Old Issues, New Horizons: Third-Party Funding in Morocco

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.

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Tips from the Top: Young ICCA interviews Gretta Walters

Gretta Walters is an Associate at Chaffetz Lindsey LLP in New York, where she represents individual and corporate clients in international and cross-border disputes in arbitration and in state and federal court. She has experience in arbitral proceedings under the arbitration rules of the International Court of Arbitration of the International Chamber of Commerce (ICC), the International Centre for Dispute Resolution (ICDR), and the Arbitration Institute of the Stockholm Chamber of Commerce (SCC).  Prior to joining Chaffetz Lindsey, Gretta was an Associate at Mayer Brown, Legal Counsel at the SCC, and a Visiting Lecturer at Stockholm University.

Gretta is a Global Advisory Board member of ICDR Young & International (ICDR Y&I) and Secretary of the International Commercial Disputes Committee of the New York City Bar. She also co-coaches the Foreign Direct Investment and Vis International Commercial Arbitration moot court teams at New York University Law School. She received a J.D. degree from American University, Washington College of Law (Washington, DC) and an LL.M. in international commercial arbitration from Stockholm University (Sweden). She is admitted to the New York bar.

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Examining the Validity of Unilateral Option Clauses in India: A Brief Overview

By: Nishanth Vasanth & Rishabh Raheja, Third Year, B.A. LL.B. (Hons.) at NALSAR University of Law, Hyderabad

The authors would like to thank Clifford Chance LLP and AZB & Partners for sharing detailed material with the authors on the validity of unilateral option clauses in several jurisdictions, including India.

The decision of the Singapore Court of Appeal in Wilson Taylor Asia Pacific Pte Ltd v. Dyna-Jet Pte Ltd ([2017] SGCA 32) added another chapter to the debate on the validity of unilateral option clauses (or ‘sole option clauses’) in contracts. The Singapore Court of Appeal reaffirmed the Singapore High Court’s decision to uphold the validity of a unilateral option clause, thus adding to the varying decisions on this question across jurisdictions since 2010. During this period, courts in the UK, Italy and Spain have upheld such clauses as valid, while those in France, Russia, Bulgaria, Dubai and Poland have struck down such clauses. In this context, the authors consider the challenges faced by unilateral option clauses in various Indian courts.
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New Arbitration Act in Hungary

By Zoltan Novak, Senior Associate at Taylor Wessing in Budapest, Hungary

The Hungarian Parliament has recently adopted a new Act on Arbitration, which will enter into force on 1 January 2018 (the Act). The new Act (based on the UNCITRAL Model Law on International Commercial Arbitration as amended in 2006 (the Model Law)) implements changes that are likely to have a considerable impact on the Hungarian dispute resolution landscape. The previous Arbitration Act from 1994 was based on the 1985 UNCITRAL Model Law, but it was found to be outdated in several aspects. The new Act basically applies the same rules for domestic and international arbitration but provides that, in the case of international arbitration, the presiding arbitrator should have a nationality different from that of the parties.
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The Future of Intra-EU ECT Claims in the Face of EC Opposition: Boom or Bust?

By Eric Leikin (Associate at Freshfields Bruckhaus Deringer) and Martina Magnarelli (PhD Candidate at University of Lausanne)

Reliance on the investor-state dispute resolution (ISDS) mechanism of the Energy Charter Treaty (ECT) is booming, with at least ten new cases registered in the past year alone.  Notably, nine of these ten cases – and almost 60% of all publicly reported cases initiated to date – have been brought by an investor from a Member State of the European Union (EU) against another EU Member State. Not everyone, however, shares the enthusiasm for such “intra-EU ECT claims” – most importantly, the European Commission. In almost all recent cases, the EC has filed amicus curiae submissions attempting to persuade the arbitral tribunal to refuse jurisdiction on the basis that the ECT cannot give rise to intra-EU disputes. The EC concedes that, unlike more than 20 other treaties to which the EU (or its predecessor the EEC) is a party, the ECT does not contain an explicit “disconnection clause” providing that, in the case of conflict, EU rules prevail. Nonetheless, the EC has argued that an implied disconnection clause must be read into the ECT. The EC has also argued that because the EU is a signatory to the ECT, investors from one Member State do not have standing to bring arbitration claims against a fellow Member State, as they are essentially nationals of the same contracting party (i.e., the EU). The question is: Will the EC be successful at shutting off the flow of intra-EU ECT claims, or will the boom continue?

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