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.
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 impact of COVID-19 is being felt in almost every work area across the globe. In order to keep readers abreast of this evolving situation, ILO's COVID-19 Weekly Report provides insight into the major legal developments of the past seven days, as well as a round-up of our panel of experienced international legal commentators' legislative and regulatory guidance.
The International Centre for Settlement of Investment Disputes (ICSID) was established in 1966 by the Convention on the Settlement of Investment Disputes between States and Nationals. ICSID is an independent, neutral and effective dispute settlement institution. Its availability to investors and states helps to promote international investment by providing confidence in the dispute resolution process. It is also available for state-state disputes under investment treaties and free trade agreements.
Data protection and cybersecurity are hot topics in international arbitration and international surveys demonstrate that users of arbitration are concerned about data security. While there are signs that the market is listening, users seem to think that institutions, counsel and tribunals could do more to address cybersecurity. As these issues become more common, it is hoped that consistent practices will emerge to reassure users that their data will be secure.
The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) has been signed by 46 states and will come into force six months after being ratified by at least three state parties. The convention responds to the demand from a growing body of mediation users for an enforcement mechanism applicable to mediated settlement agreements in cross-border disputes. However, its language has created some uncertainties.
Investor-state dispute settlement is an important feature of investment treaties as it is the procedural mechanism through which investors can claim compensation for a violation of a substantive investor-protection standard. The traditional mechanism (ie, investment arbitration between the investor and the host state, modelled on commercial arbitration) has been increasingly criticised. Hostility to the traditional model has led to changes in individual treaties and wider reform initiatives.
M&A lawyers mitigate buyer risk through expansive due diligence exercises and tight contractual controls. Arbitration has become a prominent forum for resolving these disputes. For example, the London Court of International Arbitration (LCIA) has reported a significant increase in the number of shareholder, share purchase and joint venture agreements being referred to LCIA arbitration. This article examines the growth of arbitration as a forum for resolving such disputes.
As the economy becomes increasingly data focused, telecoms markets across the Middle East are changing considerably. The policy framework has not always kept pace with this rapid change, and aspects of telecoms regulations are now outdated. However, personal data protection and public-private partnership (PPP) laws are starting to affect telecoms contracts and investments. Specifically, PPP laws are enabling recourse to alternative dispute resolution methods, including arbitration.
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.
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.
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.
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.