Arbitration Links - Linklaters
  • Topic: Arbitral Tribunals

Experts publish “toolkit” to help arbitrators deal with issues of corruption and money laundering

06 August 2019 Adrien Canivet, Asia-Pacific; Europe; Latin America; Middle East; North America

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On 30 May, the University of Basel’s Competence Centre - Arbitration and Crime and the Basel Institute on Governance (a not-for profit organisation) jointly published a toolkit to assist arbitrators dealing with issues or corruption and money laundering. The toolkit is the product of a 2-year consultation process involving regulators, arbitrators, lawyers, forensics, and academics.

It is commonplace to say that arbitrators confronted with allegations or suspicions of economic crime face difficult challenges as they must balance their duties to the parties with public policy rules and lack the investigative powers of the state. The purpose of the toolkit is to help arbitrators address these challenges in a comprehensive manner and find solutions in accordance with applicable laws. This article summarises its key aspects.

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Arbitral tribunal lacked substantive jurisdiction when appointed after a party ceased to exist

12 June 2019 England & Wales; Europe

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In Chung v Silver Dry Bulk Co Ltd [2019] EWHC 1147 (Comm) the English Commercial Court granted an application challenging the substantive jurisdiction of an arbitral tribunal appointed after the dissolution of the defendant corporation.

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English High Court provides guidance on leave to appeal applications under s.69 Arbitration Act 1996

07 June 2019 Airlie Goodman, England & Wales; Europe

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In Merthyr (South Wales) Ltd v Cwmbargoed Estates Ltd and another [2019] EWHC 704 (Ch) the English High Court rejected an application for leave to appeal against an arbitral award on a point of law under s.69 of the Arbitration Act 1996. In his judgment, HHJ Paul Matthews discussed the mechanics of obtaining such leave, particularly the requirement under s.69(3)(c)(i) of the Act that the decision of the arbitrator to make the award being challenged be “obviously wrong”.

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Live stream: ICC YAF: The psychology of decision-making in international arbitration

23 May 2019 Cezary Wisniewski; Alicja Zielinska-Eisen, Africa; Asia-Pacific; Europe; Latin America; Middle East; North America; Poland

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On Friday, May 24 at 15:00 CET, the Warsaw office of Linklaters hosted the latest ICC Young Arbitrators Forum conference titled “The psychology of decision-making in international arbitration”. The conference opened with a keynote presentation by Dr. Ula Cartwright-Finch, an international arbitration specialist with a PhD in Cognitive Psychology, and a thought leader in legal psychology. A panel discussion followed addressing questions such as what factors influence arbitrators’ decisions, how does diversity within a group impact its performance, and how reliable is a witness’ memory?

We live-streamed this event. For more details, including on how to watch, please click through to the full article.

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English High Court considers the interpretation of an arbitration clause written in a foreign language

22 August 2018 Stephen Lacey, England & Wales; Europe

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A recent decision of the English High Court provides important guidance about the interpretation of arbitration clauses under English law when first written in a foreign language. The essence of the judgment is that, where the translation is contested, any ambiguity should be resolved by standard methods of contractual construction.

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English commercial court considers requirement for party to be given fair opportunity to respond

07 August 2018 Sadie Buls; Stephen Lacey, England & Wales; Europe

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In the recent decision of Grindrod Shipping v Hyundai Merchant Marine [2018] EWHC 1284, the English Commercial Court considered the degree to which issues relied upon by the tribunal must have been put before it; in particular, whether points raised by one of the parties in one context can be deployed by the tribunal in another. The short answer is that there is no problem with this, provided the issues can be said to have been “in play” so as to give the other a fair opportunity to respond.

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Consultation open for ICCA working group’s draft Cybersecurity Protocol

24 July 2018 Erin Marsh, Africa; Asia-Pacific; Europe; Latin America; Middle East; North America

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The draft Cybersecurity Protocol for International Arbitration has been published by the International Council for Commercial Arbitration (ICCA) Working Group on Cybersecurity in International Arbitration. Accessible here, the protocol does not specify particular measures to be included in arbitration agreements or procedural orders, but instead proposes a framework for developing cybersecurity measures appropriate to each individual case. Written comments should be submitted to cybersecurity@arbitration-icca.org no later than 30 September 2018.

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An introduction to the relationship between smart contracts and international dispute resolution mechanisms

19 June 2018 Matthew Weiniger, Africa; Asia-Pacific; Europe; Latin America; Middle East; North America

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In this video blog, Matthew Weiniger QC, our Global Co-Head of International Arbitration, takes a look at one of the oft-cited advantages of smart contracts and distributed ledger technology; namely their ability to reduce, or even eliminate, the potential for disputes. Matthew examines whether this is really true, and why parties should still be thinking about building conventional dispute resolution mechanisms into such structures.

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To reform or to update? Thoughts from the BICCL 16th Annual Review of the UK Arbitration Act

29 March 2018 Stephen Lacey; Sadie Buls, England & Wales

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The British Institute of International and Comparative Law hosted the 16th Annual Review of the Arbitration Act at the end of last year. At the event, speakers discussed whether the Arbitration Act 1996 (“the Act”) is currently in need of reform. The speakers agreed that a complete overhaul of the Act is not required, but all highlighted different areas that might usefully be revisited due to developments in international arbitration in the past two decades.

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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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How to Prove Corruption – Notes from a panel discussion at the BIICL 28th Investment Treaty Forum

21 June 2017 Jessie Ingle

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On 12 May 2017, the British Institute of International and Comparative Law held its 28th Investment Treaty Forum with this year’s theme being ‘Economic Crime and International Investment Law’.

One particularly relevant panel discussion at the interface between the resolution of investment treaty disputes and the wider themes of the forum focused on ‘Evidentiary Challenges of Allegations of Economic Crimes in Investor-State Disputes’

In a sweeping majority of cases, the party alleging corruption is unable to substantiate that claim before the arbitral tribunal. The panellists explored the question of how arbitral tribunals in investment treaty disputes can best deal with allegations of corruption when a) such a crime typically involves very little evidence; b) that evidence that has been concealed; and c) the tribunal has no way of compelling the production of that evidence.

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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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Southern District grants Section 1782 discovery for private commercial arbitration

23 January 2017 Patrick Ashby, North America; United States of America

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Private international arbitral bodies are considered foreign tribunals for the purpose of 28 U.S.C. §1782 (“Section 1782”), the United States statute that allows parties to obtain evidence in the U.S. for use in legal proceedings outside of the U.S., according to a recent decision by Judge Furman of the District Court for the Southern District of New York (“Southern District”).

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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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