By Nakul Sachdeva and Mohit Mahla*
Continue reading Did the ‘unruly horse’ of public policy jump sideways in India? – An Analysis of National Agricultural Cooperative Marketing Federation of India v. Alimenta S.A.
The metaphor once used by Justice Burrough in 1824 – public policy is an ‘unruly horse’ (Richardson v. Mellish) still stands apt in the context of arbitration in India. Over the years, reliance on public policy to challenge an arbitral award or to resist its enforcement has become one of the main arrows in the quiver of the party challenging an arbitral award or resisting its enforcement. With time, however, the odds of the arrow hitting the target – especially in the enforcement of foreign awards proceedings – seems to have declined.
By Megan Betts and Evanthia Kasiora (Squire Patton Boggs)
The COVID-19 pandemic has already created market volatility and adversely affected the financial position of companies and individuals around the world. This post explores two main ideas: (1) whether the pandemic is likely to result in an upturn in recourse to third party funding arrangements; and (2) whether arbitrating parties should anticipate increased exposure to applications for security for costs in international commercial arbitrations.
Continue reading The Impact of the COVID-19 Pandemic on Third Party Funding and Security for Costs in International Commercial Arbitration
By Laura Yvonne Zielinski, International Associate at Holland & Knight México, S.C.
The COVID-19 disease, declared a pandemic by the World Health Organization on 11 March 2020, is upending normal life around the world with many borders closed, businesses forced to pause their activities and millions of people ordered to stay at home. Those measures taken by the majority of countries following health emergency declarations under their domestic laws, are an attempt to contain the virus’ further spread and mitigate its strain on the health care systems. Although more than painful for the economy in the short term, those measures are said to be the only way to avoid even worse in the long term.
Continue reading Are FPS Claims Looming in the Aftermath of the Corona-crisis? Potential Consequences of the Failure to Enact Measures to Contain COVID-19
By Stéphanie Papazoglou, Trainee Lawyer
There was a time when arbitrators were to a large extent immune from liability and could thus not be sued before national courts for damages caused to the parties to a dispute. This was true mainly in common law jurisdictions and was probably the case in most civil law countries as well. For instance, under English law for at least 250 years until the decision of the House of Lords in two cases in 1974 and 1997, it was firmly assumed that an English arbitrator could not be sued for damages (V. VEEDER, “Arbitrators and Arbitral Institutions: Legal Risks For Product Liability?”, American University Business Law Review, Volume 5, Issue 3, 2015). This assumption is no longer accurate. Due to the growing use of arbitration as an attractive alternative to court litigation, arbitrators have gained increasing importance and responsibility as final adjudicators of international legal disputes.
Continue reading The Scope, the Validity and the Effect of Advanced Liability Waivers: Investment and Commercial Arbitration Perspective
by Olga Kokoz, Senior Associate at Kulkov, Kolotilov and Partners
We live in time when sanctions
hit the headlines almost every quarter. Naturally, this frustrates contracts and
creates additional causes for disputes. However, there exists uncertainty as to
whether sanctions also render awards unenforceable on the grounds of public
policy. As will be shown in this post, even within the supreme court of one
country the understanding of public policy can change within a period of a
Continue reading Is there room for sanctions in public policy? Opposite approaches in the recent case law of the Ukrainian Supreme Court