursuing legitimate policy objectives, including in relation to the dispute against climate...

Trends observed in the filing of such applications before the US District Court for the District of Delaware—and beyond—in the past year make Delaware a very appealing forum for foreign litigants in 2024 Despite the US Supreme Court’s June 2022 decision in ZF Automotive US Inc v Luxshare Ltd [3], which shut the door on section 1782 discovery for participants in international arbitration, the tally of section 1782 applications in the District of Delaware kept climbing throughout 2023, rather than receding. Applications rose by 37.5% in 2023, on the back of a 20% uplift in 2022. The chart below sets out the outcomes of section 1782 applications lodged in the District of Delaware in 2023. The most common disposition remains an ex parte order granting the request, reflecting the prevailing trend. However, in certain matters the district court has required service of the...

In the dynamic field of dispute resolution, Harmony stands as a testament to the fusion of traditional methods and cutting-edge technology. Anchored in the principles set out in ' Kleros Mediation Bridge: A Cohesive Approach Blending Traditional Mediation and Kleros Blockchain Arbitration', this forward-thinking AI system marks a major advance in reshaping dispute resolution. Harmony aims to nurture productive dialogue between disputants, helping them surface and express the underlying causes of disagreement while exploring viable settlements. It starts with empathetic, human-like engagement, moves through a structured mediation pathway, and, where appropriate, hands cases over to the Kleros platform for transparent, efficient determination. Here’s how it works. Structured mediation process of Harmony Harmony sets out a systematic, structured approach to mediation that is both comprehensive and easy to use. Its methodology follows clear, well-defined stages designed to promote transparency, efficiency, and a focus on fair...

Libya v Ustay Yapi — CA Paris 23.01.2024 — RG No. 21/01507] What are the practical implications of this case? This ruling of the Court of Appeal is noteworthy for arbitration practitioners and their clients for two key reasons. First, it unequivocally reaffirms the function of the French courts as the annulment judge when seised under Article 1520-1 of the French Code of Civil Procedure (‘the arbitral tribunal wrongly upheld or declined jurisdiction’), addressing both the breadth and the depth of the annulment judge’s review of the award. Second, it offers additional clarity on the methodology employed by the French courts when testing this ground of annulment in the BIT context. Three points deserve emphasis: The scope of the review carried out by the annulment judge must not reach the merits. Doing so would equate to re-examining the arbitrators’...

In this issue: Arbitration in England and Wales International arbitration Investment treaty arbitration Institutional and ad hoc arbitration Daily and weekly news alerts New and updated content Arbitration in England and Wales Court of Appeal—anti-suit injunctions—foreign arbitrations In Uni Credit Bank Gmb H v Ruschemalliance [2024] EWCA Civ 64, the Court of Appeal ( Co A) reversed the High Court’s position in G v R and issued an anti-suit injunction ( ASI) preventing RCA from continuing substantive litigation in Russia contrary to an arbitration agreement. The ruling is especially noteworthy as it harmonises recent ASI case law where the arbitral seat lies abroad, marking the first definitive, authoritative decision from an appellate court on this point. See News Analysis: Back on track— English Court of Appeal brings order to anti-suit injunctions in support of foreign...

An overview of the types of disputes arising from space exploration Space exploration spans a broad spectrum of legal fields, encompassing telecommunications, satellites, commercial contracts, insurance, engineering, research & development, and intellectual property. What is distinctive about the contemporary space sector is the emergence, expansion and potential for fresh branches of law to evolve. For example, consider the deployment of autonomous systems and the legal frameworks tied to small satellites. At the time of writing, even international bodies such as the ITU’s Space Services Department are assessing what regulatory approaches would be most suitable for small satellites. I am presently a member of the Dubai International Financial Centre ( DIFC) space and futures working group......

Uni Credit Bank GMBH (a company incorporated under the laws of Germany) v Ruschemalliance LLC (a company incorporated under the laws of the Russian Federation) [2024] EWCA Civ 64 What are the practical implications of this case? The judgment introduces greater coherence to the previously varied approaches in recent decisions involving western claimants seeking ASIs against Russian counterparties in support of foreign-seated arbitration agreements. ASIs have now been awarded to the claimants in each of those matters and, moreover, the Court of Appeal has issued authoritative guidance at appellate level on how the English courts should handle such applications (this being a fully argued appeal, whereas Deutsche Bank v Ruschemalliance LLC [2023] EWCA Civ 1144 was ex parte). While parties considering comparable applications in Russia-related disputes may take reassurance from this, the route to the UK Supreme Court ( UKSC) remains available....

Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 What are the practical implications of the case? This ruling could mark a watershed for ADR, likely prompting a sharp rise in mediations and other ADR mechanisms across disputes. The Court stressed the need to temper any compulsion with parties’ rights under Article 6 of the European Convention on Human Rights, and underscored judicial discretion throughout the judgment, signalling balance rather than automatic coercion. Its application will turn on the facts of each dispute. How that discretion is exercised will be case by case and fact-sensitive. Although the soundness of the Council’s complaints scheme was not ultimately ruled upon, parties should note that where a clear route to ADR is overlooked, they will be expected to explain the omission to the Court. Parties who are both represented and comparably resourced, in...