Arbitration Digest (August)
Russian Arbitration Center at the Russian Institute of Modern Arbitration has published the digest of arbitration news for the last month.
Case Law Developments
Belgian Chemicals Producer Wins EUR 90 Million in a Dispute with an Italian Enterprise
Almost nine years ago, the Belgian chemicals producer Solvay started an ICC arbitration, which now finally ended up ordering the Italian gas and electricity distribution company Edison to pay Solvay EUR 90 million (Solvay Specialty Polymers Italy v. Edison S.p.A.).
In 2001, Solvay acquired Ausimont, an Edison subsidiary producing potentially hazardous fluorinated and peroxide substances in Italy, for EUR 1.3 billion. Following the acquisition, Solvay encountered a number of issues related to chemical pollution of the environment. This lead the Belgian company to file an arbitration claim, stating that Edison “intentionally misrepresented the facts” by not reporting environmental problems during the deal and had to bear responsibility for a breach of the environmental protection terms and guarantees set forth in the SPA.
According to Solvay, in July, the ICC arbitration panel rendered a partial award for Edison to pay more than EUR 90 million for the losses and damages incurred by the Belgian company up to 2016. The arbitration panel will also consider the issues of recovery of damages after 2017, as well as extra costs.
Another Goal into Manchester City’s Net
The Court of Appeal dismissed Manchester City’s request to prohibit publication of the materials of the arbitration between the FC and the English Premier League (Manchester City Football Club Ltd v. The Football Association Premier League Ltd & Others 2021 EWCA Civ 1110).
The English Premier League continues to investigate Manchester City’s financial transactions based on the publication of an email thread of the FC’s owner, a sheikh of the ruling Abu Dhabi dynasty, revealing that the sheikh had directly funded most of GBP 67.5 million that the FC had allegedly received as part of its sponsorship deal with Etihad Airways.
In 2019, the League requested the relevant financial documents of the FC and, after the FC refused, initiated an arbitration in London in accordance with the League’s rules. Last November, the tribunal ordered the FC to provide the Premier League with the requested documents and to undertake an investigation into third parties. The Union of European Football Associations (the UEFA) addressed the situation too and suspended the FC from participating in the UEFA Champions League for two years.
Manchester City, however, did not agree with these decisions. The FC first successfully challenged the UEFA suspension before the Court of Arbitration for Sport in Lausanne (the CAS) and then applied to the Commercial Court raising jurisdictional objections in the dispute with the League. The FC lost the second case in March this year. Moreover, notwithstanding the objections of both parties, Mrs Justice Moulder ordered to publish the judgment on the merits, finding that “fairness in the conduct of arbitrations” is a matter of public interest and the only confidential information that would be disclosed was the existence of the dispute and the arbitration, already in the public domain.
The FC applied to the Court of Appeal objecting against the publication judgement and claiming that either the Justice erred in her judgement or the publication should have been stayed at least until the Premier League’s investigation was over. The Court of Appeal found that Mrs Justice Moulder did not make a mistake about the publication and sided with her reasoning both on the presence of a public interest and on the conclusion that publication would not lead to disclosure of any significant information under the dispute.
Is an Expert Decision an Arbitral Award?
The U.S. District Court for the Southern District of New York is to consider this question in enforcing an award in a case between the University of Ghana and the insurance company Chubb (also known as the ACE American Insurance Company) stemming from a failure to implement a construction project at the university campus (ACE American Insurance Company v. University of Ghana, 1:21-cv-06472).
In 2015, the University entered into an agreement with CPA, commissioning the construction and lease of four student buildings and a dormitory in the Accra campus. After the University failed to present the contractually required letter of credit in 2018, the parties jointly appointed Nicholas Vineall QC as an expert to calculate the amount owed by the University using an agreed formula. Later, the University sent a notice of arbitration to CPA, objecting against certain contract terms, as well as the expert’s appointment. This, however, did not stop Vineall from rendering an award for USD 165 million in favour of CPA.
Chubb, that had previously insured the agreement between the University and CPA for 20 years against unforeseen circumstances (including the University’s default under an arbitral award), proceeded to acquire from CPA “all rights of recovery” and on that basis applied to a U.S. court seeking to enforce Vineall’s award.
Chubb believes that the University falls under the jurisdiction of the U.S. court since the University operates with the support of the Ghana Government. The Ghana University, in turn, finds Vineall’s award unenforceable.
Conflict of Interest Established Almost 20 Years after the Dispute Arose
The European Court of Human Rights (the ECtHR) found a violation of Article 6 (right to a fair trial) of the European Convention on Human Rights (the ECHR) due to the arbitrator’s failure to disclose a relationship with the respondent’s parent company in the arbitration proceedings that resulted in an award in 2002 (BEG S.P.A. v. ENELPOWER S.P.A.).
In 2000, Becchetti Energy Group (BEG) and Enelpower (an Enel subsidiary) entered into a cooperation agreement to perform the 1996 concession contract for building a hydroelectric plant in Albania. Cooperation involved selling power with a view to its further distribution to Enel’s customers in Italy. After Enelpower decided to quit the project, BEG initiated an arbitration seeking to recover a EUR 130 million compensation. The 2002 arbitral award, signed by two out of three arbitrators only, dismissed all claims brought by BEG.
Almost immediately after the arbitration, however, BEG discovered that the Italian arbitrator appointed by Enelpower, had been previously a member of the Enel Board of Directors and represented the company in another litigation. The arbitrator had not disclosed these circumstances at the time of his appointment.
BEG challenged the award before the Rome Court of Appeal and the Italian Court of Cassation on these grounds in 2010, as well as lodged a claim for negligence against the Rome Chamber of Commerce as the arbitration institution that administered the dispute; each of these proceedings was, nevertheless, dismissed.
BEG eventually applied to the ECtHR which, ten years after the application, found that BEG had been deprived of its right to a fair trial in the arbitration due to the arbitrator’s failure to disclose his relationship with Enel. Over the years of litigation, BEG lost a total of EUR 1.2 billion in lost profits, procedural costs and expenses; yet, the ECtHR awarded the applicant only EUR 50,000 as compensation for non-pecuniary damages and costs.
Arbitration Agreement Is Not Concluded if the Parties Submit Different Versions of the Agreement
In Rowland v. Sandy Morris Financial & Estate Planning Services, LLC., No. 20-1187, the United States Court of Appeals for the Fourth Circuit determined whether an arbitration agreement was made between two spouses who had planned to set up a common business. The Court struggled to resolve the dispute as the conflicting parties provided two different versions of the arbitration agreement. The differences were in the account numbers to be managed, as well as in the investment objectives and risk preferences.
The Court analyzed the Federal Arbitration Act and reviewed the submitted versions of the arbitration agreement in the context of the North Carolina practice on contracts and arbitration agreements. The Court eventually came to the conclusion that the parties did not form or express their will to enter into an unambiguous arbitration agreement. Therefore, the arbitration agreement could not be considered concluded and an arbitration could not be initiated.
Jones Day Seeks to Bring Witnesses in the Case against a Former Partner
In 2019, one of partners left Jones Day to head an international arbitration practice at another international law firm. The move was noteworthy as the former partner at Jones Day had represented a client in an ICC case where a presiding arbitrator was a partner with the firm he now joined. The former Jones Day partner did not disclose this fact and, once the switch was over, the opposing party in the ICC moved to recuse the presiding arbitrator. The motion was satisfied and the case continued with a newly appointed arbitrator; however, the additional hearings that had to be held due to the replacement significantly increased the procedural costs.
In view of this, Jones Day refused to pay its former partner the money he was entitled to upon leaving the firm, and demanded that he reimburse the expenses incurred in the ICC case. In addition, Jones Day initiated an arbitration against the partner at the JAMS, as the firm believed that he breached his fiduciary duties to it, as well as his obligations under the partnership agreement.
At the moment, Jones Day seeks assistance from a U.S. court to bring partners of the firm where their former employee works now into the arbitration and make them testify in online hearings. The partners are refusing to appear, saying that such procedural motions have “serious shortcomings”.
Amazon Case: India’s Supreme Court Confirms Enforceability of Emergency Awards in India
The Supreme Court of India has enforced an emergency award of the Singapore International Arbitration Centre (SIAC) to suspend a transaction for the sale of more than USD 3.4 billion worth of assets by Amazon’s local business partner (Amazon.com NV Investment Holdings LLC v. Future Retail Ltd. and Future Coupons Pvt. Ltd).
The dispute arose after Future Retail announced the sale of USD 3.4 billion worth of assets to Reliance Retail, a subsidiary of Reliance Industries owned by Mukesh Ambani, last August. Amazon opposed the transaction as it would violate the contract with Future Coupons, a firm that promoted Future Retail and was 40% owned by Amazon.
Ultimately, the struggle for leadership in India’s retail market between Jeff Bezos and Mukesh Ambani, listed by Forbes among the world’s top ten billionaires, went legal. Amazon initiated an emergency arbitration against Future Retail at the SIAC, and a SIAC emergency arbitrator prohibited Future Retail from entering into the transaction.
The Indian Supreme Court, where Future Retail sought to challenge the award, considered the argument that Indian arbitration legislation did not provide for enforceability of emergency awards as “manifestly flawed” and upheld the decision of the Delhi High Court, which had confirmed that the emergency arbitrator’s award was enforceable.
Hotel Chain Faces a Claim over Name
The Radisson Hotel Group has filed a claim with the Arbitration Institute of the Stockholm Chamber of Commerce against Cosmos Hotel Group in connection with an early termination of their partnership by Cosmos Hotel Group due to high fee for using the Park Inn brand. The claimant intends to challenge the refusal of Cosmos Hotel Group to use the Park Inn brand in the operations of its seven Russian hotels.
As the claimant’s cousel preliminarily calculated, the licence agreement could have earned Radisson Hotel Group annual income of RUB 35 million.
The unexpected rebranding was rough on the hotels as well: their occupancy rates decreased by 15-20%, and some of the personnel quit.
Disney Will Litigate with the Black Widow over Appropriate Forum
In late July, actress Scarlett Johansson filed a lawsuit with the Los Angeles Superior Court against The Walt Disney Company demanding compensation of the damage incurred due to the alleged breach of contract between the media giant and one of its main stars.
The contract concerned the Black Widow movie production and provided that the female lead would receive royalties based on the box office output. However, Disney launched the film on its streaming service, Disney+, while it was still in theaters, which led to a drop in box office income that Johansson was guaranteed under the contract.
Johansson’s attorneys insist that the case must be heard by a jury at the Los Angeles County Superior Court. However, Disney’s representatives claim that Marvel Entertainment LLC, a media giant’s subsidiary, is the appropriate respondent, and, as the actress entered in the contract with Marvel in 2019, the dispute must go to arbitration in accordance with the contract’s arbitration clause.
Nonetheless, as the claimant’s representatives say, the Disney company breached the contract, since it was the one to make the decision to launch the movie on the streaming service, thus rendering the dispute non-arbitrable and falling within the jurisdiction of state courts.
Online Hearings at the Height of the Pandemic Do Not Violate a Party’s Right to Be Heard
In proceedings for setting an LCIA arbitral award aside, the Federal Supreme Court of Switzerland did not recognize the arbitration panel’s refusal to postpone online hearings in the midst of the coronavirus pandemic as a violation of the party’s right to be heard.
The LCIA award was rendered in a dispute between the shareholders of Super-Max, a company that produces razor blades in India, the Middle East, and Africa. Poor financial performance aggravated relations between the shareholders and the dispute was preceded by a corporate conflict. The majority shareholder, who simultaneously holds the position of executive director, attempted to remove the company’s top management, including the CEO, without the consent of the other shareholders. Indignant shareholders initiated two proceedings at once, one in a London-based state court and another in the LCIA.
The LCIA arbitration panel resolved that the majority shareholder breached both the shareholder agreement and the employment contract and ordered that he pay nearly USD 9.3 million in damages plus interest. The majority shareholder disagreed with the award and applied to the Federal Supreme Court of Switzerland to set it aside. He argued that his right to be heard and the principle of equality between the parties were breached when the arbitration panel dismissed a motion to postpone an online hearing in May 2020. In his view, the pandemic has made it extremely difficult to find a lawyer capable of providing legal assistance before the LCIA.
The Swiss Federal Court did not agree that the arbitral award violated the party’s procedural rights and should be set aside, especially in view of the party’s own conduct (including such examples as the statement of inability to attend the hearing being submitted on the eve of the hearing and the shareholder’s representative participating in the proceedings in London).
Investment Arbitration News
An Award Made in the First Investment Arbitration under the EAEU Treaty
An ad hoc arbitral award has been published in a case initiated by a Russian company Manolium Processing LLC against the Republic of Belarus. The case concerns an investment agreement made in 2003 between Manolium Processing LLC, on the one hand, and the Minsk City Executive Committee and a state enterprise Minsktrans, on the other. As stipulated in the agreement, the Russian company obtained the right to develop a land plot in the center of Minsk for further construction of a commercial, cultural and leisure complex in exchange for construction of several utility facilities by mid-2011. The Minsk Commercial Court, however, terminated the investment agreement in 2014 after numerous breaches by the company.
In 2017, the Russian company initiated an arbitration against the Republic of Belarus, demanding USD 176 million. This became the first investment arbitration against Belarus under the Treaty on the Eurasian Economic Union. The arbitration panel eventually awarded 12% of the initially claimed amount, ordering to reimburse no more than around USD 19 million, which is close to the amount spent on the construction by the claimant.
Latest News from Spain’s Energy Front
Having considered no less than 49th solar energy case against Spain, the ICSID made yet another award to declare Spain liable for a breach of the Energy Charter Treaty (ECT) caused by reforms in the renewable energy regulations. The arbitration panel awarded nearly EUR 28 million to a German investor STEAG (STEAG GmbH v. Kingdom of Spain, ICSID Case No. ARB/15/4).
It was also reported earlier this month that Spain lost other similar cases. In Infrastructure Services Luxembourg S.à.r.l. and Energia Termosolar B.V. (formerly Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V.) v. Kingdom of Spain (ICSID Case No. ARB/13/31), the ICSID Annulment Committee upheld the decision to award EUR 101 million to Infrastructure Services Luxembourg and its Dutch subsidiary Energia Termosolar and to order that Spain reimburse expenses in the amount of EUR 2.3 million.
Apart from that, the ICSID has also registered two new claims, filed by two Irish funds against Spain (Spanish Solar v. Spain. Spanish Solar 1 Limited and Spanish Solar 2 Limited v. Kingdom of Spain, ICSID Case No. ARB/21/39). The exact amounts claimed are as yet unknown.
If You Can’t Join, Then Dismiss
Six hydroelectric power companies, the subsidiaries of the construction consortium IBT Group headquartered in Miami and owned by the Spanish construction group Eurofinsa, lost in a joint ICSID case against Peru (Hydrika 1 S.A.C. and others v. Republic of Peru, ICSID Case No. ARB/18/48).
In 2014, the IBT subsidiaries concluded six contracts for the construction of six small hydro power plants in Peru at the price of nearly USD 140 million; however, they did not complete the projects at issue within the agreed timeframe, since Peru delayed issuing the necessary permits. Identical arbitration clauses in the agreements with Peru prescribed that disputes under USD 20 million were to be referred to the Peru Chamber of Commerce and Industry, whereas disputes above USD 20 million were to be referred to the ICSID. In 2019, investors brought claim for the total of USD 24 million to the ICSID.
Nevertheless, the ICSID tribunal decided that in order to consolidate the claims, the tribunal had to have jurisdiction over each of them. Given that the amounts under each claim were less than the USD 20 million threshold set forth in the arbitration clauses, the tribunal dismissed the companies’ claims and ordered the companies to cover all Peru’s procedural costs and expenses in the amount of USD 3 million, while disregarding that the claimants were the subsidiaries of the very same IBT.
Claim against Chile Flies to Investment Arbitration
Just over six months after Chile was threatened with arbitration by two French airport operators Vinci Airports and Groupe ADP, shareholders of the Nuevo Pudahuel consortium, the investors filed a claim with the ICSID after all (ADP International S.A. and Vinci Airports S.A.S. v. Republic of Chile, ICSID Case No. ARB/21/40).
The claim concerns a breach of the concession agreement for renovation and construction of a new terminal for increasing passenger traffic at the Santiago International Airport due to Chile’s anti-COVID-19 measures. The concession agreement was made in 2015 and was worth USD 1 billion.
Last year, the profit of investors from the airport fell by 90%, but Chile refused to renegotiate the terms of the concession. The investors themselves claim that they are not challenging Chile’s anti-COVID-19 measures as such, but are rather contesting Chile’s restrictive approach to the concession agreement and compensation of the operators’ losses.
GAR believes that this case can become the first investment agreement dispute to arise from state anti-COVID-19 measures.
India Backs Down
After 17 disputes totalling INR 500 billion (USD 6.7 billion), two investment arbitral awards in favour of British companies Cairn Energy (awarded USD 1.7 billion) and Vodafone (awarded USD 5 million as a partial compensation of procedural costs), a freeze of real estate in Paris worth EUR 20 million under Cairn’s application for the arbitral award’s enforcement, a March lawsuit by a Japanese conglomerate Mitsui & Co for the amount of USD 320 million, India has passed a new law to abolish its controversial retroactive tax on the transfer of Indian assets that took place before May 2012.
Moreover, India has agreed to compensate losses (but not interest) to the affected companies on the condition that they will withdraw their cases against India and undertake not to bring them in the future. The Indian Government said that “foreign investments play an important role in facilitating more rapid economic and employment growth” which is especially important in the context of rehabilitation of the economy after coronavirus pandemic.
Russia Challenges YUKOS’s Mention of the Winning Award
Russia has accused Yukos Foundation of flagrantly breaching confidentiality after the latter published news on the USD 5 billion arbitral award in a dispute against Russia. Russia claims that procedural documents provide for confidentiality of the arbitration, therefore Russia is entitled to claim damages arising from the publication.
Russia argues that damages have been caused by the necessity to provide explanations about the news publication of Yukos Foundation, as it contained “conclusions of the award taken out of context.” Autonomous Non-Commercial Organization International Centre for Legal Protection (ICLP), that represents Russia, notes that in fact the panel has reduced the amounts claimed to USD 2.6 billion since the claimant itself contributed to the loss; moreover, two arbitrators filed dissenting opinions.
Poland Discovered a Threat of Arbitration
Discovery, Inc. has notified the Polish President Andrzej Duda of its intention to initiate an arbitration under the 1990 Treaty between the USA and the Republic of Poland Concerning Business and Economic Relations, which allows for ICSID arbitration in accordance with the UNCITRAL Rules.
The investor is discontent with the authorities that have refused to prolong the broadcasting license for one of the Discovery channels, TVN24, and are planning to pass a law prohibiting companies from outside the European Union to have any type of ownership in Polish TV and radio broadcasters. This law has been previously approved by the Polish Sejm and sent to the upper chamber, the Senate, for voting.
A similar ban is already in force in Poland, but it concerns only direct ownership, thus being inapplicable to Discovery that controls TVN through a Dutch enterprise. If the law is passed, indirect participation of non-European companies in TV and radio broadcasting business will fall under the ban as well, which will lead to the third largest US investor winding up its activities in Poland.
Investors in a Cryptocurrency Exchange Will Have Their Expenses Covered
A Swiss investment company Liti Capital has informed that it is ready to provide USD 5 million to meet the arbitration costs of retail investors in their joint case against a cryptocurrency exchange Binance.
Potentially more than 1,000 investors intend to bring claims for damages resulting from the service outage of 19 May that coincided with one of the massive drops of cryptocurrency prices caused, among other things, by the news that Chinese regulators planned to prohibit banks and payment companies from using cryptocurrencies. Due to the outage, investors were not able to anyhow respond to the drop and could only watch as their assets slumped. At the same time, claims vary greatly, ranging from USD 11 million to several hundred dollars.
According to the Binance Terms of Use, the arbitration will be administered by the Hong Kong International Arbitration Centre.
UNCTAD Prepared a Note about the Investment Arbitration Reform
The United Nations Conference on Trade and Development (the UNCTAD) has prepared a note that looks into developments that occurred during the investment arbitration reform and the issues of international investment treaties. In particular, the note discusses the termination of all intra-EU bilateral investment treaties and the emergence of new international investment treaties. For example, the note mentions that 21 international investment treaties were concluded in 2020, half of which were triggered by Brexit.
Paying Old Debts to Gain New Benefits
A Shell subsidiary, Shell Petroleum Development Company of Nigeria (SPDC), agreed to pay NGN 45.9 billion (USD 112 million) to a community in South Nigeria for oil spills in the Niger Delta that caused the dispute ten years ago. A possible reason for this could be an ICSID case initiated by Shell this February, since it concerns the same environmental obligations.
The original court case [Chief Agbara and Others v. SPDC](https://www.ecolex.org/details/court-decision/agbara-et-al-v-shell-petroleum-et-al-ec451519-5f0b-40f0-8122-f53fd3a6cb1c/) resulted in a judgement for USD 40 million plus interest and concerned land contamination from a rupture of a pipeline serviced by Shell that spilled more than 2 million barrels of oil. The spills caused acid rains, land and ground water contamination.
In November last year, the Supreme Court of Nigeria dismissed Shell’s arguments for challenging the decision in this case, observing that the inflicted damage taken together with interest was ten times greater. Nevertheless, it was precisely the treatment of the investor in Nigerian courts that gave rise to the SPDC's application to the ICSID.
Arbitration News
RIMA Summer Academy “Basics of Arbitration”
The Russian Institute of Modern Arbitration (RIMA) held the Summer Academy “Basics of Arbitration” on 16-21 August 2021. Only 20 participants out of almost a hundred applicants were selected to attend the five-day lecture course taught by leading arbitration and ADR practitioners.
The Academy lecturers included partners, counsels and associates of the major Russian law firms: Olga Tsvetkova and Evgeny Rashchevsky (Egorov, Puginsky, Afanasiev & Partners), Dmitry Kaysin (Rybalkin, Gortsunyan & Partners), Maxim Kulkov and Oleg Kolotilov (Kulkov, Kolotilov & Partners), Dmitry Andreev (Monastyrsky, Zyuba, Stepanov & Partners), and Nikita Kondrashov (Axioma).
Participants were able to put into practice the acquired knowledge and improve their oral presentation skills in a moot arbitration moderated by the RAC Executive Administrator and RIMA General Director, arbitrator Yulia Mullina.
At the end of the Academy lecture course, participants were awarded certificates and were gifted with the translated edition of International Arbitration: Law and Practice by Gary B. Born.
The Summer Academy was held with the support of the Rybalkin, Gortsunyan & Partners Law Firm as the general partner and the Academy’s partner Egorov, Puginsky, Afanasiev & Partners Law Offices.
SIAC Russia Academy
On 20 August 2021, the Singapore International Arbitration Centre (the SIAC) held an online webinar “Time And Cost Savers at SIAC: Emergency Arbitration, Expedited Procedure and Early Dismissal” with support of the Russian Institute of Modern Arbitration and within the framework of the SIAC Russia Academy. Leading dispute resolution practitioners participated in the event.
Members of the RAC Board Andrey Gorlenko (Ivanyan & Partners) and Andrey Panov (Allen & Overy) were among speakers of the event.
Research Competition “New Perspective on Dispute Resolution”
Young IMA has announced the results of the first Research Competition “New Perspective on Dispute Resolution” and held the award ceremony for participants.
The winner of the Competition is Viktor Eremin with the paper “Is There Private Justice in Russia?”. Sergey Ivanov became the runner-up with the paper “Responsibility of the Non-Commercial Organization Operating a Permanent Arbitration Institution. Formulating the Question”. The winner’s paper will be published in the upcoming issue of the RIMA’s Modern arbitration: LIVE News Journal.
Furthermore, the Council of the Competition distinguished the papers of Vakhtang Kvaratskheliya (Issue Conflict in International Investment Arbitration) and Ayzhan Kurmanaliyeva (Joinder in International Commercial Arbitration).
Council member and co-chair of the Young IMA Elena Burova (Ivanyan & Partners) commented the results of the Competition as follows:
“Already in the first year of the Competition, we received around 20 research papers, where authors brought up some of the most topical, debated, and at times even problematic issues of arbitration and alternative dispute resolution. It is a particular delight to see that the authors of some of the papers in fact posed new questions, which have not yet attracted attention either in Russia or globally. We sincerely believe that the Competition will encourage young specialists to further research upcoming problematic issues as well as to strive towards resolving them.”
Young IMA Is Now on Social Networks
Young IMA, a platform for young specialists in arbitration under the auspices of the Russian Institute of Modern Arbitration will from now on share its news, events and plans on social networks!
Follow Young IMA on Instagram, Facebook, VKontakte and LinkedIn.
Young specialists can join Young IMA by filling in a registration form. Registration and membership are free of charge.
Asian International Arbitration Centre Updates the Arbitration Rules
On 1 August 2021, the updated Arbitration Rules of the Asian International Arbitration Centre (the AIAC, Kuala Lumpur, Malaysia) entered into force. The changes concerned the procedure for expedited arbitrations, appointment of emergency arbitrators, joinder of parties, consolidation of proceedings, and summary determination.
Interestingly, the updated AIAC Arbitration Rules will be used as applicable procedural rules during the next season of the Willem C. Vis International Commercial Arbitration Moot. The moot organisers in Hong Kong hope that it will be possible to hold the Moot in a “hybrid” format in 2022: it is planned that teams will take part in oral rounds either virtually or in person depending on the epidemiological situation.
The Sixth RAA Online Arbitration Competition
The Arbitration Association (RAA) and RAA25 have held the Sixth RAA Online Arbitration Competition with support of the HSE University’s Faculty of Law.
On 27 August 2021, a conference for participants, arbitrators and anyone interested in arbitration was held in anticipation of the Competition and oral rounds that took place on 28 and 29 August 2021.
Traditionally, the awards ceremony for teams and best speakers is held at the end of the Competition. Best speakers of the Competition are offered the opportunity to undergo a traineeship in leading Russian and international law firms.
The teams from the National Research University Higher School of Economics (Moscow) and the Ural State Law Academy became the winner and prize-winners of the oral rounds. The Lomonosov Moscow State University team, whose coach was the Executive Administrator of the RAC and the General Director of RISA, Yulia Mullina, took second place in the nomination for the best memoranda of the claimant and the respondent.
Who Runs the World? Gender Diversity in Key Arbitration Institutions
The ICSID statistics for 2021 show that women account for 31% of arbitrators, ad hoc committee members, and conciliators. To compare, in 2019, women were appointed only in 24% of cases.
In August, it was also reported that Kristin Campbell-Wilson would serve as Secretary General of the Arbitration Institute of the Stockholm Chamber of Commerce (the SCC). Not so long ago, Claudia Salomon has become the first woman President of the ICC in its 100-year history. She has joined other women who head arbitration institutions (such as Francesca Mazza at the DIS, Meg Kinnear at the ICSID, Jackie van Haersolte-van Hof at the LCIA, Sarah Grimmer at the HKIAC, Alice Fremuth-Wolf at the VIAC, and Yulia Mullina at the RAC ), which undoubtedly has a positive impact on gender diversity in arbitration.
Faster, Higher, Stronger: What Disputes Can Arise During the Olympics?
Mark Mangan, Ananya Mitra and Miranda Elvidge of Dechert LLP conducted an interesting research into the categories of disputes that may arise during the Olympics.
The first category of disputes concerns selection criteria. A few cases of this category have been already widely reported and, for instance, include a series of disputes with a South African runner Caster Semenya obliged to take medication to suppress blood testosterone level, and a case of Blake Leeper not allowed to compete due to the height of his prostheses. Besides, the Court of Arbitration for Sport in Lausanne (the CAS) is required to deal with a plenty of most complex cases relating to athletes’ citizenship, nationality, gender and other issues.
The second and largest category of disputes involves disciplinary violations that cover doping among other things, as athletes often challenge the validity of antidoping tests. Breaches of antidoping regulations are punished quite severely and an athlete can be even banned from the future Olympics. Not all disputes can be referred to CAS, however; traditionally, decisions that a referee takes on a playing field are not arbitrable.
The third category of disputes relates to management within sports organizations, including the cases of corruption. For example, the International Boxing Association and boxing arbitrators of the Rio Olympics were denied participation in the Tokyo Olympic Games in light of “serious concerns about governance, financial management and judging” at the Association.
The Olympic Games are a large-scale grand event requiring substantial financial resources, which leads to a plenty of commercial contracts being concluded. Commercial disputes constitute the fourth category of disputes. When parties enter into such contracts, they negotiate the procedure for dispute resolution among other things: usually disputes are referred to arbitration before the CAS or the ICC, SCC, and SIAC.
The fifth category of Olympic Games-related disputes concerns intellectual property rights. For example, the renowned company Nike, while not being an official Olympic partner, undertook an advertising campaign using slogans in support of the London Olympic Games, much to the discontent of Adidas, which was the official partner of the Games.
СIArb YMG Writing Competition
CIArb YMG welcomes everyone under 40 years old to participate in its Writing Competition. This year’s participants are invited to prepare an Arbitral Tribunal Ruling on provision of security for costs under the 1976 UNCITRAL Rules in an investor-state arbitration seated in London.
The winner of the Competition will be invited to speak at the CIArb YMG conference and the five finalist submissions will be published on the CIArb website. The deadline for submissions is 15 October 2021.
The Thirteenth ABA Conference on the Resolution of CIS-Related Business Disputes
The Russian Arbitration Association (RAA) has announced the Thirteenth ABA Conference on the Resolution of CIS-Related Business Disputes.
The Conference will be held in Moscow on 22 September 2021 in a hybrid format, with participation possible either in person or online. Prominent Russian and foreign practitioners are expected to speak at the Conference.
SibLegalWeek – Siberian Legal Week
The Siberian Legal Week (SibLegalWeek) will be held in Novosibirsk on 04-09 October 2021.
As part of the Week’s activities, it is planned to have public talks, master classes, business breakfasts, round tables and discussions of current issues with leading specialists.
One of the Week’s events, business breakfast “Management of Inherited Assets. Life of Business after the ‘Exit’ of the Owner” could be useful for teams and arbitrators in preparation for the annual V.P. Mozolin Competition. This year, the Competition’s case concerns the recovery of damages from a company’s shareholders, extension of the arbitration clause to cover an inheritance trust and the arbitrability of disputes stemming from inheritance relations.
The Fifth Competition on Arbitration of Corporate Disputes named after V.P. Mozolin
The Russian Institute of Modern Arbitration has announced registration of teams for the V.P. Mozolin Competition.
Every year, the Competition assembles hundreds of law school students from dozens of Russian regions, making it one of the largest and most prestigious student competitions.
The Competition is organized in the form of a moot court governed by the Russian law and held in the Russian language. Teams are invited to arbitrate a fictitious corporate dispute and present their positions in the course of a moot oral hearing. Leading specialists in the fields of corporate law and arbitration, including partners of Russian and foreign law firms, acting arbitrators and academics, take part in the moot court as arbitrators.
In 2021, pre-moots will be organized in five Russian cities (Kaliningrad, Ekaterinburg, Moscow, Vladivostok, and Ufa) in advance of the Competition.
Anniversary of the Russian Arbitration Centre and the Russian Institute of Modern Arbitration
This year marks five years since the inception of the Russian Arbitration Centre and the Russian Institute of Modern Arbitration. We invite you to celebrate with us this modest anniversary, which is nevertheless very important to us.
Since the RIMA cares for the environment and participates in the WWF project “Forest Guards”, the event will be held in the form of a fundraiser.
More details will be published shortly on social networks as well as on the official websites of the RAC and RIMA.