Arbitration Links - Linklaters
  • Year: 2017

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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Paris Court of Appeal sets aside ECT arbitration award

03 October 2017 Clément Fouchard, France

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The French courts have had very few opportunities to rule on the setting aside of an investment treaty arbitration award. For this reason, the decision of the Paris Court of Appeal in Moldova v société Komstroy (Court d'appel de Paris, Pôle 1- Chambre 1, République de Moldavie v société Komstroy, 12 avril 2016, n°13/22531) is of great interest. It deals with the degree of control over an investment arbitration award by the French courts and the definition of the legal concept of investment in the Energy Charter Treaty (ECT).

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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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Delhi High Court rejects RBI’s intervention in arbitration proceedings to which it is not a party

21 September 2017 Ben Carroll, India

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In April 2017, the Delhi High Court made a decision in the much-publicised dispute between Tata Sons Ltd. (“Tata”) and NTT Docomo Inc. (“Docomo”). The period for an appeal to be made lapsed at the end of July 2017 and the judgment is expected to be a shot in arm for investment in India for it answers some of the objections raised by the Reserve Bank of India (“RBI”), India’s Central Bank, on the enforcement of an arbitral award involving the outflow of money from India to non-resident entities as damages.

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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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HKIAC consults on amendments to its arbitration rules

11 September 2017 Andrew Mullan; Shirley Au Yeung, Asia-Pacific; Hong Kong

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The Hong Kong International Arbitration Centre (“HKIAC”) is consulting on amendments to the 2013 version of its Administered Arbitration Rules. The proposed changes incorporate a number of new provisions and amendments, highlighting HKIAC’s efforts to respond to the needs of its users and technological advances in dispute resolution. The changes may impact on how parties conduct their HKIAC arbitrations in the future and users are invited to submit comments by 2 October 2017.

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India and Bangladesh to issue joint interpretative note on bilateral investment treaty

05 September 2017 Ula Cartwright-Finch; Matthew Weiniger, Asia-Pacific; India

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A recent press announcement by the Government of India indicates that India and Bangladesh have recently agreed to issue a joint interpretative note in respect of the India Bangladesh Agreement for the Promotion and Protection of Investments, 2009 (“India-Bangladesh BIT”) (the “Note”). According to the announcement, the Note would clarify the interpretations of various clauses in the treaty including the definitions of investor and investment, exclusion of taxation measures and other substantive standards such as most favoured nation, national treatment and fair and equitable treatment. The exact terms of the Note have not been released yet by either India or Bangladesh.

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CEPA: Closer Economic Partnership Arrangement Investment Agreement

31 August 2017 Sadie Buls; Matthew Weiniger, China; Hong Kong

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On 28 June 2017, Hong Kong and mainland China signed two new agreements under the Closer Economic Partnership Arrangement ("CEPA"), a step that has been described by the Hong Kong General Chamber of Commerce as marking a milestone in CEPA’s development. 

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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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High Court restates test for extending the time to challenge arbitral awards

15 August 2017 Adrien Canivet, England & Wales

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In Rollitt (trading as CD Consult) v Ballard [2017] EWHC 1500 (TCC), the High Court rejected an application for permission to appeal an arbitral award on a point of law under section 69 of the Arbitration Act 1996 (“the Act”).  In doing so, it restated the test for extending the time to challenge an award under section 79 of the Act.

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Arbitration clauses, competition claims and the case of Microsoft Mobile

08 August 2017 Alexander Fawke; Elizabeth Jordan, England & Wales

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Earlier this year, in Microsoft Mobile OY (Ltd) v Sony Europe Limited & Ors [2017] EWHC 374 (Ch), the English High Court considered whether an arbitration clause in a supply contract caught a private cartel damages action. Its conclusion that it did needs to be kept in mind by claimants in this field.

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The Conclusion of the Phillip Morris v Australia Saga

03 August 2017 Alexander Fawke, Australia

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The long-running investment treaty dispute between Phillip Morris Asia (“PMA”) and Australia concerning tobacco plain packaging laws has finally ended, with the publication of the Tribunal’s final award on costs in July. Having already dismissed Phillip Morris’ claim as an abuse of rights, the Tribunal rejected its argument that each party should bear its own costs. It ordered Phillip Morris to cover an (undisclosed) proportion of Australia’s costs, while agreeing that Australia should bear some of its own costs due to one of its arguments on jurisdiction failing. The Tribunal’s reasoning contains important lessons for both investors and states as to the extent of permissible costs recovery in investment arbitration.

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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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When, under English law, can damages be reduced for benefits obtained following a breach of contract?

20 July 2017 Francesca Fraser, England & Wales

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On 28 June 2017, the UK Supreme Court handed down judgment in Globalia Business Travel SAU (formerly TravelPlan SAU) of Spain v Fulton Shipping Inc "The New Flamenco" [2017] UKSC 43 in which it unanimously allowed an appeal on a point of English law under s.69 Arbitration Act 1996 (the "Act"). The case concerned the extent to which benefits obtained by an innocent party following a breach of contract should be taken into account in assessing its damages for that breach.

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English court allows challenge to New York Convention award based on contravention of public policy arising from fraud

12 July 2017 Joanne Finnegan, England & Wales

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The High Court has allowed a claim that a New York Convention award was obtained by fraud to go to trial, even though it was upheld by the seat's courts.

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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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English High Court clarifies criteria applicable to s.70(7) of the Arbitration Act 1996

29 June 2017 Erin Marsh, England & Wales

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In Erdenet Mining Corporation LLC v ICBC Standard Bank PLC & Others [2017] EWHC 1090 (Comm) the High Court clarified the criteria applicable to the exercise of its discretion under s.70(7) of the Arbitration Act 1996 (the “Act”), pursuant to which the Court may order (in relation to an arbitration seated in England) that any money payable under an arbitral award shall be brought into court or otherwise secured pending the determination of a challenge to the award under ss.67, 68 or 69 of the Act.

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Recent developments in the Yukos saga see assets in Belgium belonging to Russia unfrozen

27 June 2017 Guillaume Croisant, Belgium

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In 2015, at the request of one of Yukos’s main former shareholders, assets in Belgium belonging to Russia were frozen. The Brussels Court of First Instance has now lifted that order. This decision follows a recent ruling of the Belgian Constitutional Court upholding the so-called ‘Yukos’ Act of 23 August 2015, which reinforces state immunity from enforcement in Belgium.  

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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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Third party funding for arbitration permitted in Hong Kong

15 June 2017 Justin Tang, Asia-Pacific; Hong Kong

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Legislation allowing third party funding for arbitration has been passed in Hong Kong. This is a significant development which will bring Hong Kong in line with other jurisdictions which allow third party funding for arbitration, including Australia, England and Wales, and Singapore.   

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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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A Harmonious Australian Arbitration Framework: The ACT Adopts the Model Law

01 June 2017 Alexander Fawke, Asia-Pacific; Australia

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On 21 March 2017, the Australian Capital Territory (the “ACT”) passed the Commercial Arbitration Act 2017 (ACT) (the “Act”), which essentially adopts the UNCITRAL Model Law (inclusive of the 2006 amendments) (the “Model Law”). The Act means that all arbitrations seated in Australia will now be subject to the Model Law, as the same legislation has been adopted in all other States and Territories, as well as by the Federal Parliament. This development strengthens Australia’s position as an attractive seat for arbitration.

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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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U.S. Appeals Court rejects conflict-of-interest challenge to London award

08 May 2017 John Akin; Adam Lurie, North America; United States of America

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In a March 31 decision, the U.S. Court of Appeals for the D.C. Circuit affirmed a lower court’s decision to confirm an $18.5 million arbitral award entered by a London tribunal in favor of the Belize Bank Ltd. (“the Bank”), rejecting an argument from the government of Belize (“Belize”) that an arbitrator’s alleged conflict of interest violates U.S. public policy. The decision affirms the principle that barristers in the same English chambers—unlike lawyers in an American law firm—are presumed to be independent practitioners.

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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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Arbitration in MENA: a continuing growth, further modernisation and a few challenges

18 April 2017 Roland Ziade, Middle East

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The number of parties involved in ICC Arbitration in the MENA region continues to be on the rise. Between 2014 and 2016, the number of parties from North Africa increased by almost 50%, accounting for more than one-third of all African parties.

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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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Investment Arbitration in Australia: an update

31 January 2017 Alexander Fawke, Asia-Pacific; Australia

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The past year has seen a number of major developments in international arbitration in Australia, including the conclusion of new trade deals and the long-running Phillip Morris investment arbitration. This article surveys the most important changes in case law, legislation, investor-state dispute resolution and local arbitral institutions in the past year.

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International commercial arbitration in Australia: recent developments

31 January 2017 Alexander Fawke, Asia-Pacific; Australia

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Australia’s body of arbitration case law continued to grow in the past year, with increasing breadth and sophistication. Key cases covered the public policy ground for resisting enforcement; the appropriateness of awarding costs on the indemnity basis when an application to resist enforcement is refused; and non-signatories to arbitration agreements.

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The need for confidentiality in arbitration proceedings relating to advisory matters

24 January 2017 Arnaud de La Cotardière; Claudia Cavicchioli

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Advisory works generally include advisory services rendered by investment banks to their clients in two main areas: M&A (mergers and acquisitions) and equity capital markets. In this context, a financial institution will enter into a various number of agreements, either with its clients (mandate, etc.) or with its counterparty to a transaction where the deal is conducted for its own account (share purchase agreement, etc.).

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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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Moving ahead in 2017

19 January 2017 Raquel Galvão Silva; Ricardo Guimarães

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New years are a great opportunity to take stock and to prepare for future developments, despite the obvious difficulties in predicting what the main trends will be. This is also the case for 2017. Looking back to 2016 there are two topics that immediately stand out: gender diversity and transparency. Both topics were subject to substantial discussion last year and the developments in these areas are likely to continue or even increase in 2017.

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