International Arbitration - Q4 2013

by DLA Piper
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DLA Piper - International Arbitration Newsletter

AUSTRALIA: NEW GOVERNMENT MAY LEAD TO OPPORTUNITIES FOR INVESTOR/STATE ARBITRATION

By Scott McDonald, Kirk Simmons and Anne Bihancov, Sydney

This autumn, the people of Australia elected a new federal government, presenting a number of potential opportunities for investor-state arbitration in Australia.

First, the new government has reviewed its position with respect to the inclusion of investor-state dispute settlement clauses in investment treaties.

Second, the government proposes to repeal the Clean Energy Act 2011 (containing Australia’s Carbon Pricing Mechanism), a change with the potential to give rise to some investor/state disputes.

Find out more.


US FEDERAL COURTS TAKE LIMITED REVIEW OF PARTIES’ CHALLENGES TO ARBITRATORS

By Kiera Gans and Joshua Kane, New York

Challenges to arbitrator appointments have become a hot topic in international arbitration, having arisen in several high-profile international arbitrations this year.

Mimicking some of the cases arising in the international arena, two recent cases in the United States provide some new insight as to how the US courts might approach claims of arbitrator bias.

In each case, the court considered its review of the issue to be limited, either holding that the question should be arbitrated or applying a high threshold for establishing arbitrator bias.

Find out more.


A MOMENTOUS STEP: KENYA ESTABLISHES INTERNATIONAL ARBITRATION CENTRE

By Kamau Karori,* Nairobi

Earlier this year, legislators in Kenya established the Nairobi Centre for International Arbitration by passing the Nairobi Centre for International Arbitration Act No. 26 of 2013.

The main objective of the NCIA is to facilitate the establishment of an independent and nonprofit centre with a broad mandate necessary to administer domestic and international arbitration in Kenya.

The centre is expected to create and maintain proactive cooperation with other regional and international institutions in the field of alternative dispute resolution.

Find out more.


HUNGARY: ARBITRATION AGREEMENT IS NOT BINDING ON INSOLVENT CLAIMANT

By Zoltan Fabok, Budapest

A recently published ruling of a Hungarian regional court of appeal holds that the enforcement of claims by an insolvent claimant in arbitration is contradictory to the aims of the insolvency proceedings and to a creditor’s interests. Consequently, an arbitration agreement may not be binding in Hungary in circumstances where a potential claimant is insolvent.

This conclusion is not inconsistent with the approach taken in some other European jurisdictions, on the basis of the significance of insolvency proceedings.

Find out more.


CROSS-BORDER DERIVATIVES DISPUTES: ISDA ARBITRATION
GUIDE 2013 MODEL CLAUSES OFFER MORE CERTAINTY

By Jean-Pierre Douglas Henry and Oliver Perez, London

The 2013 International Swaps and Derivatives Association (ISDA) Arbitration Guide has been published following a two-year consultation with ISDA members.

The Guide provides model clauses for various forms of arbitration for use in derivative transactions. This is welcome news for the banking and investment community, which has not always found the standard ISDA submission to court-based adjudication of disputes to be ideally suited to complex cross-border structured product disputes.

Find out more.


NEWS FROM THE ARBITRATION INSTITUTIONS

ICSID Convention ratified by Canada
Canada ratified the ICSID Convention on 1 November 2013 and deposited the necessary Instrument of Ratification with the World Bank. The Convention was initially signed by Canada on 15 December 2006 and, as a result of the ratification, came into force for Canada on 1 December 2013. All signatory states to the Convention have been notified by the World Bank of the ratification.

See here for more information.

New rules published by KLRCA
The Kuala Lumpur Regional Centre for Arbitration (KLRCA) published a revised set of rules on 24 October 2013. The KLRCA Arbitration Rules 2013, which include the i-Arbitration Rules (or Islamic Rules) and the KLRCA Fast Track Rules, have been amended to include new provisions relating to the appointment of emergency arbitrators and the consolidation of proceedings as well as an updated schedule of fees and administrative costs.

For more information about the new rules, see here.

International arbitration centre for energy launched in Scotland
Alex Salmond, the First Minister for Scotland, launched the International Centre for Energy Arbitration (ICEA) on 2 October as the first step to enable Scotland to become the seat of choice for international energy dispute resolution. The ICEA is a joint venture between the Centre for Energy, Petroleum and Mineral Law at the University of Dundee and the Scottish Arbitration Centre. At the launch, the Secretary General of the ICEA, Andrew Mackenzie, outlined the next steps for the Centre saying that there would be a period of consultation with those in the energy sector to support the preparation of bespoke energy arbitration rules.

See here for more information about the IEAC.

ICC opens new headquarters in Paris
The International Chamber of Commerce moved into new headquarters in Paris on 18 October. The ICC, along with the International Court of Arbitration, has moved from its old buildings at 38 cours Albert 1er, where it had been based since 1926, to more modern facilities on avenue du President Wilson. The new headquarters has more meeting rooms and better conference facilities and is just one kilometre from the old building.

For more information see this press release from the ICC.

Abu Dhabi Arbitration Centre issues new rules
The Abu Dhabi Commercial Conciliation and Arbitration Centre (ADCCAC) has published a new set of arbitration rules. The rules came into force on 1 October 2013 and are based to a large extent on the UNCITRAL Arbitration Rules, with some allowances for local legal issues. The new rules replace rules which have long been considered to be out of date and take over from the old rules in their entirety, even for arbitrations that were already ongoing before the rule change.

For more information about the new rules see here.

ICSID publishes caseload statistics for 2012/13
The International Centre for Settlement of Investment Disputes (ICSID) has issued the latest version of its caseload statistics for 2012/13, providing an overview of cases registered or administered by ICSID as of 30 June this year. In the previous 12 months, 43 cases had been registered, up from 39 cases issued the previous year.

For more information about the caseload statistics, see the ICSID document.
 


COMING SOON

ASA Annual Conference: 10 Years of Swiss Rules of International Arbitration
The Swiss Arbitration Association (ASA) is holding its 10th annual conference on 31 January 2014 in Basel. The conference will consist of five panels looking at the history, background and main characteristics of the Swiss Rules of International Arbitration, the key features of the revised Rules and an insider’s view into how the ASA is handling its cases.

For more information about the conference, see here.

The Allocation of Costs in International Arbitration
On 13 February 2014, the ICC will hold a half-day conference in Paris on the allocation of costs in international arbitration. The conference will consider the impact of provisions and legal traditions, the definition of reasonability and costs orders as a case management tool.

More information about the conference is available here.

17th Annual IBA International Arbitration Day
The International Bar Association is to hold its 17th annual International Arbitration Day on 13-14 February 2014 in Paris. Topics to be considered at the conference include a discussion about the gathering and taking of evidence and the IBA Guidelines on Party Representation, amongst others.

See here for more information about the conference.

Kamau Karori is a partner with Iseme, Kamau & Maema Advocates, Nairobi

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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