UK: International Arbitration 2019: What To Look Out For!?

Last Updated: 8 January 2019
Article by Peter Hirst

As 2019 begins we can't resist the temptation to consider what the year might bring for our international arbitration practice. Here are some of the events, trends and developments we see shaping international arbitration over the next 12 months:

1. Brexit

Let's start with the obvious. Despite various attempts to halt its progress it now appears that Brexit will be upon us in the next couple of months. As we have discussed in various articles on our website, we see Brexit as having a neutral or even net positive impact on international arbitration in London. In particular, as parties face concerns of bureaucracy and delay in navigating judicial enforcement process they may turn instead to the efficiency and predictability of enforcement under the New York Convention.

2. Anti-globalisation

Broadening our horizons beyond our borders (as international arbitration practitioners have always done) the political trend against globalisation toward more nationalistic policies leads to potential disputes particularly between investors and the states in which they have invested. Of course, last year there were significant developments on the investor-state front too with BITs and other FTAs moving away from traditional investor-state dispute resolution mechanisms such as ICSID arbitration. The EU's proposed Multilateral Investment Court establishing as a permanent body to settle investment disputes has (admittedly somewhat predictably) drawn significant criticism from those engaged in investment dispute work yet seems to be gaining favour with those agreeing investment treaties. The progress and success of any such court and other initiatives ought to be monitored during 2019.

3. Achmea

Discussion of developments in Europe leads to a 'watching-brief' following the judgment in Achmea in which the CJEU held, essentially, that all intra-EU BIT arbitrations are incompatible with EU law. In practice, the impact of the Achmea judgment is chiefly limited to the courts in the EU. On that level, there have already been numerous court decisions contemplating the impact of the Achmea decision. For example, the German court recently showing obedience to that decision in setting aside an award made in favour of a Dutch insurer based on an intra-EU investment treaty. In contrast, arbitral tribunals operating under intra-EU BITs have uniformly concluded that as a matter of international law, no tension between EU BITs and EU Law exists.

Therefore, in practice, unless the CJEU changes its position (which seems unlikely) enforcement in the EU of arbitration awards arising from investment treaty arbitrations under intra-EU BITs looks challenging. In such circumstances, successful claimants that face an EU country unwilling to honour an award would need to seek enforcement outside the EU.

The impact of Achmea is also of interest to disputes under the Energy Charter Treaty (ECT) to which the EU is a party. As the EU is a party, it is arguable that Achmea has no impact as the EU has agreed to arbitration over court-proceedings. While arbitral tribunals consistently reject the application of Achmea to ECT disputes, the enforcement of those awards within the EU will prove difficult. Again in such circumstances, an award creditor may have to enforce its award outside the EU.

4. Belt & Road Initiative

Any horizon-scanning must take into account the biggest investment programme arguably ever undertaken, namely China's Belt & Road Initiative now heading into its 7th year. The resolution of disputes arising from these often complex, large-scale, multi-party projects is unlikely to be resolved in one forum.  The HKIAC, SIAC, ICC and the Chinese courts are all continuing to argue their case for inclusion in BRI dispute resolution clauses. It is also important to take into account cultural positive attitudes toward mediation and settlement which are a significant feature of Chinese dispute resolution processes. While the institutions and courts may therefore see an increase in disputes being referred to them, it is likely that mediators and other types of settlement facilitators will have significant work to do in 2019 and beyond.

5. Dispute Funding

With Singapore now permitting third party funding in arbitration and Hong Kong's Code due to come into force in early 2019, it is easy to see that the opening up of funding in these regions may lead to an increase in particularly SIAC and HKIAC disputes work. Parties may engage in more disputes either that they previously could not afford to pursue or now feel they are able to as the risks are shared with a funder. Funders continue to back only a small percentage of the cases referred to them (and rightly so) but even a small percentage of a large market is significant.

6. Procedural developments

While we predict an increase in disputes arising out of BRI and potentially Brexit, arbitration must keep pace with the needs of its users and continue to develop and adapt. ICSID's consultation on its rules show a recognition of the need to keep a pace with the more progressive (largely commercial) institutional rules in considering provision e.g. for summary procedures to reduce the time and costs spent in arbitration (two key sources of criticism from users). Alongside the institutions arbitral bodies such as ICCA continue to progress the development of arbitration and raise important issues such as cyber-security. Often these initiatives feed their way into arbitral rules over time and certainly cyber-security in arbitration is a key issue for focus from arbitration practices now and over the next year.

The launch of the Prague Rules in December 2018 as an alternative to the IBA Rules of Evidence will show their impact this year as counsel and arbitrators make a choice as to which rules (or neither) best suit their dispute. We watch with interest whether having an alternative displaces the regular presumption of the adoption of the IBA Rules and creates discussion about the best procedure for each dispute.

Tribunals increasingly engage with other types of technology such as the use of AI in document review and disputes arising out of developing technologies such as blockchain and smart contracts. Some institutions are providing training to their arbitrators to prepare them for these potential new disputes and the likelihood of needing skilled knowledgeable arbitrators in these new technologies perhaps opens the door for new arbitrators to come to the fore.

7. London International Disputes Week

Last, but by no means least, as founder members of the first London International Disputes Week (LIDW) Clyde & Co is delighted to invite you to join us at what will be a wonderful showcase of Global Dispute resolution best practices in London on 7-10 May 2019. LIDW will bring together lawyers, judges, arbitrators, academics and others involved in using or administrating dispute resolution from around the world and hailing from numerous sectors. The event will draw on the international experience of clients and colleagues and facilitate discussions on the future of dispute resolution in London, where and how disputes will arise, how London should adapt to the changing landscape, and the future of dispute resolution globally.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions