Arbitration Links - Linklaters

Hong Kong introduces Third Party Funding for Arbitration

11 February 2019 Glenys Newall, Hong Kong

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The Hong Kong Government has announced that amendments to the Arbitration Ordinance, allowing for third party funding of arbitration in Hong Kong, will come into effect on 1 February 2019. This is a long awaited and highly anticipated development. In addition, in accordance with the provisions of Division 4 of part 10A of the Arbitration Ordinance, the Hong Kong Government has released a “Code of Practice for Third Party Funding of Arbitration”.

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London Commercial Court: Service by diplomatic channels is mandatory to enforce award against a State in the UK

06 February 2019 Adrien Canivet, England & Wales; Middle East

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In General Dynamics UK Ltd v Libya Queen's Bench Division [2019] EWHC 64 (Comm), the English Commercial Court held that an arbitral award against a State cannot be enforced in the United Kingdom without service on that State of court documents in accordance with s.12 of the State Immunity Act 1978.

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EU Member States announce their intention to terminate intra-EU BITs

30 January 2019 Kirstin Schwedt, Europe

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In early January, the EU Member States announced their intention to terminate all intra-EU bilateral investment treaties. Their declarations come in reaction to last year’s Achmea-decision on intra-EU investor-state dispute settlement. Interestingly, the EU Member States could not agree on a unitary position regarding the Energy Charter Treaty.

How will these political declarations impact pending arbitrations, or those initiated before the EU Member States put in place a new regime?

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Investment protection under the USMCA

After protracted negotiations which have been covered extensively in the press, the US signed the new United States, Mexico and Canada Agreement (“USMCA”) with Mexico and Canada on 30 November 2018. The USMCA replaces the North American Free Trade Agreement 1994 (“NAFTA”) which had governed trade relations between the parties. The investment provisions were contained in Chapter 11 of NAFTA and applied to all investments and investors of any party.  Subject to specific carve outs, all such investments were subject to the dispute settlement provisions in Chapter 11 which provided for investor-state arbitration.  The proposed investment regime in Chapter 14 of USMCA is a significant departure from its equivalent Chapter 11 of NAFTA. 

22 January 2019 Akshay Sewlikar, Latin America; North America

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U.S. Supreme Court: No FAA “wholly groundless” exception to tribunal’s jurisdiction over questions of arbitrability

The U.S. Supreme Court has issued a unanimous ruling holding that courts may not decide issues of arbitrability where the underlying arbitration agreement delegates such determinations to the arbitrator, even where the arbitration bid is argued to be “wholly groundless.”  The decision—which resolved a long-running split among lower courts—is further evidence of a continuing U.S. trend in favor of parties’ rights to contract for arbitration.

15 January 2019 Christian Albanesi; Adam Lurie, United States of America

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Proposed Amendments to the Indian Arbitration and Conciliation Act 1996

The arbitration regime in India is primarily governed by the Arbitration and Conciliation Act, 1996 (“Act”). On 10 August 2018, the lower house of India’s bi-cameral parliament (Lok Sabha) passed the Arbitration and Conciliation (Amendment) Bill, 2018 (“Bill”). The Bill now has to, inter alia, be passed by the upper house (Rajya Sabha) before it becomes law and amends the Act. However, substantial changes to the Bill are not expected at this stage. In its current form, the Bill seeks to introduce key changes which may impact international arbitrations seated in India, as we discuss in this article.  

11 January 2019 Akshay Sewlikar, India

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London International Disputes Week Is Coming…

A collaboration of over 50 leading law firms, barristers’ chambers, experts, academics, legal commentators and dispute resolution organisations have joined forces to launch London International Disputes Week (LIDW), with the inaugural event set to take place between 7-10 May 2019.

Linklaters is excited to be a part of LIDW and will be hosting the LIDW seminar on financial services disputes, as well as being represented on panel discussions concerning commercial arbitration, and investment treaty disputes.

18 December 2018 Stephen Lacey, England & Wales

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