Latest updates

ICC construction industry arbitration report
Norton Rose Fulbright
  • Arbitration & ADR
  • International
  • 20 June 2019

The International Chamber of Commerce Commission recently published an update to its report on construction industry arbitration, focusing on recommended tools and techniques for effective management. The report is a helpful reminder for practitioners and arbitrators of the procedural mechanisms available which are particularly relevant to the conduct of arbitration in the construction sector.

Use of corporate power purchase agreements
Norton Rose Fulbright Studio Legale
  • Energy & Natural Resources
  • Italy
  • 17 June 2019

The use of corporate renewable power purchase agreements (PPAs) looks set to increase in Italy. Corporate PPAs are contracts between buyers and power producers to purchase electricity at a pre-agreed price for a pre-agreed period. As the market for the development of subsidy-free renewable energy projects grows, corporate PPAs are expected to become a common part of the energy and sustainability strategies of Italian corporates.

Construction disputes: maximising time and cost efficiencies
Norton Rose Fulbright
  • Arbitration & ADR
  • International
  • 13 June 2019

In construction disputes, a significant amount of legal time (and therefore expense) is often spent simply locating and trying to understand the relevance of key documents because of poor document management practices throughout the project lifecycle. Establishing clear guidelines for document management and information collection is critical and will assist contractors and suppliers in making and evidencing claims in arbitration.

Expert evidence: practical tips for managing party-appointed experts
Norton Rose Fulbright
  • Arbitration & ADR
  • International
  • 30 May 2019

The expert phase is often the most critical, and sometimes costly, part of the arbitration process. Thus, choosing the right expert is crucial. This means ensuring not only that the expert has the appropriate qualifications, technical expertise and reputation in the relevant field, but also (if possible) suitable experience of the dispute process and of writing expert reports and giving evidence in adversarial proceedings. This article offers some practical tips for managing party-appointed experts in arbitrations.

New York Appellate Division confirms narrow scope of manifest disregard doctrine
Norton Rose Fulbright US LLP
  • Arbitration & ADR
  • USA
  • 30 May 2019

The New York Appellate Division has reaffirmed that the manifest disregard doctrine is a "severely limited… doctrine of last resort" that requires more than a mere error of law to warrant vacating an arbitral award. This case involved the acquisition contracts between Daesang and NutraSweet, under which NutraSweet could rescind the deal if it was sued for antitrust law violations. After NutraSweet exercised this right, Daesang commenced an arbitration proceeding for breach of contract.

Assistant attorney general suggests expanding scope of antitrust enforcement
Norton Rose Fulbright US LLP
  • Competition & Antitrust
  • USA
  • 23 May 2019

The assistant attorney general recently suggested that antitrust enforcers should update their analytical framework to account for modern corporate structures, signalling the potential for antitrust violations when officers and directors serve multiple competing companies. The assistant attorney general's speech is a reminder that behaviour that is not explicitly prohibited by the letter of the antitrust statutes may still raise eyebrows.

Dispute resolution for multi-contract projects: avoiding parallel proceedings and conflicting decisions
Norton Rose Fulbright
  • Arbitration & ADR
  • International
  • 23 May 2019

Construction contracts are often part of a wider suite of project contracts, involving multiple, overlapping parties. This intertwined suite of contracts means that when a dispute arises, it arises under multiple project contracts, which can be difficult to deal with. Choosing arbitration as the dispute resolution procedure for each project contract – and ensuring that the arbitration agreement in each project contract is consistent – will help parties to achieve consolidation of future disputes under different project contracts.

Disclosure in international arbitration: using US courts to obtain discovery for non-US proceedings
Norton Rose Fulbright
  • Arbitration & ADR
  • USA
  • 23 May 2019

Unbeknown to many, Section 1782 of Title 28 of the US Code permits parties to obtain discovery in the United States in aid of non-US legal proceedings, including – in some instances – international arbitrations. Such discovery can include documents and sworn testimony (eg, depositions). In conducting an arbitration seated outside the United States (or other non-US legal proceedings), it is useful to understand the mechanics, requirements and key issues of Section 1782 discovery.

FBI and ACCC commit to sharing antitrust enforcement expertise
Norton Rose Fulbright US LLP
  • Competition & Antitrust
  • USA
  • 02 May 2019

The US Federal Bureau of Investigation (FBI) and the Australian Competition and Consumer Commission (ACCC) recently signed a new memorandum of cooperation to strengthen their ability to combat cartels and other anti-competitive conduct. According to the section chief of the FBI's Criminal Investigative Division, the memorandum codifies the FBI's relationship with the ACCC and provides an opportunity for increased information and resource sharing.

Fine line between financial initiatives in PV greenhouses and genuine agricultural projects
Norton Rose Fulbright Studio Legale
  • Energy & Natural Resources
  • Italy
  • 15 April 2019

The Regional Administrative Court of Sardinia recently annulled the regional authority's decision to revoke authorisation for the construction and operation of a photovoltaic (PV) plant on the rooftops of agricultural greenhouses following its alleged loss of status as an agricultural company. The decision confirms that the lack of qualification as a professional agricultural entrepreneur should not jeopardise the right to operate PV plants and receive incentive tariffs on the production of renewable energy.

Strategies to avoid lengthy pre-merger reviews
Norton Rose Fulbright
  • Competition & Antitrust
  • USA
  • 11 April 2019

Second requests can be expensive, time consuming and distracting to clients' employees. One way to ease the burden of a second request is to avoid it altogether. While second requests are inevitable for some transactions, certain strategies can help to lessen the likelihood of one being issued.

FTC eyes settlement agreements that restrict rivals' online search terms
Norton Rose Fulbright US LLP
  • Competition & Antitrust
  • USA
  • 13 December 2018

Litigants often enter into settlement agreements without giving much thought to whether those agreements could form the basis for an antitrust claim – and for good reason because most settlement agreements simply resolve a dispute through money payments. However, agreements that restrict rivals' abilities to engage in advertising or other competitive activities could fall foul of the antitrust laws.

Ratification of Convention on Transparency in Treaty-Based Investor-State Arbitration continues
Norton Rose Fulbright US LLP
  • Arbitration & ADR
  • International
  • 15 November 2018

Gambia recently became the fifth nation to ratify the United Nations Convention on Transparency in Treaty-Based Investor-State Arbitration (Mauritius Convention). Eighteen other countries have signed the Mauritius Convention but have not yet ratified it. While no arbitrations subject to the convention have yet been initiated, if the current signatories were to ratify it, at least an additional 39 bilateral and multilateral treaties would become subject to the convention, unless expressly reserved.

Global overview of dispute trends in energy sector
Norton Rose Fulbright
  • Arbitration & ADR
  • International
  • 08 November 2018

It should be anticipated that new types of energy arbitration will emerge in 2018 and beyond, whereas others may decline. As always in the energy sector, an uncertain political landscape combined with cross-border investment in energy projects and fluctuating prices creates the model ecosystem for a whole spectrum of energy disputes to emerge globally, with arbitration remaining a key method of dispute resolution.

California loosens restrictions on counsel in international arbitrations
Norton Rose Fulbright
  • Arbitration & ADR
  • USA
  • 23 August 2018

California Governor Jerry Brown recently signed into law Senate Bill (SB) 766, Representation by Foreign and Out-of-State Attorneys. The bill, which was passed 69-to-zero by the legislature, clarifies that foreign (ie, not licensed in the United States) and out-of-state (ie, licensed in a US jurisdiction, but not in California) attorneys can represent parties in international arbitrations in California, subject to certain conditions. SB 766 will take effect on 1 January 2019.

Repowering – getting more energy from existing assets
Norton Rose Fulbright Studio Legale
  • Energy & Natural Resources
  • Italy
  • 06 August 2018

Repowering is the process of replacing an energy plant's original components with new ones and reconfiguring the layout in order to boost the plant's yield. Given that the regulatory framework in this regard is ambiguous, repowering works are innovative and the case law on such matters contains gaps, energy producers seeking to repower their plants are advised not to start the simplified deemed-consent procedure without obtaining prior clearance from the competent authorities.

Public policy as bar to enforcement – where are we now?
  • Arbitration & ADR
  • International
  • 02 August 2018

The public policy exception to the recognition and enforcement of international arbitral awards creates uncertainty with respect to the enforcement of these awards – particularly because contracting states have diverse approaches to issues of public policy. While some jurisdictions still maintain a parochial approach, recent trends invite cautious optimism that major jurisdictions are converging in the practice of adopting a narrow interpretation of the public policy exception.

Awards set aside or annulled at seat – zombies, ghosts and buried treasure
Norton Rose Fulbright
  • Arbitration & ADR
  • International
  • 26 July 2018

A disgruntled party on the losing end of an award will sometimes seek to have the award annulled or set aside at the seat of arbitration. However, even if such a challenge at the seat is successful, that is not necessarily the end of the matter. Awards that are seemingly 'dead and buried' can sometimes be resurrected or haunt the losing party in other jurisdictions where enforcement of the award is sought.

Enforceability of interim measures and emergency arbitrator decisions
Norton Rose Fulbright
  • Arbitration & ADR
  • International
  • 05 July 2018

In recent years, many of the leading arbitral institutions have amended their rules in order to make arbitration more responsive to users' needs. A key development has been the introduction of emergency arbitrator procedures, which enable parties to obtain urgent relief before the substantive tribunal is formed. These new developments are attracting significant attention from parties and arbitrators – but have enforcement mechanisms kept pace?

Summary awards and expedited procedures: strike out or home run?
Norton Rose Fulbright
  • Arbitration & ADR
  • International
  • 28 June 2018

Although institutional rules arguably empower arbitral tribunals to streamline procedure and summarily dispose of claims or defences as part of their general case management authority, the trend is for institutional rules to expressly recognise such powers. But do these procedural innovations aimed at cheaper and quicker arbitrations come at the price of a binding and enforceable award?