international arbitration dissertation topics

International Arbitration Research

Getting started, arbitration terminology, hollis searching, books & treatises, online sources, awards and proceedings, new york convention, regional materials, getting help.

This is a guide to international commercial and investment arbitration research at the Harvard Law School Library. 

The content of this guide is on a single page. To search for a term in the guide, use CTRL+F. To navigate through the guide, use the links on the left.

If you have questions about this guide or need research help, please visit  https://asklib.law.harvard.edu/index.php .

QUICK LINKS

Below are quick links to some of our most popular resources for arbitration research.

• Global Arbitration Review 100 (print edition, includes the GAR 100 and GAR 30 lists, shelved in the reading room
• International Commercial Arbitration (Gary Born) (Treatise)
• Investment Arbitration Reporter (Subscription Database)
• Investor-State Law Guide (Subscription Database)
• Jus Mundi (Subscription Database)
• KluwerArbitration (Subscription Database)
• Oxford Legal Research Library: International Commercial Arbitration (Subscription Database)
• Redfern and Hunter on International Arbitration (Treatise)

Below are links to information about words or phrases that often appear in the arbitration literature.  Terms listed include those used in the following types of arbitration, both of which are covered in this guide: 

• Investment arbitration:  resolving a dispute between a private investor and a state
• Commercial arbitration:  resolving a dispute between two private parties that have entered into a commercial contract with each other

A variety of types of sources are linked to, including legal dictionaries, introductory treatises, and official websites of relevant organizations.

• Arbitration
• Arbitration Agreement
• Arbitration Clause
• Bilateral Investment Treaty (BIT)
• Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Arbitration Convention) (1958)
• International Center for Settlement of Investment Disputes (ICSID)
• International Institute for the Unification of Private Law (UNIDROIT)
• Investment Treaty
• Investment Treaty Law
• United Nations Convention on Contracts for the International Sale of Goods (CISG) (Vienna, 1980)
• United States Commission on International Trade Law (UNCITRAL)

Using the Harvard Library Catalog, HOLLIS, for Arbitration Research

Access to all sources listed in this guide is available through the HOLLIS library catalog at  https://hollis.harvard.edu , which you can use to search for books, journal articles, and more.  Limit search results by resource type, library location, and more using the options on the right side of the search results screen.

Searching HOLLIS

Below is a list of pre-populated HOLLIS searches that are relevant for international arbitration research.  Click a link to view its search results in HOLLIS.  Note that most of these searches are very broad, so you will probably want to limit the search results by date, additional keywords, or other options.

• HOLLIS search: Keyword anywhere = "friendship, commerce, and navigation"
• HOLLIS search: Keyword anywhere = "investment arbitration"
• HOLLIS search: Keyword anywhere = "investment treaty arbitration"
• HOLLIS search: Keyword anywhere = "investor-state dispute"
• HOLLIS Search: Keyword anywhere = "trade arbitration"
• HOLLIS search: Keywords anywhere = "international investment law" AND "arbitration"
• HOLLIS search: Subject = "Agreement on Trade-Related Aspects of Intellectual Property Rights" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "arbitration act"
• HOLLIS search: Subject = "arbitration" AND Keyword anywhere = "confidentiality"
• HOLLIS search: Subject = "arbitration (international law)"
• HOLLIS search: Subject = "arbitration, industrial"
• HOLLIS search: Subject = "arbitration agreements"
• HOLLIS search: Subject = "arbitration and award"
• HOLLIS search: Subject = "CISG" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "commerce" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "commercial arbitration"
• HOLLIS search: Subject = "commercial courts -- rules and practice"
• HOLLIS search: Subject = "commercial treaties" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "Conflict of Laws -- Arbitration and Award"
• HOLLIS search: Subject = "dispute resolution (law)" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "foreign trade regulation" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "General Agreement and Tariffs and Trade" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "ICSID" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "intellectual property" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "international chamber of commerce" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "international commercial arbitration"
• HOLLIS Search: Subject = "international disputes" AND Keyword Anywhere = "arbitration"
• HOLLIS search: Subject = "international law" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "international sales law"
• HOLLIS search: Subject = "international trade law" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "investments, foreign" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "jurisdiction (international law)" AND Keyword Anywhere = "arbitration"
• HOLLIS search: Subject = "parallel proceedings (law)"
• HOLLIS search: Subject = "UNCITRAL" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "Willem C. Vis International Commercial Arbitration Moot"
• HOLLIS search: Subject = "World Trade Organization" AND Keyword anywhere = "arbitration"

Browsing Materials in HOLLIS by Library of Congress Call Number

Books in our library are organized on the shelves by subject and classified according to the Library of Congress call number system.  Under this system, all books that are primarily about law have a call number that starts with the letter "K."  If the book is mainly about international arbitration, then its call number will begin with "K2400."

In HOLLIS, you can browse books by call number.  Click the link below to browse the K2400 books in HOLLIS.

HOLLIS call number browse: K2400​

Using HOLLIS to Find Papers on Arbitration Written by HLS LLM and SJD Students

To view a list of papers on the topic of arbitration in the library's collection written by HLS LLM and SJD students, click the link below to run the appropriate search in HOLLIS:

Title = "Harvard Law School Thesis" AND Keywords anywhere = "arbitration"

Subscription Databases for Arbitration Research

Below is a list of subscription databases that are helpful for arbitration research, organized alphabetically. For each database, a link to its HOLLIS record, which include a link to its Harvard-specific URL, is provided, along with a brief description of its content.

• Global Arbitration Review (GAR) "International journal of public and private arbitration."
• HeinOnline HeinOnline provides comprehensive coverage of more than 2,600 law-related periodicals. It also contains materials related to treaties, constitutions, case law, world trials, classic treatises, international trade, foreign relations, and more.
• Investment Arbitration Reporter (IAReporter) Investment Arbitration Reporter is a news & analysis service tracking international arbitrations between foreign investors and sovereign governments.
• Investor-State Law Guide Investor-State Law Guide provides access to all materials relevant to publicly available ICSID, NAFTA and ad hoc tribunal decisions. Note that you may experience access problems for this database if you are using a Google Chrome browser.
• Jus Mundi Search engine for international law and arbitration -- includes extensive database of arbitral awards and citator functionality.
• KluwerArbitration KluwerArbitration is the world's leading online resource for international arbitration research. It contains a wealth of commentary from expert authors and an extensive collection of primary source materials, including ICC materials.
• Oxford Reports on International Law Includes two modules: International Law in the EU Courts and International Trade Law Decisions.
• Westlaw In the search box on the Westlaw homepage, type "International Arbitration Materials" and select the corresponding link when it comes up in the drop-down menu. Content: cases, awards, rules, conventions, legislation, model laws, guides, model clauses, treatises, journals, and current awareness.
• WorldTradeLaw.net Provides summary and analysis of all WTO reports and arbitrations; a current keyword index; a database of dispute settlement tables and statistics; and a user-friendly search tool for WTO cases, legal texts, and other documents.

General Arbitration Research: Books/Treatises

Below are selected secondary sources that discuss international arbitration in general. They may provide a good basic overview for your research.

• The Complete (But Unofficial) Guide to the Willem C. Vis International Commercial Arbitration Moot by Jörg Risse Publication Date: 2015 (3rd ed.)
• The Culture of International Arbitration by Won L. Kidane Publication Date: 2017
• Domke on Commercial Arbitration by Martin Domke Publication Date: 2003-
• The Evolution of International Arbitration: Judicialization, Governance, Legitimacy by Alec Stone Sweet and Florian Grisel Publication Date: 2017
• Foreign Investment Law Including Investor-State Arbitrations in a Nutshell by Ralph H. Folsom Publication Date: 2022
• The Functions of Arbitral Institutions by Remy Gerbay Publication Date: 2016
• International Arbitration: A Practical Guide by Stuart Dutson Publication Date: 2019 (2nd ed.)
• International Arbitration: Law and Practice by Gary Born Publication Date: 2016 (2nd ed.)
• International Commercial Arbitration by Gary Born Publication Date: 2014 (2nd ed.)
• International Commercial Arbitration: A Transnational Perspective by Tibor Varady et al. Publication Date: 2019 (7th ed.)
• International Commercial Arbitration: International Conventions, Country Reports, and Comparative Analysis by Stephan Balthasar (ed.) Publication Date: 2016
• International Investment Arbitration: Substantive Principles by Campbell McLachlan Publication Date: 2017 (2nd ed.)
• International Investment Law and Arbitration: History, Modern Practice, and Future Prospects by Borzu Sabahi, Ian A. Laird, and Giovanna E. Gismondi Publication Date: 2018
• National Arbitration Laws by Loukas Mistelis, Laurence Shore, general editors ; Hans Smit, founding editor. Publication Date: 2010 (2nd ed., looseleaf)
• The Principles and Practice of International Commercial Arbitration by Margaret L. Moses Publication Date: 2017 (3rd ed.)
• Private International Law and Arbitration (v. 1) by Jack J. Coe, Jr. and Donald Earl Childress (eds.) Publication Date: 2018
• Redfern and Hunter on International Commercial Arbitration by Nigel Blackaby Publication Date: 2015 (6th ed.) Note: This is also available as an eBook through KluwerArbitration. .
• UCIA -- Universal Citation in International Arbitration by Stephen Anway et al. (eds.) Publication Date: 2023 (2nd ed.)
• The World Arbitration Reporter: International Encyclopedia of Arbitration Law and Practice by Loukas Mistelis, Laurence Shore, general editors ; Hans Smit, founding editor Publication Date: 2010- (Looseleaf)

Arbitration Book Series

Academic publishers sometimes issue a series of books about a particular subject, and there are a few series devoted to arbitration.  To search HOLLIS by series title, click its corresponding link below.

• Arbitration in Context (Kluwer)
• International Arbitration Law Library (Kluwer)
• International Commerce and Arbitration (Eleven)
• International Courts and Tribunals Series (Oxford)
• Lloyd's Arbitration Law Library (Routledge)
• Oxford International Arbitration Series

Selected Topics in Arbitration: Books/Treatises

• Addressing Corruption Allegations in International Arbitration by Brody K. Greenwald and Jennifer A. Ivers. Publication Date: 2019
• Arbitration and Contract Law: Common Law Perspectives by Neil Andrews Publication Date: 2016
• Arbitration in the Digital Age: The Brave New World of Arbitration by Maud Piers & Christina Aschauer (eds.) Publication Date: 2018
• The CISG Advisory Council Opinions by Ingeborg Schwenzer (ed.) Publication Date: 2017
• Contributory Fault and Investor Misconduct in Investment Arbitration by Martin Jarrett Publication Date: 2019
• Cross-Examination in International Arbitration: Nine Basic Principles by Kaj Hober Publication Date: 2014
• Fair and Equitable Treatment: Its Interaction with the Minimum Standard and its Customary Status by Patrick Dumberry Publication Date: 2018
• Good Faith in International Investment Arbitration by Emily Siporski Publication Date: 2019
• Guerrilla Tactics in International Arbitration by Günther J. Horvath, Stephan Wilske (eds.) Publication Date: 2013
• The Guide to Challenging and Enforcing Arbitration Awards by J William Rowley (ed.) Publication Date: 2019
• The Guide to Damages in International Arbitration by John A. Trenor Publication Date: 2018 (3rd ed.)
• Hardship and Force Majeure in International Commercial Contracts: Dealing with Unforeseen Events in a Changing World by Fabio Bortolotti; Dorothy Ufot Publication Date: 2019 Note: This is also available as an eBook through KluwerArbitration. .
• Injunctive Relief and International Arbitration by Hakeem Seriki Publication Date: 2015
• International Arbitration and Forum Selection Agreements: Drafting and Enforcing by Gary Born Publication Date: 2016 (5th ed.)
• Interpretation of Contracts in Comparative and Uniform Law by Ahmet Cemil Yıldırım Publication Date: 2019 Note: This is also available as an eBook through KluwerArbitration. .
• Jurisdiction, Admissibility, and Choice of Law in International Arbitration: Liber Amicorum Michael Pryles by Neil Kaplan & Michael Moser (eds.) Publication Date: 2018 Note: This is also available as an eBook through KluwerArbitration.
• Party-Appointed Arbitrators in International Commercial Arbitration by Alfonso Gomez-Acebo Publication Date: 2016 Note: This is also available as an eBook through KluwerArbitration. .
• Pleading in Arbitration: A Practitioner's Guide by Steven Walker and Iain K. Clark Publication Date: 2017
• The Powers and Duties of an Arbitrator: Liber Amicorum Pierre A. Karrer by Patricia Shaughnessy, Sherlin Tung (eds.) Publication Date: 2017
• Principles of Evidence in Public International Law as Applied by Investor-State Tribunals: Burden and Standard of Proof by Kabir Duggal, Wendy W. Cai. Publication Date: 2019
• Procedure Shopping through Hybrid Arbitration Agreements: Considerations on Party Autonomy in Institutional International Arbitration by Nathalie Lendermann Publication Date: 2018
• Protection of Legitimate Expectations in Investment Treaty Arbitration: A Theory of Detrimental Reliance by Teerawat Wongkaew Publication Date: 2019
• Rules of Evidence in International Arbitration: An Annotated Guide by Nathan D. O'Malley Publication Date: 2019 (2nd ed.)
• Shifting Paradigms in International Investment Law: More Balanced, Less Isolated, Increasingly Diversified by Steffen Hindelang and Markus Krajewski Publication Date: 2016
• The Use of Economics in International Trade and Investment Disputes by Marion Jansen, Joost Pauwelyn and Theresa Carpenter (eds.) Publication Date: 2017
• What Counsel in Arbitration Can Do, Must Do, or Must Not Do by Vanessa Foncke et al. (eds.) Publication Date: 2015

Arbitration in the International Legal Order: Books/Treatises

The books listed below focus more on international law generally and include one or more chapters or sections specifically dedicated to arbitration.

• Building a Treaty on Business and Human Rights: Context and Contours by Surya Deva and David Bilchitz Publication Date: 2017
• Critical International Law: Postrealism, Postcolonialism, and Transnationalism by Prabhakar Singh, Benoît Mayer (eds.) Publication Date: 2014
• Irresolvable Norm Conflicts in International Law: The Concept of a Legal Dilemma by Valentin Jeutner Publication Date: 2017
• Principles of International Economic Law by Matthias Herdegen (ed.) Publication Date: 2016 (2nd ed.)
• Reconceptualising the Rule of Law in Global Governance, Resources, Investment, and Trade by Photini Pazartzis, Maria Gavouneli, Anastasios Gourgourinis, and Matina Papadaki (eds.) Publication Date: 2016
• Transnational Commercial Law by Maren Heidemann Publication Date: 2019

Arbitration Journals

• American Review of International Arbitration
• Arbitration International
• Dispute Resolution Journal
• European Arbitration Review
• European International Arbitration Review
• European Investment Law and Arbitration Review
• ICC Dispute Resolution Bulletin
• ICSID Reports
• ICSID Review
• International Arbitration Law Review
• International Commercial Arbitration
• International Quarterly
• International Sports Law Journal
• Journal of International Arbitration
• Journal of International Dispute Settlement
• Journal of International Economic Law
• Journal of Private International Law
• Journal of World Investment and Trade
• Journals in KluwerArbitration Arbitraje: Revista de Arbitraje Comercial y de Inversiones, ASA Bulletin, Asian Dispute Review, Asian International Arbitration Journal, Belgian Review of Arbitration, BCDR International Arbitration Review, Indian Journal of Arbitration Law, International Commercial Arbitration Review, International Journal of Arab Arbitration, Journal of International Arbitration, Revista Brasileira de Arbitragem, Review de l'Arbitrage, and Spain Arbitration Review
• Journals in Kluwer Law Online Includes Arbitration, ASA Bulletin, Asian International Arbitration Journal, Journal of International Arbitration, Revue de l'arbitrage, World Trade and Arbitration Materials, and more.
• Mealey's International Arbitration Quarterly Law Review
• The Middle Eastern and African Arbitration Review
• Swiss International Arbitration Law Reports
• Vindobona Journal of International Commercial Law and Arbitration

Online Sources for General Arbitration Research

• Chambers Practice Guides: International Arbitration 2019
• GlobaLex Guide to International Commercial Arbitration
• GlobaLex Guide to Investor-State Arbitration

Arbitration Treaties

Print sources.

• International Arbitration Treaties by Loukas Mistelis, Laurence Shore, Monique Sassons, general editors ; Hans Smit, founding editor Publication Date: 2010- (Looseleaf)

Electronic Sources

• Bilateral Investment Treaties (BITs) (KluwerArbitration)
• Database of Investment Treaties (ICSID)
• International Investment Agreements Navigator (UNCTAD)
• International Arbitration: Treaties (Westlaw) Coverage begins with 1952 (Europe), 1992 (NAFTA), and 1994 (GATT).
• Multilateral Treaties (Conventions) (KluwerArbitration)
• Treaties & Rules (Investor-State Law Guide)
• UNCITRAL Texts and Status
• Uruguay Round Agreements (Worldtradelaw.net)
• WTO Legal Texts (WTO)

Arbitration Rules

• Analytical Commentary to the UNCITRAL Arbitration Rules by Peter Binder Publication Date: 2013
• Arbitrating under the 2014 LCIA Rules: A User's Guide by Maxi Scherer Publication Date: 2015 Note: This is also available as an eBook through KluwerArbitration .
• Arbitration Rules -- International Institutions by Loukas Mistelis, Laurence Shore, Stavros Brekoulakis, general editors ; Hans Smit, founding editor Publication Date: 2010 (3rd. ed., looseleaf)
• A Commentary on the LCIA Arbitration Rules 2014 by Shai Wade et al. Publication Date: 2015
• Comparison of International Arbitration Rules by Robert H. Smit Publication Date: 2013 (4th ed.)
• A Guide to the HKIAC Arbitration Rules by Michael J. Moser Publication Date: 2017
• A Guide to the ICDR International Arbitration Rules by Martin F. Gusy Publication Date: 2019
• A Guide to the SIAC Arbitration Rules by John Choong, Mark Mangan, Nicholas Lingard Publication Date: 2018 (2nd ed.)
• Institutional Arbitration: Article-by-Article Commentary by Rolf A. Schütze et al. Publication Date: 2013 Coverage: ICC rules -- DIS rules -- Vienna rules -- Swiss rules -- LCIA rules -- MKAS rules -- CIETAC rules -- SIAC rules -- KLRCA rules -- IAR -- SCC rules -- DIAC rules -- ICSID rules -- UNCITRAL rule
• IBA Rules of Evidence: Commentary on the IBA Rules on the Taking of Evidence in International Arbitration by Tobias Zuberbühler et al. Publication Date: 2012
• The UNCITRAL Arbitration Rules: A Commentary by David D. Caron Publication Date: 2013
• American Arbitration Association (AAA) International Centre for Dispute Resolution (ICDR) - Rules, Foms, and Fees
• Financial Industry Regulatory Authority (FINRA) Arbitration Rules
• International Centre for Settlement of Investment Disputes (ICSID) Convention Arbitration Rules
• International Chamber of Commerce (ICC) Arbitration Rules
• Permanent Court of Arbitration -- PCA Rules
• United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules

Arbitration Awards and Other Proceeding Documents

Arbitration awards and documents related to arbitration proceedings can be notoriously difficult to find.  Below is a list of options you can try.  To suggest other sources that are not listed below, please contact [email protected].

• ASA Bulletin (Kluwer Law International) This publication from the Swiss Arbitration Association includes arbitral awards and orders under various auspices including ICC, ICSID, and the Swiss Chambers of Commerce (“Swiss Rules”).
• Case Law on UNCITRAL Texts (CLOUT) This is a system for collecting and disseminating information on court decisions and arbitral awards relating to the Conventions and Model Laws that have emanated from the work of the UN Commission on International Trade Law (UNCITRAL).
• CISG Database (Pace Law School Institute of International Commercial Law) Free electronic database that includes cases/awards on the CISG; can be searched or browsed by country. Also includes a UNCITRAL case digest.
• FINRA Arbitration Awards Online FINRA's Arbitration Awards database enables users to perform Web-based searches for FINRA and historical NASD arbitration awards free of charge, seven days a week. Also available through the site are historical awards for New York Stock Exchange, the American Stock Exchange, the Philadelphia Stock Exchange, and the Municipal Securities Rulemaking Board.
• Histoire sommaire et chronologique des arbitrages internationaux, (1794-1900)
• History and Digest of the International Arbitrations to Which the United States Has Been a Party 6-volume historical treatise and reporter by John Bassett Moore, published in the late 1800s and available through HeinOnline.
• ICC Court of Arbitration Bulletin Includes excerpts from ICC arbitral awards, official notes, reports and guidelines on dispute resolution practice and procedure, statistics, news, and articles by eminent arbitration specialists.
• ICSID Arbitration Cases Database Includes more than 700 cases; filtering options include case status, case type, applicable rules, stage of proceeding, dispute subject, and more.
• International Arbitration Forum Database - Awards Established in 2008, one of the biggest free online databases for lawyers and scholars seeking articles and cases related to international arbitration. Search here for arbitration awards.
• International Investment Arbitration and Public Policy (IIAPP) Includes a searchable database of investment treaty cases up to May 2010.
• International Legal Materials (ILM) ILM is a publication of the American Society for International Law. It publishes legal documents from various courts and tribunals around the world, including arbitral organizations like the ICSID arbitral tribunal.
• ITALAW Free online current awareness service for arbitration awards, decisions, and materials.
• Jus Mundi Includes arbitration awards from multiple international tribunals.
• KluwerArbitration KluwerArbitration includes an extensive database of arbitration awards issued by international arbitration tribunals, including the ICC, ICSID, ICDR, the WIPO Arbitration and Mediation Center, LCIA, Cour Permanente d'Arbitrage, AAA, and many more.
• Lloyd's Arbitration Reports Coverage = 1988-1992.
• Oxford Public International Law Database: Arbitral Cases Database of more than 1,000 arbitral awards and decisions from various sources.
• Permanent Court of Arbitration -- Cases Online database of cases heard by the PCA, including inter-state arbitrations and investor-state arbitrations.
• Reports of International Arbitral Awards Published by the United Nations. For more information about this resource, visit http://legal.un.org/riaa/ .
• World Trade and Arbitration Materials Includes reports of arbitration awards related to international trade; published several times a year.

Print Materials

• The 1958 New York Convention in Action by Marike Paulsson Publication Date: 2016 Note: This is also available as an eBook through KluwerArbitration. .
• Guide on the Convention on the the Recognition and Enforcement of Foreign Arbitral Awards by UNCITRAL Secretariat ; Emmanuel Gaillard and George A. Bermann, editors Publication Date: 2017
• New York Convention: Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958: A Commentary by Reinmar Wolff (ed.) Publication Date: 2012
• Recognition and Enforcement of Foreign Arbitral Awards: The Interpretation and Application of the New York Convention by National Courts by George Bermann (ed.) Publication Date: 2017

Online / Electronic Sources

• http://newyorkconvention1958.org/ This website was created to host information on the implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958, with a view of promoting its uniform and effective application throughout the world. It provides access to the case-law from a number of jurisdictions on the application of the Convention by domestic courts as well as information on the ratification of the Convention by selected States.
• African Continental Free Trade Area (African Union)
• I-ARB (African arbitration news and information)
• MERCOSUR (Southern Common Market; South America)

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International Dispute Resolution with Dissertation, LLM

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International Dispute Resolution with Dissertation

Introduction.

LLM International Dispute Resolution delivers a solid theoretical grounding in international dispute settlements, broad interdisciplinary training across specialist legal areas and the practical tools required to succeed in the field. It provides opportunities for individual study and skills development for the new generation of lawyers to rethink traditional approaches to conflict and its resolution.

Study Information

Study options.

As technology, trade and transportation have reduced the significance of borders, alternative methods of dispute resolution will increasingly be used in all economic sectors, therefore the need for highly specialised professionals in this field is rapidly expanding.

This LLM will prepare you for a career in the challenging and exciting field of international dispute resolution. It provides a solid foundation in all relevant areas, including both private and public international means of dispute resolution, and will allow you to specialise in your chosen legal field. It offers theoretical and practical courses in international commercial law, litigation, energy and investment arbitration.

You will study this programme with a dissertation to further develop your academic and research skills. This programme is also available to study online

Programme Fees

Compulsory Courses

Compulsory courses. All students must complete:

This course provides students from diverse legal and educational backgrounds with a common understanding of the core research, analytical, and writing skills which will be required for LLM-Taught courses. The course is delivered as a series of five interactive lectures with two individual assessments designed to encourage critical thinking and provide opportunities for early feedback. It also incorporates a library workshop to provide students with hands-on experience with the resources available for course and dissertation work.

30 Credit Points

The demand for international commercial arbitration has increased significantly over the last 20 years. Empirical surveys conducted consistently report figures that suggest around 60% of businesses prefer arbitration over other dispute resolution methods.

Seminar topics have been chosen to give students a good knowledge of international commercial arbitration law. The topics covered will be: (1) Arbitration Agreement and Arbitral Jurisdiction (2) The Role of the Seat (3) Applicable Substantive Law (4) The Arbitral Tribunal (5) Arbitral Procedure and Evidence (6) The Arbitral Award.

The course also provides a lecture on the introduction to international commercial arbitration.

This course, which is prescribed for all taught postgraduate students, is studied entirely online, takes approximately 5-6 hours to complete and can be taken in one sitting, or spread across a number of weeks.

Topics include orientation overview, equality and diversity, health, safety and cyber security and how to make the most of your time at university in relation to careers and employability.

Successful completion of this course will be recorded on your Enhanced Transcript as ‘Achieved’.

Optional Courses

Thereafter at least one course must be selected from LS503M International Commercial Litigation, which runs in September, or LS553T or LS552K, which both run in January.

A fourth 30 credit course may either be chosen from the courses directly above or from any other LLM Programme (excluding distance learning and professional skills courses). Please visit the Course Catalogue for details: Postgraduate Law 2022-2023 - Catalogue of Courses (abdn.ac.uk)

This course introduces international commercial litigation, the major means of commercial dispute resolution for many sectors of industry and the default means of dispute resolution against which international arbitration is positioned. The course demonstrates the relevance of a venue’s Private International Law (PIL) to its attractiveness for dispute resolution and provides advanced instruction in the relevant post-Brexit aspects of PIL to parties engaged in litigating international commercial disputes.

The complex interaction between investment protection and the sovereign right of states to regulate has been most acute in the energy sector. On the one hand, investors require strong guarantees that states will respect the “rules of the game” that constitute the basis of their investments. On the other, states can be tempted to interfere with foreign energy investments because of their strategic and social importance. This course aims to analyse if existing investment disciplines and international investment protection framework, are adapted to the specific regulatory risks that investors face in the energy landscape of the 21st Century and how best to avoid disputes and manage them.

Thereafter at least one course must be selected; either LS553T or LS552K, which both run in January, or LS503M International Commercial Litigation which runs in September.

A fourth 30 credit course may be chosen from the three options directly above or from any other LLM Programme (excluding distance learning and professional skills courses). Please visit the Course Catalogue for details: Postgraduate Law 2022-2023 - Catalogue of Courses (abdn.ac.uk)

There is limited appreciation given to the study of the state as a policymaker, legislator, and disputing party in the context of international economic law. Yet, the states have become the “investor of first-resort", while participating in an unprecedented surge of international investment disputes and international economic agreements. The course covers how international investment law interacts with the State’s regulatory powers in different economic sectors.

International commercial lawyers frequently work on contracts involving parties from different countries. Here, each one of these jurisdictions may offer a different interpretation of the same contractual provisions. This course is aimed to help commercial lawyers understand how different legal traditions offer different viewpoints on key contractual challenges. At the end of the course, students will be able to understand many of the discrepancies and similarities between legal systems, thus honing a fundamental skill for an international commercial lawyer. The course will cover a wide range of European legal systems, as well as transnational contract law mechanisms including the Principles of European Contract Law and the United Nations Convention on Contracts for the International Sale of Goods.

60 Credit Points

Between May and mid-August students prepare a 10,000 word dissertation on a topic of their choice related to their specialist LLM programme. Students are instructed through the delivery of a preparatory lecture, two supervisory meetings and a two hour dissertation planning workshop in a small group setting. Students are expected to spend considerable time on independent research throughout the course of the dissertation module, including; preparation of dissertation plan, amendment of plan in accordance with supervisory comments, preparation for the dissertation workshop, and, of course, in the final 10,000 word dissertation itself.

All students must complete:

Thereafter at least one course must be selected from LS553T or LS552K which both run in January. or LS503M International Commercial Litigation, which runs in September.

A fourth 30 credit course may either be chosen from the three options above or from any other LLM Programme (excluding LS501K, distance learning and professional skills courses). Please visit the Course Catalogue for details: Postgraduate Law 2022-2023 - Catalogue of Courses (abdn.ac.uk)

A fourth 30 credit course may either be chosen from the three options above, or from any other LLM Programme (excluding LS501K, distance learning and professional skills courses). Please visit the Course Catalogue for details: Postgraduate Law 2022-2023 - Catalogue of Courses (abdn.ac.uk)

Available Programmes of Study

Please note: Students staring their LLM programme in January write their Dissertation project during the Summer semester.

Duration: 12 months full-time. 24 months part time.

We will endeavour to make all course options available. However, these may be subject to change - see our Student Terms and Conditions page .

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Five international arbitration trends and topics for 2023.

January 30, 2023

The year 2023 will likely herald a number of interesting developments in international arbitration. 

While 2022 provided many milestones – from the U.S. Supreme Court’s long-awaited decision on the application of a U.S. discovery statute to different types of international arbitrations and an exodus of member states from the oft-invoked Energy Charter Treaty – many of these matters will continue to make waves in the field,  alongside new issues that are already gaining traction in the international arbitration community.

This Alert Memorandum summarizes what are likely to be key trends and topics in international arbitration in 2023, including: (1) U.S. courts’ ongoing efforts to establish a test for determining whether Section 1782 discovery can be used in public international law arbitrations; (2) climate change-related arbitrations, especially in light of the increasing concern towards compliance with the ESG agenda; (3) an influx of cryptocurrency arbitrations; (4) post-pandemic disputes arising from COVID-19-related measures; and (5) the continuing impacts of Russia-related sanctions on arbitration proceedings and the enforcement of awards. 

1.    The Applicability of Section 1782 to ICSID Tribunals in U.S. Courts

Last year provided many significant developments for the application of 28 U.S.C. § 1782 (“Section 1782”), a U.S. discovery statute that allows federal courts to compel witness testimony and document production from any person or entity who “resides” or is “found” in the judicial district where the federal court sits for “use in a proceeding in a foreign or international tribunal,” [1] to international arbitration.

The U.S. Supreme Court’s decision on June 13, 2022 in ZF Automotive US, Inc. v. Luxshare, Ltd .  foreclosed the use of Section 1782 in private commercial arbitration but left open the possibility that such discovery could remain available in public international law arbitration if the tribunal was “imbued with governmental authority.” [2]  Following that decision, U.S. courts have begun to grapple with the question of whether ICSID arbitration tribunals qualify as a “foreign or international tribunal” for purposes of the statute.

Two decisions from late 2022 found that Section 1782 discovery was not available in ICSID arbitrations, based largely on a comparison between the ICSID tribunals at issue in these cases and the ad hoc tribunal convened under the UNCITRAL Rules that the Supreme Court found did not have “governmental authority” in the companion case to ZF Automotive . [3]   In In re Alpene , a magistrate judge in the U.S. District Court for the Eastern District of New York concluded that an ICSID tribunal convened pursuant to a China-Malta bilateral investment treaty (“BIT”) was not a “foreign or international tribunal” after reviewing the “number of similarities” and “significant differences” between the ICSID tribunal and the ad hoc UNCITRAL tribunal. [4]   In In re Webuild S.P.A. , the U.S. District Court for the Southern District of New York similarly held that an ICSID tribunal convened pursuant to a Panama-Italy BIT was “materially indistinguishable” from the ad hoc UNCITRAL tribunal, and therefore was not a “foreign or international tribunal” under Section 1782. [5]

While the district courts in both cases acknowledged that the Supreme Court “did not provide a test for lower courts to apply” in determining whether a public international law arbitration tribunal is imbued with governmental authority, [6] these recent decisions demonstrate that U.S. courts are beginning to forge a multi-factor test based on certain tribunal characteristics that other courts may use in future cases to determine whether Section 1782 applies.  Such characteristics include whether:

• The legal framework of the arbitration institution is comprised of states; [7]
• The legal framework of the arbitration institution “creates a permanent institution;” [8]
• The tribunal “functions independently of and is not affiliated with either” of the nations who executed the BIT or Free Trade Agreement; [9]
• The tribunal is part of a “standing or pre-existing arbitration panel[];” [10]
• The tribunal “derives its authority from the parties’ consent to arbitrate;” [11]
• The tribunal receives “government funding” or is “funded by the parties;” [12]
• The award may be published or is kept confidential. [13]

Parties’ ability to continue to seek Section 1782 discovery in public international law arbitrations is likely to continue to be a question in 2023.  As Webuild SpA has expressed its intention to challenge the district court’s decision, [14] the Second Circuit will become the first federal appellate court to review this issue and may potentially clarify the standard that courts interpreting the Supreme Court’s decision in ZF Automotive should apply to Section 1782 requests in public international law arbitrations, including, specifically, ICSID arbitrations.

2.    Green Transition in the Spotlight: Arbitration as a Forum for Climate Change-Related Disputes

The continued concern over global climate change and the recently-adopted environmental laws and standards – including Environmental, Social, and Governance (“ESG”) policies – impacted both investor-state arbitration and international commercial arbitration in 2022, [15] and will likely continue in 2023, as environmental issues become increasingly prevalent.  Indeed, in early 2023, Azerbaijan announced that it initiated an arbitration against Armenia under the Bern Convention on the Conservation of European Wildlife and Natural Habitats – the first known inter-state arbitration under this treaty – arising from deforestation, pollution, and other harms to biodiversity in the Caucasus Mountains allegedly caused during Armenia’s “illegal occupation.” [16]

One example of the impacts of environmental issues on arbitration is the recent headlines relating to the Energy Charter Treaty (“ECT”).  Although new text was proposed in 2022 to modernize the ECT (with a vote on these changes postponed until April 2023 amid rumors of a failure to gain consensus among EU Member States), [17] the mass exodus of European countries such as Spain, France, the Netherlands, Germany, and Poland in 2022 has brought concerns with the future of the ECT and its impact on climate change to the forefront of the conversation. [18]

Among the currently-pending ECT arbitrations are a number of arbitrations in the renewable sector, including a 2021-initiated ICSID arbitration brought by German investor RWE against the Netherlands under the ECT.  In RWE AG and RWE Eemshaven Holding II BV v. Kingdom of the Netherlands , RWE’s claims arose out of a recent Dutch law providing specific deadlines for the phasing out of all coal plants in order to reduce emissions by 2030 as required by the Paris Agreement, [19] and claimed that such actions amounted to an unlawful expropriation of RWE’s investment and a violation of the fair and equitable treatment (“FET”) standard.  The Netherlands, on the other hand, has invoked its right to make environmental regulations and argued that coal plant owners could not have expected the government to avoid imposing measures to significantly reduce carbon emissions given its environmental obligations under international law. [20]   Against this backdrop, the arbitral tribunal may consider the interplay between the ECT Members States’ international obligations and these states’ right to regulate environmental matters. 

Additional climate-related arbitrations may be initiated under the ECT in 2023.  Moreover, enforcement actions in key jurisdictions – like the United States and the United Kingdom – are likely to continue through 2023 as such ECT-related arbitrations are subject to annulment challenges before ICSID (or before domestic courts for non-ICSID arbitrations), and efforts to stay or dismiss enforcement actions – on the bases of the Achmea and Komstroy decisions finding that investor-state arbitration clauses in intra-EU treaties are incompatible with EU law – continue. [21]  

Beyond Europe, recent political developments in Latin America may also provide fertile ground for climate-related arbitrations in 2023.  In particular, Chile and Colombia have announced plans to phase out certain forms of fossil fuel extraction and electricity generation activities. [22]   In contrast, Mexico is seeking to reverse its renewable energies reform, canceling permits and incentives. [23]  Such state action may indicate that a new wave of investor-state arbitrations is on its way.  While claims arising from a host state’s decision to regulate its energy sector are not new, a 2019-initiated ICSID arbitration, Latam Hydro LLC and CH Mamacocha SRL v. Peru – in which two U.S. investors alleged that Peru made promises designed to induce foreign investment in its renewable energy sector, but instead caused the financial destruction of the renewable-energy projects involved – may be interesting to watch as a future precursor of how investment arbitral tribunals could approach cases regarding renewable energy projects in Latin America. [24]

Moreover, to the extent that there is an increase in state regulation and investor-state arbitrations, this would likely have ripple effects and may lead to additional commercial disputes, given the interconnected nature of many of the commercial relationships and projects in the energy sector.

3.    After a “Crypto Winter” in 2022, Cryptocurrency-Related Disputes Will Likely Heat Up in 2023

One industry that is likely to be a source of arbitration disputes in 2023 is cryptocurrency.  As a consequence of the so-called “Crypto Winter” that began in early 2022 following adverse developments in the crypto market which led to a sharp drop in cryptocurrency prices and market capitalization, the number of crypto-related disputes has sharply increased, including several high-profile cases, such as an HKIAC arbitration involving Binance, a large Chinese-founded crypto exchange, and the U.S. Supreme Court’s upcoming decision in Bielski v. Coinbase , as further described below.

Nearly a year ago, the crypto industry was booming, with the prices of multiple cryptocurrencies, such as Bitcoin and Ethereum, skyrocketing.  However, that favorable climate quickly deteriorated in early 2022 with the “Crypto Winter” in which crypto-assets lost an estimated US $2 trillion in value. 

These developments have had a major impact on the crypto disputes landscape, with the number and complexity of disputes increasing across numerous jurisdictions, including many arbitrations, since arbitration clauses are often included in the terms and conditions of major crypto platforms.

As cryptocurrency is a novel sector, arbitrations initiated in 2023 and beyond are likely to raise new and interesting legal issues mainly arising from the delocalized nature of crypto, including as to:

• Determining the arbitrability of disputes when the proceedings present links to jurisdictions where cryptocurrency are restricted on public policy grounds, such as India, Russia, and China. [25]
• Identifying the parties to the dispute and their role, due to the opaque manner in which crypto businesses are sometimes organized and the often vague terms of the user’s agreements.
• Determining the law applicable to crypto transactions, given the delocalized nature of blockchain.
• Enforcing awards and securing interim measures against crypto-assets, given their virtual nature and the pseudonymity that surround them. [26]  

One notable crypto dispute that has received much attention and is likely to continue to captivate the arbitration community in 2023 is the Binance case, in which hundreds of users have initiated arbitration against the world’s largest cryptocurrency exchange pursuant the HKIAC arbitration clause in Binance’s terms of use, alleging losses stemming from a widespread service outage in May 2019 that left users unable to exit their positions as cryptocurrency prices plummeted in real time. [27]   A major challenge in this case is apparently that Binance claims to be a decentralized entity that has no official headquarters and there is no clear indication as to which of the several Binance entities control and are responsible for the platform’s operations, which has presented issues for determining which jurisdiction and regulation applies to Binance’s activities. [28]

Another notable crypto dispute is Bielski v. Coinbase , which the U.S. Supreme Court granted certiorari to review in its 2023 term.  The parties’ dispute in this case arose after two now-former Coinbase users filed class action lawsuits against Coinbase, a large cryptocurrency exchange platform, and Coinbase moved to compel arbitration based on the arbitration clause in its User Agreement. [29]   The District Court for the Northern District of California denied Coinbase’s motion, [30] and the Ninth Circuit affirmed, underscoring a Circuit split as to whether litigation is automatically stayed pending a party’s appeal of an order denying a motion to compel arbitration. [31]  

The Supreme Court will resolve this Circuit split when it considers the question of whether, under Section 16(a) of the Federal Arbitration Act, a party seeking arbitration may file an immediate interlocutory appeal that results in a stay of litigation before the district court. [32]   Coinbase also presents the first time that the Supreme Court has addressed a crypto-related case, and will likely have implications for companies that seek to compel enforcement of the arbitration provisions in federal district courts.

In addition to these cases, the boom and bust of cryptocurrency has also prompted calls for increased regulation and faster intervention by administrative bodies, which will likely impact disputes and enforcement in the future.  For example, the European Union is expected to approve in early 2023 the Markets in Crypto-Assets Regulation (“MiCA”), [33] a comprehensive regulatory regime that features, inter alia ,certain provisions aimed at protecting private clients investing in cryptocurrency, which might give rise to disputes with service providers.  This harmonized framework will affect both legal and natural persons that are engaged in the issuance, offering, and admission to trading of crypto-assets and the provision of crypto-asset services. [34]  

4.    Arbitration in Industries Based on or Affected by the COVID-19 Pandemic

While many industries appeared to return to some sense of normalcy in 2022, the impact of the COVID-19 pandemic will likely continue to drive disputes work in 2023.  Indeed, COVID-19-related disruption affected normal operations of economic sectors including commercial aviation and health, often prompting state regulation and response, and also created new industries and commercial opportunities that may have lost significant value in recent months as the world attempts to move past the pandemic.    Coupled with supply chain disruptions in 2021 and 2022, there may be an increase in commercial and investor-state arbitrations relating to the so-called “COVID-19-based economy” and policy changes implemented by states in response to the pandemic.  Whereas 2021 and 2022 did not see as many new disputes initiated as expected – possibly in part due to parties’ unwillingness to challenge such actions in a time of crisis – in what is rapidly becoming a post-pandemic world, parties may be more willing to make claims and initiate arbitration proceedings in 2023.

Two examples of such types of disputes arising from a state’s pandemic policies come from Chile, where state measures have prompted an ICSID arbitration and also pre-arbitration consultation processes.  In ADP and Vinci Airports v. Chile , [35]  investors that held an interest in Santiago’s main airport concession making them responsible for operation, renovation, and construction of terminals to increase the total capacity of passengers brought a US $455 million dispute against Chile, alleging that the state’s re-negotiation of the concession precipitated by a drastic decrease in air passenger traffic in 2020 after the onset of the COVID-19 pandemic breached provisions on FET, national treatment, and protection against expropriation under the applicable BIT. [36]   The case is still pending and it remains to be seen whether the tribunal will grant ADP and Vinci’s claims.

Also during the pandemic, Chile adopted a law granting Chileans access to more than 10% of funds they had previously paid to insurance companies for pension annuities in an effort to ease the economic hardship brough upon its citizens by COVID-19. [37]  Several insurance companies, including ON Global Holdings (a subsidiary of Ohio Financial Services Company), Chilean Consolidated Life Insurance Company (a subsidiary of Zurich Insurance), Principal Financial Group, and Metlife Inc., began formal consultations with Chile alleging that the newly adopted regulation violates their right to FET and constitutes unlawful expropriation. [38]   According to publicly available information, no arbitration has commenced yet.

How different arbitral tribunals will assess states’ policy measures related to the pandemic remains an open question.  While contractual counterparties and states may seek to invoke the defense of force majeure , [39] this defense has not always persuaded domestic courts analyzing similar cases. [40] Nevertheless, some courts acknowledge the consequences of the pandemic.  For instance, in one case, the Southern District of New York found that COVID-19 qualifies as a “natural disaster” excusing the non-performance of a contract under force majeure . [41]  In this case, although the parties had not included “pandemics” as a force majeure event in their contract, the court reasoned that COVID-19 was the type of circumstances beyond the parties’ control envisioned by the force majeure clause. [42]  The court found that COVID-19 was covered by the catch-all language of the clause, and was also covered by the inclusion of “natural disaster” as a force majeure event. [43]

Another potential legal defense in arbitrations against COVID-19-related breaches or state measures is necessity. [44]   States invoking the defense of necessity may need to show, inter alia , that any measures taken responded to the need to protect an “essential interest.” [45]   Since most BITs are silent on the doctrine of necessity, states will have to invoke international custom as the source for their defense. 

Perhaps unsurprisingly in the wake of the pandemic, recently negotiated BITs allow states more leeway to implement emergency measures, including by providing enhanced protection of the state’s power to dictate policy in comparison to what pre-COVID BITs permitted. [46]   To the extent that COVID-19-related cases are initiated in 2023 or in the future, states may be able to rely upon this language in order to help buttress their defenses, although the interpretation and practical application of this new language will present a novel challenge for arbitrators.

5.   The Growing Impact of Sanctions on Russian Parties

While the impact of sanctions on international arbitration is not a new issue – the  arbitration community has long contended with international sanctions on countries like Iran and Venezuela [47] – the unprecedented scale and scope of the sanctions on Russian parties imposed by the United States, the United Kingdom, and the European Union, among other jurisdictions, in response to the military conflict in Ukraine in March 2022 [48] deserves renewed attention as it is certain to leave a footprint on 2023.

In international arbitration, sanctions most commonly affect (1) the initiation of arbitration; (2) the ability of arbitrators, arbitral institutions, and parties to participate in arbitral proceedings; and (3) the enforcement of arbitral awards. 

First , sanctions may create an impetus for parties to initiate arbitration, such as when companies stop performing their contracts to comply with an international sanctions regime.  For example, RusChemAlliance (a Gazprom venture) recently announced that it intends to pursue a billion-euro HKIAC arbitration against Linde (a German multinational corporation), after the latter had suspended operations to construct a gas processing plant in the Baltic Sea to comply with international sanctions against Russia. [49]  

If history is any indication, 2023 may experience an influx of arbitrations initiated by non-Russian investors against Russia for claims of expropriation. [50]   More recently, ExxonMobil has reportedly reserved its right to pursue arbitration against Russia for an alleged expropriation of its multibillion-dollar oil and gas Sakharin-1 project, following the issuance of decrees by Russia to seize shares in the project and transfer them to a state-controlled company after ExxonMobil halted production in May 2022 to comply with international sanctions. [51]

Second , sanctions may raise practical difficulties with respect to the ability of arbitrators, arbitral institutions, or parties themselves to participate in an arbitration proceeding.  For instance, a Canada-seated tribunal acting in a PCA arbitration brought by Nord Stream 2 AG (a Swiss subsidiary of Gazprom) against the EU under the ECT vacated a hearing set for June 2022 after the U.S. government levied financial sanctions against Nord Stream 2 AG, because the entity was “unable to make any payments or access finance.” [52]  

In addition, not all arbitral institutions may administer arbitrations involving sanctioned entities or, if they do, generally need to obtain licenses or take other administrative steps. [53]   Therefore, while sanctions and parties’ inability to operate under pre-existing commercial contracts may lead to disputes, the practical difficulties of doing so when certain entities are subject to sanctions is likely to continue into 2023 as these issues, and sanctions, persist.  Some arbitral institutions are already taking administrative steps to address these difficulties.  For example, the LCIA – one of the only institutions with rules that address sanctions [54] – obtained a license in October 2022 from the UK’s Office of Financial Sanctions Implementation to process payments from parties subject to certain sanctions against Russia and Belarus. [55]

Finally , sanctions may create obstacles for the enforcement of an arbitration award.  One of the grounds under which a national court may refuse enforcement of an arbitral award under the New York Convention is that it “would be contrary to the public policy of that country.” [56]   While courts in sanctioning countries have in the past held that the public policy to enforce an arbitral award outweighed the public policy opposing enforcement with respect to a sanctioned entity, [57] the fact that recent sanctions are based on the use of military force may tip that balance the other way. [58]   Making matters more complicated, since June 2020, an amendment to the Russian Arbitrazh Procedure Code enables Russian commercial courts to claim exclusive jurisdiction over disputes involving entities subject to Russia-related sanctions. [59]  

Moreover, asset freezes, often an integral part of sanctions regimes, make seizing assets in satisfaction of an arbitration award a complicated affair.  For example, following a November 2021 Court of Justice of the European Union finding that a creditor of a sanctioned entity was precluded from seeking enforcement without prior authorization from the competent national authority, [60] in September 2022 the French Court of Cassation issued rulings in line with that decision. [61]   On the other hand, sanctions can help parties identify assets by flagging assets in sanctioning states, but a party’s ability to obtain those assets remains difficult when they are blocked.  Seizing sanctioned property will likely require extensive authorization processes and waiting in a queue of creditors. [62]      Sanctions are likely to affect arbitration proceedings well into 2023 by influencing substantive matters of disputes as well as by creating procedural hurdles to arbitral proceedings and the enforcement of awards.

[1] 28 U.S.C. § 1782.

[2] ZF Automotive US, Inc. v. Luxshare, Ltd. , 142 S.Ct. 2078, 2087 (2022).  See also Cleary Gottlieb Alert Memorandum, With Respect to Private Commercial and Treaty Arbitrations, Cleary Gottlieb (June 14, 2022), https://www.clearygottlieb.com/news-and-insights/publication-listing/us-supreme-court-denies-applicability-of-section-1782-discovery-statute-with-respect-to-private-commercial-and-treaty-arbitrations .

[3] That case, AlixPartners, LLP v. The Fund for Protection of Investors’ Rights in Foreign States , which involved an ad hoc tribunal under the UNCITRAL Rules convened pursuant to a Lithuania-Russia BIT, was consolidated with the ZF Automotive case (which involved a private commercial DIS arbitration tribunal).

[4] In re Alpene, Ltd. , No. 21 MC 2547 (MKB)(RML), 2022 WL 15497008, at *3-4 (E.D.N.Y. Oct. 27, 2022).

[5] In re Webuild S.P.A. , No. 22-mc-140 (LAK), 2022 WL 17807321, at *1 (S.D.N.Y. Dec. 19, 2022).

[6] Id. ; see also In re Alpene , 2022 WL 15497008, at *2 (noting “[t]he Supreme Court did not set out any test or provide any guidelines for lower courts to follow in making this determination”).

[7] In re Alpene, Ltd. , 2022 WL 15497008, at *3.

[9] In re Webuild , 2022 WL 17807321, at *1 (quotations omitted).

[11] Id. at *2.

[14] Caroline Simson, 2nd Circ. Will Consider Recently Narrowed Discovery Statute, Law 360 (Jan. 18, 2023), https://www.law360.com/internationalarbitration/articles/1566716?nl_pk=142f1175-39b7-4227-b2dc-20fa6c79f717&utm_source=newsletter&utm_medium=email&utm_campaign=internationalarbitration&utm_content=2023-01-19&nlsidx=0&nlaidx=1 .

[15] Ari D. MacKinnon et al ., ESG-Related Disputes in Latin America:  The Evolution of the Litigation and Arbitration Landscape , Latin Lawyer (Dec. 16, 2022), https://latinlawyer.com/guide/the-guide-environmental-social-and-corporate-governance/first-edition/article/esg-related-disputes-in-latin-america-the-evolution-of-the-litigation-and-arbitration-landscape .

[16] Alison Ross, Azerbaijan launches landmark biodiversity case against Armenia , GAR (Jan. 19, 2023), https://globalarbitrationreview.com/article/azerbaijan-launches-landmark-biodiversity-case-against-armenia .

[17] Toby Fisher, The Modernised Energy Charter Treaty: The New Text , Arbitration Blog (Oct. 15, 2022), http://arbitrationblog.kluwerarbitration.com/2022/10/15/the-modernised-energy-charter-treaty-the-new-text/ , .

[18] The ECT has been called “outdated,” Energy Charter Treaty exodus shows a global power shift , Climate Change News (Nov. 24, 2022), https://www.climatechangenews.com/2022/11/24/energy-charter-treaty-exodus-shows-a-global-power-shift/ , primarily because it “has not achieved a successful alignment with the Paris Agreement objectives and the European Green Deal.”  Energy Charter Treaty Withdrawal Announcements Reflect Reform Outcome is Insufficient for Climate Ambition, International Institute for Sustainable Development (Nov. 7, 2022), https://www.iisd.org/articles/statement/energy-charter-treaty-withdrawal-announcements ; Toby Fisher, EU parliament calls for ECT withdrawal , GAR (Nov. 24, 2022), https://globalarbitrationreview.com/article/eu-parliament-calls-ect-withdrawal .

[19] See generally RWE AG and RWE Eemshaven Holding II BV v. Kingdom of the Netherlands , ICSID Case No. ARB/21/4.

[20] See RWE AG and RWE Eemshaven Holding II BV v. Kingdom of the Netherlands , ICSID Case No. ARB/21/4.

[21] See, e.g. , Victoria McKenzie, Spain Says Energy Investor Award Violates EU Law, Law 360 (Feb. 25, 2022), https://www.law360.com/articles/1468384/spain-says-energy-investor-award-violates-eu-law .

[22] See Noëmie Leprince-Ringuet, Chile’s enhanced climate plan sets an example for other countries , World Resources Institute (July 7, 2020), https://www.wri.org/insights/chiles-enhanced-climate-plan-sets-example-other-countries ;Joseph Winters, Colombia’s new president wants to phase out fossil fuels , The Beacon (June 23, 2022), https://grist.org/beacon/colombias-new-president-wants-to-phase-out-fossil-fuels/ .

[23] See Elizabeth Meager, Renewables at risk from Mexico reforms but lawsuits planned , Capital Monitor (Apr. 20, 2022), https://capitalmonitor.ai/institution/government/mexico-energy-reforms-hit-renewables/ .

[24] See Latam Hydro LLC and CH Mamacocha SRL v. Peru , ICSID Case No. ARB/19/28.  Following a hearing in March 2022, a decision is likely in 2023.

[25] For example, in 2018, the Intermediate People’s Court of Shenzhen in China set aside an arbitration award rendered in a crypto dispute concerning Bitcoin because the redemption, trading, and circulation was found to be prohibited in China, and the award was thus against public interest.  Gao Zheyu v. Shenzhen Yunsilu Innovation Dev. Fund Enter. (L.P.) and Li Bin , Yue 03 Min Te No. 719 (Shenzhen Interm. People’s Ct. 2018). 

[26] For example, in 2022, the English High Court granted an interim freezing injunction to prevent defendants from disposing of the crypto assets that they had subtracted from the plaintiff by means of fraudulent misrepresentation. D’Aloia v. Person Unknown & Others [2022] EWHC (Ch) 1723 (Eng.).

[27] See Sean McCarthy and Sophie Nappert, The Impending Binance Arbitration: a Primer on the World of Cryptocurrencies, Derivatives Trading and Decentralised Finance on the Blockchain , Kluwer Arbitration Blog (Oct. 13, 2021), http://arbitrationblog.kluwerarbitration.com/2021/10/13/the-impending-binance-arbitration-a-primer-on-the-world-of-cryptocurrencies-derivatives-trading-and-decentralised-finance-on-the-blockchain/ .

[29] Petition for Writ of Certiorari, Coinbase, Inc. v. Bielski (No. 22-0105), 2022 WL 3107708 (U.S.).

[30] Bielski v. Coinbase, Inc. , No. C 21-07478 WHA, 2022 WL 1062049, at *8 (N.D. Cal. Apr. 8, 2022);

Suski v. Marden-Kane, Inc ., No. 21-CV-04539-SK, 2022 WL 103541, at *9 (N.D. Cal. Jan. 11, 2022), aff’d sub nom. Suski v. Coinbase, Inc ., 55 F.4th 1227 (9th Cir. 2022).

[31] Bielski v. Coinbase, Inc ., No. 22-15566, 2022 WL 3095991, at *1 (9th Cir. July 11, 2022); Suski v. Coinbase, Inc ., No. 22-15209, 2022 WL 3099846, at *1 (9th Cir. May 27, 2022).  While six Circuits – the Third, Fourth, Seventh, Tenth, Eleventh, and D.C. Circuits – have held that a non-frivolous appeal of the denial of a motion to compel arbitration divests the district court of jurisdiction, thereby automatically staying proceedings, three Circuits – the Second, Fifth, and Ninth Circuits – have held the opposite.

[32] Id. at *1-2.

[33] Part of the Regulation is expected to come into force in the first half of 2023, following the final approval of the EU Parliament and the EU Council, while the entry into force of other provisions will be pushed to 2024.

[34] See Proposal for a Regulation of the European Parliament and of the Council on Markets in Crypto-assets, and amending Directive, COM(2020) 593 final (Sept. 24, 2020).

[35] ADP International S.A. and Vinci Airports S.A.S. v. Republic of Chile, ICSID Case No. ARB/21/40.  

[36] Jack Ballantyne, Chile threatened over airport pandemic disruption, GAR (Jan. 20, 2021), https://globalarbitrationreview.com/chile-threatened-over-airport-pandemic-disruption .  

[37] Lisa Bohmer, US-Based Insurer puts Chile on Notice of a Treaty-Based Dispute, Investment Arbitration Reporter (May 14, 2021), https://www.iareporter.com/articles/us-based-insurer-puts-chile-on-notice-of-a-treaty-based-dispute/ .

[38] See Tom Jones, US insurer puts Chile on notice, GAR (May 18, 2021), https://globalarbitrationreview.com/article/us-insurer-puts-chile-notice ; Cosmo Sanderson, Second insurer threatens Chile over pension reforms, GAR (June 16, 2021), https://globalarbitrationreview.com/second-insurer-threatens-chile-over-pension-reforms ; Eduardo Thomson, Insurers Threaten to Sue Chile Over Law That Forces Them to Return Annuity Funds, Bloomberg (Oct. 14, 2021),

https://www.bloomberg.com/news/articles/2021-10-14/insurers-threaten-to-sue-chile-over-early-annuity-payments ; MetLife Joins Insurers Warning Chile Over Early Annuity Payments, Bloomberg Law (Oct. 21, 2021), https://news.bloomberglaw.com/insurance/metlife-joins-insurers-warning-chile-over-early-annuity-payments .  

[39] Article 23(1) of the ILC Draft Articles relates to “the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.”  See Int’l Law Comm’n, on the Work of Its Fifty-Third Session, U.N. Doc. A/56/10 (2001).

[40] For example, French courts have held that the pandemic does not make payment obligations impossible . See Cour de Cassation (Cass.), com., March 22, 2012, Bull. civ. IV, n°13-20.306.

[41] JN Contemporary Art LLC v. Phillips Auctioneers , LLC , 507 F. Supp. 3d 490, 491 (S.D.N.Y. 2020).

[44] Pursuant to Article 25 of the ILC Draft Articles, “necessity” cannot be invoked “unless the act is the only way for the State to safeguard an essential interest against a grave and imminent peril.”   See Int’l Law Comm’n, on the Work of Its Fifty-Third Session, U.N. Doc. A/56/10 (2001).

[45] See National Grid P.L.C. v. Argentine Republic , Ad Hoc Tribunal (UNCITRAL), Case No. 1:09-cv-00248-RBW, Arbitral Award, ¶ 245 (Nov. 3, 2008) (accepting the protection of social stability and the maintenance of essential services vital to the health and welfare of the population as an “essential interest”).

[46] Ronald Labonte, Pandemic Responses and the Threat of Investor-State Disputes , 2021 Prince Mahidol Awards Conference, Thailand, Nov. 4, 2020.

[47] See Cosmo Sanderson, US sanctions authority clears Korea to pay Iranian award, GAR (Jan. 12, 2022), https://globalarbitrationreview.com/us-sanctions-authority-clears-korea-pay-iranian-award ; Sebastian Perry, Venezuelan state entity dodges ICSID enforcement in Singapore, GAR (July 20, 2022), https://globalarbitrationreview.com/article/venezuelan-state-entity-dodges-icsid-enforcement-in-singapore .

[48] Cleary Gottlieb Alert Memorandum, Sanctions Developments Resulting From the Conflict in Ukraine (Oct. 13, 2022), https://www.clearygottlieb.com/news-and-insights/publication-listing/sanctions-developments-resulting-from-the-geopolitical-conflict-in-ukraine ;  Cleary GottliebAlert Memorandum, Russia and Beyond: Sanctions Developments and Lessons for Boards from 2022 (Jan. 17, 2023), https://www.clearygottlieb.com/news-and-insights/publication-listing/russia-and-beyond-sanctions-developments-and-lessons-for-boards-from-2022 .

[49] Ruskhimalliance v. Linde GmbH , Case No. A56-129797/2022, Arbitration Court of St. Petersburg and the Leningrad Region (Dec. 30, 2022), https://media.licdn.com/dms/document/C4E1FAQEDUJyZvnlnPw/feedshare-document-pdf-analyzed/0/1672925900564?e=1674691200&v=beta&t=91gJh20Pxzo2sn_mF-cC2woseGKT20pOgNzvps1PNT0 ; Susannah Moody, Russian Court Freezes German Assets Ahead of Billion-Euro Gas Arbitration, GAR (Jan. 4, 2023), https://globalarbitrationreview.com/article/russian-court-freezes-assets-ahead-of-billion-euro-gas-arbitration .  On December 30, 2022, a Russian court froze nearly US $500 million of Linde’s assets after RusChemAlliance argued that EU sanctions would make recovery of a subsequent arbitral award “virtually impossible.”  Id.

[50] See, e.g. , Naftogaz and others v. The Russian Federation , PCA Case No. 2017-16.

[51] Jack Ballantyne, Will Exxon bring a claim against Russia?, GAR (Nov. 2, 2022), https://globalarbitrationreview.com/article/will-exxon-bring-claim-against-russia .

[52] Nord Stream 2 AG (Switzerland) v. The European Union , PCA Case No. 2020-07 at 2.

[53] Katie McDougall and James Rogers, Impact of International Arbitration Report at 18 (Norton Rose Fulbright, issue 18, 2022). 

[54] See LCIA Rules, Art. 24A.10.

[55] OFSI, LCIA Arbitration Costs, INT/2022/1552576 (Oct. 17, 2022).  On July 21, 2022, the Council of the European Union issued a decision exempting arbitral institutions “from the prohibition to enter into any transactions with Russian public entities necessary to ensure access to . . . arbitral proceedings.”  Council of the EU No. 2022/1271 of 21 July 2022, 2022 O.J. (L 193) 200.  However, legal and practical difficulties in arbitrating with parties subject to Russian sanctions remain.  See, e.g. , Mercédeh Azeredo da Silveira and Stephan den Hartog, The EU’s Clarification on Access to Arbitration in its Seventh Package of Sanctions Against Russia: Trivial or Consequential? Kluwer Arbitration Blog(Aug. 16, 2022), https://arbitrationblog.kluwerarbitration.com/2022/08/16/the-eus-clarification-on-access-to-arbitration-in-its-seventh-package-of-sanctions-against-russia-trivial-or-consequential/ .

[56] New York Convention, Art. V(2)(b).

[57] See Tom Cummins et al ., Economic Sanctions: Implications for International Arbitration ,GAR (Apr. 19, 2017), https://globalarbitrationreview.com/review/the-middle-eastern-and-african-arbitration-review/2017/article/economic-sanctions-implications-international-arbitration .

[58] See supra note McDougall & Rogers at 18.

[59] Id .; Cleary Gottlieb Alert Memorandum, Sanctions Developments Resulting From the Conflict in Ukraine – Russia (Aug. 22, 2022), https://www.clearygottlieb.com/news-and-insights/publication-listing/sanctions-developments-resulting-from-the-geopolitical-conflict-in-ukraine---russia .

[60] Bank Sepah v. Overseas Financial Limited & Oaktree Finance Limited , Court of Justice of the European Union, Case No. C-340/20 (Nov. 11, 2021).

[61] Cour de cassation (Cass.), 1e civ., September 7, 2022, Bull civ. I, No. 19-21.964; Cour de cassation (Cass.), 1e civ., September 7, 2022, Bull civ. I, No. 19-25.108.

[62] See, e.g. , Caroline Simson, PDVSA Creditor Owed $166M Sets Sights On Citgo, Law 360 (Nov. 1, 2022), https://www.law360.com/articles/1545532/pdvsa-creditor-owed-166m-sets-sights-on-citgo .

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Arbitration in India: the Process and the Problems with a Special Focus on International Commercial Arbitration

132 Pages Posted: 1 Dec 2020

Vatsala Chauhan

Independent

Date Written: July 1, 2020

Arbitration as a form of Alternate Dispute Resolution has gained traction over the past few years in India. More specifically, as India has removed trade barriers and opened up trade, International Commercial Arbitration has gained specific importance. This Dissertation analyses the process of both, Arbitration and International Commercial Arbitration in India, and makes a humble attempt at analysing the problems being faced by the parties, as well as how to resolve them.

Keywords: Arbitration, International Commercial Arbitration, India

JEL Classification: K19, K39, K40

Suggested Citation: Suggested Citation

Vatsala Chauhan (Contact Author)

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Hot topics in international arbitration - Arbitration Committee article, March 2020

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Jake Lowther KCAB International, Seoul [email protected]

Report on Arbitration Committee session at the 2019 IBA Annual Conference in Seoul

Thursday 26 September 2019

Session chair

Angeline Welsh  Matrix Chambers, London

Lillian Chu  Tsar & Tsai Law Firm, Taipei

Nicholas Lingard  Freshfields Bruckhaus Deringer, Singapore

Nania Owusu-Ankomah Sackey  Bentsi-Enchill Letsa & Ankomah, Accra

Dietmar Prager  Debevoise & Plimpton LLP, New York

Angeline Welsh began the session by guiding delegates onto a four-stop sightseeing tour of the hot topics in international arbitration. Much like the demilitarisedzone tour many delegates experienced while in Korea, the ‘whistle-stop’ tour had strict time allotments. Leading into the morning’s first hot topic, Welsh mentioned the British Airways £183m fine for failing to protect customer data from a cyber-attack, as well as the devastating global cyber-attack that crippled computers in hospitals across the UK and cost the NHS £92 million.

Cybersecurity in international arbitration: progression and challenges

Lillian Chu began by sharing some frightening examples of cyber intrusion. In 2015, the Permanent Court of Arbitration’s (PCA) website went offline following attacks connected to the maritime boundary dispute between China and the Philippines. In the case of Libananco Holdings v. Turkey , the respondent procured more than 2,000 privileged and or confidential e-mails exchanged between the claimant and its counsel through court-ordered surveillance. In Singapore’s worst cyber-attack, hackers infiltrated healthcare institution SingHealth and stole personal particulars of 1.5 million patients, including the prescriptions of the Prime Minister. In a three-month long cyberattack on Cathay Pacific Airways, the data of 9.4 million passengers was stolen by hackers.

Given this, Chu asked the audience to reflect on how well they were able to recognise the risk. She asked whether any audience members sent submissions or documents to an arbitrator at a free web-based email account such as Gmail or Hotmail. She then asked whether the audience was aware that, according to the American Bar Association's 2018 Legal Technology Survey Report, 30 per cent of firms with more than 100 members reported experience of a cybersecurity breach. Chu then pointed to the European Union’s much-discussed General Data Protection Regulation (GDPR), under which financial penalties for data breaches may be up to the greater of €20m or 4 per cent of global annual turnover.

Chu stated that, while one of arbitration’s most marketable advantages is confidentiality, there is an increasing risk that its reputation could be eroded. Confidential or commercially sensitive information is being sent across borders and stored by multiple players in different jurisdictions. She also referred to the poor IT literacy of practitioners and arbitrators, which poses several challenges.

Cyberattacks are difficult to predict or anticipate and any data breach may affect all parties to an arbitration. Cyber risk management is an ongoing process, but the participants have difficulties in identifying and assessing the risks as they lack sufficient capacity to determine reasonable preventative and responsive measures. There are also technology competence gaps among the arbitration participants dealing with sensitive information and using IT devices.

However, the arbitration community has sought to address cybersecurity issues by drafting protocols and guides, including:

• the draft ICCA-CPR-NYC Bar Association Protocol for Cybersecurity in Arbitration ( Protocol );

• the IBA Cybersecurity Guidelines ( IBA Guidelines );

• the ICC Commission Report on the Use of Information Technology in International Arbitration ( ICC Report ); and

• the ICC Cyber Security Guide for Business ( ICC Guide ).

The Protocol promotes awareness of cybersecurity issues in arbitration and provides a procedural framework that participants can consult in order to determine which reasonable cybersecurity measures should be employed. The Protocol will only apply if adopted by the parties or determined by the tribunal.

The IBA Guidelines were produced to recommend best practices to small and medium-sized firms to help protect themselves from breaches of data security and assist them to continue to operate if a breach of data security or ransom attack does occur.

The ICC Report provides an analytical framework to assist participants in evaluating whether a particular form of IT should be used and how to use it in a cost effective, fair and efficient manner.

The ICC Guide aims to help companies of all sizes manage their approach to cybersecurity and mitigate threats posed by cybercrime.

Chu asked whether we have consensus on the management of cybersecurity risks in arbitration. Things to consider here include: 

• the roles of the various participants, including third parties, and who should take the lead;

• how parties should deal with the increased time and costs;

• whether arbitrators can or should order cybersecurity measures, impose sanctions and how these could be implemented;

• what should constitute ‘reasonable’ cybersecurity measures; and

• what level of IT capability should be required of an arbitrator and whether this will affect future appointments.

Chu then discussed how to work out individual risk profiles and stated that there can be no single fit approach. Arbitrators can be reluctant to take an active role on cybersecurity issues and there is no reasonable standard. Arbitrators can determine issues on the merits but have less capacity as individuals with limited resources to safeguard against cyberattacks. Chu stated that institutions and the ICC in particular should play a greater role in devising reasonable cybersecurity measures to help protect arbitrators.

Jennifer Permesly was asked about the IBA’s new guide  to Technology Resources for Arbitration Practitioners, which provides a list of things that arbitrators can do to ensure that the arbitration runs securely. Julie Bedard made the point that arbitration is the area of law with the second-highest number of cyberattacks after finance. She also made the point that GDPR regulators will likely be looking to make an example of a large law firm affected by a cyberattack and that any sanctions for stolen personal data could be very impactful.

Liability of arbitrators: A precarious balancing act?

Nania Owusu-Ankomah Sackey considered the extent to which arbitrators are liable and whether that liability is civil or criminal. She summarised how arbitration remains a viable method of dispute resolution for the parties who choose to arbitrate their disputes and the arbitrators who hear the disputes and issue the awards. A clearer liability regime helps to integrate the two stakeholders’ competing interests. A precarious balancing act is needed to allow both parties to feel safe in their choice to arbitrate and the arbitrators to work without fear of the consequences.

Sackey’s speech was divided into three sections:

• the what: what is the current state of civil and criminal liability across jurisdictions;

• the why: why is arbitrator liability a hot topic; and

• the how: how can we strike a desirable balance between protecting arbitrators and preserving the confidence of the parties?

Sackey pointed out that there are different standards globally in respect to the civil and criminal liability of arbitrators. She first considered civil liability and the standards in England & Wales and Ghana. There, arbitrator immunity applies unless there is ‘bad faith’. [1] She then pointed to terms found elsewhere, such as ‘gross negligence’, ‘intentional misconduct’, ‘unjustifiable resignation’ and ‘deliberate excess of power’.

Other jurisdictional differences include in Greece, where parties can claim for the damage incurred as a result of misconduct, or in Austria, where the award must have been set aside due to the arbitrator’s misconduct. Rule 38.1 of the Singapore International Arbitration Centre (SIAC) Rules 2016 excludes the arbitrator’s liability for any negligence, act or omission in connection with any arbitration administered by the SIAC in accordance with those rules. In contrast, Article 31 of the London Court of International Arbitration (LCIA) Arbitration Rules 2014 limits liability to where the arbitrator’s act or omission constituted ‘conscious and deliberate wrongdoing’.

Moving on to criminal liability, Sackey referred to the criminal law of Argentina, Germany and Spain, [2] where arbitrator immunity applies unless there is fraud or corruption. A similar provision applied in Swiss and Norwegian criminal law, but these were repealed in 2000 and 2003 respectively. In China, where an arbitrator ‘intentionally runs counter to facts and laws and twists the law when making a ruling in arbitration’ and ‘the circumstances are serious’, they could be imprisoned up to three years’ prison and up to seven years’ prison ‘if the circumstances are especially serious’. [3] The question then of course is what amounts to ‘twisting’? Such vague terms might prompt an arbitrator to reconsider accepting an appointment.

Sackey then considered the safeguards available to parties. In respect to the award, it can be set aside. In respect to the arbitrator, they can be removed, suffer reputational damage and even be subject to criminal sanctions such as imprisonment. In respect to fees, these can be forfeited or reduced, depending on the extent of the liability. Ultimately, she concludes that there is a high standard before an arbitrator will lose their immunity, leaving scant remedy for a party that has wasted its time with an arbitrator who has behaved with misconduct.

Turning to ‘the why’, Sackey referred to four recent developments of concern. First, the Egyptian Chevron case in which an Egyptian criminal court sentenced three arbitrators to three years’ imprisonment in connection with the issuance of a $18bn ‘sham’ award against the US oil company. The court ruled that the arbitrators had a criminal purpose, namely to misappropriate the victims’ funds. The sentence of misappropriation by fraudulent means and forgery against arbitrators and others, including the executive director of the Cairo-based International Arbitration Centre, was recently upheld by an Egyptian appeals court. Meanwhile, a judge in California recently denied enforcement of the relevant award due to a lack of agreement to arbitrate and the lack of jurisdiction of the court. Is it unfair that Chevron be permitted to recover its costs?

Second, a court in Doha, Qatar sentenced three arbitrators to three years’ imprisonment in October 2018 in connection with their role on a tribunal that issued an award against a relative of the Qatari royal family. [4] To the shock of the arbitration community, the arbitrators were convicted for transferring the dispute from the Qatar International Centre for Conciliation and Arbitration to ad hoc proceedings seated in Tunisia. Allowing a party to pursue criminal sanctions can therefore be a volatile balancing act.

Third, following the award in the Puma v Estudio 2000 arbitration, the Spanish Supreme Court declared two of the arbitrators professionally liable for excluding their colleague from the deliberation procedure. The two arbitrators met without notifying the third, amended the award, signed it and notified the parties that same day. The court ordered them to reimburse part of their fees, plus interest. The decision was considered to constitute an international landmark in relation to the deliberation process. Accordingly, it may be possible to recover fees in the case of misconduct by an arbitrator.

Fourth, in October 2016. the United Arab Emirates legislature amended [5] Article 257 of the UAE Penal Code. In doing so, it criminalised an arbitrator’s failure to act objectively. This led to a reluctance among arbitrators to accept appointments in the UAE. However, this amendment was repealed in September 2018. [6] This demonstrates how changes to this balance of liability can have unintended consequences.

Finally, Ankomah Sackey turned to ‘the how’. When the parties are better protected, there is an increased likelihood of abuse. She summarised the consequences of lowering the standard of liability in favor of the parties. It can lead to the removal of finality, an increase in vexatious claims and of course increased time and expense. It can also deter and intimidate good arbitrators from accepting appointments. In her view, there is currently a proper balance between the two interests. It is not perfect and not all cases are covered. Nevertheless, parties must also be seen to accept the risks of arbitration and there are ways for parties to hedge.

One questioner asked about the finality of an award in the event that new facts emerge. In Ghana, an award can only be set aside on certain grounds and not on the basis of new facts. However, in respect to fraud or corruption, this could be possible. A party is not precluded from raising this objection.

Unsurprisingly, the threat of criminal sanctions for arbitrators drew the majority of questions from the audience. The first question asked how arbitrators should protect themselves. Sackey responded by saying that she was not quite sure, but that it is an issue that the profession should not simply sit on. Harry Lui commented that in respect to Chinese law, Article 399A imports a factor of intention, not a mere misunderstanding. Further, the provision is triggered by corruption or some special relationship giving rise to a lack of independence and impartiality, so there would be no reason to worry.

The relationship between Hong Kong and China, and whether an arbitrator sitting in Hong Kong might be subject to the criminal sanction, was also discussed. Winnie Lim confirmed that under the ‘one country, two systems’ rule, the Chinese rule would not apply. In Hong Kong, an arbitrator would not be held liable, with the exception of cases of corruption.

Welsh made the point that arbitrators resisting a court-ordered injunction to pause proceedings could face criminal liability. This could then lead to issues surrounding extradition proceedings. While this is serious, this is a rare problem.

An update on the UNCITRAL Working Group on improving the efficiency and quality of arbitration proceedings

Dietmar Prager provided an update on the discussions of the United Nations Commission on International Trade Law(UNCITRAL) Working Group II (WGII). In July 2018, UNCITRAL agreed that WGII should develop a text on expedited arbitration. A WGII session to begin the discussion took place in New York in February 2019, and in July 2019 the Secretariat issued a note on draft provisions on expedited arbitration. WGII held its seventieth session in September 2019 in Vienna to discuss those draft provisions.

Prager shared some statistics, including that one-third of ICC cases in 2018 had an amount in dispute of less than $2m and that the amount in dispute in 50% of Korean Commercial Arbitration Board (KCAB) cases was under ?500m (approximately $420,000). In such cases, the institutions’ respective expedited proceedings rules will automatically apply. He then began to consider the issues that can arise in respect to expedited arbitration, particularly in circumstances where the rules apply by default if certain trigger criteria are met.

The first issue he considered was the parties’ consent to expedited arbitration. Prager noted two broad schools of thought on consent to expedited proceedings. First, some institutional rules apply the expedited procedure rules only after the express consent of the parties. This approach accords greater respect to party autonomy and consent – the cornerstones of arbitration.

Prager noted a trend towards a standalone text to express consent. For example, the Stockholm Chamber of Commerce (SCC)’s separate expedited arbitration rules (2017) only apply on the express agreement of the parties. There are also some outlying institutions such as the LCIA, which only provides for the expedited formation of the tribunal on the application of a party in cases of exceptional urgency.

However, under the more common approach, other institutions deem the parties’ choice to arbitrate under their rules as presumed consent to the expedited arbitration procedure contained in those rules. In such cases, trigger criteria such as the ICC and KCAB’s financial threshold might apply. Prager questioned whether it might be prudent to raise this threshold.

Elsewhere, the expedited arbitration procedure will apply automatically on the application of a party to the institution if the amount of the dispute falls under the financial threshold, among others. At the Hong Kong International Arbitration Centre ( HKIAC), that threshold is HK$25m (approximately $3.2m), with 47 expedited proceedings from 69 applications taking place since 2014. At SIAC, that threshold is SG$6m (approximately $4.3m), with 291 expedited proceedings from 499 applications since 2010.

As UNCITRAL is not an arbitral institution, there are different considerations for the WGII drafters. Prager noted a hesitancy on financial thresholds and a preference to leave the choice to expedited arbitration to the parties.

Another issue arises in respect to the number of arbitrators. In cases where the expedited arbitration rules apply by default, the arbitral tribunal will typically consist of a sole arbitrator. Prager asked whether this should override the parties’ express choice of three arbitrators? In respect to the constitution of the arbitral tribunal, the SIAC and ICC rules expressly provide that they override the arbitration agreement. However, other institutions such as HKIAC and KCAB emphasise party autonomy and will invite or encourage the parties to agree to refer the case to a sole arbitrator.

Prager briefly touched on several more key issues of expedited arbitration currently being considered by WGII. These included whether:

• flexibility should be preserved or there should be fixed time frames;

• there should be provision for early dismissal and preliminary determination or whether these risk additional delays;

• there should be page limits;

• there should be no hearing, such as may be permitted in Sweden, and whether hearings delay or expedite the arbitration;

• there should be rules for streamlining evidence;

• document production should be limited or left to the tribunal’s discretion; and

• there should be a summary award and at what point an award is sufficiently reasoned.

Prager then asked: ‘will UNCITRAL be successful?’ During the questions, reference was made to ICC statistics from Ana Serra e Moura which record 41 cases of expedited arbitration and nine court decisions on whether the expedited rules apply. This suggests that expedited arbitration needs support. However, there are due process considerations, particularly when considered in light of the grounds for setting aside under the New York Convention.

The point was also made that expedited arbitration is very much an institution-driven mechanism and the institution plays the key role. This will be a hurdle for UNCITRAL. Given the designating authority provisions in the UNCITRAL Arbitration Rules 2010, it may need to adopt the express consent model. However, it takes time to appoint an authority and the discussion in Vienna has considered how to avoid two-step processes.

The Report  on WGII’s 70th session is now available. The seventy-first session took place between 3–7 February 2020 in New York, while the next session is scheduled for 21–25 September 2020 in Vienna. Many practitioners will undoubtedly be following the next developments with interest.

Who makes international investment law?

Nicholas Lingard shifted the session’s focus to the public international law space and to the question of who makes international investment law. Lingard suggests that local courts make international investment law, at least in part. He then asked the audience whether local courts will engage more with treaties and international investment law.

Mr. Lingard proceeded to outline the traditional tension between domestic courts and investment arbitration and referred to two prominent commentators. In Schreuer’s view, ‘one of the main purposes of investment arbitration is to avoid the use of domestic courts.’ [7] But as Roberts states, ‘both have a basis in the sources doctrine and each one has different strengths and weaknesses.’ [8]

Mr. Lingard noted that times have changed. He quoted Lord Bingham of the UK House of Lords, who observed that national courts are routinely ‘called upon to consider and resolve issues turning on the correct understanding and application of international law’. This development would have been ‘almost unimaginable’ 30 years ago. Yet the lack of judicial review in investment arbitration discourages parties from agreeing to arbitrate their disputes arising from international investment, particularly as ‘anecdotal evidence abounds where an arbitrator has made an award contrary to the facts or the law’. [9]

Mr. Lingard referred to a ‘paradigm shift’ in international investment law, which may be merely the beginning. As evidence of this paradigm shift, Mr. Lingard referred to cases in Singapore and in England as well as to potential reform.

In respect to Singapore, Mr. Lingard cited two cases, Sanum Investments v Laos ( Sanum Investments ) and Swissborough Diamond Mines v Lesotho ( Swissborough ), both comprised of five judges, which demonstrate Singapore’s robust approach and sensitivity to issues of international law. In each case, two international law experts were appointed as amici curiae and each of the judgments contained a detailed analysis of the treaty provisions and awards.

In Sanum Investments , the Singapore High Court found that the China-Laos bilateral investment treaty (BIT), which was signed in 1993, also applies to Macau (over which China resumed sovereignty in 1999). It also found that the words ‘dispute involving the amount of compensation for expropriation’ contained in Article 8(3) of the BIT should be interpreted broadly such that any dispute over the amount of compensation for expropriation may be submitted to arbitration. Sanum Investments also restored the Singapore-seated arbitral tribunal’s decision to accept jurisdiction over the investor’s expropriation claims. Commentators consider it an influential decision of global significance.

In Swissborough , the Singapore Court of Appeal found that a Permanent Court of Arbitration (PCA) tribunal did not have jurisdiction because there were no qualifying investments under the Southern African Development Community (SADC) Protocol on Finance and Investment that could be submitted to arbitration. The court also set aside the investment arbitration award against Lesotho, which had held the state liable for facilitating the shutting down (or ‘shuttering’) of the SADC tribunal without providing an alternative forum. Lingard cited Sundaresh Menon CJ, whose judgment began with the following: ‘international investment law is a hybrid legal construct uniquely placed at the crossroads of domestic and international law and of private and public law’.

Lingard then turned to England, which adopts a somewhat different approach. He referred to section 67 of the Arbitration Act 1996 (England & Wales) (AA) which permits a substantive review of an arbitral award. The UK High Court case of GPF GP v Poland , was a ‘re-hearing’, or de novo hearing, of a 2014 SCC case. Although no amici curiae were called, Bryan J’s judgment defers to international law similarly to the Singapore cases: ‘it is for me to interpret the arbitration agreement in the BIT in accordance with international law, and the principles of interpretation contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (1969).’ [10]

According to Bryan J, the Arbitral Tribunal was wrong in its interpretation of Article 9.1(b) of the BLEU-Poland BIT, and it ‘failed to give meaning and effect’ to all the words of the clause.

Lingard also introduced section 69 of the AA. Section 69 permits a party to arbitral proceedings to appeal to the court on a question of law arising out of an award made in the proceedings, unless the parties to the proceedings have agreed otherwise.

Turning to reform, Lingard referred to the public consultation in Singapore on proposed amendments to its International Arbitration Act to allow appeals to the High Court on questions of law, similar to section 69 of the AA. However, the Singapore proposal is for the provision to be available on either a contract-in or opt-in basis. Lingard also considered the Singapore Academy of Law’s (SAL) draft report on the right of appeal against international arbitration awards on questions of law and to define questions of law as including international law.

According to SAL, while Singapore was initially reluctant to stray from international norms, it is now unafraid to make ‘pioneering’ changes to accommodate the requirements of arbitration users. Given that complex international arbitrations do raise questions of international law, the Singapore court should be empowered to consider such questions.

Lingard then asked the audience to imagine that states might soon be drafting international investment agreements with a seat in Singapore to take advantage of this opt-in appeal mechanism to the Singapore court. This could then lead to a considerable wave of cases on investment treaty interpretation, cementing the role of domestic courts in the making of international investment law.

Following Lingard’s presentation, a questioner asked about resolving the difficulty when a dispute gives rise to conflicting decisions from both the court and the arbitral tribunal. If the decisions are then cited in a future dispute, should the adjudicator follow the approach of the court or the arbitral tribunal? In response, Lingard acknowledged that there was no clear answer but pointed out that neither investment arbitration awards nor decisions of the International Court of Justice (ICJ) create binding precedent.

[1] S 29 Arbitration Act 1996 (England & Wales); s 23 Alternative Dispute Resolution Act 2010 (Ghana).

[2] Art. 269 Penal Code (Argentina); Art. 331, 332 Penal Code (Germany); Art. 419-412, Criminal Code (Spain).

[3] Art. 399A Criminal Law of the People’s Republic of China (China).

[4] Case no 1650/2018, Court of First Instance, Criminal Court, Third Trial Chamber, Doha.

[5] By Federal Decree No.7 of 2016.

[6] By Federal Decree No. 24 of 2018

[7] C. Schreuer, ‘Interaction of International Tribunals And Domestic Courts in Investment Law

in Contemporary Issues’ in International Arbitration and Mediation: The Fordham Papers (2010), pp 71-94, p71.

[8] A. Roberts, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International’ in Law International & Comparative Law Quarterly , Vol. 60, No. 57, 2011, pp 57-92, p 60.

[9] Crowell v. Downey Community Hospital Foundation (2002) 95 Cal. App. 4th 732, at 74-2 per Nott J.

[10] GPF GP v. Poland [2018] EWHC 409 (Comm), at [9].

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Kluwer Arbitration Blog

10 hot topics for international arbitration in 2017.

2016 was an important year for international arbitration. Lord Chief Justice of England and Wales challenged the legitimacy of international arbitration , while supporters such as former Chief Justice of the High Court of Australia (Robert French AC) came forward to defend its coexistence with commercial courts . Several institutions such as ACICA , SIAC and KCAB updated their arbitration rules for 2016, while SCC and ICAC introduced new rules for 2017. SIAC also released its draft Investment Arbitration (IA) Rules , followed by a public consultation process and finally enactment of its new rules . Several institutions published detailed practice notes and statistics: HKIAC , SIAC , LCIA , SCC and the ICC updated its note on the conduct of arbitration. The year concluded with Hong Kong and Singapore reforming their respective laws in order to allow for third party funding arrangements – arguably one of the most important developments in 2016.

This article discusses 10 key areas which will continue to play a significant role in further developing international arbitration beyond 2020.

1. Transparency

In response to the 2015 Queen Mary International Arbitration Survey , several institutions were seen as leading the international arbitration arena by publishing detailed practice notes and statistics in 2016. It is highly likely that this will continue in 2017, as the purpose of these practice notes is to clarify certain provisions and respond to market changes – such as recent developments regarding third party funding in Singapore and Hong Kong. Both jurisdictions will need to supplement their existing rules with practice notes shortly. However, it is worth noting that several provisions in the 2017 SIAC IA Rules already address these developments. They are discussed in a previous article . 2. Arbitrator Selection Process

Although largely ignored over the years, this area will likely be explored in 2017, though developments are unlikely to surface until at least 2018. Institutions are hesitant to disclose, let alone discuss, the selection process as it leads to significant debate among arbitrators, law firms, and academics. What cannot be denied is that it is inherently difficult to assess whether parties are in a better position to appoint arbitrators, or whether the task should be left to the arbitral institution – as the answer will depend on the experience of the parties.

Developments in this area could vary from the release of practice notes with basic guidelines, to publishing an arbitrator selection framework – where institutions would implement their own guidelines in order to clarify the various factors that must (or should) be considered before an arbitrator is appointed. The other, more difficult, option is to wait for a multilateral framework. Though only soft law, it would be comparable to the IBA guidelines on conflicts of interest in international arbitration – which emphasise best practice.

3. Investment Arbitration Rules

On 1 January 2017 SIAC released the first edition of its IA Rules. This modern set of investment arbitration rules are quite different to the ICSID Rules , as they are a hybrid of commercial and investment arbitration rules. It will be interesting to observe whether a significant number of parties will now settle disputes with SIAC, as opposed to ICSID. In 2017, global arbitration conferences will undoubtedly discuss and evaluate these developments. Beyond 2017, some institutions may follow suit, though most will be proud to highlight that they will remain commercial dispute resolution centres.

4. Third Party Funding

Both Singapore and Hong Kong have reformed laws which previously prohibited third party funding arrangements. On 10 January 2017, the Singapore Parliament passed a bill allowing for third party funding for arbitrations in Singapore. On 11 January 2017, Hong Kong similarly introduced a bill to its Legislative Council (LegCo) with Mr Rimsky Yuen SC moving the second reading of the bill. Developments in both jurisdictions indicate that their respective governments are strong supporters of international arbitration. Litigation funders in both jurisdictions have been gearing up for work over the last year, and this area will continue to be discussed heavily at global arbitration conferences in 2017.

5. Rise in Financial Institution Arbitration

The ICC Commission on Arbitration and ADR published a comprehensive report in November 2016 titled ‘ Financial Institutions and International Arbitration ’. The Report concluded that many institutions have, in large part, failed to fully embrace international arbitration as a viable dispute resolution method. The report has been discussed in a previous article . The HKIAC was quick to invite the co-chair of the ICC task force on Financial Institutions and International Arbitration to present at an event in December 2016 . These developments will lead to institutions targeting a broader set of clients from 2017 onwards. Once financial institutions recognise the commercial benefits associated with international arbitration, they will undoubtedly provide global arbitral institutions with lucrative dispute resolution work.

6. Potential Appeal Mechanism (by consent)

One of the benefits of arbitration over litigation is that it does not allow for appeals. Arbitration has always encouraged finality, to ensure that parties can resolve their disputes swiftly and with certainty. Critics, who tend to discourage resolving disputes via arbitration, may argue that justice cannot truly be achieved without an appeal process. In response to question 14 of the questionnaire that the ICC’s distributed before it published its ‘ Financial Institutions and International Arbitration ’ report, some institutions expressed an interest in an appeal process subject to two broad conditions: that the consent of all parties is obtained at an early stage, and that certainty is not undermined. While the first of these is achievable, it will be difficult (if not impossible) to achieve certainty if an appeal process is introduced.

7. Sanitising Arbitral Awards

Another perceived advantage of resolving disputes via arbitration is confidentiality, which inevitably comes at the expense of precedent. Precedent not only ensures consistent decisions, but also promotes certainty. The ICC report also found that several financial institutions viewed confidentiality as being less important than precedent, particularly where disputes related to syndicated lending and derivatives. The report also reminds readers that although an arbitration is private, it is not expressly confidential according to the ICC Rules. The UNCITRAL rules are also silent as to confidentiality, but publication is addressed in Art 34.5. Other institutions have strict provisions that deal with confidentiality and publication: Article 42 in the 2013 HKIAC Rules, Article 22 in the 2016 ACICA Rules, and Rule 24.4 of the 2016 SIAC Rules. Interestingly, SIAC has taken an extra step to confirm that the tribunal may issue an order or award for sanctions or costs if a party breaches their confidentiality obligations in Rule 39.4. Also worth noting is that the 2017 SIAC IA Rules have provided greater clarity with respect to publishing of awards in Rule 38. Confidentiality, and more specifically publication, provisions are likely to be reformed in all new international arbitration rules from 2017 onwards. More sanitised awards will also be published by institutions.

8. A Shift to the East

It is no secret that Hong Kong and Singapore have become some of the most frequently used jurisdictions for international arbitration within the last 5 years. This is due to a multitude of reasons, some of which include: both jurisdictions being competent in administering a high volume of cases as well as high-value disputes, strong panels of arbitrators, state-of-the-art facilities, geographic convenience, modern arbitral rules, and most importantly a supportive judiciary and government. In 2016, both experienced sharp growth, and this is likely to continue beyond 2017. 9. Diversity in International Arbitration

Another area which has received little attention is diversity, particularly among arbitrators and with respect to both gender and ethnicity. They key question that needs to be asked is: why is diversity still an issue when there has been a significant increase in the use of international arbitration globally? Other discussions need to focus on the impact this may have on the tribunal’s orders and awards, solutions such as quotas, as well as how current obstacles can be overcome. Arbitral Women is an organisation that was set up to address this gender imbalance, and has almost 1000 members in over 40 countries. The non-profit Arbitrator Intelligence also claims that it will ‘facilitate increased diversity in arbitrator appointments’. For greater discussion on this topic, refer to another post which discusses a recent survey on diversity which was published in January 2017.

10. Appropriate use of: Emergency Arbitration, Summary Dismissal, Expedited Procedure, Joinder and Consolidation

Most institutions are reforming their old rules in order to include these innovative procedures. As each serves a unique purpose, they are not automatically relevant to every dispute. In 2017, global arbitration conferences will likely discuss the most recent provisions such as SIAC’s Early Dismissal of Claims and Defences (Rule 29) and SCC’s Summary Procedure (Article 39). Joinder, consolidation and emergency arbitration have already received a fair amount of attention since around 2013.

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