by Abdul Mouneimne (Loyola University of Chicago Law Student)
Chapter 11: Where Investors Go to Complain
NAFTA renegotiations began last week and, with attention once again on this 23-year old trade deal, critics are taking the opportunity to voice their concerns. U.S. President Trump has himself propounded, and indeed campaigned on, an abundance of criticism directed at NAFTA. While no part of NAFTA has been safe from the critics, none has been criticized as much as the Investor State Dispute Settlement (“ISDS”) mechanism under Chapter 11.
Chapter 11 establishes a framework which provides investors from NAFTA countries with “a predictable, rules-based investment climate, as well as dispute settlement procedures which are designed to provide timely recourse to an impartial tribunal.” Section B of Chapter 11 establishes the ISDS mechanism which is intended to ensure that investors and NAFTA Parties receive equal treatment in accordance with the principle of international reciprocity and due process before an impartial tribunal.
By Nadine Lederer, Associate at Hogan Lovells International LLP, Munich, Germany*
Is the future of dispute settlement online? There may not be a more relevant topic for the future of dispute resolution, including arbitration, than Online Dispute Resolution (“ODR”), so it was concluded at the 17th ODR Conference organized by the ICC International Court of Arbitration in Paris in June 2017 (see here).
Continue reading The UNCITRAL Technical Notes on Online Dispute Resolution – Paper Tiger or Game Changer?
By Mridul Godha and Kartikey M
Arbitration in India has traditionally skewed towards an ad-hoc rather than an institutional set up. Due to a lack of adequate emphasis on institutional arbitration, Indian parties have preferred to conduct their arbitrations with a seat in Singapore and London. In fact, 153 of the 307 cases administered by the Singapore International Arbitration Centre (SIAC) in 2016 involved Indian parties. India has been plagued by factors like the lack of a credible arbitral institution, excessive judicial intervention, absence of a dedicated arbitration bar and lack of clarity on the concept of public policy, making it an unfavourable place of arbitration.
Continue reading The New-Found Emphasis on Institutional Arbitration in India
By Rebecca Mulder and Marc Krestin
On 1 September 2017, the ICCA QMUL Task Force on Third-Party Funding published its Draft Report for Public Discussion on Third-Party Funding in International Arbitration. The Task Force has developed principles with the aim of providing guidance to parties, counsel, arbitrators and national courts when facing third-party funding related issues arising in different contexts. Furthermore, and even more notably, the Task Force indicated that the report may be useful for regulatory bodies and arbitral institutions that seek to address issues relating to third-party funding in international arbitration.
Continue reading Third-party funding in international arbitration: to regulate or not to regulate?
By: Othmane Saadani, Attorney at Law, New York State Bar, Associate at Afrique Advisors, Casablanca and Julia Joseph-Louisia, Trainee-Lawyer at the Paris Bar School, Intern at Afrique Advisors, Casablanca
Third-party funding has become a subject of major discussion over the past few years. It is clear that third-party funding is here to stay, and thus the question today is not whether it is going to grow, but rather where the opportunities are likely to be.
Third-party funding: Definition and objectives
Third-party funding is an arrangement between those who are party (or may be party) to contentious proceedings and funders who undertake to pay the legal costs of the proceedings, in return for a share of the proceeds, in the event the funded party’s claims are successful and result in compensation. Third-party funders will therefore bear the financial risk of potentially unsuccessful claims, insufficient compensation, or even difficulties in enforcement. In addition, this mechanism concerns not only the claimant but also the respondent in the proceedings, which might eventually make well-founded counterclaims. The need for this financial solution increased substantially with the 2008 economic crisis, as seemingly worthy claims lacked funding due to the economic downturn.
Continue reading Old Issues, New Horizons: Third-Party Funding in Morocco