Since our last update, a little over a month ago, many major arbitral institutions have updated their guidance regarding COVID-19 in light of the continuing impact of the pandemic on ongoing proceedings.  Below we have included updated guidance from major arbitral institutions and expanded the chart to include a number of new institutions.  Thirteen major arbitral institutions[i] also issued a joint statement regarding “Arbitration and COVID-19.”[ii]  The statement encouraged parties and arbitrators to work together to mitigate the effects of COVID‑19 on proceedings while still ensuring fairness.
Continue Reading Major Arbitral Institutions Update Guidance Regarding COVID-19

The global health pandemic is a crisis affecting the health and well-being of our citizens, and a financial crisis of unknowable breadth and duration. We are all in crisis to one degree or another and trustees of private trusts face conditions and decisions once unthinkable. Trustees will be called upon to make the most difficult decisions of their tenures, including investments, management of trust assets, cost measures and decisions about distributions to beneficiaries.
Continue Reading Guidance for Trustees During COVID-19 Pandemic

International arbitration often equals international travel for both counsel, witnesses, and arbitrators.  But with the new reality of travel restrictions, “shelter in place” orders, remote work, and restrictions on gathering, in person hearings, especially among persons from different nations, may not be feasible, at least in the short term, and maybe longer.
Continue Reading The Impact of COVID-19 on International Arbitration Hearings

International arbitration is becoming an increasingly relevant forum for the resolution of intellectual property (“IP”) disputes. This should not be a surprise given multi-country licensing of patents, trademarks and trade secrets, as well as broader market forces such as globalization, digitalization, and the Internet. In a global economy, intellectual property rights (“IPRs”) are often a company’s most valuable assets. The ability to exploit, protect and enforce IPRs on a cross-border level is thus critical. As with other types of cross-border disputes, international arbitration provides an attractive forum for the resolution of disputes over IPRs.
Continue Reading The Growing Importance of International Arbitration for Intellectual Property Disputes

The International Council for Commercial Arbitration (ICCA) and the International Bar Association (IBA) have established a Joint Task Force on Data Protection in International Arbitration Proceedings. The task force will develop guidance for arbitration professionals with regard to data protection in arbitration proceedings. This guidance, which is expected to be published for comment later this year or in early 2020, aims provide practical guidance on the potential impact of data protection principles. In particular, it will recommend how information and evidence subject to the European Union’s General Data Protection Regulation (“GDPR”) is to be handled in international arbitration proceedings.
Continue Reading GDPR and International Arbitration at a Crossroad

In order to minimize the risk of litigation arising from investments in the United States, sovereign wealth funds (“SWFs”) should take care to avoid inadvertent or unnecessary waiver of sovereign immunity–before they establish operational or investment management presence in the United States.

SWFs generally benefit from sovereign immunity in the United States under the Foreign Sovereign Immunities Act (“FSIA”). As an agency or instrumentality of foreign state, they are generally entitled to immunity from the jurisdiction of the U.S. courts. However, an SWF may lose or limit its sovereign immunity where the SWF: (1) is involved in “commercial activities” in or affecting the United States; or (2) waives sovereign immunity, either expressly or by implication.
Continue Reading Sovereign Wealth Funds – Preserving Sovereign Immunity

When asked why they choose to resolve their disputes through international arbitration, parties often identify confidentiality as an important factor. While the parties may think their arbitration is confidential, in many cases, the proceeding is merely private. In the context of arbitration, privacy and confidentiality are not necessarily the same. Privacy means that arbitration proceedings are not open to the public, but privacy does not preclude the parties from disclosing the proceedings to third parties. Confidentiality, by contrast, means the parties (and the arbitrators) may not disclose the proceedings to third parties or the public, including evidence, written submissions, arbitral awards, and even the existence of the proceedings and the identities of the parties. Most arbitrations are private, but many arbitrations are not confidential. As the Australian High Court has held, privacy is an essential component of arbitration, but “absolute confidentiality” is not. Whether an arbitration is confidential can depend on the agreement of the parties, the applicable arbitration rules, and law of the forum country.
Continue Reading Privacy And Confidentiality Are Siblings, Not Twins

In a long-awaited ruling of June 18, 2019, the General Court of the European Union (“GCEU”) annulled the European Commission’s 2015 State aid decision in the Micula case (joined cases T-624/15, T-694/15 and T-704/15). The ruling provides valuable clarifications regarding the relationship between intra-EU bilateral investment treaties (“BIT”) and EU State aid rules.

In sum, the GCEU confirmed that the European Commission lacked jurisdiction to apply EU law in a situation where all relevant events took place before accession to the EU. The validity of intra-EU BITs was not at issue because, during the relevant time period, the BIT in question (the 2002 Sweden-Romania BIT) was between a Member State (Sweden) and a third country (Romania).
Continue Reading International Arbitration, Investment Protection and EU State Aid Rules: the General Court of the EU Annuls the European Commission’s State Aid Decision in the Micula Case

For various reasons–including fairness, efficiency, and avoiding inconsistent results–courts and arbitration tribunals apply a range of procedural tools to discourage parties from pursuing multiple, separate dispute resolution proceedings between the same parties over related claims arising from a single dispute. In cases involving foreign investment within the coverage of an investment treaty, such as a bilateral investment treaty (BIT) or free trade agreement, however, the investing party may have compelling reasons to simultaneously pursue commercial arbitration pursuant to contract, and investment arbitration pursuant to treaty. And unlike other situations where courts and tribunals may look askance at parallel proceedings, the presence of an otherwise exclusive arbitration clause in a contract between a foreign investor and a host state may not, by itself, preclude an injured investor from pursuing both commercial arbitration as provided in the contract and investment arbitration as provided in a treaty. This has a sound basis in international law and provides potential advantages to parties with claims pending in private commercial arbitration proceedings.
Continue Reading Pursuing Parallel Arbitration Under an Investment Treaty