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Getting The Deal Through

Introduction

Gerhard Wegen and Stephan Wilske

Gleiss Lutz

Friday 09 February 2018


It is once again our great pleasure to present and celebrate what is now the 13th edition of Getting the Deal Through – Arbitration. This 13th edition covers seven new jurisdictions, with a total of 46 chapters on jurisdictions and arbitral institutions from around the globe. We hope that we will see a further increase of contributions next year and that this specialist edition will continue to expand and diversify. As is the case every year, we truly appreciate the positive feedback we have received regarding past editions and hope to continue in this manner.

Developing trends in international arbitration and overview

The image problem international arbitration has faced in the past couple of years has unfortunately continued in 2017. Public criticism questioning the usefulness and legitimacy of international investment arbitration has continued, and has even had a certain spillover effect on international commercial arbitration. On the other hand, arbitration continued to be one of the most favoured means of international business dispute resolution throughout most jurisdictions in 2017. From case numbers provided to us by some of the leading international arbitral institutions up to November 2017, we observe that while several institutions such as the Swiss Chambers’ Arbitration Institution, the German Institution of Arbitration, the Vienna International Arbitration Centre (VIAC), the Cairo Regional Centre for International Commercial Arbitration and the London Court of International Arbitration (LCIA) are experiencing a reduced caseload, the differences compared with last year are minimal. The case number of other institutions such as the China International Economic and Trade Arbitration Commission (CIETAC) are consistent. The Singapore International Arbitration Centre (SIAC) and the Stockholm Chamber of Commerce (SCC) have experienced an upward trend; the Hong Kong International Arbitration Centre (HKIAC) has even seen a 57 per cent increase in its case numbers compared with last year. We thus conclude that, despite the criticism, no substantial decline is imminent and that the benefits of arbitration are still greatly appreciated.

In 2017, several jurisdictions revised their laws relating to international arbitration; all with the proclaimed aim to further implement arbitration as a preferable means of dispute resolution. Prominent arbitral institutions also revised their arbitration rules in the past year, with the International Chamber of Commerce (ICC) and SIAC leading the way. The changes in arbitration laws and institutional rules in 2017 mostly focused on the trends from previous years and include the introduction of provisions on third-party funding, expedited proceedings and emergency arbitration. In particular, the issue of third-party funding continued be a hot topic in 2017. As anticipated, the Third-Party Funding Taskforce initiated by the International Council for Commercial Arbitration (ICCA) and the Queen Mary University of London in 2014 made their draft report available for public comment (up until 31 October 2017). The final report will be published at the ICCA Congress in Sydney in April 2018. Further, six new arbitral institutions or branch offices were established in 2017.

The number of countries having ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) has not changed in 2017, remaining at 153. Equally, the number of signatories to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention) remained at 157, the same as in 2016.

In the previous edition, we reported the launch of the Equal Representation in Arbitration Pledge, an initiative aiming at providing equal opportunities to women as arbitrators. In November 2017, the pledge had garnered 2,175 signatories. According to statistics from 2016, the number of female arbitrator appointments is on the rise. For example, the International Court of Arbitration of the ICC reported that its proportion of female arbitrators had risen from 4.4 per cent to 15 per cent. At the HKIAC 11.5 per cent of arbitrator appointments were female, and at the LCIA this statistic was 20 per cent. While the progress is commendable, the numbers are clear: much more remains to be done.

In the aftermath of Britain’s decision to leave the European Union (Brexit) in 2016, its impact on international arbitration was hotly debated in 2017. Investors are concerned as to whether London’s popularity as a seat of arbitration will be negatively affected. Cities such as Frankfurt and Amsterdam are already taking concrete steps to fill a potential vacuum left by London. To reassure the international arbitration community, London arbitration practitioners are continuously preaching (not always with success) that London’s coveted location as a seat in international arbitration will not be impaired but will even be improved. For instance, in July 2017, Lord Chief Justice of England and Wales, Lord Thomas, insisted that owing to the clarity and flexibility of English law and its arbitration-friendly judiciary, there is minimal cause for concern. However, he also warned that the British government has to ensure that English judgments continue to be enforced elsewhere. While arbitral awards issued in the United Kingdom will continue to be enforceable in the EU under the New York Convention, there is still uncertainty about the enforceability of English court judgments. The attractiveness of London as a convenient seat for international arbitrations will, however, not only depend on objective facts, but also on the subjective perception of London as neutral and hospitable towards foreign parties.

The reassurances from the likes of Lord Thomas have not managed to assuage the investors who remain concerned about the regulatory environment in the post-Brexit United Kingdom. While bringing a claim against Britain merely for Brexit is a fanciful idea, it might not be entirely baseless. The UK is currently party to numerous bilateral investment treaties (BITs). The obligations under these treaties such as the ‘fair and equitable treatment’ standard and the duty to protect ‘legitimate expectations’ of investors remain alive. Foreign investors might be able to show substantial change in the regulatory environment compared with when they made their investments. In any event, it is still too early to put one’s finger on the impact of Brexit. The concerning lack of certainty and predictability will only be remedied once a Brexit deal is finalised.

Another popular theme in 2017 was to enhance transparency in international arbitration. In a bid to increase transparency, Arbitrator Intelligence (AI), a non-profit informal network designed to collect and provide objective information and professional assessments of arbitrators’ case management and decision-making was launched. For this purpose, the AI Questionnaire (AIQ), which aims at collecting information from the users of arbitration was introduced in June 2017. The areas of inquiry include case management, decisional history of arbitrators, how they decide questions relating to document production, reasoning in arbitral awards and the calculation of interest rates. In furtherance of this initiative, arbitral institutions such as SIAC have signed cooperation agreements with AI in order to forward the questionnaire to their users. While certainly a bona fide initiative, it is not free from concerns. In this regard, a valid question is whether providing the information for the questionnaire jeopardises the attributes of privacy and confidentiality of arbitral proceedings. While the questionnaire refrains from seeking information ‘that would readily identify the case or the parties’, a conclusive determination would depend on a number of factors. It would help enhancing the acceptance of the questionnaire if arbitral institutions issued legal guidance that addresses these concerns.  

Groundbreaking cases in 2017

Several notable judicial decisions were made in 2017, the most intriguing of which are briefly discussed below.

USA

In an ‘outlier’ decision from May 2017 (Daesang Corp v Nutrasweet Co), the New York Supreme Court partly set aside an ICC award for manifest disregard of the law. A dispute arose during the sale of Daesang Corporation (Daesang) business to NutraSweet Company (NutraSweet). NutraSweet had sought to annul the transaction citing the filing of an antitrust action against NutraSweet and Daesang. Daesang initiated an ICC arbitration, wherein NutraSweet filed counterclaims. Ultimately, the ICC tribunal dismissed all of NutraSweet’s counterclaims on the presumption that NutraSweet had waived part of its claims and awarded damages to Daesang. When Daesang subsequently initiated proceedings to confirm the final ICC award against NutraSweet, the court ruled that the tribunal’s outright refusal to consider the merits of the counterclaims constituted an ‘egregious dereliction of duty’ and remanded the case back to the tribunal to consider the counterclaims.

England

In its September 2017 decision in Zavod Ekran OAO v Magneco Metrel UK Ltd, the English Commercial Court provides guidance on the requirement of ‘proper notice’ under the English Arbitration Act 1996. In 2013, Zavod Ekran, a Russian glass manufacturing company (Zavod) entered into a contract with Magneco Metrel UK Ltd, an English manufacturer of refractory products (Magneco). After a dispute arose, Zavod referred the dispute to the International Commercial Arbitration Court (ICAC) at the Russian Chamber of Commerce. Without Magneco participating in the proceedings, the arbitral tribunal awarded a sum of US$270,233, along with costs. When Zavod sought for the award to be enforced at the English Commercial Court, Magneco applied for a set-aside, citing that it had not been given ‘proper notice’ of the arbitration proceedings, which is a ground to refuse the enforcement of an award under the New York Convention. Magneco argued that they had not been notified of the arbitration in English language and that the ICAC arbitration documents were all in Russian. The court refused to set aside the award because, inter alia, the cover letter had contained telling elements referring to the arbitration. Given that authority on this aspect is scarce, parties should ensure that translations are provided, even though in this case, the failure to do so was not of importance.   

France

In France, applications to enforce foreign awards are heard by civil courts. In April 2017, in a case involving the Irish airline Ryanair, the French Tribunal des conflits ruled that applications to enforce foreign awards must be brought before the administrative courts instead when they concern compliance with mandatory rules of French public law, in particular, public land and public procurement. This decision settles prior conflicting rulings by various courts in France.

Italy

In a widely discussed decision in August 2017, the Supreme Court of Cassation in Rome found a petition by arbitrator Marco Lacchini, who appealed against his recusal, inadmissible. Lacchini was disqualified as presiding arbitrator from a €3 billion insurance dispute between Amtrust Financial Services (Amtrust) and its former broker Antonio Somma after being accused of taking a bribe. Amtrust had Lacchini removed on grounds of corruption, alleging that he had agreed to rule in favour of Somma in exchange for 10 per cent of any settlement. The insurer relied on audio recordings in which Lacchini allegedly said he had control over the proceedings. In a separate conversation, Lacchini allegedly said he could give some assurance about the outcome of domestic arbitrations. While not ruling on the merits of the bribery allegations, the president of the Tribunal of Milan ordered Lacchini’s recusal based on evidence of serious hostility between him and Amtrust. Lacchini attempted to overturn this decision by relying on Italy’s constitutional right to appeal directly to the Supreme Court against decisions that dispose a claimant of his rights. Therein, Lacchini argued that as an arbitrator he had a legally secured right to perform his mandate and be paid the relevant fees as well as protecting his reputation from defamatory statements. The Supreme Court dismissed the claims and concluded that the recusal could in any case not be reversed as Italian law does not allow an arbitrator to be in dispute with a party to an arbitration he is hearing. In light of the public interest in this case, Lacchini might now find himself in a worse situation than before.

Ireland

In its May 2017 decision in Persona Digital Telephony Ltd and another v The Minister for Public Enterprise and others, the Supreme Court of Ireland decided that third-party funding remains illegal by way of a 4:1 ruling. The court decided that a funding agreement between the UK funder Harbour Litigation Funding and Irish telecom companies Persona Digital Telephony and Sigma Wireless Networks was void. By way of this agreement, Harbour had agreed to fund the two companies in a lawsuit against the Irish government concerning its decision to award a controversial second licence to Denis O’Brien, one of Ireland’s richest men, while rejecting the parties’ bid in 1996. The court found the funding agreement to contravene the doctrine of maintenance and champerty given that Harbour had ‘no bona fide interest’ in the case. The decision has been widely criticised and is certainly a step back in Ireland’s ambition to position itself as a viable seat in international arbitration.

Spain

In a groundbreaking decision from February 2017, the Spanish Supreme Court found two arbitrators who had excluded the third arbitrator from deliberations liable and ordered them to reimburse part of their fees. The case concerned a claim wherein a Spanish distributor sought €250 million from Puma for not renewing its distribution contract. The arbitral tribunal ordered compensation against Puma in an ad hoc arbitration that was seated in Madrid. Puma applied for and was successful in getting the award set aside before the Court of Appeal of Madrid, arguing that Puma’s appointee had been ‘stonewalled’ by the other two tribunal members. In the arbitration that followed, Puma initiated a civil liability claim against the two arbitrators. The Court of Appeal of Madrid determined that the two arbitrators were liable and awarded €750,000 with interest and costs. This decision was upheld by the Supreme Court of Spain who held that the actions of the arbitrators had violated the principle of arbitral collegiality and arbitrator duty. This case might also send a warning to other jurisdictions that excluding an arbitrator from the deliberation process is a severe violation of arbitrators’ obligations.

India

In March 2017, the Supreme Court of India in IMAX Corporation v E-City Entertainment Pvt Ltd considered that the choice of the ICC Rules and the seat of arbitration being London constituted a valid exclusion of India’s domestic arbitration provisions. In the Balco decision of 2012, the Supreme Court of India had ruled that Indian courts had no authority to annul awards, or remove or appoint arbitrators in arbitrations seated outside of India. However, the decision only applied to arbitration agreements executed after early September 2012 (post-Balco). In the pre-Balco regime, parties were required to expressly exclude the application of domestic arbitration provisions. In the present decision, the Supreme Court of India dealt with a challenge of a foreign award, which was delivered under the pre-Balco regime, and had to decide whether or not an ICC arbitration clause with London as a seat of arbitration were sufficient to explicitly exclude India’s domestic arbitration provisions. The Supreme Court answered the question in the affirmative. Thus, by expanding the holding of Balco, the Court put India closer to established international standards.

Revision of laws relating to international arbitration

In 2017, numerous countries from all around the world decided to revise their existing arbitration laws, or to issue entirely new legislation.

South Africa

In October 2017, the National Assembly of South Africa passed the International Arbitration Bill. The bill adopts the UNCITRAL Model Law as most recently amended in 2013 and streamlines the procedures for the enforcement of foreign awards. The bill will have to be approved by the National Council of Provinces before it can be referred to the President for approval and subsequently come into force. Notably, the bill provides immunity to arbitrators and arbitral institutions and removes arbitral awards from the scope of application under the Protection of Businesses Act of 1978, which requires parties seeking to enforce foreign awards related to certain economic activities, such as mining, to obtain consent from South Africa’s Minister of Economic Affairs.

Canada

In Canada, arbitration is regulated primarily by provincial rather than federal legislation. Thus, Ontario’s adoption of the new International Commercial Arbitration Act, which came into force on 22 March 2017, is significant. By way of this reform, Ontario has now formally incorporated the New York Convention into its arbitration regime, which will now apply to agreements and awards preceding and succeeding the new Arbitration Act. The 2006 revisions to the UNCITRAL Model law have also been incorporated. Pursuant to these, arbitration agreements have to be in writing to be valid. The arbitral tribunal’s power to issue interim relief measures has also been recognised. Such interim orders are now required to be enforced by the Superior Court of Justice. Also, the limitation period within which a foreign award may be enforced has been increased from two years to 10 years.  

Peru

In a concerning development, an amendment was proposed to the Peruvian Arbitration Act 2008 in October 2017. According to the proposal, which covers both domestic and international arbitrations, default arbitrator appointments must be made objectively and randomly. Further, institutions must only use publicly advertised objective criteria when assessing arbitrators for inclusion on their lists and any requirement that involves ‘subjective assessment’ will be void. The bill comes in light of the notorious Odebrecht scandal, wherein Horacio Canepa, a Peruvian arbitrator, was accused of receiving bribes and had repeatedly favoured Odebrecht (a Brazilian company that admitted to paying hefty bribes to win contracts all over South America) in arbitrations against the Peruvian state. If the amendments came into effect, they would strip away the powers of numerous institutions such as the ICC, ICDR and LCIA, which provide non-random ways for the selection of arbitrators if the parties are unable to agree.  

Hong Kong

In June 2017, the Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Bill 2016 and the Arbitration (Amendment) Bill 2016 were passed. They allow third parties to fund arbitrations and mediations that are seated or taking place in Hong Kong. The third parties allowed to fund include lawyers or law firms, as long as they do not act for a party to the proceedings. As a result, this legislation abolishes the 700-year old common law doctrine of maintenance and champerty as far as arbitration is concerned. In addition, disputes relating to intellectual property rights can now be resolved through confidential arbitration and it will not be contrary to Hong Kong’s public policy to enforce awards involving intellectual property rights.

Singapore

Singapore’s Civil Law Amendment Act 2017 came into force on 1 March 2017. The new law abolishes the common law tort of maintenance and champerty in relation to arbitration, hence permitting third-party funding for international arbitration as well as related court and mediation proceedings. The new law is supported by the accompanying Civil Law (Third Party Funding) Regulations 2017, which offer a detailed framework. To be permitted, funding must be provided by eligible parties and in prescribed proceedings. Accordingly, the third-party funder must finance dispute resolution proceedings as its ‘principal business’ and must have ‘a paid-up share capital of at least $5 million’. In addition, practitioners are now to disclose the existence of a third-party contract related to the costs of the proceedings to the court or tribunal and the other party. Further, practitioners may not hold interest or obtain referral fees or commission from such arrangements.

Austria

In June 2017, the Austrian Parliament passed an amending law (BGBl I Nr 73/2017) to, inter alia, amend section 139 of the Austrian Federal Statute on the Economic Chambers, pursuant to which the VIAC gained the competence to administer purely domestic arbitrations. Parties may now choose between the VIAC and the regional chambers of commerce to administer domestic arbitrations.

Bulgaria   

The Bulgarian parliament has amended the Law on International Commercial Arbitration and the Civil Procedure Code, which came into force in January 2017. Key changes include the creation of separate frameworks for international and domestic arbitration, the scope of non-arbitrable disputes as well as grounds for setting aside arbitral awards. In particular, disputes in which one of the parties is a consumer were added to the list of non-arbitrable disputes. Further, awards rendered on a non-arbitrable subject matter are now null and void. Moreover, violation of public policy may only be relied upon to challenge international arbitral awards under the New York Convention, not, however, to challenge domestic awards. The 2017 amendments also include a clause stating that in order to be eligible as an arbitrator, a person needs to have legal capacity and full age, may not have been sentenced for an intentional criminal offence, have at least eight years of professional experience and have high moral qualities. In addition, all arbitral institutions are now subject to supervision by an inspectorate within the Bulgarian Ministry of Justice. Thereby, the Ministry of Justice is able to issue mandatory directions to arbitrators and arbitral institutions and fine them in case of noncompliance. Quite naturally, this poses severe concerns of political interference.

France

By way of a largely well-received resolution in February 2017, the Paris Bar Council confirmed that nothing in French law prohibits a party from using the services of a third party to finance international arbitration proceedings. The resolution also clarifies that the counsel funded by a third party continues to solely owe duties to his or her client and is not to advise the funder in any manner. The resolution also states that counsel must encourage their clients to reveal the existence of third-party funders to the arbitral tribunal along with the risks of not doing so, in particular, possible annulment and potential difficulties in enforcement.

Qatar

In February 2017, Qatar adopted a new arbitration law that promulgates the Law of Arbitration in Civil and Commercial Matters, superseding the arbitration chapter in the Code of Civil and Commercial Procedure. The law incorporates some features of the UNCITRAL Model Law and applies to all domestic and international arbitrations seated in Qatar. It specifies requirements for a valid arbitration agreement; that is, it must be concluded by a person with legal capacity and must be in writing. Moreover, parties are to appoint arbitrators from a pre-set list issued by the Ministry of Justice. If they wish to appoint arbitrators outside the list, it must be shown that they are competent, have no previous criminal conviction, and have a good reputation. The law also provides immunity to arbitrators barring cases of bad faith and gross negligence. Further, the arbitral tribunal is empowered to grant interim measures that are to be enforced by the Qatari courts, unless in contravention with Qatari law or public policy.

Switzerland

In May 2017, Switzerland began to amend its 1989 Federal Law on Private International Law. The proposal does not contain any fundamental changes but intends to ‘touch up’ the law to reinforce the attractiveness of Switzerland for international arbitration. The proposed amendments aim to codify the gaps in the law that have been filled by case law of the Swiss Federal Court over the past 30 years. These include the adaptation of requirements for independence and impartiality of the arbitral tribunal to recognised international standards, the admissibility of revision against international arbitral awards and provisions on the interpretation, correction and supplementation of arbitral awards. The amendments also seek to remove any references to other laws, such as to the Swiss Civil Procedure Code in Article 179 from chapter 12, hence establishing a self-contained regime.

UAE

The United Arab Emirates (UAE) announced intentions to amend its penal code so that arbitrators allegedly ruling in violation of the duty of neutrality and integrity shall no longer be punishable with temporary imprisonment. Moreover, the UAE is on the verge of releasing its new law on arbitration which has already been approved by the National Assembly and Cabinet of Ministers and is pending signature from President Sheikh Khalifa bin Zayed bin Sultan Al Nahyan. It will create a stand-alone law on arbitration applicable to both domestic and international arbitrations. The law will provide concrete grounds on which an arbitral award may be challenged and will give arbitral awards the same status as court judgments. The new law is also progressive in that it keeps the arbitration agreement alive even when an award has been set aside. This prevents a dispute from immediately falling within the exclusive jurisdictions of the courts. However, a new ministerial order seems to hold yet another unpleasant surprise: According to the unofficial English translation, only nationals of the UAE are henceforth allowed to practise law and thus act as counsel. If upheld, this is a serious setback for Dubai as a seat for international arbitration.

New Zealand

In 2017, New Zealand proposed a set of amendments to the Arbitration Act 1996. First, they allow the inclusion of arbitration clauses in trust deeds. Second, court proceedings related to arbitration are placed under a rebuttable presumption of privacy. Third, the amendments respond to a recent ruling by the Supreme Court of New Zealand (Carr v Gallaway Cook Allan) wherein parties had successfully raised the argument of invalidity of the arbitration clause at the enforcement stage. The proposed amendments clarify that if parties have agreed to arbitrate, that agreement will be enforced despite any technical irregularities. Concerns over jurisdiction must be raised before the arbitrator, otherwise they are waived.

Growth and change in arbitral institutions and arbitration rule frameworks

Several new arbitral institutions opened in 2017 and numerous existing arbitral institutions revised their rules.

New arbitral institutions and offices

Arbitration and Mediation Court of the Caribbean

In October 2017, Barbados launched its own international arbitration centre, the Arbitration and Mediation Court of the Caribbean (AMCC). The drafting of the AMCC’s rules, which are in line with Barbados’ 2007 International Commercial Arbitration Act based on the UNCITRAL Model Law, is already complete. The centre has a board of directors that is responsible for general administration, but does not handle cases. A court to appoint tribunals, rule over arbitrator challenges, oversee compliance with the centre’s rules and control costs has also been established.

Arbitration Chambers

A prominent seat of international arbitrators, the Arbitration Chambers (AC), originally set up in Hong Kong in 2012, opened a branch in London in July 2017.

Silk Road Arbitration Centre of the China International Economic and Trade Arbitration Commission

In September 2017, the CIETAC Silk Road Arbitration Centre was established in the free-trade zone in Xi’an, China. This institution will deal with the increased investment and trade disputes arising from the ‘One Belt One Road’ project. The institution’s new investment rules have already been approved but are not yet publicly available.

International Chamber of Commerce case management office in Singapore

In June 2017, the establishment of the ICC’s case management office in Singapore was announced. It is expected to start operating in 2019. This will further strengthen Singapore’s role as a seat and venue in international arbitration.

Permanent Court of Arbitration office in Singapore

The Singaporean Ministry of Law and the Permanent Court of Arbitration (PCA) announced in July 2017 that they are going to set up a staffed office in Singapore. Being the first PCA office in Asia and only the second one outside its Hague headquarters, this office will administer PCA hearings held in Asia.

Singapore International Arbitration Centre office in India

In August 2016, SIAC opened an office in Gujarat, India. This decision came in the wake of the LCIA closing down its India office in Delhi. SIAC had already opened an office in Mumbai in 2011.

Arbitration Centre at the Institute of Modern Arbitration

Towards the end of 2016, Russia reformed its arbitration law to only allow non-profit entities to set up permanent arbitration institutions as opposed to ad hoc arbitration institutions. In accordance with the law, institutions would have to obtain permission in order to carry on their work. The Moscow-based Arbitration Centre at the Institute of Modern Arbitration (ACIMA) was the first such institution to obtain permission of the Russian government. In 2017, ACIMA opened a branch in the port city of Vladivostok, which is their first outside Moscow.

London Chamber of Arbitration

In May 2017, the London Chamber of Arbitration (LCA) was set up primarily with a purpose to provide dispute resolution services to the members of the London Chamber of Commerce and Industry (LCCI). Disputes submitted to the LCA will be heard under its own rules. The LCA also appointed a 19-member panel that consists of well-known arbitrators, barristers and former judges.  

New and amended rules of existing arbitral institutions

In addition to the new arbitration institutions and offices mentioned above, several existing arbitral institutions issued new rules and revised pre-existing ones in 2017.

Chartered Institute of Arbitrators

In September 2017, the Chartered Institute of Arbitrators (CIArb) circulated a revised set of draft Cost Controlled Arbitration Rules in a bid to update the 2014 version. The revision tackles concerns over costs and delays and allows for a flexible, and cost- and time-efficient dispute resolution. After input from CIArb members has been collected and analysed, the new rules are expected to come into effect in 2018.

CIETAC

In October 2017, the CIETAC Investment Arbitration Rules came into force. The rules contain provisions on the definition and disclosure of third-party funding and allow the tribunal to take third-party funding into account when awarding costs. The rules also require parties to join in good faith, and provide for a two-tiered process with mediation preceding arbitration.  

Chinese Arbitration Association

The Chinese Arbitration Association (CAA) in Taiwan adopted its CAA International Rules 2017, which came into effect in July 2017. They intend to apply to arbitrations seated outside Taiwan, while the CAA Rules 2011 will continue to apply to arbitrations seated in Taiwan. The rules provide Hong Kong as the default seat; they contain provisions on an expedited procedure for small claims, consolidation of arbitral proceedings and emergency arbitrators. Time limits for the conduct of proceedings and the issuance of awards are also provided for.

Hong Kong International Arbitration Centre

In October 2017, the HKIAC Rules Revision Committee launched a consultation on potential amendments to the HKIAC Administered Arbitration Rules of 2013. The proposed changes include broader provisions on joinder, consolidation and concurrent proceedings, as well as provisions on the disclosure of third-party funding. The Rules Revision Committee has also sought views on the inclusion of express provisions with regard to investment treaty arbitration, potentially in a separate schedule (as has been provided for in the 2017 SCC Rules), an early dismissal procedure and to empower the arbitral tribunal to award costs of third-party funding as costs of arbitration.

Kuala Lumpur Regional Centre for Arbitration

The Kuala Lumpur Regional Centre for Arbitration (KLRCA) has released the KLRCA Arbitration Rules 2017, which are applicable to domestic and international arbitrations commenced on or after 1 June 2017. The new key provisions are those relating to the appointment of emergency arbitrators, joinder of parties, consolidation of disputes and technical review of awards. The schedule of charges has been simplified and updated. The revised rules are accompanied by the announcement of the KLRCA that they are working on a Practical Note on the Technical Review of Arbitral Awards and a Practical Note on Tribunal Secretary Services, which are to be released soon.

Singapore International Arbitration Centre

On 1 January 2017, the first edition of SIAC Investment Arbitration Rules 2017 came into effect. They provide a mechanism for the appointment of sole or presiding arbitrators through a default list procedure as well as emergency arbitrators – a mechanism parties may opt into. Strict timelines for challenges to arbitrators were passed. In addition, arbitrators will have the discretion to proceed during a challenge. The rules also enable third-party submissions, allow the arbitral tribunal to order the disclosure of third-party funding and take the existence of such funding into account when apportioning costs.

Vietnam International Arbitration Center

The amended rules of the Vietnam International Arbitration Center at the Vietnam Chamber of Commerce and Industry entered into force on 1 March 2017 and are applicable to proceedings initiated on or after that date. They contain clauses that allow claims arising out of multiple contracts to be filed in a single request for arbitration, the consolidation of multiple arbitrations and an expedited procedure applicable upon parties’ agreement. In addition, the rules grant the arbitral tribunal vast powers to collect evidence and summon witnesses. Notably, the arbitral tribunal may seek inspections and the valuation of assets involved in the dispute.

Arbitration and Dispute Resolution Institute

The new rules of the Arbitration and Dispute Resolution Institute of the Oslo Chamber of Commerce came into effect in January 2017. The most significant amendments include the elimination of the previous requirement that parties must submit all evidence they wish to rely upon before the oral hearing, thereby enhancing flexibility. The revised rules also confirm that parties may rely on written witness statements. Further, arbitration proceedings are now confidential by default. The rules also contain strict timelines for the issuance of awards upon the conclusion of hearings.

Bahrain Chamber for Dispute Resolution in cooperation with the American Arbitration Association

As reported in the last edition, the Bahrain Chamber for Dispute Resolution enacted new rules in October 2017 following the current trend of revisions by other institutions such as the ICC, LCIA, ICDR, SIAC and SCC. The rules provide for expedited proceedings, tribunal secretaries, a new table of fees and a model arbitration clause. Provisions on the challenges of arbitrators and summary dismissal of claims are also included. The rules clarify the requirements and deadlines for party submissions such as requests for arbitration, responses thereto, statements of claim and statements of defence.

International Chamber of Commerce

The amendments to the ICC Rules of Arbitration came into effect in March 2017. The most significant feature of the revised rules is the expedited procedure, which applies to cases under US$2 million. Disputing parties with claims exceeding this amount may opt in to the expedited process. On the other hand, the ICC may determine a particular case to be unfit for this procedure. The new rules have also reduced the time frame within which the terms of reference must be signed from two months to one month. Moreover, the 2017 rules reflect a change in the ICC practice since October 2015, in that the court has been providing reasons for some of its decisions relating to the appointment and challenge of arbitrators.

International Commercial Arbitration Court

In 2017, the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry finished revising its rules, which will enter into force on 1 January 2018. The new rules will take into account global trends in arbitration to further the effective resolution of commercial cross-border disputes. One key novelty is that arbitral tribunals will be vested with the power to grant and terminate interim measures as well as with the power to summon witnesses. Moreover, the new rules provide for expedited proceedings subject to the parties’ agreement.

International Commercial Arbitration Court at Russian Chamber of Commerce and Industry

The ICAC in Moscow has revised its rules so that domestic and international arbitration are now dealt with under different sets of rules. The new ICAC Rules on International Arbitration came into force in January 2017. The most significant changes include the introduction of provisions on multiparty and multi-contract disputes, as well as rules on joinders and consolidation. According to the new rules, an additional party may join the proceedings if its claim substantively relates to the principal claim. Moreover, the rules allow interventions by third parties that make no claims in their own name. They also ensure better case management by providing that the arbitral tribunal must draw up a timetable regarding the procedure and deadlines for additional party submissions, the production of evidence and oral hearings.

Stockholm Chamber of Commerce

The SCC launched the SCC Rules 2017, which are a revised version of the 2010 rules. The SCC also issued a separate set of Rules for Expedited Arbitration. The latter, however, only become applicable if parties agree to them. Both sets of rules went into force on 1 January 2017. They include a provision for treaty-based investment disputes, which are found in Appendix III. They furthermore provide for third-party submissions, summary procedures, and multiparty and multi-contract disputes. Specific guidelines on the appointment of tribunal secretaries have also been introduced.

Investment arbitration

Investment arbitration has been facing a questionable, but nonetheless lasting, legitimacy crisis. As a result of widespread criticism, initiatives are being taken to address the alleged lack of transparency and diversity in international investment arbitration. In this regard, the United Nations Convention on Transparency in Treaty-Based Investor–State Arbitration (the Mauritius Convention) entered into force on 18 October 2017.
The severe public criticism has shaped negotiations on ongoing free trade agreements as well. The ill-famed Transatlantic Trade and Investment Partnership (TTIP) between the United States and the EU has gained significant attention in the past few years, and has been a recurring topic in our previous editions. As predicted, the talks on TTIP have remained stalled in 2017. In January, the United States and the EU published a joint report that summarised the progress achieved thus far, but did not indicate a time frame for the resumption of talks. When President Trump visited Brussels in June, the issue of TTIP was raised neither by European officials nor by the US President. In addition to TTIP, the United States has been in the news for its role in the North American Free Trade Agreement (NAFTA) with Canada and Mexico. Trump has threatened on multiple occasions that the United States would terminate NAFTA unless it was renegotiated to benefit the United States. What modifications the United States would like to see is currently a matter of speculation. On the other hand, the Canadian government has made clear that one of its priorities is to reform NAFTA’s ISDS mechanism by taking inspiration from the dispute resolution system envisaged under the Comprehensive Economic and Trade Agreement between the EU and Canada (CETA). The United States’ position on whether it wishes to retain ISDS in the current form is not clear. In August 2017, over 100 trade associations urged the US administration to keep the ISDS clauses in NAFTA. This was soon followed by an open letter written by over 230 academics who urged the US Congress to remove ISDS provisions from NAFTA. While the US Trade Representative Lighthizer cited the threat of the United States being sued by foreign corporations in a critique of the NAFTA ISDS provisions in August 2017, he subsequently issued objectives that call for the inclusion of meaningful procedures for resolving investment disputes in November 2017. Rather than abolishing the system as such, it appears that the existing ISDS clauses are to be modernised by putting an emphasis on state sovereignty and transparency. At the time of writing, the negotiations on NAFTA are ongoing and expected to continue until March 2018.  

In contrast to the flip-flopping position of the United States, the EU and Canada have factored in the public criticism of TTIP and come up with a permanent investment court system (ICS) under CETA. The ICS will consist of 15 judges, who are appointed by the EU and Canada and will have the authority to hear and decide all investment claims between the two countries. The ICS will provide for a first instance and an appellate body. While the ICS may conciliate some critics, it is not free from legal obstacles. In May 2017, the Court of Justice of the European Union (CJEU) found that the EU does not have the exclusive competence to enter into agreements with ISDS or ICS mechanisms (Opinion 2/15). Consequently, all international agreements that entail mechanisms for dispute settlement between investors and states will have to be ratified by the member states and regional parliaments.

Thus, CETA’s path to ratification seems to be full of hurdles. For instance, inter alia, the ratification seemed to derail when the regional parliament of Belgium’s Walloon region demanded that Belgium submit a request for an opinion from the CJEU regarding the compatibility of the ICS mechanism in the agreement with the EU treaties. Romania and Bulgaria withheld their consent to CETA until Canada announced the lifting of visa requirements for their citizens.

Ratification problems are also predicted for the recently concluded EU–Vietnam Free Trade Agreement (EUVFTA), which is currently undergoing ‘legal scrubbing’, after which it will be presented to the European Parliament and the Council of the European Union for a vote. Notably, the EUVFTA also includes an ICS instead of ISDS mechanism. Particularly with regard to authoritarian states, it will be challenging to guarantee the impartiality and independence of ICS judges appointed by such states.

Declaring traditional ISDS clauses dead, as done by the head of the European Commission, Juncker, this summer might, however, have proven to be premature in the context of the EU–Japan Economic Partnership Agreement. While the EU apparently insists on including the ICS mechanism, Japan is reportedly unamused. It will be interesting to see whether the EU free trade agreements with Australia and New Zealand, which are currently being negotiated, will include an ICS. Should the other contracting states refuse such a system, will the EU be flexible or will it sacrifice investor protection because of dogmatism?

At some point, the wishful thinking goes, the ICS will be replaced by a multilateral investment court (MIC). For this purpose, an UNCITRAL working group was established to work out a possible framework. First results are expected by mid-2018. However, the proposal on the MIC has not managed to find favour with all countries equally. Brazil, Japan, Argentina and India have rejected the EU’s informal proposal to work towards such a body.
Investment agreements are also a hot topic in Asia. Although the wave of criticism has left its marks here as well, the region is very dynamic in the field of international investment arbitration. The Trans-Pacific Partnership (TPP) has been on a rollercoaster this year. Having been pronounced dead after President Trump pulled the United States out of the agreement in early 2017, TPP is now experiencing what looks like a potential revival. Some of its sponsors, in particular Japan, are working hard to adapt the treaty to the changed circumstances and have it enter into force without the United States. Notably, TPP signatories had taken the criticism seriously and included a very modern ISDS regime focusing on points like transparency and the states’ right to regulate. Simultaneously, China’s project the Regional Comprehensive Economic Partnership is in its fifth year of negotiations between the ASEAN states and those states with which ASEAN already has free trade agreements. Little is known about its content, but it appears to include standard ISDS clauses.

Lastly, in the context of free trade agreements and investment agreements, we reported India’s termination of all of its bilateral investment treaties in the previous edition. In May 2017, Ecuador seemed to have followed suit by terminating 16 of its BITs. Ecuador’s National Assembly lent approval to the termination following a report by a citizens’ commission, which recommended that Ecuador should recast its BITs to narrow down investment protection offered therein and exclude ISDS completely. However, given the sunset provisions, investments will continue to enjoy protection for a certain period after termination. In a similar regard, countries like Brazil, South Africa, Argentina and Indonesia have voiced stark concerns with regard to ISDS and are planning to terminate or have already terminated their investment treaties.

Looking forward, it seems like the tectonics of international investment arbitration might be changing. With the United States withdrawing from the international scene and Europe engaging in what are so far rather experimental ideas of investment arbitration, a regulatory vacuum has opened up. In combination with the strengthening of China and Asia in general, it may well be that the region changes from being a rule taker to being a rule maker. The year 2017 may have been the start of an Asian decade in international investment arbitration.

Conclusion

We hope that we were able to pique your interest for this year’s issue with our glimpses of current issues and trends in international investment law. Certainly, the recent developments in this ever-changing field show that international arbitration is striving to preserve and enhance its qualities while reforming weaker areas.

For the 13th edition, we have modified the questionnaire slightly. With a desire to achieve increased transparency and diversity in arbitrator appointments, we now address the background of arbitrators in that regard, whether they are lawyers, former judges or academicians, and whether there are any incentives or tendencies to encourage diversity in international arbitration (question 16).
Our thanks are extended to everyone who has contributed to this edition, in particular, Jana Bade and Geetanjali Sharma, and we look forward to working with all of you on the 14th edition.

Any suggestions or comments are welcome and should be addressed either to us (stephan.wilske@gleisslutz.com and gerhard.wegen@gleisslutz.com) or to the publisher, Gideon Roberton (gideon.roberton@lbresearch.com).


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