Legal Practice Notes

This Practice Note outlines France’s approach to contesting the authority of arbitral tribunals before the French courts, as well as measures relating to anti-suit injunctions in the arbitration context. Please note that the French decisions cited below are not published by Lexis Nexis® UK... Challenging the jurisdiction of arbitral tribunals in France The applicable framework varies according to whether the objection is brought prior to, or following, the making of the arbitral award... Challenging the jurisdiction of arbitral tribunals before the arbitral award is rendered Under French law, until an award has been issued, it falls to the arbitral tribunal to decide if it has competence to adjudicate the dispute. This is the competence-competence principle. It is commonly viewed as comprising both a positive and a negative limb. Its positive limb is embodied in article 1465 of the French Code of Civil Procedure ( FCCP), which states that the...

Recognition and enforcement of arbitral awards in India Recognition and the enforcement of arbitral awards in India are principally regulated by the Arbitration and Conciliation Act 1996 ( ACA 1996), as amended, alongside the Code of Civil Procedure 1908 ( CPC). Both domestic and overseas awards are implemented in the same fashion as a decree of an Indian court, including consent awards arising from party settlements. There is, nevertheless, a procedural divergence for enforcement depending upon the arbitration seat. Enforcement and execution of an India-seated arbitral award (a domestic award) fall under ACA 1996, Pt I, whereas awards seated abroad (foreign awards) are enforced pursuant to ACA 1996, Pt II. Part II of ACA 1996 incorporates, and gives effect to, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) and the Convention on the Execution of Foreign...

This Practice Note provides guidance on costs pursuant to the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2018 (the 2018 HKIAC Rules; HKIAC 2018). As outlined in Practice Note: HKIAC (2018)—the HKIAC Administered Arbitration Rules—application and key features, the 2018 HKIAC Rules generally apply to HKIAC arbitrations begun on or after 1 November 2018, unless the parties stipulate otherwise; where proceedings commenced before 1 November 2018, the 2013 HKIAC Rules will generally govern, save where the parties agreed otherwise. A dedicated ‘2018 Schedule of Fees’ applies to arbitrations administered under the 2018 HKIAC Rules. HKIAC has also issued two Practice Notes on Costs of Arbitration, based on HKIAC 2018: Sch 2 (hourly rates) and Sch 3 (sums in dispute). These took effect on 11 March 2019 and apply unless the parties have agreed to a different approach. For an...

Which ethical standards govern English and Welsh practitioners (using English and England for brevity) engaged in international arbitration will vary with the features of the arbitration, and the context in which they are retained to act within such arbitration. The most important factors for practitioners to consider are the following: the ethical requirements of their professional regulator the ethical duties for lawyers and any pertinent laws of the seat’s jurisdiction, or of the place where they undertake tasks (for example, taking witness statements) connected to an arbitration seated elsewhere in relation to that work any rules or guidance the parties have agreed will apply between them any provisions set by a relevant arbitral institution or organisation measures adopted by tribunals exercising express or implied powers to control and manage the conduct of proceedings This field remains comparatively unsettled, the governing standards are not invariably...

Note: the Luxembourg cases referred to below are not all reported by Lexis Nexis®. Luxembourg provides a favourable climate for arbitration and is well regarded for the reliable execution of arbitral awards. The forum is notably mindful of the hierarchy of norms and places marked emphasis on international treaties. Before setting out the bases for declining exequatur, Article 1246 of the New Code of Civil Procedure (the ' NCCP') stipulates that the Court of Appeal may decline enforcement only 'subject to the provisions of international conventions'. Consistent with this, Luxembourg is party to a range of international treaties, agreements and conventions that bolster the effectiveness of enforcing arbitral awards. In particular, the Grand- Duchy is a signatory to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which operates on a reciprocity basis – namely, it applies solely to awards...

UAE Federal Arbitration Law Businesses operating in the UAE frequently choose international arbitration as their preferred route for settling contractual disagreements. On 3 May 2018, the UAE introduced Federal Law No 6 of 2018 on Arbitration, later revised by Federal Decree- Law No 15 of 2023 (the ‘ UAE Federal Arbitration Law’). Taking effect on 16 June 2018, this statute is the first dedicated arbitration law and it abrogates Articles 203–218 of the UAE Civil Procedures Law ( Federal Law No 11 of 1992), which had until then regulated arbitrations with a UAE seat. The UAE Federal Arbitration Law governs all domestic arbitrations seated in the UAE (excluding those seated in the Dubai International Finance Centre ( DIFC) and the Abu Dhabi Global Market ( ADGM), which are exempt-free zones), new arbitrations with a UAE seat unless the parties decide otherwise, and...

Disagreements in the energy arena can be highly intricate. Owing to project locations, the parties’ nationalities, and the choice of forum or governing law, many matters are inherently international and raise cross-border considerations. A single dispute may spring from multiple contracts and involve more than two participants. Often, governments or state-owned bodies are involved, adding another layer of difficulty. Given the breadth of this field, this Practice Note concentrates on practical considerations when commencing a claim and does not delve into specific substantive issues for any particular case. For an overview of the key points to consider, see: Starting a claim in an energy dispute—checklist. Energy disputes—examples and hypothetical scenario The types of disagreements that fall within the scope of energy disputes are extensive. Typical illustrations include: a dispute between parties to a joint operating agreement for an oil and gas field...

This Practice Note addresses investment treaty arbitration under the Energy Charter Treaty (‘ ECT’) This Practice Note surveys investment treaty arbitration under the Energy Charter Treaty (‘ ECT’). It outlines, in summary, the ECT’s background, categories of protected investors and qualifying investments, and principal jurisdictional obstacles, such as fulfilling the obligation to seek amicable settlement, limits arising from forum selection, and use of the ECT’s denial of benefits provision. It also examines, in detail, whether ECT tribunals may hear claims by investors from one EU Member State against another (intra‑ EU disputes) under the ECT, a question that has been significant in ECT case law. The Note has been revised to capture pertinent amendments to the ECT adopted by the Energy Charter Conference in December 2024 (the ‘ Modernised ECT’). The Modernised ECT applies provisionally to Contracting Parties from 3 September 2025, unless a...

What is emergency arbitration? Put simply, urgent relief in arbitration is generally only available once the arbitral tribunal has been formed. This creates a gap beforehand when a party may need swift protection yet struggle to obtain it within the arbitral process, eg where the other side seeks to dissipate assets or shift funds between jurisdictions before the tribunal exists. In those circumstances, parties may feel their only practical route is to seek assistance from a national court (where such relief is available). For guidance on the availability of interim and emergency measures in the courts at key seats of arbitration, see: AA 1996—interim and emergency measures—arbitration— England and Wales—overview. To mitigate this risk, many prominent arbitration rules now permit the nomination of an emergency arbitrator before the arbitral tribunal is constituted. In that event, the parties can apply to a swiftly...

State immunity in the Netherlands—introduction This Practice Note examines how state immunity operates in relation to arbitration proceedings in the Netherlands. For a wider primer on state immunity and arbitration, see Practice Note: State immunity and arbitration—general considerations. For Practice Notes covering state immunity across multiple jurisdictions (including England and Wales), consult our subtopic: State immunity and arbitration—overview. State immunity and arbitration—overview States and state-owned enterprises frequently participate in international commercial dealings. Contracts concluded by states—particularly those with overseas private parties—commonly include arbitration agreements. As a result, states are regular participants in international arbitration. Under Dutch law, two categories of state immunity are recognised: State immunity from jurisdiction (jurisdictional immunity) State immunity from enforcement Jurisdictional immunity is a rule that bars a court or tribunal from exercising authority over claims against the state that enjoys the immunity. Enforcement immunity prevents a court or tribunal from...

This Practice Note concerns joinder and consolidation provisions pursuant to arbitration under the 2022 Arbitration Rules of the Dubai International Arbitration Centre ( DIAC and the DIAC Rules). Consolidation of arbitrations The 2022 DIAC Rules introduce a framework to address issues involving multiple contracts and the consolidation of claims. The DIAC Rules now allow claims under several contracts to be combined within a single arbitration ( Article 8). A party may lodge a single request for arbitration in respect of multiple claims arising out of, or in connection with, more than one arbitration agreement. The application is filed with the DIAC Arbitration Court before the tribunal is constituted and will be granted only if (1) all parties consent to such consolidation; or (2) the DIAC Arbitration Court is satisfied......

This Practice Note addresses the expedited constitution of the tribunal and emergency arbitration procedures under the 2022 Arbitration Rules of the Dubai International Arbitration Centre ( DIAC and the DIAC Rules). What if I need the arbitrator to be appointed quickly? Expedited formation of the tribunal Under the DIAC Rules ( Article 32), a party can ask DIAC to constitute the tribunal on an expedited basis. No prescribed form is required; the request must be in writing, copied to all other parties, and must set out the specific grounds of exceptional urgency that necessitate an accelerated appointment of the tribunal. Filing an application for expedited formation does not incur any separate filing fee. A party may apply where any of the following apply: the amount in dispute is below Dhs1m (excluding interest and costs) the parties have agreed in writing to use the expedited...

Arbitration clauses and agreements set out that disputes are resolved by a designated arbitral tribunal, and may feature in both domestic and cross-border situations alike. For further details on arbitration agreements, consult the following Practice Notes: Arbitration agreements—definition, aims and interpretation Arbitration agreements—the in writing requirement Arbitration agreements—content Arbitration agreements—requirements of the New York Convention Will my arbitration agreement be upheld?......

In international arbitration, documentary material is pivotal to the resolution of disputes. It is widely acknowledged to be of superior importance, and arbitral tribunals often attach more weight to it than to any other category of proof when assessing contested issues and reaching their decisions. Differences between document production in litigation and arbitration A fundamental tenet of arbitration is procedural flexibility, with the process to be shaped by the parties and, where they cannot reach agreement, by the tribunal. This discretionary space allows the procedure to reflect the parties’ choices and the particular circumstances of the case. This is reflected in section 34(1) of the English Arbitration Act 1996 ( AA 1996), which provides that the tribunal determines all procedural and evidential issues, subject to the parties’ right to agree any matter. Under AA 1996, s 34(2)(d) and (f), such issues include whether any...

Disputes over documentary evidence in arbitration proceedings This Practice Note addresses disagreements concerning documentary material in arbitration. It should be read, where relevant, together with Practice Note: Document production in international arbitration—a practical guide. After each side lodges the documents it relies upon with its initial written submissions in the case (as outlined in Practice Note: The role of documentary evidence in arbitration), there is usually an opportunity for each party to request documents from the other side. The recipient will either produce the documents or object. Common grounds for refusal include: privilege the request is too broad and/or is of insufficient relevance to the issues in dispute the document no longer exists or is not in the party’s control the request is too onerous either in terms of time or money The parties should try and resolve any disputes...

Many contracts include provisions on resolving disputes. At times these are simple terms stipulating litigation or possibly arbitration, sometimes also spelling out jurisdiction and the governing law. Yet a clause can instead prescribe other routes of alternative dispute resolution ( ADR) to be pursued should a dispute arise, offering an alternative to litigation or arbitration. Such provisions are often labelled ADR clauses. Parties have a number of options open to them (see below), and it is vital to appreciate the consequences of the drafting choices you make. This Practice Note reviews several clause formulations and evaluates the issues that may arise in relation to each category. The types of dispute resolution clause considered in this Practice Note are: litigation only clauses mediation clauses multi-tier clauses (escalation clauses) hybrid clauses carve-out clauses For guidance on the principal questions around the...

This Practice Note examines the implications of replacing the DIAC Arbitration Rules 2007 with the 2022 rules, together with the impact of Decree No 34 of 2021 concerning the Dubai International Arbitration Centre ( Decree No 34)... Introduction The Dubai International Arbitration Centre ( DIAC) has released the DIAC Arbitration Rules 2022 (2022 Rules). Taking effect on 21 March 2022, the 2022 Rules superseded the earlier DIAC Arbitration Rules 2007 (2007 Rules). Their arrival follows the controversial Decree No 34 of 2021 concerning DIAC ( Decree No 34)... Decree No 34 abolished: the DIFC Arbitration Institute ( DAI), the body that had formed a joint venture with the London Court of International Arbitration ( LCIA) to create the DIFC- LCIA Arbitration Centre; and the Emirates Maritime Arbitration Centre ( EMAC), with both DAI and EMAC being consolidated into...

All Article citations in this Practice Note refer to the Arbitration Rules of the Dubai International Arbitration Centre ( DIAC, the DIAC Rules). Consistent with other prominent institutional frameworks, the composition of the arbitral tribunal under the DIAC Rules is governed by the parties’ arbitration agreement ( Article 10.1). Under the DIAC Rules, appointments can proceed in three ways: appointment of a sole arbitrator three-member tribunal—where three arbitrators are envisaged, each party designates one arbitrator and, unless agreed otherwise, the two party appointees nominate the third, who will serve as chairperson, for DIAC’s appointment where the arbitration agreement is silent on whether there is to be one or three arbitrators, DIAC’s default applies so that the Tribunal is a sole arbitrator, unless DIAC decides, in the case’s circumstances, that a three-member tribunal is appropriate ( Article...

What are damages? ‘ Damages’ denotes a monetary award made by a court to make good a claimant’s loss or harm arising from a wrong for which the defendant is answerable. It is a remedy rooted in the common law, though the court may, in appropriate cases, also grant equitable damages. They differ from remedies for unjust enrichment, which address an unjust benefit obtained by the defendant regardless of wrongdoing. Accordingly, other money claims are distinct from damages, for example: repayment of sums paid by mistake; recovery where consideration has failed; or the reasonable value of goods supplied or services rendered (for these categories of claim and remedy, see subtopic: Unjust enrichment and restitution). Assessing damages As observed by the Supreme Court in Sainsbury’s v Visa Europe when assessing damages for breach of competition law: applying the compensatory principle, the court must steer between...

This Practice Note considers cybersecurity in international arbitration. An introduction to cybercrime and cybersecurity in international arbitration A single arbitration may draw in many actors from varied jurisdictions—parties, funders and insurers, arbitrators, counsel, experts, witnesses, the administering arbitral institution or another organising body, plus external service providers—collectively, the ‘ Participants’. Within the process, they exchange material that is not publicly available. Unauthorised access could cause commercial harm, sway share prices, reshape corporate strategies or even government policy. The result of a case can reverberate through financial markets; obtaining a draft award before it is issued to the parties could be highly profitable for cyber criminals. Accordingly, the arbitral process is a target for cyber attacks, especially where hackers can locate a weak link in the chain of custody. Because arbitration’s speed and practicality rely on digital...