One of arbitration's cornerstone principles is that parties can agree on how to resolve their disputes. However, parties commonly agree on asymmetric, rather than symmetric, rights. The classic case is where only one party has the right to refer disputes to arbitration, but the other must litigate. Parties wishing to include asymmetric arbitration clauses are advised to consider carefully the courts' approaches to such clauses in all relevant jurisdictions.
Smart contracts are a hot topic in almost every industry sector. There is a misconception that, because they perform automatically and their performance cannot be stopped, they remove the potential for disputes. At least for the moment, this is wishful thinking. Although smart contracts provide huge potential benefits in terms of reducing transaction costs and increasing security, disputes can and will arise.
As the number of electronic devices, applications and other technologies increases, there has been a corresponding growth in the volume of potentially disclosable data in a dispute. While parties' disclosure obligations are clearly defined in the context of litigation, international arbitration offers a more flexible approach to disclosure which will often be influenced by the legal jurisprudence of the tribunal.
In time, Big Data will lead to the automation of most human tasks. The change potential for all organisations (and for society at large) is enormous, and it is already happening in an arbitration context. Some will consider that human discretion will always be a necessary part of dispute resolution. However, if arbitration exists to serve the interests of businesspeople – and if technology can offer quicker, cheaper, data-driven solutions that reduce the margin for error – human arbitrators could become irrelevant.
According to traditional antitrust theory, individuals (and firms) maximise utility according to stable preferences and rational expectations, while being well informed. This means that antitrust follows microeconomic bases that lead to the assumption that economic players are rational actors with willpower and self-interest. However, the emergence of behavioural economics shows that people do not necessarily behave in the ways that traditional economic principles would predict.
There are known difficulties with litigating IP and technology disputes, particularly where the disputes are global and involve rights protected in different jurisdictions. A recent international survey of IT and telecoms suppliers found that although respondents identified arbitration as their preferred mechanism of dispute resolution, in practice the most common mechanism over the past five years was litigation.
The Internet of Things, big data analytics and artificial intelligence are IT mega-trends that are not only evolving rapidly, but also infiltrating practically every industry. While these technologies naturally raise data privacy concerns, they also pose challenges in relation to intellectual property and the ways in which IP-based relationships are established.
Arbitration is well placed to lead the way in adopting new technological and procedural innovations – indeed, arbitral institutions, tribunals and practitioners have a responsibility to do so, particularly where such innovations can reduce cost and improve efficiency. Online dispute resolution presents an opportunity for international arbitration to fulfil its early potential as a cost-effective and efficient means of dispute resolution.
International Shareholder Services recently released the results of its 2017-2018 global policy survey. The results reveal mixed views on multi-class capital structures, share buybacks and virtual annual meetings, but strong opinions on board gender diversity. However, although almost 70% of investors viewed as problematic the absence of any women on a board, making board diversity a reality seems to be a tougher proposition.
In a recent decision before the World Intellectual Property Organisation, a panel denied the transfer of a three-letter domain name, even though it identically reproduced a complainant's trademark, because the domain name had been registered years before the complainant acquired trademark rights and the complainant failed to demonstrate that the respondent was aware of those rights.
Modern information technology and the daily use of the Internet have strongly influenced the world of work in the 21st century. Intelligent algorithms simplify everyday tasks, and it is impossible to imagine how most steps of a procedure could be managed without them. Further, the use of artificial intelligence and robotics is accelerating. Thus, the question arises as to what the future world of work will look like and how long it will take for this to happen.
Arbitral institutions are constantly seeking to update their rules to keep in line with existing trends and to distinguish themselves among their peers. In early 2017 new or amended rules came into force for three of the most prominent global arbitral institutions. Important changes include the introduction of expedited procedures in International Chamber of Commerce and Stockholm Chamber of Commerce arbitrations and new Singapore International Arbitration Centre rules for investment arbitrations.
The Baltic and International Maritime Council recently launched a revised version of its standard time charter party for offshore support vessels – the Supplytime. Considering the form's broad application in practice, the 2017 edition's amendments and new features are likely to have a significant impact on issues facing owners and charterers.
Recent trends indicate a growing interest in investor-state mediation. Previously, the intermittent dialogue in investor-state mediation was speculative and often sceptical. The perception has been that compulsory mechanisms would be necessary for any dispute resolution process involving states to be effective. However, governments, investors and institutions now seem to be considering meditation as a viable tool for resolving investor-state disputes.
Keeping pace with the changing nature of the liquefied natural gas (LNG) sector, the traditional long-term LNG time charter market is evolving and charter periods are becoming shorter. The fixing of LNG carriers on shorter-term and more flexible contracts is a sign that the LNG industry is becoming much less rigid. It has resulted in owners and banks having to adjust their traditional approach to LNG ship financing and agreeing to more market exposure.
Generally, parties to international arbitrations assume that decisions are final and binding and that tribunals will not – or cannot – revisit decisions once they have been made. However, circumstances may arise, such as when new evidence is discovered, that prompt parties to call for a tribunal to reconsider its prior determinations, having regard to the appropriate balance between finality and flexibility.
The International Air Transportation Association (IATA) Dangerous Goods Regulations – the only standard recognised by airlines – contain the globally applicable provisions for shipping dangerous goods by air. A violation of the regulations might lead to criminal proceedings and infringements are a notifiable fact to be reported to the competent authority. In order to assist shippers in understanding the complete requirements, IATA has prepared the Lithium Battery Shipping Guidelines.
A new draft international standard providing information management guidance when using building information modelling has been issued for public comment. The standard is split into two parts. The first part deals with concepts and principles and applies to the whole lifecycle of a built asset, while the second deals with the delivery phase of assets and enables the client or appointing organisation to establish its requirements for information during the delivery phase of assets.
The International Centre for Settlement of Investment Disputes (ICSID) is an important institution for the settlement of investor-state disputes. A review of its 2016 case statistics is a useful indicator of recent trends in international investor-state dispute settlement, including the state parties and economic sectors involved, the success rates of states versus investors and the changes to the composition and diversity of ICSID tribunals.
Investor-state dispute settlement (ISDS) is a mechanism that enables foreign investors to resolve disputes with the government of the country where their investment was made (host state) in a neutral forum through binding international arbitration. Without ISDS, many foreign investors would be left with no meaningful remedy in the face of arbitrary, capricious or other unfair treatment by a host state.