Arbitration Links - Linklaters
  • Jurisdiction: Europe

New LCIA Report highlights movement towards cheaper and faster proceedings

18 October 2017 Jacqueline Chaplin, Europe

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A recent London Court of International Arbitration (“LCIA”) report (the “Report”) suggests that LCIA arbitration costs are generally less than arbitration costs at other institutions at all levels of dispute (for the purposes of the Report, arbitration costs means tribunal fees and administrative charges). The cost savings offered by the LCIA may be explained by its commitment to time efficiency and its use of hourly rates to calculate most of its costs.

The Report analyses the cost and duration of all 224 cases administered under the LCIA Arbitration Rules that had reached a final award between 1 January 2013 and 31 December 2016.

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Linklaters contributes to International Comparative Legal Guide to Arbitration 2017

11 October 2017 Joost Verlinden; Matthias Schelkens, Belgium; Europe

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Linklaters’ Dispute Resolution team has contributed to the 2017 edition of the International Comparative Legal Guide to International Arbitration. The Guide is a practical cross-border insight into international arbitration work and an overview of arbitration legislation and practice in 44 jurisdictions.

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CIArb Consultation on Cost-Controlled Rules

05 October 2017 Sadie Buls, Asia-Pacific; Europe; Latin America; Middle East; North America

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On 25 September 2017, the Chartered Institute of Arbitrators (CIArb) opened a consultation period relating to a revised draft of its Arbitration Rules. The revision to the rules aims to incorporate a proposed additional appendix on the use of CIArb’s Cost-Controlled Expedited Arbitration Rules. The current version of those rules is dated 2014 and CIArb has stated that updates to other institution procedures, as well as developments in the sphere of cost controls in arbitration generally, have prompted it to review and update its existing rules. 

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Advocate General Wathelet endorses intra-EU BITs

27 September 2017 Julia Grothaus; Dr. Rupert Bellinghausen, Europe; Germany

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In a much anticipated opinion in Slovak Republic v Achmea BV (Case C-284/16), Advocate General (“AG”) Wathelet has fostered investor-state arbitration under bilateral investment treaties (“BITs”) between EU Member States (“intra-EU BITs”) by concluding that the arbitration clause in Article 8 of the 1991 Netherlands-Slovakia BIT is compatible with EU law, and that arbitral tribunals established thereunder may refer issues of EU law to the Court of Justice of the European Union (“CJEU”) for preliminary rulings.

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Post-award challenges to impartiality and independence in Germany

13 September 2017 Julia Grothaus; Rupert Bellinghausen, Europe; Germany

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Both the setting aside of arbitral awards and the impartiality and independence of arbitrators and experts are recurring topics in international arbitration. They particularly converge when facts giving rise to doubts about impartiality and independence become known only after an arbitral award has been rendered. In a recent decision, the German Federal Court of Justice abandoned long-standing German case law and set aside an award after an expert nominated by the arbitral tribunal had failed to disclose facts relating to his impartiality and independence. As the relevant statutory provisions apply to both experts and arbitrators, the decision will be highly relevant for challenge and enforcement proceedings in Germany.

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Some reflections on unmeritorious challenges to arbitrators

22 August 2017 Christian Albanesi, Europe; Latin America; United States of America

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There is a general perception that unmeritorious challenges to arbitrators are on the rise. Is this really the case, how can they be identified and what can be done about them? Christian Albanesi, our Head of Latin American Arbitration, offers some thoughts.

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ICSID Rule Amendment Project

27 July 2017 Sadie Buls, Asia-Pacific; Europe; Latin America; Middle East; North America

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The International Centre for Settlement of Investment Disputes (“ICSID”) recently launched a webpage for a rule amendment project. The page will track the progress of the latest round of ICSID rule amendments, the process for which began in October 2016 when ICSID sought comments on potential amendments from member states. This was followed by ICSID’s invitation to the public in January 2017 for suggestions for rule amendments.

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English Commercial Court rejects suggestion that appointment of an arbitrator in related arbitrations constitutes apparent bias

06 July 2017 Charlotte Luker-Coombs, England & Wales; Europe

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The recent case of H v L & Others [2017] EWHC (Comm) 137 confirms that the appointment of an arbitrator in related references (and his/her failure to disclose those appointments) will not of itself create an appearance of bias so as to justify his/her removal under s.24(1)(a) Arbitration Act 1996 (the “Act”). The judgment summarises the test for apparent bias in an English seated arbitration and emphasises the integrity and impartiality of arbitrators as a central tenet of the same.  Separately, Popplewell J has also confirmed that orders granted pursuant to powers under the Act cannot be varied under CPR 3.1(7).

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Luxembourg court of appeal refuses enforcement of annulled Pemex award

08 June 2017 Katrien Baetens, Europe; Luxembourg

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In a judgment dated 27 April 2017, the Luxembourg Court of Appeal has confirmed its earlier jurisprudence by refusing the enforcement of a US$300 million ICC award against the Mexican state oil and gas company Pemex that was set aside at the seat of arbitration.

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The parties’ ability to terminate proceedings for the annulment of an arbitration award: recent developments in Spain

06 June 2017 Emma Morales, Europe; Spain

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On 4 April 2017, the Madrid High Court of Justice ("TSJM"), the court in Spain that handles appeals for the annulment of awards, issued two decisions (case numbers 43/2016 and 63/2016) in which it confirms the doctrine already advanced by means of a previous judgment rendered by the same court (judgment of the TSJM dated 28 February 2017 [JUR 2017/ 89938]).

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English High Court rejects attempt to obtain disclosure from arbitrators in support of an application to remove them

18 May 2017 Adrien Canivet, England & Wales; Europe

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In P v. Q & Others [2017] EWHC 148 (Comm), a party to an arbitration sought an order, in support of its application to remove two arbitrators, that the tribunal disclose material to it. The High Court dismissed this request; it recognised that arbitrators’ adjudicative materials are, like judges’, immune from disclosure.  It also clarified the scope of that immunity.

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State Immunity from Enforcement in The Netherlands

25 April 2017 Marc Krestin; Sebastiaan Barten, Europe; The Netherlands

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In its judgment of 30 September 2016, the Dutch Supreme Court ruled that assets of foreign states cannot be subject to attachment and enforcement in The Netherlands, unless those assets are used for non-governmental purposes.

In its judgments of 14 October 2016, the Dutch Supreme Court confirmed this general presumption of sovereign immunity from enforcement of judgments and arbitral awards against a foreign state’s assets.

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First-ever ICC European Conference

25 April 2017 Roland Ziade; Pierre Duprey, Europe; France

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International arbitration in Europe takes centre stage this month with the first-ever ICC European Conference, which launches Paris Arbitration Week today.  Paris Arbitration partners Pierre Duprey and Roland Ziadé take us through the close relationship the region has with the popular dispute resolution process and discuss the relevance of the much anticipated event.

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UK Supreme Court on security and challenging enforcement of arbitral awards

20 April 2017 Rebecca James, England & Wales; Europe

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The UK Supreme Court has recently overturned a ruling of the Court of Appeal which effectively required the Nigerian National Petroleum Corporation (“NNPC”) to provide security as a condition to challenging the enforcement of an award on public policy grounds pursuant to section 103(3) of the Arbitration Act 1996 (the “Arbitration Act).  This decision represents the latest development in a long-running legal saga involving protracted proceedings to challenge the award in Nigeria as well as enforcement proceedings in England.

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The High Court rules on the English court's powers in support of arbitral proceedings against non-signatories

12 April 2017 Joanne Finnegan, England & Wales; Europe

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The English court’s powers in support of arbitral proceedings in section 44 of the Arbitration Act 1996 are not exercisable against non-parties to an arbitration

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A heightened level of review of arbitral awards in the context of money laundering allegations

11 April 2017 Johanne Brocas, Europe; France

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The Paris Appeal Court has annulled an arbitral award rendered against the Kirghizstan Republic for violation of the BIT between Latvia and Kirghizstan on the ground that the enforcement of the award in France would result in allowing the investor to benefit from fraudulent money laundering activities.

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“Adverse inference” doctrine endorsed by the Paris Appeal Court

11 April 2017 Johanne Brocas, Europe; France

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In a decision of 28 February 2017, the Paris Appeal Court held that the IBA Rules on the Taking of Evidence in International Arbitration 2010 (the IBA Rules of Evidence) were applicable as long as the rules were agreed upon by the parties in the Procedural Order n°1.  Further, the court ruled that the tribunal was entitled to apply the adverse inference doctrine provided at Article 9(5) of the IBA Rules of Evidence.

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Micula brothers’ ICSID award stayed in the UK following the European Commission state aid decision

17 March 2017 Duncan Hedar, England & Wales; Europe

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Following an application by Romania and the European Commission (as intervener), the English High Court has stayed enforcement of an ICSID award in favour of Swedish business magnates the Micula brothers.  The case will be determined following the decision of the General Court of the European Union in connected proceedings brought by the Micula brothers to annul the Commission’s determination that the payment of the ICSID award by Romania would amount to illegal State aid.    The case raises important questions about the effectiveness of ICSID awards in circumstances where the awards clash with Member States’ obligations under EU law.

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Escalation Clauses: no longer a tripping hazard for arbitrations with seat in Germany?

01 December 2016 Julia Grothaus; Dr. Rupert Bellinghausen, Europe; Germany

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Escalation clauses need careful drafting to be enforceable and commercially useful. There is uncertainty as to the consequences of the parties’ non-compliance with escalation clauses providing for ‘final’ dispute resolution by means of arbitration. Will it affect the jurisdiction of the arbitral tribunal or the merits of the claim and can an arbitral award even be set aside? In two recent decisions, the German Federal Court of Justice (Bundesgerichtshof) clarified that, in arbitral proceedings seated in Germany, an arbitral tribunal is entitled to assume jurisdiction irrespective of whether the parties complied with the escalation clause.

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Who should know the law: the arbitrators or the parties?

03 October 2016 Cezary Wisniewski; Alicja Zielinska-Eisen, Europe; Poland

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What could be done at an early stage in the proceedings to apply the principle of iura novit curia in a way that would be acceptable to both common law and civil law practitioners and prevent or limit challenges to the arbitral award?

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