Between rags and riches: rethinking security for costs in international commercial arbitration

This article assesses the traditional approach adopted to making an order of security for costs in international arbitration, which focuses almost exclusively on the financial standing of the claimant. The article argues that this approach is inappropriate, and has the potential to undermine the purpose of the remedy itself; namely, to protect a respondent who has been dragged into an arbitration against his will, and may subsequently struggle to enforce a costs award against the claimant if he is successful in due course. The author therefore argues that the financial position of the respondent—and the impact of the proceedings on that respondent—should be hardwired into the assessment undertaken by arbitral tribunals when considering whether to order the claimant to provide security for the respondent’s costs.

Delays Expected but Duration of Delays Unpredictable: Causes, Types, and Symptoms of Procedural Applications in Investment Arbitration

Delays are becoming a common phenomenon in international investment arbitration and challenging the conventional belief that it is a time-effective mode of dispute resolution. These delays, majorly stemming from interim procedural applications, are known to arise due to the different interests and types of stakeholders involved in the process. This article provides an empirical analysis of such arbitration proceedings to cull out the types, nature, and effects of delay tactics in such proceedings. This article identifies three types of applications that play an increasing role in investment arbitration, namely, applications for ‘security for costs’, applications for disclosure of third-party funding, and the objections of manifest lack of legal merit of claims. Such delays can particularly become a cause of concern for investment arbitration as they have impacts beyond those which are on the parties involved.

Proper characterisation of the parol evidence rule and its applicability in international arbitration

Most arbitral statutes and institutional rules give great latitude to tribunals on the admissibility of evidence, and do not mandate application of domestic rules of evidence. In common law jurisdictions where the parol evidence rule applies, the issue that arises is whether the parol evidence rule is necessarily a procedural rule of evidence which tribunals are not bound to apply, especially in jurisdictions which have codified the rule under domestic evidence legislation. Notwithstanding any codification, this article argues that the parol evidence rule at common law is a substantive rule of contractual interpretation that should be applied as part of the lex contractus in international arbitration proceedings. Faithful application of the parol evidence rule as a substantive rule of contractual interpretation ensures that adjudicators arrive at the same interpretation on the same set of facts, thereby promoting uniformity, predictability, and consistency, regardless of the mode of dispute resolution.

The Emergence of Early Disposition Procedures in International Arbitration

International arbitral institutions have begun adding early disposition procedures to their rules. This began as a trickle in 2006 when the ICDR became the first institution to add an early disposition rule. It has turned into a flood, with seven major institutions adding procedures in the past five years. There are important differences among the early disposition procedures adopted by various institutions, but those procedures share certain characteristics. They generally impose a high standard of review that must be satisfied to obtain early disposition. Further, many institutions’ procedures are limited in the types of issues that can be raised and the time within which an application for early disposition must be made and disposed of. The absence of early disposition procedures has long been a weakness of international arbitration. The advent of these procedures is one of the most significant shifts in international arbitration procedure in recent memory. This article charts the emergence to early disposition procedures and the arguments for and against them. It reviews the procedures adopted to date and compares them with one another. Finally, it concludes with some reflections on current early disposition procedures and ideas for their further development.

The lacking interest in interest rates: will the phase-out of LIBOR and negative rates go unnoticed by arbitration practitioners?

Interest plays a crucial role in ensuring that the compensation obtained by the winning party does not diminish throughout the many years between the breach and enforcement of the award. Despite its importance, interest is often the last element considered by arbitration practitioners, who sometimes rely on popular interest rate benchmarks that worked well in the past. However, some familiar benchmarks might no longer achieve the intended outcome. We have reviewed public investment arbitration awards rendered in 2019–2020 and identified three issues: the use of LIBOR despite its imminent phase-out, the use of benchmarks that have become negative, and the omission of interest from awards rendered in favour of respondent states. While solutions may vary, we discuss mechanisms that may be used to review existing awards, alternative interest rate benchmarks that may replace LIBOR, and floors that might be helpful to deal with negative interest rates. Arbitration practitioners regret to see it when transactional lawyers negotiate arbitration clauses as ‘midnight clauses’. However, it often escapes the arbitration community that it adopts a similar last minute approach to interest rates. It is hoped that this article might help interest rates avoid the fate of being a ‘midnight remedy’.

Different but similar?: Comparing the IBA Rules on the taking of evidence with the Prague Rules

Until recently, the most common source concerning the taking of evidence in international arbitrations has been the International Bar Association (IBA) Rules on Taking of Evidence in International Arbitration. The IBA Rules have been updated periodically including most recently in 2020 demonstrating its flexibility and wide acceptance. However, rising concerns about costs and delays due to the adversarial nature of the IBA Rules has led to increasing scrutiny and criticism. A consequence of these criticisms was the formation of the Working Group that led to the creation of the Rules on the Efficient Conduct of Proceedings in International Arbitration (the ‘Prague Rules’). This article seeks to discuss the differences between the IBA Rules and the Prague Rules with a focus on the evidentiary process. Both set of rules begin with differing starting assumptions. However, we argue that the IBA Rules and the Prague Rules, while emerging from, and representing the ideals of two different legal systems, have a lot in common. The difference may not ultimately be as wide as one might initially envision.

I now pronounce you ‘null and void’: manner of determination and the applicable law under the New York Convention

The phrase ‘null and void, inoperative or incapable of being performed’ contained in Article II(3) of the New York Convention has attracted relatively little attention in the international arbitration community. It nonetheless retains the potential to have a significant impact on arbitration agreements. This article considers the meaning of ‘null and void’ and highlights the current varied understandings and applications of this term, before re-iterating support for an application of an internationally neutral understanding of the term. What this article seeks to ultimately achieve is to provoke further consideration of the terms ‘null and void’, with a view to ensuring greater clarity and uniformity in its understanding and application in the long term.