International Arbitration

England is one of the most popular jurisdictions for commercial parties to resolve disputes through arbitration: London and Paris were ranked as the top two preferred cities in the world in 2022. To ensure England’s arbitration regime remains modern and competitive, the Law Commission –  a body responsible for considering and recommending legislative change to the UK government – is currently considering updates to the legal framework of arbitration in England & Wales, the Arbitration Act 1996 (the Act).

On January 11, 2023, Elizabeth Wilkins, the FTC’s Director of the Office of Policy Planning, spoke to the Capitol Forum about the FTC’s proposed rule to ban non-compete agreements.  This conversation was the most significant discussion of the proposed rule by the FTC since it was announced on January 5.  Below are the four most salient takeaways.

The choice of arbitration institution can arise at any point in an investment cycle: from finalising initial agreements at fund or portfolio company level, or on an ad hoc basis when a dispute arises.

To help demystify some differences – this article sets out the key features of three commonly used international arbitration regimes that an asset manager should take into account when making such a choice.

2021 marked a new chapter for arbitration in Ecuador: after re-joining the International Centre for Settlement of Investment Disputes Convention in June, Ecuadorian Executive Decree No. 165 in August introduced Regulations to add to and improve the existing legal framework for arbitration as it results from the Ecuadorian Arbitration and Mediation Law (“AML”).  The AML, which was enacted in 1997 and amended in 2015, had been criticised for its lack of clarity.

The U.S. Court of Appeals for the Tenth Circuit recently held for the first time that parties opposing confirmation of nondomestic arbitral awards (i.e., awards issued in disputes involving property located or conduct occurring outside the U.S.) issued in the U.S. or under U.S. arbitration law are not limited to the grounds set forth in the Inter-American Convention on International Commercial Arbitration (the Panama Convention). Instead, the court ruled that defenses to confirmation under the Federal Arbitration Act (FAA) apply.

ICC arbitrations based on agreements entered into in 2021 and beyond will follow an expedited procedure if the amount in dispute is $3 million or less – up from the previous $2 million or less.

This expansion of the automatic applicability of the Expedited Procedure is one of the most significant amendments made to the revised ICC Arbitration Rules 2021, which entered into force on January 1, 2021. It is thus important for parties agreeing to ICC arbitration to be acquainted with the key features of that procedure and with their ability to either opt in or opt out of it.

The Expedited Procedure will apply automatically to disputes up to $3 million unless the parties agree to opt out. Just as importantly, parties are free to opt in to the Expedited Procedure even if the amount in dispute exceeds $3 million.  As a practical matter, parties are likely to be able to agree to opt in or out only at the time they are negotiating the arbitration agreement: whether to do so should thus be considered at that time.

Whether you are a regular user of arbitration, a default user of your local courts or pick and choose a forum depending on the deal, it always pays to take a cold look at those choices. Do they still work for you? Will they work in the future when a dispute arises? Have you taken into account developments in law and current best practice?

Today is the day to review your dispute resolution (DR) provisions. Why? We give you 5 good reasons.