Hong Kong Mediation Council to Oversee Investment Treaty Disputes

The Hong Kong International Arbitration Centre (HKIAC) announced this week that its Hong Kong Mediation Council (HKMC) will administer investment disputes between a Mainland Chinese investor and the Government of Hong Kong in accordance with 2017’s Investment Agreement under the Mainland and Hong Kong Closer Economic Partnership Arrangement (“Investment Agreement”). The Investment Agreement encourages investment activity between Mainland China and Hong Kong, but also contains significant protections and obligations for both sides.

The Investment Agreement embraces multiple dispute resolution mechanisms, including mediation by a mediation institution previously designated by the host government and agreed to by the other government. The Government of Hong […]

Hong Kong Mediation Council to Oversee Investment Treaty Disputes 2019-01-30T00:41:32+00:00

Hong Kong Now Allowing Third-Party Funding for Arbitration

On December 7, 2018, the Hong Kong Department of Justice released its long-awaited Code of Practice for Third-Party Funding of Arbitration, which can be found HERE. The Code—which takes effect on February 1, 2019—sets out standards of compliance for third-party funders of arbitration and includes a system of supervision by an advisory body (non-compliance will not result in judicial or other proceedings, however). Previously, according to the common law doctrines of “maintenance and champerty,” Hong Kong prohibited third party funding of litigation. The Hong Kong DOJ passed an Amendment Ordinance in June 2017 abolishing the doctrines of maintenance and champerty but […]

Hong Kong Now Allowing Third-Party Funding for Arbitration 2019-01-15T19:24:37+00:00

US Supreme Court Unanimously Upholds Arbitrator Competence to Decide Arbitrability

In Justice Brett Kavanaugh’s first majority opinion, issued January 8, 2019, the Supreme Court unanimously held that the Federal Arbitration Act requires courts to respect valid arbitration clauses and does not empower courts to determine the “gateway” issues of arbitrability when the question of arbitrability has been delegated, by contract, to the arbitrator. The case, Henry Schein, Inc. v. Archer and White Sales, Inc., involved alleged antitrust violations and a request for injunctive relief and monetary damages.

Despite the presence of an arbitration clause in the agreement between the parties, Archer and White filed the lawsuit in the United States District Court in […]

US Supreme Court Unanimously Upholds Arbitrator Competence to Decide Arbitrability 2019-01-11T17:59:26+00:00

California Supreme Court to Decide on Hague Service Convention

On 26 September 2018, the Supreme Court of California granted a petition to review a case to resolve the question: “Can private parties contractually agree to legal service of process by methods not expressly authorized by the Hague [Service] Convention?”

The issue arose in Rockefeller Tech. Inv. (Asia) VII v. Changzhou Sinotype Tech. Co. Ltd., 24 Cal. App. 5th 115 (Cal. Ct. App. 2018)where an American party–Rockefeller Technology Investment (Asia) VII (“Rockefeller Asia”)–sought to confirm its arbitration award and served the counterparty according to the method outlined in the arbitration clause of the parties’ Memorandum of Understanding (“MOU”). Changzhou Sinotype Tech. Co. Ltd. (“Sinotype”), the Chinese counterparty, […]

California Supreme Court to Decide on Hague Service Convention 2019-01-10T03:34:20+00:00

Prague Rules Released

After almost ten years of drafting, the Rules on the Efficient Conduct of Proceedings in International Arbitration (“the Prague Rules,” available for download HERE) were officially confirmed during a signing ceremony on December 14, 2018. These Rules originated as a response to growing concerns regarding the costs and inefficiencies involved in arbitration proceedings. Since 1999, the IBA Rules on the Taking of Evidence in International Arbitration (“IBA Rules”) have served as a popular compromise between common and civil law traditions for the taking of evidence in international arbitrations. Over the years, however, critics voiced concerns that the IBA Rules lean toward […]

Prague Rules Released 2019-01-08T00:43:30+00:00

IBA Releases Investor-State Report

In November 2018, the International Bar Association‘s Subcommittee on Investment Treaty Arbitration (IBA) released its report on investor-state dispute settlement (ISDS Report), available for download HERE. The ISDS Report reviews the contemporary critiques of the ISDS regime and lists potential solutions on “consistency, efficiency and transparency.” The IBA believes that improvements in these three areas would add to the overall legitimacy of investor-state arbitration worldwide. This post focuses on the first topic–consistency–and the IBA’s articulation of the proposed solutions.  

Consistency in Investor-State Arbitration

The IBA’s ISDS Report notes that inconsistent […]

IBA Releases Investor-State Report 2018-12-17T14:34:55+00:00

ICCA Cybersecurity Working Group Solicits Feedback

Cybersecurity is a growing concern in the global marketplace. International arbitration practitioners share this concern in part  because international commercial arbitration is founded on the principle of confidentiality, and cybersecurity breaches threaten that assurance. In response to this growing risk, the International Council for Commercial Arbitration (ICCA) has collaborated with the International Institute for Conflict Prevention and Resolution (CPR) and the New York State Bar (NYB) to create a Draft Cybersecurity Protocol — a copy of which can be found HERE.

The Draft Cybersecurity Protocol provides a framework for parties (and tribunals) to assess the level of cybersecurity needed for a given dispute […]

ICCA Cybersecurity Working Group Solicits Feedback 2018-12-02T16:32:09+00:00

ICJ Limits Members’ Ability to Arbitrate

The International Court of Justice (ICJ) will no longer participate in investor-state or commercial arbitrations.  ICJ president Abdulqawi A. Yusuf announced at the United Nations General Assembly on 25 October 2018 that the increasing workload of the Court requires its judges to refrain from participating in such extrajudicial proceedings.  His full speech can be found HERE.

This announcement comes after a November 2017 report by the International Institute for Sustainable Development (IISD), finding that ICJ judges have arbitrated over ninety investor-state dispute settlement cases to date.  According to Yusuf, judges’ judicial activities should “take absolute precedence” over extrajudicial activities like arbitration, especially with […]

ICJ Limits Members’ Ability to Arbitrate 2018-11-03T21:06:07+00:00

Vannin Capital Steps Back From IPO

Vannin Capital has stepped back from its plans to offer an IPO on the London Stock Exchange.  This comes right after the third-party funding company initially announced its decision to float on the market in September.  If you missed our coverage of that announcement, check it out HERE.

Proactive Investors reported that after initially projecting a £1 billion valuation last month, Vannin decreased that valuation over this past week to £700 million at most.  Some are suggesting this could be due to Vannin taking notice of the poor performance of the IPOs of Aston Martin and Funding Circle in recent weeks.  Vannin’s executive, however, simply […]

Vannin Capital Steps Back From IPO 2018-10-15T08:09:19+00:00

USMCA Is the New NAFTA: New Limitations on ISDS

President Trump has struck a deal with Canada and Mexico that, if approved by Congress, could affect foreign investors’ ability to arbitrate directly with a country.  See the CBS announcement HERE or listen on NPR HERE.  A comprehensive analysis can be found on Law360 HERE (subscription needed).

In a late-night decision, the United States-Mexico-Canada Agreement (USMCA) has replaced the nearly 25-year-old NAFTA agreement (North American Free Trade Agreement). Along with new guidelines regarding dairy trade and auto tariffs, the agreement between the US, Mexico, and Canada will change how foreign investors from each member state are able to seek remedies against each participating […]

USMCA Is the New NAFTA: New Limitations on ISDS 2018-10-08T13:51:24+00:00