ICC Dispute Resolution Bulletin 2018 Issue 1

GLOBAL DEVELOPMENTS

• Dr Cristina Alexe
  Romania
  Latest Amendment to New Civil Procedure Code Cures Unclear Setting Aside Provision
• Victor Dumler
  Russia
  Supreme Court Reaffirms Importance of Due Process in Arbitration
• Akima Paul Lambert
  United Kingdom
  High Court Declares Arbitration Notice Invalid
• Jue Jun Lu
  United Kingdom
  No Requirement for Security to Challenge Award Recognition and Enforcement
• Pedro Arcoverde, Mary Kate Wagner
  United States
  Delaware Court of Chancery Rules on Substantive Arbitrability in the Face of Two Conflicting Arbitration Agreements.

CASE DECISIONS

• Juan Felipe
  Merizalde Mitigation of Damages
  A Selection of Recent ICC Awards
• ICC Selected Awards on Mitigation of Damages

Dyalá Jiménez Figueres and Julien Fouret

On this first anniversary of the relaunching of the ICC Dispute Resolution Bulletin, we are happy to provide readers with the latest from Europe and the United States in our Global Developments section. A Russian court denied enforcement of an award on grounds of violation of due process, while a court in the United Kingdom applied strict standards to interpret the (in)validity of commencing arbitration under LCIA Rules on the basis of multiple contracts. Also in the United Kingdom, English courts addressed the issue of adjournment of enforcement proceedings under section 103(5) of the English Arbitration Act 1996, pending a challenge of the award at the seat of arbitration.

Arbitration clauses in separate but related contracts were the object of a recent decision by a US court, which determined that the courts, and not the arbitrators, should resolve the issue of substantive arbitrability under the Federal Arbitration Act (‘FAA’). The decision is interesting because it shows the difference between US law and other laws regarding the definition of ‘arbitrability’.

The Case Decisions section offers an analysis of ICC awards that include decisions on mitigation of damages. The author summarizes six recent ICC awards and identifies three issues that should be considered by parties and arbitral tribunals dealing with a defense based on mitigation of damages: a reasonability test, the timing for claimant to mitigate its losses, and the issue of a limited liability clause in the applicable contract. Clearly, this year Information Technology and Artificial Intelligence were omnipresent at arbitration events and academic exchanges and is also the subject of the article in our Commentary section ‘Replacing Arbitrators: Smart Contract Arbitration’ by Winston Maxwell and Gauthier Vannieuwenhuyse.

They address smart contracts, the pros and cons of AI in arbitration, and the questions that should be raised concerning robotised arbitration. One of the salient issues is of course the enforcement of the award. A reporter for the ICC Institute of World Business Law training course also discusses the handling of IT in arbitration in our last section, devoted to ICC Activities.

This issue includes an ICC Activities section particularly rich in content. The 15th annual ICC Miami Conference in November gathered over 650 delegates The program was highly praised and we did not want you to miss any of the discussions, from third party funding in Latin America to Dispute Boards as well as ethical issues between counsel and parties from different jurisdictions.

The Chartered Institute of Arbitration, CIArb, held an interesting event on the Civil-Common Law dichotomy with the support of ICC; we offer a report of this event, as well as commentary on the part of our Editorial Board member Reza Mohtashami. The 37th Annual Conference of the ICC Institute of World Business Law, devoted to expedited procedures, is also covered in this issue.

We also convey the Belt and Road Initiative news release which foresees ICC as the means to settle dispute for this exceptional economic initiative on the Asian continent. As always, we thank our Editorial Board members, Stéphanie Torkomyan of ICC Dispute Resolution Publications and our contributors, and particularly for this issue, the many individuals who generously worked on the ICC Activities section.