Fernando Zuniga is an associate in White & Case's International Arbitration Practice Group in Paris. He advises on international commercial and investment arbitration.

Fernando is both common-law and civil-law qualified. Prior to joining White & Case, he was senior associate at a boutique law firm in Chile in the fields of litigation and international arbitration.

With a special focus on construction disputes, Felipe's experience spans energy, mining, and corporate matters.

This article was previously published in Construction Law Review 2018-2019, Trends in construction disputes.

The Evolution of International Arbitration is the title of the 2018 International Arbitration Survey undertaken in partnership between the School of International Arbitration at Queen Mary University of London and White & Case LLP. The survey is the result of views being sought from a wide range of arbitration users globally, including academics; arbitrators; experts; in-house counsel; lawyers in private practice; representatives of arbitral institutions; and third party funders.

The use of international arbitration in construction projects

International arbitration has long been one of the most commonly used forms of final dispute resolution for international construction and engineering projects. The survey considered the reasons for the popularity of international arbitration. The two characteristics considered the most valuable by respondents are first, the enforceability of awards, and second, the avoidance of specific legal systems and national courts.

In an industry with as many inherent risks as construction, contracting parties from different geographical locations and cultural backgrounds value those aspects of arbitration which make it a more reliable form of dispute resolution than domestic litigation in courts, where they may have little or no previous experience. The United Nations 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards provides an established enforcement regime for international arbitration awards. The New York Convention currently has in excess of 155 signatories. For some parties, the combination of these two factors justifies, or even makes possible, a commercial decision to do business in a new jurisdiction.

The third and fourth most valuable characteristics of international arbitration, according to survey participants, are flexibility and the ability to select arbitrators. Parties may adopt a procedure tailored to the point in dispute, and appoint arbitrators with industry specific expertise, qualifications and experience.

A number of trends in international arbitration were highlighted by the survey. This article focuses on three in particular which are most relevant to the construction industry; alternative dispute resolution, industry-specific measures; and the use of technology.

Alternative dispute resolution

One significant change that emerged between the 2018 survey, and its immediate predecessor carried out in 2015, is the increased popularity of alternative dispute resolution (ADR) being used in combination with international arbitration. In 2015, only 34% of respondents stated a preference for the use of ADR in combination with international arbitration. In the 2018 survey, this percentage has increased to 49%.

The interviews conducted with 2018 survey participants revealed that the majority of those using ADR in combination with international arbitration were doing so as a result of a contractually agreed multi-tiered dispute resolution clause. Such clauses are commonly adopted in construction contracts, with the aim of narrowing the scope and number of disputes being finally referred to arbitration. Such clauses can be particularly beneficial to the projects giving rise to disputes, since cash flow and continued co-operation between the parties are key factors in their continuation and completion.

This adoption of multi-tiered dispute resolution clauses can be seen in standard form construction contracts across the globe. The 2017 Fédération Internationale des Ingénieurs-Conseils (FIDIC) rainbow suite of contracts, for example, stipulates the referral of disputes to a dispute avoidance/adjudication board, followed by a 28-day period for 'amicable settlement' discussions, before the parties may resort to commencing arbitration proceedings.

The views of those interviewed for the 2018 survey on multi-tiered clauses fell broadly into two camps. At one end of the spectrum are those who argue in favour of such provisions for the potential benefits outlined above. At the other end are those who consider such processes as an expensive and time-consuming precursor to inevitable arbitration proceedings. The views of participants will be indicative of their own experiences. Taking the increasingly popular use of dispute boards, for example, when utilised effectively, they can be a valuable tool in resolving disputes promptly and with minimum interference with an ongoing project. If, however, a dispute board process is overly 'lawyer-ised' it can easily become the equivalent of an arbitration, complete with legal submissions, witnesses, experts and hearings.

Industry-specific measures and rules

82% of survey respondents thought it likely that the use of international arbitration for resolving cross-border disputes in the construction and infrastructure industries will increase in the future. When those respondents were asked what innovations they thought would make arbitration better suited to resolve disputes in the sector, the two most popular answers were "wider and faster recourse to interim and conservatory measures" and "more industry/sector- specialised arbitral rules."

The motivations behind the first of these answers are likely to be similar to those on both sides of the multi-tiered dispute resolution clause debate; in short, cash flow. For high-value disputes arising during the course of any ongoing project, their potential financial impact can be damaging to the successful completion of that project. Interim measures that would allow, say, an award for any uncontested element of a claim, are valuable tools on large and complicated projects and the disputes they can give rise to. However, it is not clear to what extent the perceived problem here is a lack of familiarity with some of the measures already available, rather than inadequate provision for them. For example, the four most popular arbitral institutions identified by the 2018 survey are the International Chamber of Commerce, London Court of International Arbitration, Singapore International Arbitration Centre and Hong Kong International Arbitration Centre; and the current rules for all of these institutions already contain provision for interim and conservatory measures.

The reference to more industry specific arbitral rules is interesting for its contradiction with ‘flexibility’ being one of the most valued characteristics of arbitration as stated in the survey; the more specific the rules, the less potential there is for flexibility. 77% of survey respondents thought that existing sets of arbitration rules contained the right level of prescription, and only 5% that the rules are not prescriptive enough. This suggests that further particularity may tip the balance in the wrong direction away from the flexibility so appreciated by the users of arbitration.

Given that parties already in dispute may find it harder to agree on any tailored or non- standard approaches to the arbitral process, perhaps what would be more useful is a menu of suggested alternatives which the parties may consider. Inspiration may be sought from the UK Joint Contracts Tribunal (JCT) Construction Industry Model Arbitration Rules (2016) which provide three alternative procedures; a short hearing, documents only, or full procedure – the route being determined by the arbitrator.

Technology

More than half the respondents to the 2018 survey (61%) were of the view that "increased efficiency, including through technology" is a factor that would likely have a significant impact on the future evolution of international arbitration. The survey looked more closely at the views of participants on certain technology tools; videoconferencing, hearing room technologies, cloud based storage, artificial intelligence, and virtual hearing rooms. Hearing room technologies, such as real time electronic transcripts, are the most well-known, with 73% of respondents reporting that they always or frequently used these tools. The next most known tools on the sample list were videoconferencing and cloud based storage (with 60% and 54% respectively reporting them as either always or frequently used).

Conclusion

The 2018 survey has confirmed the continuing popularity of arbitration, with an overwhelming 99% of respondents stating that they would recommend international arbitration to resolve cross-border disputes in future. For disputes arising out of construction projects, the key trends emerging are of parties looking for ways to refine and develop the dispute resolution process to meet their needs, be that through the combination of arbitration with other forms of ADR, or through alternative methods of structuring the arbitration procedure, allowing it to be managed more effectively.

SEE ALSO
2018 International Arbitration Survey: The Evolution of International Arbitration

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Global law firm White & Case LLP has grown its leading International Arbitration Practice with the addition of a new partner, Jorge Mattamouros, a New York and Portugal qualified lawyer joining the Firm's Houston office. Mattamouros will play an important role in the Firm's international arbitration matters in the Latin America and Lusophone regions.

"Jorge has a successful track record advising on multijurisdictional, high-stakes disputes around the world," said Paul Friedland, White & Case's Global Head of International Arbitration.

Mattamouros has experience representing clients across approximately 25 jurisdictions in commercial arbitration, investor-state disputes, and arbitration-related litigation. He brings sector experience to the Firm’s Oil & Gas, Construction and Power Industry Groups, as well as Portuguese fluency and particular expertise with disputes in Portuguese-speaking markets such as Brazil and Angola. He also handles disputes in Spanish.

Mattamouros comes to White & Case from King & Spalding, where he worked as a partner in their International Arbitration practice.

"White & Case has built truly global disputes capabilities as a key component of our 2020 growth strategy," said Jonathan Hamilton, Head of White & Case's Latin American Arbitration Practice. "Jorge's arrival further strengthens the Lusophone and Portuguese-language capacity of our International Arbitration Practice."

Mattamouros is the Firm's first International Arbitration partner in Houston, joining a growing team of lawyers specializing in global oil & gas, power and energy matters.

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Bingna Guo has extensive experience in international anti-corruption investigation and compliance matters, cross-border litigation, international commercial arbitration and mediation, regulatory matters, crisis management, and complex commercial litigation. Bingna represents companies and individuals in internal investigations and enforcement actions, including FCPA/anti-corruption related investigations, fraud, embezzlement, conflicts of interest investigations, compliance risk assessment, and pre-transaction compliance diligence. She also advises companies on comprehensive compliance programs and trainings.

Bingna has litigated cases in various legal jurisdictions, and provides clients with strategic and case management advice for parallel proceedings involving multiple jurisdictions. She formerly worked in the litigation department of a leading Chinese law firm under secondment, where she litigated cases before Chinese courts. Bingna has extensive relationships with leading local counsel, and is able to effectively coordinate local litigation and counsel on litigation and dispute resolution proceedings in China.

Prior to joining White & Case, Bingna was a partner of another leading U.S. law firm.

Bingna was named a Hauser Global Scholar for 2001-2002 at New York University School of Law, selected by an international committee chaired by the President of the International Court of Justice. She is a member of the New York bar, and also passed the Chinese bar examination in 1999.

Stuart works in the International Arbitration Group in the Sydney office.

A dual-qualified solicitor, prior to joining White & Case he was the director and principal of a claims consultancy based in London, and before that was a partner of MFB Solicitors, specialising in shipping and international trade which built on his prior experience as a claims director working for shipping insurance companies based in London.

Working in international trade, Stuart has extensive experience with trade finance and the application of Incoterms and UCP 600 to disputes. Stuart has supervised or conducted litigation, arbitration and mediation predominantly in the UK and US, but also worldwide.

Stuart is qualified to practice in N.S.W., the High Court of Australia, and in England and Wales, and is a Member of the Chartered Institute of Arbitrators and of the London Maritime Arbitrators Association.

White & Case is delighted to invite the CEPANI to the launch of the 4^th Queen Mary University of London (QMUL) and White & Case International Arbitration survey.

The 2018 QMUL-White & Case Survey explores ‘The Evolution of International Arbitration’: mapping changes in user preferences and perceptions and identifying the arbitration community’s expectations for the future direction of international arbitration. The 2018 Survey is the most comprehensive empirical study of its kind in this field, offering unique insight into the views of not only private practitioners, but also in-house counsel, arbitrators, representatives of arbitral institutions and other key stakeholders across the globe.

Please join us for lunch for a panel discussion on the findings.

Panel Speakers

• Patrick Baeten (Engie SA Deputy General Counsel, Paris)
• Niuscha Bassiri (Hanotiau & van den Berg Partner, Brussels, Arbitrator)
• Nathalie Colin (White & Case Partner, Brussels)
• Dirk De Meulemeester (President of the CEPANI)
• Dipen Sabharwal (White & Case Partner, London)

Thursday, 13 September 2018
12:00 – 14:30
Lunch and panel discussion

White & Case LLP
Wetstraat 62 rue de la Loi
1040 Brussels

Follow this link to RSVP by 6 September

For the first time, the Singapore courts have considered whether to adjourn enforcement of an arbitral award while courts at the seat hear an application to set the award aside. The decision clarifies that the court will only adjourn enforcement if the set-aside application has merit, and it is otherwise just to do so.

Decision: Man Diesel Turbo SE v I.M. Skaugen Marine Services Pte Ltd [2018] SGHC 132

Facts

Man Diesel agreed to supply four engine and propeller shipsets to Skaugen. The parties entered one contract for the engines, and another for the propellers.

Skaugen paid for and took delivery of the first two shipsets. Technical issues with those shipsets arose, and Skaugen sought to postpone delivery of the others. Around the same time, irregularities emerged about Man Diesel's fuel consumption testing on some of its engines (unrelated to those sold to Skaugen).

Man Diesel commenced arbitration in Denmark seeking damages for breach of the engine contract, which it claimed to have terminated. It also sought a declaration requiring Skaugen to accept and pay for the remaining propellers.

Skaugen defended the claim on various grounds. These included that Man Diesel had failed to disclose irregularities in fuel consumption testing at the time of the contracts. Later, less than a month before the final hearing, Skaugen made a new counterclaim relating to excessive fuel consumption. It sought disclosure of Man Diesel's internal investigation on fuel consumption testing, and sought permission to adduce a related expert report. The Tribunal rejected this.

The Tribunal made a majority award largely in Man Diesel's favour. It ordered Skaugen to pay damages for breach of the engine contract. It also ordered Skaugen to accept and pay for the remaining propellers.

Man Diesel obtained leave to enforce the award in Singapore.

Skaugen then applied to set aside the award in the Danish Courts, claiming that:

• It was denied the opportunity to present its case, because its submissions on fuel consumption and Man Diesel's factory testing were ruled inadmissible, and its application for related disclosure was rejected;
• The tribunal violated its mandate, for similar reasons; and
• The award was contrary to public policy, due to (i) the tribunal's management of the arbitration and (ii) various arguments based on fraud.

Skaugen then challenged the Singapore court's order permitting enforcement. Alternatively, Skaugen sought to adjourn the enforcement proceedings pending the Danish set-aside application.

Decision

The court refused to adjourn the enforcement proceedings, and allowed Man Diesel to enforce the award in Singapore.

No adjournment

The court concluded that it has a wide discretion to adjourn enforcement proceedings.¹ It rejected any definitive threshold test.² Instead, it decided that the correct approach was to:

i. Carry out a brief, preliminary assessment of the merits of the set-aside application, focussing particularly on whether it is meritorious and pursued in good faith;

ii. Consider the likely consequences of adjournment, assessing the likely prejudice to either party if enforcement is adjourned; and

iii. Take account of all other relevant circumstances of the case.

Here, the court rejected Skaugen's adjournment application because:

i. Even on a preliminary assessment, Skaugen's set-aside application in Denmark lacked merit:

(a) The tribunal's award dealt extensively with its decision to reject Skaugen's disclosure and expert evidence applications. Skaugen had failed to demonstrate that the tribunal acted outside the bounds of its discretion.

(b) The Court was also unconvinced by Skaugen's other arguments that Man Diesel had acted fraudulently in the arbitration.

ii. Set-aside proceedings in Denmark could take several years. This risked unfairly prejudicing Man Diesel. Conversely, since the set-aside application lacked merit, Skaugen faced little or no risk of prejudice.

iii. Skaugen only filed its set-aside application in Denmark after Man Diesel tried to enforce the award in Singapore. Moreover, before applying to set aside the award, Skaugen had started a new arbitration predicated on the validity of the original award.³

iv. Evidence submitted by Man Diesel suggested that Skaugen might remove assets from Singapore. Enforcement could thus be more difficult if an adjournment was granted.⁴

Immediate enforcement

The court also rejected Skaugen's application to refuse permission to enforce the award, largely for the reasons above.

On Skaugen's public policy argument, the court emphasised that the evidential threshold for refusing enforcement due to fraud in Singapore is high. A causal connection must exist between the fraud and the tribunal’s decision.⁵ No public policy considerations for refusing enforcement arose here.

Comment

The decision appears to be the first time that the Singapore courts have considered an adjournment application pending a set-aside application at the seat. The court drew on practice in other jurisdictions, particularly England.⁶ The result is a flexible approach that ultimately seeks to balance the interests of justice and circumstances of the case, rather than apply a bright line test.

Ultimately, as the court noted, there is a 'perennial tension' between (i) ensuring the finality and swift enforcement of awards; and (ii) allowing an award debtor to challenge the award at the seat, or to resist enforcement. The court recognised a common concern that award debtors can however sometimes raise challenges 'purely as a delaying tactic'. The decision reiterates that such tactics will not be tolerated in Singapore.

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¹ The discretion to adjourn enforcement proceedings pending a set-aside application at the seat arises under s. 31(5) of Singapore's International Arbitration Act. That provision reflects Art VI of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention).
² Such as whether there is a "serious issue to be tried" in the set-aside application (see Man Diesel, [62]).
³ After the award was issued, a dispute arose about the timing for delivery and payment of the propellers. Skaugen started a new arbitration, claiming that it had no obligation to pay for or accept delivery due to Man Diesel's post-award conduct. In short, Skaugen alleged that Man Diesel had told the tribunal that the propellers could be delivered 'on short notice', but after the award was made, it transpired that delivery would take about 14 weeks.
⁴ If the court had granted an adjournment, the risk of dissipation may have been a basis for ordering Skaugen to give security. However, since the adjournment application was rejected, the issue of security did not arise.
⁵ Citing the recent English Court of Appeal case of RBRG Trading (UK) Ltd v Sinocore International Co Ltd [2018] EWCA 838.
⁶ See Man Diesel §§49-62.

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© 2018 White & Case LLP

A step to enhance foreign investment and international arbitration

The World Bank arbitration system continues to grow. Mexico signed the International Centre for Settlement of Investment Disputes (ICSID) Convention last January 11, 2018. Upon the Senate's approval of the Convention, Mexico's president published the instrument in Mexico's Public Gazette ("Diario Oficial de la Federación") and submitted the ratification instrument to ICSID on July 27, 2018. As a result, based on Article 68(2) of the ICSID Convention, this instrument formally came into force for Mexico on August 26, 2018. With Mexico, there are now 162 signatory states of the ICSID Convention, and 154 members. This reinforces the numerical and geographical expansion of ICSID membership, alongside continued growth of investment arbitrations administered by ICSID, as reported in the Centre's caseload statistics of 2017 and the first half of 2018.

Mexico has signed the ICSID Convention in the context of re-negotiations of the North America Free Trade Agreement (NAFTA) with the U.S. and Canada, where investor-State dispute settlement is being discussed. Mexico's ratification of the ICSID Convention enhances Mexico's international obligations with regards to the protection of foreign investment in Mexico, and Mexican investment abroad. It also enhances Mexico's commitment towards international arbitration as a means to resolve investment disputes. As an ICSID member, Mexico will be able to participate in the governance of the Centre, and to appoint arbitrators and conciliators to ICSID lists.

Beyond Mexico's attractiveness as a venue for foreign investment, the availability of ICSID arbitration could increase foreign investors' confidence in Mexico by offering a neutral and known forum for the settlement of investment disputes. Historically, investment claims against Mexico have been settled under the ICSID Additional Facility Rules, available to non-signatories of the Convention, alongside other ad-hoc arbitration rules, such as the Rules of the United Nations Commission on International Trade Law (UNCITRAL).

Mexico's decision to become a party to the ICSID Convention supplements Mexico's web of international commitments concerning the settlement of investment disputes, comprised by more than 40 International Investment Agreements currently in force (including investment chapters in Free Trade Agreements). Mexico's adherence to the ICSID Convention occurs also in the context of criticisms to the investor-State dispute settlement system, particularly in Latin America, where certain states have departed from a macro-economic and legal framework that includes investment treaties protecting foreign investment and provides access to international arbitration. Notably, there still are 2,668 International Investment Agreements in force around the world, and the vast majority of countries around the globe are parties to the ICSID Convention.

The ICSID system

ICSID, an institution that is part of the World Bank and headquartered in Washington, D.C., is a leading, global investor-State dispute resolution forum dedicated to international investment dispute settlement. The ICSID Convention is well-known for its unique settlement system for investor-State disputes, including standard clauses and procedural rules. In accordance with the ICSID Convention, arbitral awards rendered by an ICSID Tribunal are considered to be a final judgment within ICSID member states. These awards cannot be appealed before national courts and are subject to limited annulment review within ICSID.

Click here to download PDF.

Click here to download PDF in Spanish.

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© 2018 White & Case LLP

Introduction

The selection of the seat of an international arbitration is a critical decision for parties to an international commercial contract, as this decision has a significant impact on the resolution of the parties' potential future disputes. The seat of arbitration determines, among other things, the national arbitration law that applies to the conduct of the arbitration or to any action for setting aside an arbitral award. It often also determines the law that applies to the validity of the arbitration agreement, and it may influence the process and rights relating to enforcement proceedings. Further, hearings are often held at the seat of arbitration, even though this is not mandatory unless provided for in the arbitration agreement.

For some time now, there has been competition among more and more jurisdictions seeking to attract international arbitration through the choice of seat of the arbitration. There are several reasons behind this phenomenon, sometimes described as the "Battle of the Seats". Jurisdictions worldwide recognize that international arbitration is not only a means to attract business but also a means to build prestige. Hosting international arbitrations is a way to build a jurisdiction's reputation as a modern, neutral and reliable place to do business, promoting commerce and respecting the rule of law. In addition, attracting international arbitration benefits the local legal community, namely, the lawyers, arbitrators and arbitral institutions, by increasing demand for their services. The increase in arbitrations seated in a certain jurisdiction also naturally increases the amount of arbitration-related case law and legal writing in that jurisdiction, thus contributing to the development of its law and doctrine. And hearings conducted at the seat of arbitration generate business opportunities for the hospitality industry. Thus, arbitration is seen as an export product by many jurisdictions.

The increased popularity of arbitration can also bring significant savings for the local court system, as directing commercial disputes to arbitration may save court time and resources. This is particularly relevant as in many countries international commercial disputes are not ideally suited for ordinary courts: their scale and complexity may overburden the already stretched courts and the courts' possible unfamiliarity with the issues that oftentimes arise – starting with questions of conflicts of laws that may lead to the application of a foreign law – may lead to lengthy and inefficient proceedings.

Several attempts have been made over the years to measure the economic benefits of attracting arbitration. For instance, in a study published in January 2018, the Stockholm Chamber of Commerce estimated that arbitration adds almost SEK 9 billion per year (i.e., approximately EUR 865 million) to the Stockholm economy. Even if critics have questioned the estimated figures that different studies have attributed to the economic gain arbitration is said to generate, there is little doubt that attracting international arbitrations has multiple benefits.

This article analyzes the role that a country's national arbitration law plays in the selection of a seat and what factors weigh in favor of one national arbitration law over another. The article will focus in particular on the advantages that an aspiring arbitral seat can gain from adopting the United Nations Commission on International Trade Law's (UNCITRAL) Model Law on International Commercial Arbitration (the "UNCITRAL Model Law"), adopted by UNCITRAL and approved and recommended by the General Assembly of the United Nations in 1985 and amended to take its current form in 2006.

Finland will be used as a practical example of the impact that a modern arbitration law – or the lack of one – can have on an aspiring seat. Indeed, despite Finland's strong reputation as a neutral state with a functioning legal system and despite its advantageous geographical location between east and west, close to the Baltic countries, Finland does not attract many international arbitration proceedings. This article will discuss the possible reasons behind that phenomenon and address ways to remedy to it.

Click here to download the full article (PDF)

The views expressed in this article are strictly those of the authors and should not be attributed in any way to White & Case LLP. This article is based on another article by Tuuli Timonen and Nika Larkimo, originally published in Scandinavian Studies in Law, Volume 63 (June 2017).

This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.

Jorge Mattamouros is a partner in the firm's International Arbitration Practice. Jorge acts as an advocate and advisor to clients in high-stakes, cross-border disputes under local and international law. He has handled disputes in a wide range of sectors and industries in some twenty five jurisdictions around the world, and has an impressive track record of obtaining victories and favorable settlements for his clients. He acts in proceedings conducted in English, Portuguese, and Spanish.

Jorge's practice focuses on complex multi-jurisdictional commercial arbitration and litigation and investor-State disputes, including leading cases on foundational issues of international law. He has deep experience in handling disputes in Latin America and Africa, with a particular focus on Portuguese-speaking, or Lusophone, markets. Recent examples include obtaining a favorable settlement in a US$ 600 million multi-party dispute in Latin America comprising a dozen parallel arbitral and judicial proceedings, and prosecuting a pending claim at the intersection of foreign investment protection and human rights law involving claims for denial of justice and physical abuse.

Jorge also advises on domestic court proceedings in foreign jurisdictions, acts in court proceedings in aid of arbitration, and participates in complex internal investigations concerning allegations of accounting fraud, bribery, and money-laundering in Lusophone jurisdictions.

In addition to his work as counsel, Jorge has served as arbitrator, expert, and mediator in international and domestic proceedings. Prior to joining the firm, Jorge was a partner at another international law firm and, earlier in his career, a contracts and international law professor in Portugal.

The 2018 Queen Mary University of London White & Case International Arbitration Survey examined the theme 'The Evolution of International Arbitration', tracking the principal drivers and stakeholders that the arbitration community expects to influence the future direction of international arbitration. An overwhelming majority of respondents (97%) indicated that international arbitration, either as a stand-alone dispute resolution method, or in combination with other ADR methods, was their preferred option for resolving cross-border disputes. Similarly, most respondents agreed that the use of international arbitration was likely to increase overall across the Energy, Construction/Infrastructure, Technology, and Banking and Finance sectors. The full results are available online. In this article we provide a brief summary of the key findings and focus on the survey's data about the perspectives of in-house counsel, who represent the ultimate users of international arbitration.

Click here to read the full article.

This article was featured in the Spring 2018 issue of Australian Corporate Lawyer, Vol 28, Issue 3, pp10 – 12, as published by the Association of Corporate Counsel (ACC) Australia.

This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.

This event, jointly hosted by The Bingham Centre and White & Case will consider how corporate social responsibility, proper governance and ethical business have affected arbitration proceedings involving allegations of bribery and corruption. Panellists will examine whether arbitrators are recognising the importance of shedding light on these issues, even where they are ancillary to the main dispute, and how such allegations are sometimes treated differently, depending on the forum in which they arise.

Join us for this debate between experts on arbitration and white collar crime, who will consider a number of important issues, including the extent to which a tribunal has a duty to investigate, or even report, evidence of corruption.

Speakers

• Clare Connellan, White & Case LLP
• Joanna Dimmock, White & Case LLP
• Sean Larkin QC, QEB Hollis Whiteman
• Klara Skrivankova, Anti-Slavery International
• Christopher Style QC, Arbitrator, One Essex Court, Temple

Tuesday, 25 September 2018
6:00 p.m. – 9:00 p.m.

White & Case LLP
5 Old Broad Street
London EC2N 1DW

RSVP
Click here to register your interest

Germany is a worldwide export champion and in turn imports many goods from all over the world.  German companies invest abroad and have welcomed foreign investors for decades.  This scenario provides fertile ground for complex cross-border litigation and the ability to appeal unfavorable judgments is essential. Global law firm White & Case LLP has contributed to Appeals 2018, published by Getting the Deal Through. The book covers appeals across 13 jurisdictions, with information on the applicable provisions in each jurisdiction being presented in an accessible Q&A format designed for non-specialists.

The publication provides an overview of the different options for appealing a judgment in the selected jurisdictions, describing mechanisms and common practices. It enables companies and investors to easily understand the systems of appeal across all 13 jurisdictions.

Andreas Klein, Counsel in White & Case's Commercial Litigation Practice, and Federico Parise Kuhnle, Associate in White & Case' International Arbitration Practice, authored the chapter on Germany with the contribution of Markus Langen, Partner in White & Case's Commercial Litigation Practice.

Click here to download PDF version of Appeals 2018 - Germany.

Further information on our Commercial Litigation and International Arbitration practices.

The article is reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through: Appeals 2018. For further information please visit www.GettingTheDealThrough.com.

This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.

President of Uzbekistan Shavkat Mirziyoyev has signed a decree awarding White & Case partner Carolyn Lamm (Washington, DC) the order of Dostlik, a high distinction conferred for achievements in promoting friendship, mutual understanding and harmony among all nations and nationalities living in Uzbekistan, and the development of friendship and comprehensive cooperation of the people of Uzbekistan with the peoples of other countries.

Lamm, Chairman of the America Uzbekistan Chamber of Commerce, was honored for "rendering great services in strengthening the mutually beneficial strategic cooperation between the Republic of Uzbekistan and the United States of America, for showing high professionalism in expanding bilateral relations in trade and economic spheres," according to the decree.

Conferred on the occasion of the 27^th Uzbekistan National Day (independence anniversary), the order was also presented to LUKOIL President Vagit Alekperov, Board of Participants member of KNAUF GROUP Nikolaus Wilhelm Knauf, and PetroChina Chairman Ilin Van.

A partner in White & Case's International Arbitration practice, Lamm was appointed by the Uzbeki government to the Uzbek Panel of Arbitrators for ICSID arbitration.

Lamm's practice concentrates on international dispute resolution through international arbitration, litigation and international trade proceedings. She advises clients in matters with ICSID and its Additional Facility, and other international arbitral proceedings involving States, as well as commercial arbitral fora including AAA/CDR, ICC, Vienna Centre, Stockholm Chamber, Swiss Chamber and in federal court litigation. Lamm is a past President of both the District of Columbia Bar and the American Bar Association. She currently serves as the American Bar Association's Representative to the International Bar Association.

Brad Strahorn is a partner in the firm's Global Commercial Litigation Practice. He acts for clients in disputes on major infrastructure projects, across a variety of industries, and he has extensive experience in transportation (road, rail and runways), energy (particularly renewables), building, mining, and oil and gas sectors.

Brad advises clients on conflicts that may emerge throughout a project's life cycle. He provided strategic advice on how to manage construction claims and has experience in projects delivered under a range of project delivery frameworks, including traditional contracting, Alliances and PPPs.

Brad's experience includes litigation, domestic and international arbitrations and expert determinations.

Global law firm White & Case LLP has expanded its Global International Arbitration Practice with the addition of David Robertson as a new partner in London.

"White & Case is recognised as the world's leading law firm for both construction and international arbitration, and we continue to grow our role advising owners and contractors on disputes relating to major international construction projects" said White & Case partner Paul Friedland, Global Head of the International Arbitration Practice. "The importance of London as a global financial and legal centre, and of English law for cross-border dispute resolution, continues despite Brexit, and David's arrival will expand the service we provide to our clients."

Robertson is a contentious construction and international arbitration lawyer whose practice is focused on dispute resolution and international arbitration in relation to major construction, engineering, energy and infrastructure projects. He has advised on major projects across the Middle East, North Africa, Central Asia, South Asia and South East Asia, with particular experience representing clients on both off-shore and on-shore oil & gas, power, water, road and rail/metro projects. Robertson has represented clients in international arbitrations under the ICC, LCIA, SIAC, ICSID and UNCITRAL rules. He also sits as an arbitrator in construction and engineering disputes. Robertson has nearly 20 years of experience and joins White & Case from Bryan Cave Leighton Paisner, where he was a partner from 2013, prior to which he was a partner at Fenwick Elliott.

"David is a dynamic and hugely experienced lawyer with proven leadership skills, fantastic client relationships and a skill set that complements the existing construction and arbitration team in London and more broadly across the Firm," said White & Case partner Dipen Sabharwal, Regional Section Head, EMEA Disputes. "He is another exciting addition to the wider London disputes team, which has continued to expand during 2018 with the recent arrivals of litigation partners Hannah-Field Lowes and Chris Brennan."

Oliver Brettle, London-based member of White & Case's global Executive Committee, said: "Our 2020 strategy includes a focus on profitable growth in London, in the global oil & gas industry and in disputes. The arrival of David drives us forward in all three areas, as well as further strengthening our market leading construction practice. He is the eighth partner announced as joining us laterally in London in 2018 to date, adding to seven internal partner promotions that were effective on January 1, 2018."

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David Robertson is a partner in White & Case's International Arbitration and Construction & Engineering team. He has more than 20 years' experience advising clients on major construction, engineering, energy and infrastructure projects around the world. David has advised on major projects across South Asia and South East Asia, the Middle East, North Africa, Central Asia with particular experience representing clients on both off-shore and on-shore oil & gas, power, water, road and rail/metro projects.

David acts as counsel and advocate in international arbitrations and has represented parties in arbitrations under the ICC, LCIA, DIAC, SIAC and ICSID Rules as well as UNCITRAL (ad hoc), UK Arbitration Act 1996 and the Indian Arbitration and Conciliation Act 1996, with seats in London, Paris, Geneva, Amman, Dubai, New Delhi, Manama, Singapore, Seoul, Sydney and New York. David also sits as arbitrator in construction disputes. David has been recognised as an arbitration specialist by Directories in London, Singapore and South Korea.

White & Case LLP has promoted 41 lawyers around the world to its partnership. The promotions are effective on January 1, 2019 and represent 12 of the Firm's global practices in 15 locations.

"Becoming a partner is the result of many years of dedication and top quality work for our clients," said White & Case Chairman Hugh Verrier. "This year's class is the largest in our history, which illustrates the level of talent we have cultivated within the Firm. As we grow the White & Case partnership through both internal promotions and lateral hires, we are poised to deliver on our 2020 Strategy."

Listed by the regions in which they are based, our new partners are:

AMERICAS

• Jessica Chen has been named a partner in our Global Capital Markets Practice. Based in New York, Jessica represents issuers and investment banks in domestic and cross-border registered and exempt securities offerings, block trades and liability management transactions, and advises on securities matters in connection with mergers and acquisitions.
• Elizabeth (Lisa) Feld has been named a partner in our Global Financial Restructuring and Insolvency Practice. Based in New York, Lisa's practice focuses on representing agent banks, secured and unsecured creditors, hedge funds and companies in connection with chapter 11 reorganizations, financing transactions and out-of-court restructurings.
• Jennifer Glasser has been named a partner in our Global International Arbitration Practice. Based in New York, Jennifer represents clients in institutional and ad hoc arbitrations involving common and civil laws, as well as sovereigns in investor-state disputes. She is experienced in a range of industries, including energy, oil & gas, manufacturing, mining, financial services and technology.
• Michael Hamburger has been named a partner in our Global Antitrust Practice in New York. Michael represents clients in both civil and criminal antitrust matters and has defended numerous companies in multijurisdictional cartel litigation. He advises companies on obtaining antitrust clearance from domestic and foreign regulatory authorities for mergers and acquisitions.
• Seth Kerschner has been named a partner in our Global Mergers & Acquisitions Practice. Based in New York, Seth practices environmental law, assisting clients with environmental aspects of transactions, environmental litigation, climate change matters and environmental regulatory compliance, and advises public and private sector clients, including corporates, governments and nonprofits.
• Anna Kertesz has been named a partner in our Global Antitrust Practice in Washington, DC. Anna's practice focuses on defending clients in proposed and completed mergers before the US Department of Justice and the Federal Trade Commission, and she has significant experience in the healthcare, food products, oil & gas and technology industries.
• Elizabeth Kirk has been named a partner in our Global Banking Practice in New York. Elizabeth advises commercial and investment banks, financial institutions, export credit agencies and borrowers on secured and unsecured credit facilities, cross-border acquisition financings and general bank lending across industries, with particular experience in the maritime finance market.
• Karalyn Mildorf has been named a partner in our Global Trade Practice. Based in Washington, DC, Karalyn focuses on CFIUS and National Security matters, including Team Telecom reviews and mitigation of foreign ownership, control or influence (FOCI) under the National Industrial Security Program.
• Thomas Pate has been named a partner in our Global Project Development and Finance Practice. Currently based in Miami, Thomas will relocate to New York where he will continue to play an important role in the Firm's Latin America Group. He focuses on project and bank finance matters in the power, infrastructure, renewable energy and financial services industries.
• Heather Waters Borthwick has been named a partner in our Global Banking Practice. Based in New York, Heather advises financial institutions, private equity sponsors and corporate borrowers on domestic and cross-border leveraged acquisition financings, asset-based financings and investment-grade lending transactions.
• Colin West has been named a partner in our Global Commercial Litigation Practice in New York. Colin provides clients with counsel on a range of complex contract and business disputes, bankruptcy-related litigation, litigation involving foreign sovereigns, government investigations and antitrust matters.
• Andrew Zatz has been named a partner in our Global Financial Restructuring and Insolvency Practice in New York. Andrew's experience includes advising clients on bankruptcy law, including representing debtors, creditors and other interested parties in both chapter 11 and out-of-court restructurings.

EUROPE, MIDDLE EAST AND AFRICA

• Jonah Anderson has been named a partner in our Global White Collar Practice in London. Jonah has experience conducting internal investigations across the financial services, mining, pharmaceuticals, infrastructure, technology and real estate sectors, and advises clients on investigations by UK authorities including the Serious Fraud Office, HM Revenue and Customs and the Financial Conduct Authority.
• Lucy Bullock has been named a partner in our Global Mergers & Acquisitions Practice. Based in London, Lucy advises private equity houses and their portfolio companies on all aspects of their business, including capital structures, governance, compliance and advisory work.
• Katarzyna Czapracka has been named a partner in our Global Antitrust Practice in Brussels. Katarzyna advises multinational clients on compliance with EU and international merger control rules, with a focus on the technology, telecoms and private equity sectors. She also counsels clients on cartel investigations and abuse of dominance issues, particularly related to the exercise of IP rights.
• Noor Davies has been named a partner in our Global International Arbitration Practice. Based in Paris, Noor represents sovereign entities and corporates in a variety of international arbitration matters, including those brought under ICC, SCC, UNCITRAL and ICSID Rules.
• Nikolay Feoktistov has been named a partner in our Global Mergers & Acquisitions Practice in Moscow. Nikolay's practice focuses on M&A transactions and joint ventures, particularly in the telecommunications, energy and food & beverages industries, both in domestic and cross-border corporate transactions.
• Genevra Forwood has been named a partner in our Global Antitrust Practice. Based in Brussels, Genevra advises and litigates on a broad range of EU law, across a number of sectors ranging from energy and manufacturing to pharmaceuticals and chemicals. She counsels clients on matters around state aid proceedings, economic sanctions, public procurement, environmental law and consumer protection.
• Clara Hainsdorf has been named a partner in our Global Intellectual Property Practice in Paris. Clara's practice focuses on intellectual property, online platforms and IT, as well as commercial contracts. She has extensive experience in privacy and data protection and has been involved in multijurisdictional commercial and economic matters involving distribution, supply and manufacturing contracts.
• James Holden has been named a partner in our Global International Arbitration Practice in London. James provides counsel to clients in sectors including energy, infrastructure, industrials and finance. He has experience in ICC and LCIA arbitrations, as well as in the English High Court.
• Monica Holden has been named a partner in our Global Capital Markets Practice in London. Monica's practice focuses on advising investment banks and issuers on both public and private equity and debt offerings, including IPOs, secondary equity offerings and high yield bond transactions.
• Laura Hoyland has been named a partner in our Global Tax Practice in London. Laura advises corporate and individual clients and family offices on direct and indirect tax aspects of financing and corporate transactions including capital markets, securitizations, bank finance, asset and share transfers and restructurings.
• Tomáš Jíně has been named a partner in our Global Banking Practice. Based in Prague, Tomáš's practice covers a range of areas, with a particular focus on cross-border leveraged finance, restructurings and derivatives transactions.
• Hyder Jumabhoy has been named a partner in our Global Mergers & Acquisitions Practice. Based in London, Hyder has advised a range of corporates in the financial sector on matters such as cross-border mergers, acquisitions, disposals, joint ventures, corporate restructurings and business integrations.
• Luka Kristovic Blazevic has been named a partner in our Global International Arbitration Practice. Currently based in Dubai, Luka will relocate to Riyadh. He focuses on complex international construction disputes that have been conducted under the auspices of the ICC, LCIA and ICSID.
• Helen Levendi has been named a partner in our Global Mergers & Acquisitions Practice. Based in London, Helen is a member of the Employment, Compensation & Benefits Group, where she focuses on private equity funds and companies in the technology sector, counseling them on contracts, executive service agreements, secondment arrangements, board appointments and more.
• Richard Lloyd has been named a partner in our Global Banking Practice. Based in London, Richard advises on domestic and cross-border finance transactions, including leveraged acquisition finance, bank lending and financial restructuring. He also works on trade and receivables finance, structured finance and securitizations.
• Sylvia Lorenz has been named a partner in our Global Intellectual Property Practice. Currently based in Hamburg, Sylvia will relocate to Berlin. She advises companies on IP, IT and privacy law in relation to domestic and cross-border matters. She has a particular focus on advising online platforms on regulatory, privacy, IP and consumer protection laws, as well as on commercial contracts.
• Tom Matthews has been named a partner in our Global Mergers & Acquisitions Practice in London. Tom's practice focuses on public mergers and acquisitions, listed company advisory and equity capital markets work, advising corporates, financial institutions and private equity sponsors on a range of activities, including corporate governance, primary and secondary equity capital raisings, activist strategies and post-IPO sell-downs.
• Alexandre Mazuranic has been named a partner in our Global International Arbitration Practice. Based in Geneva, Alexandre advises clients on disputes in construction and engineering, commodities trading and the pharmaceuticals industry. He has represented clients before the Swiss Supreme Court in proceedings related to arbitral awards.
• Michael Mountain has been named a partner in our Global Mergers & Acquisitions Practice. Based in London, Michael advises clients on a broad range of corporate transactions, including mergers and acquisitions, private equity transactions, disposals, joint ventures, corporate finance and equity capital markets.
• Heather Rees has been named a partner in our Global Capital Markets Practice. Based in London, Heather focuses on corporate trustee representation, and she has experience in debt capital markets representing issuers, underwriters and trustees in a variety of securities transactions, including Rule 144A and Regulation S offerings.
• Yasser Riad has been named a partner in our Global Project Development and Finance Practice. Based in Abu Dhabi, Yasser advises sponsors, lenders and other stakeholders on project finance, infrastructure, transportation and power transactions in the Americas, Europe, Asia-Pacific and the Middle East.
• John Rogerson has been named a partner in our Global Commercial Litigation Practice. Based in London, John's practice focuses on commercial litigation before the English Courts as well as in offshore jurisdictions. John regularly advises clients in connection with judicial proceedings brought in support of arbitrations.
• Tine Schauenburg has been named a partner in our Global White Collar Practice. Based in Berlin, Tine advises businesses and their executives in connection with investigative proceedings and official investigations, including those where businesses have suffered damage caused by their own personnel or third parties.
• Shameer Shah has been named a partner in our Global Banking Practice in London. Shameer's practice focuses on advising alternative capital providers, financial institutions, private equity sponsors and corporates on cross-border financings across a range of capital structures, with a particular focus on acquisition and leveraged finance transactions.
• Christian Theissen has been named a partner in our Global International Arbitration Practice in Frankfurt. Christian advises on disputes relating to supply contracts, liability issues, post-M&A matters and sports law.
• Max Turner has been named a partner in our Global Capital Markets Practice. Based in Paris, Max advises global corporations and financial institutions on matters of US law, particularly with regard to equity and debt issuance, Rule 144A offerings, private placements in the United States and matters related to SEC regulation.
• Florian Ziegler has been named a partner in our Global Banking Practice. Based in Frankfurt, Florian focuses on leveraged acquisition finance and investment-grade loans, and has a broad range of experience with real estate and ship financing, as well as restructurings.

ASIA-PACIFIC

• Andrew Bishop has been named a partner in our Global Banking Practice. Based in Hong Kong, Andrew's primary focus is advising private equity sponsors, their portfolio companies and other borrowers. He also advises financiers and other investors on leveraged acquisition finance, take-private finance, refinancings and restructurings, debt buybacks and other financings.
• Jessica Zhou has been named a partner in our Global Capital Markets Practice. Based in Hong Kong, Jessica represents issuers and underwriters in Rule 144A and Regulation S transactions, as well as SEC-registered debt and equity offerings. She advises on international financings, including high-yield, acquisition finance, transportation finance, pre-IPO investments and restructurings.

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White & Case is hosting a Colloquium and a series of Pre-Moots in connection with the 26^th Willem C. Vis International Commercial Arbitration Moot Court Competition.

White & Case has a long history with the Vis Moot Competition, and many of our associates and partners in various offices have taken part as coaches, and arbitrators in pre-moots and participants of the Vis Moot in Vienna in previous years.

As a leader in international commercial arbitration, we are passionate about supporting and inspiring the arbitration lawyers of the future.

Vis Colloquium

Frankfurt, London, Paris and Stockholm

12 November 2018

To help give an introduction to the Vis Moot and the moot problem, White & Case is hosting a Colloquium on 12 November 2018 led by a number of specialist international commercial arbitration practitioners from our Frankfurt, London, Paris and Stockholm offices.

The presentation is intended to be a resource for participating teams to familiarize themselves with, and navigate their way through, the various steps involved in preparing for the Vis Moot, including research for the drafting of the Claimant's and Respondent's memoranda.

For more information, please click here: White & Case Vis Colloquium.

Vis Pre-Moot Rounds

Frankfurt, London and Paris

February to April 2019

These Vis Pre-Moots will help participants prepare for the oral rounds of the competition in Vienna with the support of experienced and talented arbitration practitioners and scholars as judges.

For further information about the White & Case Vis Pre-Moots, including how to register your interest to participate as a competitor or arbitrator, please click here: White & Case and the Vis Moot.

The GDPR has cast an international spotlight on data protection due to its wide territorial scope of application and high penalties. Since arbitration proceedings will inevitably handle personal data and the legal issues arising in connection therewith are manifold, it appears wise to tackle data-protection concerns as early as possible.

Data protection in the EU has tightened

The General Data Protection Regulation (GDPR) came into effect on 25 May 2018. Four months into its application, it is apparent that the new data protection regime in the EU imposes a range of unchartered obligations on companies processing personal data and provides rights to those individuals whose data is processed. Any violation thereof can be fined by up to four per cent of a company’s annual global turnover or €20 million, whichever is higher, and can affect any company offering goods or services in the EU, irrespective of its establishment.

The vast reach of the GDPR is rooted in the definitions of processing personal data. Protected "personal data" includes simple information such as a work email address, telephone number or an IP address – anything through which a person can be identified. "Processing" is equally broad, encompassing any operation of personal data such as the organisation, use or erasure of information. The GDPR in general prohibits any processing of personal data or transferring data to non EU-countries absent a valid justification, establishing a "privacy-by-default" regime.

The GDPR provides for several exemptions, which include inter alia, the explicit consent by the data subject, the necessity to process personal data for the performance of a contract, or to comply with a legal obligation, or for the purpose of a legitimate interest. In practice, consent comes with the downside that it can be withdrawn at any time and contains a right of the data subject to transmit the collected data to any other company. Processing personal data for the performance of a contract, to comply with a legal obligation or for the purpose of a legitimate interest is more relevant in the context of arbitration, but requires a careful balance of the data subject’s interests. The transfer of data across EU borders, a frequent phenomenon in international arbitration, is also allowed where it is necessary for the establishment, exercise or defence of a legal claim.

Complimentary to the obligations imposed on companies, data subjects enjoy wide-ranging rights such as requesting access to the personal data, access to information concerning, inter alia, the purpose of the processing and to whom the information has been disclosed, as well as the right to erasure. All provisions are flanked by the GDPR’s underlining principles set out in Article 5, including the principle of purpose limitation and data minimization.

Implications for international arbitration

Processing of personal data in arbitral proceedings

The general prohibitions on processing and transporting personal data will inevitably affect arbitration proceedings at all stages. Even an internal review of old correspondence and documents at the outset of a dispute in preparation thereof can constitute processing personal data, the purpose of which will have to be compatible with the purpose the data was originally collected for or be covered by consent. Employees may have to be informed that their data may later be processed and transferred in arbitral proceedings. Engaging external counsel as well as correspondence with the tribunal will require a transfer of personal data possibly across EU borders. It might therefore be wise to raise data protection issues in a data-protection protocol early in the proceedings, not least to present a concept for data-protection to regulatory authorities. It could identify what data will be relevant, if there will be a transfer outside the EU and set out measures to ensure that data processing is kept to a minimal and only concerning truly relevant data.

Evidence

Obligations imposed by the GDPR might also clash with a document production order by the tribunal, as the documents will contain personal data. Although at a first glance this seems covered by the exemption "compliance with a legal obligation", a document of an EU-advisory body on data protection¹ clarifies that the exemption only covers legal obligations created by Member State law, not ones created by an arbitral tribunal order. Relevant is, however, an exemption under "legitimate interest". This will require a careful weighing of interests in the individual case, considering what type of data is being processed (if it is especially sensitive), their volume and possible measures like blackening the relevant documents. The principle of necessity and proportionality will also require carefully limiting document production to the extent necessary.

Expert witnesses

Another area when data protection issues can arise is dealing with expert witnesses. Although it is easy to ask for consent before involving them, consent carries the risk of a later withdrawal. Here though, the processing can fall under the exemption of "necessary for the performance of a contract to which the data subject is party", as the personal data (e.g., the name, profession) are relevant for the meaning of the expert statement in the arbitral process.

Transfer to non-EU countries

The transfer of data into non-EU countries requires either that the European Commission has deemed the destination country able to ensure a sufficient (or an acceptable) level of protection or that the transfer falls under the exemption of "necessary for the defence of a legal claim". The standard for necessity is high though; adequate steps are required to ensure that only relevant documents are transferred.

All of the above require strategic planning from the outset of a dispute, including for the internal investigation preceding an internal case analysis, litigation holds, the selection of arbitral institutions, the instruction of external counsel, the nomination of arbitrators etc. Companies are well advised to review their internal dispute-related processes in due time and to plan dispute-specific data protection strategies at the outset of a dispute.

Click here to download PDF.

¹ Art. 29 Data Protection Working Party, Working Document 1/2009 on pre-trial discovery for cross-border civil litigation.

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