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Unsurprisingly given the uncertainty that has gripped the global economy over the last few years, commercial disputes have persisted. Companies have had to contend with issues arising from the coronavirus (COVID-19) pandemic, the Russian invasion of Ukraine, and mounting environmental, social and governance (ESG) concerns in short order. As a result of these and other factors, parties continue to find themselves in dispute.

UNITED STATES

King & Spalding LLP

“Among the most significant developments was a US Supreme Court ruling that significantly curtailed parties’ ability to seek discovery of evidence located in the US courts in support of an international arbitration. For years, parties to commercial arbitrations would seek discovery in US courts for use in arbitrations pursuant to section 1782, which empowers a district court to authorise discovery from persons or entities located in the US “for use in a proceeding in a foreign or international tribunal”. However, the Court recently ruled that section 1782 does not extend to private commercial arbitrations.”

ARGENTINA

Marval O’Farrell Mairal

“The past few months have been shaped by the consolidation of Argentina as a friendly and reliable jurisdiction for domestic and international arbitration. Between 2015 and 2018, Argentina completely modernised its legal framework applicable to arbitration with the enactment of the Civil and Commercial Code and the International Commercial Arbitration Law, based on the UNCITRAL Model Law. Over the last few months, the courts have issued several rulings interpreting this new legal framework in a manner favourable to the development of arbitration.”

UNITED KINGDOM

Three Crowns LLP

“Uncertainty and business disruption caused by Brexit and the coronavirus (COVID-19) pandemic have been exacerbated by the conflict in Ukraine. This has returned energy disputes to the foreground, with international oil companies (IOCs) facing difficult operating conditions and competitive resource prices. Inevitably, there has been a rise in disputes stemming from contractual issues such as force majeure, material adverse events, frustration and economic impossibility arguments, many of which will end up in formal proceedings, including arbitration.”

FRANCE

FLV & Associés

“Despite the economic climate and its impact on business in general, interest in commercial arbitration has remained high. For instance, in 2021, the International Chamber of Commerce (ICC) annual statistics have shown a steady number of new registered cases, and, in 2022, the ICC Court had registered its 27,000th arbitration case. Such numbers reveal the importance of the arbitration activity in France and the genuine interest of commercial parties in such alternative dispute resolution (ADR). The activity of French courts in connection with challenges of arbitration awards has also shown 2022 to be a productive year, with some very interesting decisions.”

SWITZERLAND

Prager Dreifuss AG

“In the wake of the coronavirus (COVID-19) pandemic, we have seen technological advances and the ease of access to digital communication take hold in arbitrations. While some issues still need to be resolved, maintaining confidentiality and security remains key. In our experience, these technicalities are best addressed in a procedural order, with a virtual hearing protocol, including technical requirements, test runs and details regarding the examination of witnesses, for example. Against this background, the new Swiss Rules of International Arbitration, which came into effect in June 2021, further advance digitalisation, with paperless filings becoming the norm.”

INDIA

Norton Rose Fulbright

“The last year saw several significant developments, including a renewed focus on institutional arbitration in India. In particular, the finance minister of India, in the Union Budget, reiterated India’s intention to strengthen its support for arbitration and announced the establishment of an International Arbitration Centre at Gujarat International Finance Tec-City (GIFT City) in Gujarat; the centre will be India’s equivalent to international financial centres in Dubai, Singapore and London. The Singapore International Arbitration Centre has also set up a representative office in GIFT City.”

SINGAPORE

Ashurst

“The last 12 to 18 months have seen a continuation of Singapore’s ongoing efforts to update its legislative framework to accommodate innovations in international commercial arbitration. Amendments to Singapore’s key piece of legislation governing international arbitration, the International Arbitration Act 1994 (IAA), came into effect in December 2021. The revised IAA sets out a default process for the appointment of arbitrators in multiparty arbitrations with a three-member panel, whereby the claimants jointly appoint an arbitrator, the respondents jointly appoint an arbitrator and the two jointly appoint the third arbitrator.”

HONG KONG

Quinn Emanuel

“Hong Kong has traditionally abided by English champerty and maintenance laws. All lawyers, including arbitration counsel, have therefore been prohibited from entering into contingency fee arrangements with their clients. While this remains the case for those that have courts, the situation has now changed for arbitration. The Arbitration (Outcome Related Fee Structures for Arbitration) Rules came into effect on 16 December 2022. Certain restrictions on contingency fee arrangements have now been lifted, providing arbitration attorneys and their clients with greater flexibility on fee structures.”

UNITED ARAB EMIRATES

Norton Rose Fulbright (Middle East) LLP

“The most significant recent development in the United Arab Emirates (UAE) came via Dubai Decree No. 34 of 2021, which effectively abolished the DIFC-LCIA Arbitration Centre, and provided that future disputes arising under DIFC-LCIA arbitration agreements would be administered by the Dubai International Arbitration Centre (DIAC). As a result of the Decree, the DIAC has updated its arbitration rules. These came into effect on 31 March 2022. In our opinion, the new rules bring the DIAC into line with arbitration best practice and include various procedural innovations found in leading institutions such as the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA).”

SOUTH AFRICA

Herbert Smith Freehills

“The establishment of the Arbitration Foundation of Southern Africa (AFSA) Court under the revised AFSA International Arbitration Rules was arguably the most significant arbitral development in South Africa over the past 18 months. The court is the first of its kind in South Africa and is tasked with taking decisions on behalf of the organisation, including confirmation of arbitral appointments. The new AFSA international rules continue to rise in popularity, both by incorporation into commercial agreements and the drafting of arbitration agreements after a dispute has arisen.”

CONTRIBUTORS

Ashurst

FLV & Associés

Herbert Smith Freehills

Marval O’Farrell Mairal

Norton Rose Fulbright

Norton Rose Fulbright (Middle East) LLP

Prager Dreifuss AG

Quinn Emanuel

Three Crowns LLP