International treaty arbitrations

One of the key challenges in the course of an international arbitration with a Mainland China based counterparty is the enforcement of interim measures granted by the tribunal. As a general rule, a Mainland court will not grant any interim relief or provide any assistance to parties to an arbitration outside of Mainland China. This was an issue in Hong Kong until the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and the Hong Kong Special Administrative Region came into force on 1 October 2019 and enabled recognized institutional arbitration institutions in Hong Kong to apply for relief in Mainland China and vice versa.

The arrangement has given Hong Kong the edge when choosing an arbitration seat for a contract with a Chinese counterparty. Macau, China’s other special administrative region, has not had the same advantages, meaning that whilst Hong Kong is one of Asia’s major arbitration hubs international arbitration in Macau is relatively uncommon.Continue Reading New Interim Arbitration Measures between Mainland China and Macau: Bringing Macau in line with other Favored Arbitral Seats in Asia

Post Achmea and Komstroy, arbitration provisions in bilateral investment treaties have come into doubt with respect to intra-EU disputes between investors and EU member states.  Most recently, the Contracting Parties to the Energy Charter Treaty (ECT) on June 24, 2022, announced their agreement in principle on the modernisation of the ECT.[1]  Part of the agreement “confirm[s] that an investor from a Contracting Party that is part of a regional economic integration organisation (REIO), like the EU, cannot bring an Investor-state dispute settlement (ISDS) claim against another Contracting Party member of the same REIO.”  The Parties addressed that aspect in order to “finally bring an end to the intra-EU applications under the ECT that are contrary to the EU law and recent judgments by the Court of Justice of the EU.”  This post summarizes the background, recent decisions post-Achmea and Komstroy, and the resort to enforcement outside of the EU, particularly the actions pending in the United States.
Continue Reading The Future of Bilateral Investment Treaty Arbitrations Between EU Member Countries

The Supreme Court on May 23, 2022, in its decision in Morgan v. Sundance, Inc., rejected the “arbitration specific waiver rule demanding a showing of prejudice” to the party opposing the petition to enforce the arbitration agreement. That rule had been followed for decades by nine Circuits.[1] Post Morgan, the analysis reverts to the standard contract waiver analysis “focus[ing] on the actions of the person who held the right; … [rather than] the effects of those actions on the opposing party.”[2] Although the case is an employment matter, the new rule applies whenever a party seeks to stay litigation and send the matter to arbitration under Sections 3 and 4 of the Federal Arbitration Act in essentially all commercial litigation contexts.
Continue Reading Supreme Court Rejects Prejudice Element of Waiver Analysis When Enforcing Agreements to Arbitrate