The new London Court of International Arbitration (LCIA) Rules 2020 came into force on 1 October 2020 and apply to all LCIA arbitrations commencing from that date onwards. The amendments are an attempt to streamline and modernise the LCIA rules. This article discusses the key changes introduced by the new rules and their likely impact on parties.
Corruption allegations have blossomed as an area of interest in international arbitration. Numerous published awards show that states are increasingly relying on allegations of corruption to defend treaty and commercial claims. Despite this trend, no established approach exists for the standard of proof that applies to such allegations. However, recent awards show that the standard of proof applicable in arbitration should be no higher than the standard required in other civil cases.
This article considers the duties, both express and implied, which joint venture partners may be under when dealing with each other. Can a party simply look out for itself or must it consider its partners' interests when conducting joint venture business? How do arbitrators approach these questions?
Technological innovation continues to disrupt the status quo in established industries. While new technologies offer many opportunities within the mining industry, the corresponding risks and potential disputes are not far off. Parties must ensure that they incorporate appropriate contractual protections but also effective and enforceable mechanisms for enforcing their contracts and resolving disputes. A robust and broad arbitration agreement remains one important part of risk mitigation.
Africa's economic growth has historically been linked to the fluctuation of commodity prices and it supplies significant amounts of minerals in global demand. Against this background, some states and state-owned counterparts of mining investors in Africa have taken a series of measures perceived by investors as an attempt to force them to renegotiate their long-term agreements. This has led to an increase in disputes concerning legislative changes, joint venture agreements and environmental issues.
Streaming agreements are increasingly relied on by mining companies as a primary source of financing. As always, in parallel with the increase in popularity of particular transactions, there has been a corresponding increase in disputes between counterparties. This article explores the nature of streaming agreements, the types of dispute that can arise and how contracting parties can take steps at the outset to put themselves in the best position to mitigate disputes risk.
Considerations of agility, resilience and risk mitigation must feature high on every corporate agenda. This article examines the areas that must be considered when it comes to disputes risk mitigation in the mining sector, including identifying the potential origins of disputes, enforcement of international arbitral awards, contractual disputes and disputes with states or state-owned entities.
Biomethane is an emerging source of renewable energy which may be a suitable substitute for fossil fuels. The prospects for biomethane as an energy source in Italy are promising; it has the potential to become one of the main protagonists in Italy's future energy sector and would facilitate the transition to a circular economy model. This article considers recent developments under Italian law to incentivise biomethane production.
Prior to COVID-19, few people would have found an obvious practical connection between a pandemic and climate change. But, with hindsight, the connections are manifold. As discussed in this article, some of these are obvious and some are subtle, while others are still playing out. However, what is becoming clear is that climate change-related disputes are unlikely to abate in the wake of the pandemic.
COVID-19 is putting tremendous strain on the life sciences and healthcare sector. Disputes may be more disruptive than usual during this time, not least because they put further pressure on often already limited financial and managerial resources. Therefore, many parties are seeking alternative ways to avoid disputes. However, some disputes are inevitable and a number are likely to be resolved through international arbitration.
As the world emerges from the COVID-19 pandemic, increased M&A activity is likely until at least the end of 2020. The pandemic has changed the landscape of M&A, antitrust and foreign direct investment reviews globally in many key areas, including with regard to so-called 'killer acquisitions', failing firm arguments, distressed transactions and gun jumping.
The COVID-19 pandemic has severely curtailed court access in many jurisdictions. By virtue of its flexibility, arbitration has been offered up as a solution to commercial parties which nevertheless wish to progress the resolution of their dispute. Both institutional and ad hoc arbitrations have been accommodating in terms of virtual hearings and electronic documentation.
The COVID-19 pandemic presents unique challenges to businesses globally. Amid the uncertainty and disruptions to all aspects of life and commerce, many companies are facing disputes with their counterparties. Claims can be preserved in many instances – even strengthened – by carefully considered but simple steps taken now. Companies should settle on an appropriate strategy, tailored to their business and jurisdiction, sooner rather than later.
States have taken urgent and extraordinary steps to prevent the spread of COVID-19 and address the public health and economic crises that it has caused. Some such measures are aimed directly at the need to treat those affected by the virus, while others aim to address the virus's unprecedented economic impact on the world economy. Inevitably, some of these measures will affect foreign investors and their investments in host states, triggering investor-state disputes.
Where insolvency involves cross-border investments, foreign investors may have additional rights under international investment treaties or agreements (IIAs). IIAs are agreements between states in which the state receiving investment from an investor from the other state commits to provide certain levels of protection to those foreign investors in respect of their investment. Foreign investors often have a direct right under an IIA to commence proceedings against the host state for a breach of such commitments.
The COVID-19 pandemic is forcing businesses of all shapes and sizes to pursue alternate sources of funding to ensure the advancement of pending claims, bring new claims arising out of the pandemic and enhance cash flow where possible to survive. Understanding the range of dispute funding options available is critical to assess whether and, if so, how such funding can be leveraged to help a business weather the current COVID-19 environment and what is yet to come.
For a cross-border system of dispute resolution that frequently involves participants from different countries, the challenge posed by COVID-19 is acute. However, given that arbitration is a flexible and consensual process, it is well positioned to respond swiftly to these challenges. In a short time, the international arbitration community – led by the major arbitral institutions – has collaborated to find ways to maintain access to justice in a timely and efficient manner.
The resilience and innovation shown by the international arbitration community in recent months should be applauded. In the face of significant adversity, new and improved ways to resolve disputes and maintain access to efficient and effective justice have emerged. Notwithstanding the terrible circumstances that provided the impetus, recent months have disrupted the status quo and challenged normative beliefs around how disputes can and should be resolved.
The US Supreme Court has unanimously held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not prohibit US courts from applying the domestic law doctrine of equitable estoppel when determining whether an international arbitration clause can be enforced by a non-signatory to compel arbitration. In doing so, the court effectively extended the holding in Arthur Andersen LLP to international arbitrations under Chapter 2 of the Federal Arbitration Act.
The world is living through the most dynamic period in antitrust and competition policy for decades – with pressure for change coming from different directions and likely to generate concrete proposals and political controversy in 2020, plus the global COVID-19 pandemic adding unprecedented complexity and uncertainty. In this context, this article highlights a number of significant trends and developments of which businesses should be aware.