Insights

In February 2024, the International Bar Association (“IBA”) released its most recent version of the IBA Guidelines on Conflicts of Interest in International Arbitration (“2024 IBA Guidelines”). In close succession, the United States Supreme Court denied a petition for certiorari for review of an Eleventh Circuit decision upholding arbitrator impartiality. These two events underscore the importance of arbitrator impartiality and disclosure of even potential conflicts of interest.

The Saudi Center for Commercial Arbitration (SCCA) has published the second edition of its arbitration rules, which came into effect on May 1, 2023 and applies to all arbitrations commenced on or after that date. As compared to the 2018 rules, these amendments are aimed at making the SCCA more attractive to a variety of business sectors. The new rules are the fruit of two years of consultation with industry experts, all in an effort to meet the highest standards in international arbitration. Some of the noteworthy amendments include the establishment of the SCCA Court, the removal of references to Sharia law, and new regulations regarding consolidation, cybersecurity, joinder, and emergency protective measures.

The past two years have seen substantial updates to procedural rules governing the American Arbitration Association’s International Centre for Dispute Resolution (AAA-ICDR), as well as institutional efforts to increase efficiency, transparency and diversity.  

On 29 September 2022, a panel discussion on new development in space law and arbitration was held in the context of the second World Arbitration Update conference (see www.worldarbitrationupdate.com). The key take-away from the panel discussion was that the space industry is currently booming and that it will face a likely rise in the number of disputes between commercial space actors.

With the geopolitical and economic crisis in Russia and Ukraine growing rapidly from recent events, international commercial operations in the region will be severely impacted in some manner, and many such impacts will result in disputes.  The events surrounding the peso crisis in Argentina in early 2000s, as well as those in Venezuela from the actions of Hugo Chavez, and others arising out of the Arab spring, all resulted in dozens of international disputes. We may see the same from current events, and there will be dispute options available to numerous companies with operations in either country who are experiencing severe disruptions of operations, loss of profit, or destruction of property, including, potentially: investor-State arbitration, domestic litigation, or claims tribunal recovery.

The highly anticipated 2022 revised rules of the Dubai International Arbitration Centre (“DIAC”) were approved by the DIAC’s Board of Directors on February 25, 2022. The revised rules will come into effect starting March 21, 2022 and will govern all new requests for arbitration that are submitted on or after that date.

Dubai’s government recently made significant changes to its arbitral framework as part of its effort to strengthen the position of the Emirate as a dominant center for international dispute resolution in the region. Decree No. 34 of 2021 (the “Decree”), issued by Dubai’s ruler Sheikh Mohammed bin Rashid Al Maktoum on September 14, 2021 and effective as of September 20, 2021, has fundamentally altered the existing arbitration framework in Dubai, and has the potential to have significant impacts for parties whose arbitration agreements name the now-abolished institutions.

On May 13, the Government of Canada released its “modernized and inclusive” Foreign Investment Promotion and Protection Agreement Model (“FIPA Model”), sending a message that it intends to continue to provide international dispute resolution protections to foreign investors. The original iteration of the FIPA Model dates to 2004, which Canada had stated built on its experiences with NAFTA. It subsequently released an updated iteration in 2014. The current FIPA Model reflects further updates based on stakeholder consultations in 2018-2019.

Despite the challenges of 2020, major international arbitration institutions reported a record number of new registered cases. As travel restrictions inhibited cross-border travel, lockdowns were issued around the globe, and many industries began working remotely, arbitral bodies adeptly transitioned to fully electronic filing systems, organized remote hearings, and issued COVID-19 guidance. These changes enabled parties to continue resolving their disputes without major disruption and have set the institutions up for another busy year in the dispute resolution world.

This week, in a decision that bolsters existing precedent favoring arbitration, the Supreme Court unanimously held that the New York Convention does not conflict with domestic equitable estoppel doctrines that permit the enforcement of international arbitration agreements by nonsignatories. While seemingly narrow in scope, this is a seminal decision for international arbitration practitioners and their clients. Importantly, it clarifies that US domestic procedural rules may apply when seeking to enforce international arbitration agreements. Moreover, the decision confirms that nonsignatories to international arbitration agreements may, in fact, compel arbitration by relying on the equitable estoppel doctrine. By rejecting an unnecessary limitation on the enforceability of international arbitration clauses, this decision extends the reach of international arbitration in the US and ensures that international arbitration agreements remain on an equal footing with domestic US arbitration agreements.

Mexico’s electric system operator, the National Energy Control Center (CENACE), imposed new constraints on renewable energy projects this month in a move which has drawn rebukes from Canadian and European officials. The new measures may jeopardize billions of dollars of foreign investment into Mexico’s energy industry and lead to multiple international arbitration claims by aggrieved foreign investors.

Business disruptions caused by the global COVID-19 pandemic have demonstrated the importance of including clauses in contracts to appropriately govern the parties’ rights and obligations when such disruptions occur. Even as many U.S. jurisdictions begin the process of loosening the restrictions imposed to stop the spread of the pandemic, it is to be expected that business disruptions will continue. Accordingly, before you enter into any new contracts, you should consider carefully the force majeure and/or hardship clauses you include to address such business disruptions.

The pandemic is affecting the entire world, particularly countries that were already in crisis, such as Venezuela, which are in a more vulnerable position to combat the consequences of the coronavirus. In collaboration with PAE-Legal, this alert provides an overview of the measures adopted by Nicolás Maduro in Venezuela. The pandemic—together with the previously existing shortages of gasoline, food and supplies—is significantly affecting commerce and threatens to completely shut down the country’s economy.

Reports are coming in thick and fast that both courts and international arbitrations are adapting to the remote-working climate. This alert gives a synopsis of the proposed burgeoning tools, rules and recommended practices for virtual hearings emerging from the arbitration community, which is becoming increasingly comfortable with video conferencing. It further drills down on the critical issue of award enforcement in light of these developments and the COVID-19 pandemic.

In our previous Crowell & Moring alert, we discussed how COVID-19 is affecting commercial activities and dynamics in Latin America, particularly in Colombia and Mexico. Our second edition focuses on the measures currently in place in two South American nations: Argentina and Peru. Like most of the region, unprecedented measures in Argentina and Peru are causing business interruptions across all industries, forcing companies to review their commercial agreements and determine whether “force majeure” or other similar concepts may help them to mitigate the disruption.

While most courts are closed except for emergency matters, and parties in litigation are scrambling to determine how to amend their case schedules and respond to the uncertainties resulting from the COVID-19 outbreak, the arbitration world has emphatically responded: “The show must go on.” The flexibility of arbitration shines bright during this time of uncertainty and economic volatility, and allows for the conception of creative solutions for parties to resolve their disputes with minimal disruption.

In a world battling a global pandemic, it was only a matter of time before COVID-19 and its impact on commercial relationships arrived in Latin America and the Caribbean. As the vast majority of countries in Latin America and the Caribbean have confirmed cases, governments have increasingly implemented unprecedented measures and other efforts to prevent the spread of the virus. 

On January 28, 2020, the English Court of Appeal handed down an important decision on legal advice privilege (LAP) within judicial review proceedings brought by Jet2 against the Civil Aviation Authority. The CAA had sought to refuse disclosure of specific documents on privilege grounds.

On October 26, 2018, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the lower court’s decision to deny the enforcement of an arbitral award against the Czech Republic Ministry of Health. Diag Human, S.E. v. Czech-Ministry of Health, 824 F.3d 131,132–34 (D.C. Cir. 2016), cert. denied, 137 S. Ct. 1068 (2017). Under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”),1 federal courts can enforce duly rendered foreign arbitral awards, subject to certain exceptions. Both courts agreed that this award fell into one of those exceptions – the award was not “binding on the parties.”

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