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Arbitration proceedings during COVID-19 crisis: helpful tips and new developments
Freshfields Bruckhaus Deringer LLP
  • France
  • 29 October 2020

The COVID-19 pandemic has undeniably disrupted the performance of contracts. Although the Paris Commercial Court has ruled the pandemic to be a force majeure event in a commercial contract, this characterisation may not be retained in all situations. This article provides helpful tips to keep in mind when analysing a contractual situation, in light of French law specificities that might be unknown to foreign companies or counsel involved in arbitration proceedings to which French law applies.

Supreme Court scrutinises admissibility of videoconference hearings
Graf & Pitkowitz Rechtsanwalte GmbH
  • Austria
  • 29 October 2020

The Supreme Court recently determined the admissibility of conducting an arbitral hearing by means of a videoconference in the context of challenge proceedings. The court held that even where one party opposes, ordering a remote hearing in arbitration is admissible and does not constitute a reason to challenge the arbitral tribunal. This decision must be regarded as a precedential landmark decision as it appears to be the first decision of any supreme court worldwide to tackle this issue.

Dissenting opinions: ground for annulment or mere annoyance?
Skadden Arps Slate Meagher & Flom LLP
  • Germany
  • 29 October 2020

Germany is a civil law jurisdiction whose laws do not have an express provision on the admissibility of dissenting opinions in arbitration proceedings. Because dissenting opinions by German judges (except Federal Constitutional Court judges) are prohibited as a violation of the secrecy of deliberations principle, the admissibility of dissenting opinions in arbitration proceedings seated in Germany is controversial.

Supreme Court clarifies principles for determining law of arbitration agreement
Clifford Chance
  • United Kingdom
  • 22 October 2020

The Supreme Court has clarified definitively the principles for ascertaining the law governing an arbitration agreement. In contrast to the Court of Appeal's earlier decision in the same case, the Supreme Court held that where the law governing an arbitration agreement is not expressly specified, a choice of main contract law (whether express or implied) will generally also apply to an arbitration agreement which forms part of that contract.

Costs regime under Arbitration and Conciliation Act
Khaitan & Co
  • India
  • 15 October 2020

Arbitration evolved as an expeditious, cost-effective, simple and fair alternative to litigation. However, over time, it became costly. Coupled with largely ineffective provisions regarding costs allocation and recoverability, this was considered a roadblock to the development of arbitration in India. Section 31A of the Arbitration and Conciliation Act, which was introduced in 2015, was thus a welcome step towards costs recoverability being based on rational and realistic criteria.

Court of Appeal enforces foreign arbitral award in favour of Brazilian airline
Ogier
  • Cayman Islands
  • 15 October 2020

The Court of Appeal has overturned an earlier decision of the Grand Court, thereby allowing the enforcement of an International Chamber of Commerce arbitral award issued in favour of a Brazilian airline. The decision raises important and difficult issues relating to the enforcement of foreign arbitral awards which are the subject of robust challenge before the courts of supervisory jurisdiction.

Arbitral award vacated for violation of EU competition law
Kubas Kos Gałkowski
  • Poland
  • 15 October 2020

The issue of arbitral tribunals' application of EU law is not new. In the 1990s the European Court of Justice (ECJ) established that a national court which receives an application to annul an arbitration award must grant such application if it considers that the award in question is contrary to EU law. In recent years, this issue was revived in investment arbitration and the ECJ's famous (or for many, infamous) Achmea judgment. A landmark decision of the Warsaw Court of Appeals is yet another chapter in this story.

Supreme Court specifies reasoning standards for awards
Graf & Pitkowitz Rechtsanwalte GmbH
  • Austria
  • 08 October 2020

Under longstanding Supreme Court case law, defective reasoning did not previously constitute a severe enough violation of procedural public policy to set aside an award. However, in recent years, the court has reversed this trend and repeatedly held that non-adherence to certain reasoning standards in arbitral awards can be a ground to set aside an award. In a recent decision, the Supreme Court has provided further guidance on the required reasoning standards for awards.

Judicial interference in arbitration: Section 34 saga
Khaitan & Co
  • India
  • 08 October 2020

The topic of judicial interference in arbitration is diverse, primarily because arbitration continues to evolve rapidly in India. It is an area in which provocative ideas abound, with respect to which legal scholars and stakeholders tend to have more questions than answers. A key question in this regard concerns the acceptable level of judicial interference in arbitral awards (being a reflection of the minds of the arbitrators) and where the judiciary should draw the line.

Arbitration in Lebanon: overview
Obeid Law Firm
  • Lebanon
  • 01 October 2020

Lebanon has been experiencing an ongoing severe financial, economic and social crisis, which has been further exasperated by the COVID-19 pandemic and the Beirut Port explosion. This situation may give rise to arbitration claims which are subject to Lebanese law or seated in Beirut. As such, this article provides a brief overview of the legislative framework for arbitration in Lebanon.

High Court upholds stay of winding-up petition where debt was subject to arbitration agreement
Clifford Chance
  • United Kingdom
  • 01 October 2020

The High Court recently upheld an order that a petitioner should be restrained from proceeding with a winding-up petition on the basis that the petition debt in question was disputed by the alleged debtor and was subject to an arbitration agreement. The decision provides assurance that in the context of a winding-up petition, the court will consider the merits of a dispute relating to a petition debt which is subject to an arbitration agreement only in rare circumstances.

Climate change and sustainability: lessons learned from COVID-19 and resolving disputes by arbitration
Norton Rose Fulbright
  • International
  • 01 October 2020

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.

Arbitrating disputes in pharmaceutical, life sciences and healthcare sector during COVID-19 pandemic
Norton Rose Fulbright
  • International
  • 24 September 2020

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.

COVID-19: preliminary arbitration trends in transport sector
Norton Rose Fulbright
  • International
  • 17 September 2020

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.

Tribunal dismisses all of investor's claims under NAFTA and orders him to pay more than $2 million in costs
Becerril Coca & Becerril SC
  • Mexico
  • 17 September 2020

In 2016 Joshua Dean Nelson commenced arbitration against Mexico on behalf of Telefacil México, SA de CV and himself under the North American Free Trade Agreement (NAFTA). According to Nelson, the Federal Telecommunications Institute had prevented him from participating in the telecoms market by issuing measures that he alleged violated Chapter 11 of NAFTA. However, the tribunal recently rejected the claims and held that Telefacil owed Mexico $2.05 million in arbitration costs.

Supreme Court will not review findings that parties lacked actual and common intent to arbitrate
Tavernier Tschanz
  • Switzerland
  • 10 September 2020

In a recently published decision, the Supreme Court upheld an arbitral award in which the arbitral tribunal had declined jurisdiction in the absence of a valid arbitration agreement. The court confirmed that it does not review arbitral tribunals' findings as to the parties' actual and common intent to arbitrate. In addition, it held that it cannot review an arbitral tribunal's findings of fact and outlined the exceptional circumstances needed for it to review a challenge of jurisdiction.

Doing business (but not business as usual) during COVID-19 pandemic
Norton Rose Fulbright
  • International
  • 10 September 2020

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.

Investor-state claims in era of COVID-19 pandemic
Norton Rose Fulbright
  • International
  • 03 September 2020

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.

Spotlight on investor-state arbitration and insolvency
Norton Rose Fulbright
  • International
  • 27 August 2020

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.

Q&A: arbitration with an insolvent party
Skadden Arps Slate Meagher & Flom LLP
  • Germany
  • 20 August 2020

This article discusses some of the main considerations that arise when a party considering arbitration or already engaged in arbitration files for insolvency, or has its counterparty file for insolvency, under German insolvency law. It answers key questions such as is an insolvency administrator bound by an arbitration clause agreed to by the insolvent party and what happens to an arbitration if a party files for insolvency in Germany?

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