Arbitration Links - Linklaters
  • Year: 2019
  • Month: January

Investment protection under the USMCA

22 January 2019 Akshay Sewlikar, Latin America; North America

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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. 

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

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

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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.

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Proposed Amendments to the Indian Arbitration and Conciliation Act 1996

11 January 2019 Akshay Sewlikar, India

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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.  

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