Are FPS Claims Looming in the Aftermath of the Corona-crisis? Potential Consequences of the Failure to Enact Measures to Contain COVID-19

By Laura Yvonne Zielinski, International Associate at Holland & Knight México, S.C.

The COVID-19 disease, declared a pandemic by the World Health Organization on 11 March 2020, is upending normal life around the world with many borders closed, businesses forced to pause their activities and millions of people ordered to stay at home. Those measures taken by the majority of countries following health emergency declarations under their domestic laws, are an attempt to contain the virus’ further spread and mitigate its strain on the health care systems. Although more than painful for the economy in the short term, those measures are said to be the only way to avoid even worse in the long term.

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The Scope, the Validity and the Effect of Advanced Liability Waivers: Investment and Commercial Arbitration Perspective

By Stéphanie Papazoglou, Trainee Lawyer

There was a time when arbitrators were to a large extent immune from liability and could thus not be sued before national courts for damages caused to the parties to a dispute. This was true mainly in common law jurisdictions and was probably the case in most civil law countries as well. For instance, under English law for at least 250 years until the decision of the House of Lords in two cases in 1974 and 1997, it was firmly assumed that an English arbitrator could not be sued for damages (V. VEEDER, “Arbitrators and Arbitral Institutions: Legal Risks For Product Liability?”, American University Business Law Review, Volume 5, Issue 3, 2015). This assumption is no longer accurate. Due to the growing use of arbitration as an attractive alternative to court litigation, arbitrators have gained increasing importance and responsibility as final adjudicators of international legal disputes.

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Is there room for sanctions in public policy? Opposite approaches in the recent case law of the Ukrainian Supreme Court

by Olga Kokoz, Senior Associate at Kulkov, Kolotilov and Partners

We live in time when sanctions hit the headlines almost every quarter. Naturally, this frustrates contracts and creates additional causes for disputes. However, there exists uncertainty as to whether sanctions also render awards unenforceable on the grounds of public policy. As will be shown in this post, even within the supreme court of one country the understanding of public policy can change within a period of a month.

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When the Show Must Go On, Are Online Hearings the Future of International Arbitration?

By Duncan Gorst, Attorney at Law (New York), Foreign Associate at Hogan Lovells International LLP

The scourge of the COVID-19 outbreak is as unprecedented as it is dreadful. The pandemic has already wreaked devastation on almost every aspect of human life, including its momentous impact across the entire spectrum of international trade and commerce — disrupting financial markets, global supply chains and prompting many governments to introduce travel restrictions or outright prohibitions. Assessing the impact of the pandemic is not a solely academic exercise — we can see the fallout unfolding around us at terrifying speed.

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A Right Without a Remedy? The Recent US Decision to Not Enforce the Shell/Exxon Award

By Travis A. Gonyou, Associate at Honigman LLP

On September 4, 2019, Esso, a subsidiary of the Exxon Mobil Corporation, and Shell Nigeria, a subsidiary of the Shell Oil Company (collectively “Esso”), attempted to enforce a $1.799 billion arbitral award in the U.S. District Court for the Southern District of New York after it had been annulled in the courts of Nigeria (Esso Opinion). In the arbitration proceedings, the tribunal had found that Nigeria’s state oil company, Nigerian National Petroleum Corporation (“NNPC”), had breached its oil production contract with Esso and awarded Esso the amount of the lost production. When Esso attempted to enforce the award in Nigeria, the Nigerian courts declined to enforce the award. Although the Nigerian courts recognized the tribunal’s finding that the NNPC had breached its oil production contract, it nevertheless found the calculation of damages to be a non-arbitrable issue, and therefore, unenforceable.

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