Volume 8, Issue 2 (January 2020)

TABLE OF CONTENTS

 

EDITORIAL

Data Protection, Cybersecurity and International Arbitration: Can they Reconcile?

Ananya Bajpai & Shambhavi Kala

For the past few years, international arbitration has been on an upward surge. It has grown exponentially, becoming a preferred forum of dispute settlement. Simultaneously, data protection and cybersecurity have been at the fore of discussion globally, with the enactment of the General Data Protection Regulation [“GDPR”] in the European Union [“EU”], the right to privacy being declared a fundamental right in India, and jurisdictions like India modelling their law on the GDPR. The time has come for the intersection of both these fields to be considered seriously. The International Council for Commercial Arbitration [“ICCA”] and the International Bar Association [“IBA”] have formed a task force to investigate the question of data protection in international arbitration, and a Cybersecurity Protocol has been released by the ICCA in conjunction with the New York City Bar Association [“NYC Bar”] and International Institute for Conflict Prevention and Resolution [“CPR”]. These positive developments show the way forward for arbitration and data protection. In this paper, the authors analyse these developments, assess the status of data protection and information security in arbitration, and provide some suggestions about the way forward.

1

ARTICLES

 

Five Recurring Problems in International Arbitration: The Relationship Between Courts and Arbitral Tribunals

Iris Ng, Melissa Ng, Andre Soh & Chen Siyuan

In recent years, five recurring problems regarding the relationship between courts and tribunals have gained prominence due to case law developments. These run the gamut from preliminary issues with the arbitration agreement to disputes at the enforcement stage. This article examines these problems in detail, with a view to shed new light on the question of what it means for a jurisdiction to be “pro-arbitration”. The authors argue that the oft-repeated binary categorisation of “pro-arbitration” and “anti-arbitration” jurisdictions is too broad-brush. Instead, there is no easy answer to what constitutes a truly “pro-arbitration” approach, and no one-size-fits-all approach to being a “pro-arbitration” jurisdiction.

19

The New Swiss Approach to the Right to Be Heard – Balancing Challenging Fairness and Efficiency Concerns

Simon Gabriel & Andreas Schregenberger 

Based on recent jurisprudence by the Swiss Supreme Court on the parties’ right to be heard, this article analyses how the focus on evaluating infringements of the right to be heard under Swiss lex arbitri has shifted over time. Whereas some decades ago any infringement of the right to be heard led to the annulment of the arbitral award, the Swiss Supreme Court now requires that there be a potential impact on the substantive outcome of the case. As an analysis of pertinent jurisprudence in Austria, England and in relation to the International Centre for Settlement of Investment Disputes [“ICSID”] demonstrates, this appears to be in line with developments at the forefront of international arbitration. From a practical point of view, the new Swiss approach is likely to help tribunals increase procedural efficiency, one of the utmost concerns of modern arbitration. At the same time, parties may, in certain scenarios, run into evidentiary problems in annulment proceedings. As a potential remedy, parties may need to react timely with more specifically reasoned objections against any potential infringements of the right to be heard by arbitral tribunals. The authors trust that the new approach adopted by the Swiss Supreme Court will increase procedural efficiency in Swiss arbitration proceedings.

48

Hard Questions in Uneasy Times: The Prospect of Enforcing Foreign Awards Applying Shari’a Law in Australia

Thomas Burke & Kanaga Dharmananda

International arbitration under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards [“New York Convention”] is the leading institution for the resolution of transnational disputes of a commercial character. Operating across interfaces between societies, polities, cultures, and as the vanguard mechanism of its kind, international arbitration must grapple not only with differences between legal systems, but also with divergent social values and cultural norms. Saudi Arabia’s shift, over the past decade, towards becoming an arbitration-friendly jurisdiction, provides a timely opportunity to reflect. This paper raises, as a thought piece, the situation of enforcement of Saudi Arabia seated arbitral award in Australia, and the scope for resisting enforcement on public policy grounds. Saudi Arabia is an Islamic country with legal, political and social systems based on Shari’a law. The New York Convention permits a contracting State to refuse enforcement of an arbitral award where to grant enforcement would be contrary to public policy. This paper examines those aspects of Shari’a law which may be relevant to international commerce and dispute resolution and considers the likely impacts of Shari’a law on Saudi-seated arbitral awards. It then examines Australian judicial treatment of the public policy exception in order to distil the implications, if any, of Shari’a law on enforceability of Saudi-seated awards in Australia.

67

Causation in International Investment Law: Putting Article 23.2 of the India Model BIT into Context

Joachim Knoll & Tania Singla

Causation has received little attention in international investment law even though it is an integral element of liability in investment disputes. This article uses the two dimensions of the causal inquiry, factual and legal causation as a framework for analysis, and explores how investment treaties and tribunals have addressed causation. Article 23.2 of the new India Model Bilateral Investment Treaty, which exhibits a novel approach to causation in treaty practice, must be seen in this context. As relationships among States and private investors grow more complex, other investment treaties may follow and set out specific standards of causation.

83

The Investment Court System under the EU-Canada Comprehensive Economic and Trade Agreement: Proposal and Some Unaddressed Issues

Ameyavikrama Thanvi

Investor-State dispute settlement [“ISDS”] has been the preferred mechanism for resolution of disputes between foreign investors and States over the last few decades. However, despite the preference, the system has come under severe criticism in the recent past. Among numerous suggestions that have been floated to address the shortcomings of the system, a multilateral investment court proposed by the European Union [“EU”] and its Member States holds potential to bring about a paradigm shift in the way disputes are settled between foreign investors and sovereign States. The EU has, in fact, already incorporated provisions for such a court in some of its recent trade and investment treaties. For instance, the EU-Canada Comprehensive Economic and Trade Agreement proposes setting up an investment court system [“ICS”] and submitting their investment disputes to such a court. At the outset, this paper attempts to assess the model proposed by the treaty parties to this agreement by analysing the structure proposed for the court, its composition, the law applicable to proceedings before it and the nature of the decisions rendered by such an investment court. It then goes on to analyse the reasons for which the validity of the proposed court was challenged before the Court of Justice for the European Union [“CJEU”] and the reasoning provided by it to uphold validity of the proposed ICS. In the third part, the author has identified issues that have, thus far, been left unaddressed by the CJEU and which may cause hinderance in smooth functioning of the proposed model of investor-State dispute resolution. The author concludes that the proposed court system is merely a modified version of the prevalent ad-hoc arbitration with no real promise to be the panacea to the current ills of the system. The proposed court may lend legitimacy to the dispute-resolution process by giving sovereigns the authority to appoint judges but there is nothing to ensure that it would address the other issues faced by ISDS today, including quality and consistency of decisions rendered.

97

Amicus Intervention in Investor-State Dispute Settlement System: Chinese Reform and Future Considerations

Xinglong YANG

One of the main criticisms levelled against the investor-State dispute settlement system [“ISDS”] is the lack of a transparency regime in the dispute resolution process, particularly the limited opportunities for amicus curiae intervention. This article aims to analyse the recent developments regarding amicus intervention in ISDS proceedings in the People’s Republic of China [“China”]. The analysis reveals that the current amicus intervention provisions under the new generation of Chinese investment agreements still impose several restrictions on amicus intervention in arbitral proceedings. To strike a better balance between the protection of the interests of both parties and the external interests, this article proposes procedures for when and how an amicus may participate in arbitral proceedings under future Chinese investment agreements. In addition, the article proposes that to ensure that maximum benefits can be realised from amicus participation, China should establish safeguards to provide amici with the access to relevant arbitral documents and oral hearings. However, achieving the above goal should not come at the expense of undermining the confidential and protected information of both parties.

118

Arbitrability of Fraud: Analysing India’s Problematic Jurisprudence

Shivam Singh

Arbitrability of fraud has consistently been the subject of immense judicial scrutiny by the Indian courts. Despite that, the final statement of Indian law on this point remains deeply disappointing, and is detrimental to the arbitration landscape in India. In this paper, the author shall demonstrate that the existing jurisprudence on this issue does not suitably deal with the controversy. The paper begins by outlining the scope of ‘arbitrability’. It shall proceed towards tracing the judicial developments on the subject starting from pre-independence India. The paper shall then analyse the significant contemporary developments under the Arbitration and Conciliation Act, 1996 [the “1996 Act”], and critically examine how the existing precedents compel the courts to undertake an adjudication on merits at the pre-reference stage. The paper shall conclude by offering suggestions to reduce the judicial uncertainty on this point.

141

Regulation of Third Party Funding of Arbitration in India: The Road Not Taken

Pranav V. Kamnani & Aastha Kaushal

Third party funding [“TPF”] has become a necessary evil in the face of excessively high costs involved in both international and domestic arbitrations. Historically, TPF in litigation has been deemed to be illegal in most common-law jurisdictions owing to the application of the archaic doctrines of maintenance and champerty. Arbitration hubs such as Singapore and Hong Kong have recently implemented regulatory frameworks to recognise and accept TPF in arbitration and have abolished these archaic doctrines. A regulation of this funding mechanism promotes access to justice and allows meritorious claimants to advance their claims, despite the furore over its ethical, economic, and legal considerations. Through this article, the authors have sought to explore the benefits and the associated risks that are involved in TPF, while referring to the existing regulatory regimes across jurisdictions. This is done with the objective of examining the need for a regulatory framework in India as the lack of prohibition of this funding mechanism makes India a lucrative market for TPF. The Indian market may still be exposed to significant risks due to the lack of a regulation. Legislating on this vacuum in law could assist India in becoming the arbitration hub that it envisages itself to be.

151