International arbitration report

Publication | May 2018 - issue 10
International arbitration report

Welcome to issue 10 of Norton Rose Fulbright’s International arbitration report.

With 2018 being the 60th anniversary of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention), the theme for this issue is enforcement. Lawyers from across our global firm review various trends and developments in this area, including current approaches to enforcing awards that have been set aside at the seat and the use of the public policy exception as a bar  to enforcement. We provide a practical guide to bringing enforcement proceedings, and offer strategic tips for in‑house counsel on how to best position themselves from the outset in order to secure payment of their claim at the end of the day.

As most major arbitral institutions have now introduced procedures for emergency arbitration, expedited procedures and/or summary disposition of claims, we look at the potential enforcement issues that these procedures might raise.

In our Q&A, we offer a perspective on the impact of the New York Convention over the last 60 years.

We compare the enforcement regimes for international commercial arbitration under the New York Convention and investor‑State arbitration under the Washington (ICSID) Convention.

We also report on breaking news in investor‑state dispute settlement (ISDS), including the decision of the Court of Justice of the European Union that Investor‑State dispute settlement provisions in intra‑EU bilateral investment treaties are not compatible with EU law and Spain’s copy‑cat challenge to ISDS provisions in the Energy Charter Treaty. We also analyse ICSID’s Caseload statistics on investor‑state claims brought against EU Member States or by investors from within the EU.

Our case law update analyses key recent judgments of the Dubai Joint Judicial Committee and the impact those decisions are having on the DIFC Courts’ emerging role as a conduit jurisdiction for enforcing arbitral awards in Dubai and elsewhere in the Middle East.

Continuing the theme from our last issue of technology and disruptive innovation, we look at the rise of cryptocurrencies and why arbitration would be a good mechanism for resolving related disputes.

In our global round‑up of arbitration developments, we review recent reforms to institutional rules around the globe, including new LMAA Terms, new DIS Rules, proposed amendments to the HKIAC and DIAC Rules, as well as the newly launched AIAC (formerly branded as the KLRCA). We also cover proposed amendments to UAE arbitration law.

Contents

Marking the 60th anniversary of the New York Convention —
A Q&A with Norton Rose Fulbright’s global co-heads of international arbitration

We interview Mark Baker and Pierre Bienvenu about the New York Convention regime and the influence it has had on international arbitration.

May 2018

A comparison of the enforcement regimes under the New York and Washington Conventions —
A tale of two cities

A comparison of a few key differences between the enforcement regimes under the New York and Washington Conventions.

May 2018

Enforcement proceedings against State entities —
From one end to another

When enforcing an arbitral award against a State or State-owned entity, in most jurisdictions the road can be long and winding with many obstacles.

May 2018

Strategic tips on enforcement for in-house counsel —
Looking forward to pay day

While there are cases that involve claims for declaratory relief or specific performance, more often than not, disputes are about payment.

May 2018

Summary awards and expedited procedures —
Strike out or home run?

Are the procedural innovations in many institutional rules aimed at cheaper and quicker arbitrations coming at the price of a binding and enforceable award?

May 2018

Enforceability of interim measures and emergency arbitrator decisions

Have enforcement mechanisms kept pace with many of the arbitral institutional rule amendments to make arbitration more responsive to users’ needs?

May 2018

Awards set aside or annulled at the seat —
Zombies, ghosts and buried treasure

A comparison of the different approaches taken in various jurisdictions to awards that have been set aside or annulled at the seat.

May 2018

Public policy as a bar to enforcement —
Where are we now?

A review of the global developments in the use of public policy exception and enforcement of international arbitral awards.

May 2018

Cryptocurrencies and arbitration —
A match made in heaven?

The decentralization of currencies and the use of blockchain technology has raised important, commercial, administrative and regulatory questions.

May 2018

The Dubai Judicial Tribunal —
A claw-back of jurisdiction?

The establishment of the Joint Judicial Committee has altered the legal landscape of Dubai, challenging the conduit route for enforcing arbitral awards.

May 2018

A global round-up of new arbitral rules and impending updates to existing rules

A look at the key changes and points of interest in new arbitral rules and impending updates to existing rules.

May 2018

EU Court rejects ISDS provisions in intra-EU BITs —
Once BITten, twice shy

Reviewing the decision of the CJEU that investor-State dispute settlement provisions in intra-EU bilateral investment treaties are incompatible with EU law.

May 2018

Investor-State disputes in the EU —
Some statistical observations

A review of the ICSID Caseload Report with a special focus on investor-State arbitration in the EU as of 30 April 2017.

May 2018


Contacts