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.

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

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.

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

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.

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

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.

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

India, Brazil Ink Novel Investment Treaty – Is Dispute Prevention the Way Forward?

By Ishaan Madaan, LLM in International Arbitration, University of Miami School of Law

On 25 January 2020, India and Brazil signed an Investment Cooperation and Facilitation Treaty, in the presence of the Brazilian president Jair Messias Bolsonaro. Arguably the most prominent of the 3 BITs that India has signed since adopting the model BIT in December 2015. The new treaty articulates several provisions (briefly discussed below) in departure from the model version. The two nations also committed to step-up cooperation in the field of oil and natural gas, cybersecurity, science and technology, health and traditional medicine, etc. This comes in the backdrop of India opening up its market to allow 100% FDI in Coal and Lignite mining as well as in some digital media sectors. India also offered for a 100% acquisition its debt-ridden national carrier Air India at the World Economic Forum at Davos earlier this January.

Continue reading India, Brazil Ink Novel Investment Treaty – Is Dispute Prevention the Way Forward?