International Arbitration

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In the first part of this article, we discussed why we need experts in international arbitration, how to find the right expert to instruct, and some practical guidance on how to work with experts for the best results. In this second part of the series, we consider what expert reports should cover, the ins-and-outs of expert meetings and some practical tips and tricks for oral testimony.

Recent developments have impacted the much-anticipated update to the English Arbitration Act 1996. Proposed reforms, developed by the Law Commission and through a consultation process, marked the first significant changes to the Act since its inception. However, Prime Minister Rishi Sunak’s unexpected decision to call a general election in July 2024 has halted all current parliamentary business, including the passage of the bill to reform the Act.

Effective choice of court clauses (also known as jurisdiction clauses) are central to finance agreements. Reliable, certain process to enforce contractual obligations is essential for cross-border trade and finance transactions. Parties want to be sure that any disputes will be heard not just according to their chosen law but in their chosen forum, and that any judgment obtained can be easily and reliably enforced, including abroad if needed.   

As of January 2024, France, Germany and Poland have officially withdrawn from the Energy Charter Treaty (ECT). Their decision to withdraw from the treaty follows a recent European Commission proposal for a mass exodus from the ECT by EU member states, which effectively will limit protections granted by the treaty previously enjoyed by direct investors and asset managers with portfolio companies in the energy sector. 

We have previously reported on changes the Law Commission was considering to the Arbitration Act 1996 (the Act). The Law Commission has now published its final report (the Final Report, available here).

The report draws to a close a review of English arbitration legislation that began in January 2022. A draft bill to implement the Commission’s conclusions and recommendations into law is provided with the report so it is now for the UK government to decide whether to introduce those changes to parliament.

The Eleventh Circuit upheld an arbitral award last month despite the arbitrators’ failure to make certain disclosures regarding potential sources of bias. The litigation involved a dispute between the Panama Canal Authority, the government agency responsible for the operation and management of the Panama Canal, and Grupo Unidos por el Canal, S.A., the contractor hired to construct the Panama Canal expansion. Complications with the project caused progress to be “severely delayed and disrupted,” resulting in liability disputes between the parties. 

Last month saw the end of the second round of the UK Law Commission’s consultation on reform of the Arbitration Act 1996, the legislation which provides the framework for arbitration in England and Wales. We have reported on the current status of the consultation and are watching for the final recommendations.