As of January 2024, France, Germany and Poland have officially withdrawn from the Energy Charter Treaty (ECT).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.
arbitration agreement (AA)
Reform of the English Arbitration Act 1996 – The Law Commission’s Final Report
By Julia Bihary & Alexis L. Namdar on
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.
Ninth Circuit Holds Clause Delegating Authority to Decide Arbitrability Is Valid Even If Broader Arbitration Agreement Is Not
By Russell T. Gorkin on
Parties to an arbitration agreement sometimes choose to include a delegation clause, which is a provision that delegates to the arbitrator—rather than a court—gateway questions of arbitrability, such as whether the agreement covers a particular controversy or whether the arbitration provision is enforceable at all. See Caremark LLC v. Chickasaw Nation.
In Holley-Gallegly v. TA Operating, LLC, the Ninth Circuit recently reinforced the Supreme Court’s decade-old distinction between the analysis needed to determine whether a dispute is subject to arbitration on the one hand, and whether an arbitrator has been legally delegated the authority to make that threshold determination on the other. The decision provides important lessons to practitioners litigating disputes regarding the enforceability of delegation clauses.
Drafting an Arbitration Agreement? – Remember Four S’s
By Alexis L. Namdar & Dorothy Murray on
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.
Reform of the English Arbitration Act 1996: Three Areas under Scrutiny
By Alexis L. Namdar & Julia Bihary on
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).
Ecuador Welcomes Arbitration (Back)
By Sophie C. Matamoros on
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.
Ninth Circuit Splits From the Second, Third and Fourth Circuits in “Brain Twister” Arbitration Case
By Om V. Alladi on
Arbitration provisions are common features of commercial agreements. Arbitration is often touted as a cost-effective alternative to litigation that provides contract parties the freedom to decide everything from what law the arbitrator should apply, to what issues the arbitrator should resolve. The parties can even delegate to the arbitrator the issue of what should and should not be arbitrated (also known as arbitrability issues) by incorporating a delegation clause in their arbitration agreement.
Recent Decisions Spotlight Arbitration Agreements in Online Delivery Service Terms and Conditions
By Stacey P. Eilbaum on
The global pandemic has brought about countless changes, including, for many households, increased reliance on online retail and delivery services, such as Amazon.
When consumers sign up for these services or place their orders, they are likely to see a notice regarding terms and conditions, which may include an arbitration agreement pursuant to which the consumer agrees to arbitrate disputes arising from the use of the service, rather than pursue their claims in court. Recent decisions underscore the importance of the terms of these agreements and the challenges consumers may face if they wish to avoid arbitration of disputes with service providers, especially when they continue to rely on those services.