Arbitration specialists gathered for our first summit in London in September. Read full coverage of the key debates.
The fix – how to resolve the tensions at the heart of modern arbitration
With growing caseloads and global appeal, international arbitration is blossoming – as is criticism of rising costs and delays. As some practitioners develop tactics to ‘fix’ arbitration, will they do more harm than good?
It has taken 25 years since the end of the Cold War for states to fully embrace the notion of settling their disagreements through a third party, but as the recent and resolved case between Singapore and Malaysia shows, inter-state arbitration can be a powerful force in international relations. Similarly, large and sophisticated corporate consumers of dispute resolution services have developed a growing enthusiasm for arbitration when it comes to settling their disputes.
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The US disputes outlook – After the feast
US disputes lawyers are seeking their next hunting ground as the wave of financial crisis litigation nears its end. Legal Business asks what the next big prize will be.
‘I remember a science class in high school where I watched a snake swallow its prey. Its body became distended where the food was stuck, before moving slowly towards the end of the snake. That’s where we are with the financial crisis litigation. We are really getting towards the end of the snake with all these cases.’ So says Gibson, Dunn & Crutcher’s New York co-head and former global co-chair of litigation, Mark Kirsch, summing up the disputes market in Manhattan today.
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Commercial Dispute Resolution Survey
As Legal Business publishes its second annual Disputes Yearbook, Cornerstone Research scopes the views of in-house counsel and private practitioners to shine a light on trends within the international disputes market
At Legal Business’s first International Arbitration Summit held in London this September, esteemed practitioner Sir Frank Berman KCMG QC spoke about investor-state arbitration increasingly moving into public consciousness.
Disputes Yearbook 2015
Introduction
- Leader: A challenging time for disputes teams in a polarised market
- Economic recovery will not lead to decline in the disputes sector
Opening Statements
Features
- Undisputed – the next generation of partners setting the disputes agenda
- Calling time at the Bar – Quality fears for English judges are growing as top QCs turn away from the bench
- The fix – how to resolve the tensions at the heart of modern arbitration
- The US disputes outlook – After the feast
Pespectives
Market views
- Commercial Dispute Resolution Survey
- Latham & Watkins: Masterminding a fraud claim – the English courts as a magnet forum?
- CMS: Crowdfunding litigation – power to the people?
- Harneys: British Virgin Islands positioned to become an international arbitration centre
- Quinn Emanuel Urquhart & Sullivan: Party-appointed arbitrators, impartiality and a perceived need for change
- Signature Litigation: Legal privilege: far from resolved
- Signature Litigation: Policing arbitration – can accountability deficit be addressed?
- Travers Smith: CPR 36: time for a re-boot?
- Mishcon de Reya: The dangers of repeat appointments
- Jasbir Dhillon QC: Freezing injunctions and receivership in support of arbitration
Jasbir Dhillon QC: Freezing injunctions and receivership in support of arbitration
Jasbir Dhillon QC
Brick Court Chambers
A frequently encountered problem for any claimant in international arbitration arises where the respondent seeks to make enforcement of any arbitral award against their assets difficult or impossible. In this article, I describe two forms of injunction available from the English court that provide an effective remedy for this widespread problem.
Mishcon de Reya: The dangers of repeat appointments
The issue of repeat appointments has been news in International Centre for Settlement of Investment Disputes (ICSID) cases in recent times, but what’s the concern? The independence of the arbitrator is one of the cornerstones of arbitration. An independent arbitrator is one who has no close relationship with a party in the arbitration or its counsel, be it of a financial, professional or personal nature. It is crucial that an arbitrator has no such relationships because they might induce the arbitrator to decide in favour of one of the parties, irrespective of the merits of the case.
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Travers Smith: CPR 36: time for a re-boot?
Jan-Jaap Baer
Partner, Travers Smith
Emma Reynolds
Associate, Travers Smith
In April this year, CPR 36 underwent the latest in a series of amendments. These amendments did not amount to a root-and-branch overhaul of the regime but rather to a reorganisation and codification of existing principles, largely designed to address issues which have been thrown up by recent court decisions. The changes were generally welcomed as providing a greater degree of clarity for litigants when navigating their way through what remain complex and densely drafted rules. However, there remains a question as to whether a more radical overhaul of the rules is desirable.
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Signature Litigation: Policing arbitration – can accountability deficit be addressed?
Natalia Chumak
Partner, Signature Litigation
natalia.chumak@signaturelitigation.com
Nick Storrs
Senior associate, Signature Litigation
Over recent decades, arbitration for dispute resolution has become increasingly popular. Commercial parties are becoming far more amenable to resolving their differences by private means rather than through national court systems, which can be more costly and time-intensive. There is, of course, nothing wrong in engaging in a private, consensual process and there are numerous advantages of doing so. But the framework within which such disputes are resolved must be unimpeachably robust in order to meet the objective in any dispute resolution process: to do justice between the parties in accordance with the law. Accordingly parties’ autonomous right to submit disputes to arbitration needs to be structured within a legislative framework which governs and regulates the arbitral process. This is in part to:
Signature Litigation: Legal privilege: far from resolved
Abdulali Jiwaji
Partner, Signature Litigation
abdulali.jiwaji@signaturelitigation.com
Daniel Hayward-Hughes
Associate, Signature Litigation
The right of clients to preserve the confidentiality in advice provided by their lawyer is fundamental to English common law. Other common law jurisdictions such as Australia, New Zealand, Singapore and Hong Kong have all gone one step further than England by entrenching legal advice privilege and protection from disclosure into statute. Legal advice privilege applies to confidential communications between a lawyer and client for the purpose of seeking or obtaining legal advice. Problems can arise though when it is unclear who the instructing client is and whether the lawyer is actually a ‘lawyer’ for the purposes of the common law test for privilege.
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