International arbitration has long been associated with traditional cities as epicenters of arbitration. Yet, recent years have witnessed the migration of arbitration to new regional quarters. This trend is visible in the Caribbean region, where States interested in promoting the Caribbean as a major trade hub are offering neutral dispute settlement mechanisms.
With the increase of commerce, realizing the need for geographically close neutral and efficient systems of adjudication, Caribbean countries have engaged in modernizing their arbitration laws, infrastructure and general arbitration dispute resolution climate. For instance, in 2016, the BVI, established the BVI International Arbitration Centre, and Jamaica created the Mona International Centre for Arbitration and Mediation, now called the Jamaica International Arbitration Centre. In 2018, Barbados established the Arbitration and Mediation Court of the Caribbean. For its part, with its Institutional Arbitration Rules applicable since September 2021 and other initiatives, the OHADAC Arbitration Centre located in Guadeloupe has been promoting dispute resolution—including arbitration and mediation—within the objectives of Caribbean integration, sustainable development, and an effective response sensitive to natural disasters and climate change.
In parallel, the Caribbean Task Force of the Institute for Transnational Arbitration (ITA)’s Americas Initiative has been busy promoting good international arbitration practices in the region, overcoming obstacles traditionally faced by dispute resolution, and advocating for the adoption of national norms reflecting the contents of the UNCITRAL Model law. The recent adoption of a version of the Model Law for the Caribbean, the CARICOM Model Arbitration Bill in 2021, and the creation of the Impact Justice Model Arbitration Bill, 2022, appear to be strengthening the arbitration environment in the Caribbean.
In the face of challenges, Caribbean States are cooperating with countries across the world. For instance, on climate change over insular States, Antigua and Barbuda are joining efforts with the Pacific nation of Tuvalu to register a new commission with the United Nations, in order to pave the way for future damages claims against major polluting countries, through adjudication, such as the UN’s International Tribunal for the Law of the Sea. Despite the uncertainty on the outcome of these claims, we might be witnessing a new field of international dispute resolution.
This Panel will focus on how arbitration plays a role in the modernization efforts in the Caribbean, how Caribbean arbitrations centers are developing, including the laws and regulations that have been adopted to promote and strengthen international arbitration, and how Caribbean nations and their regional centers may be contributing through dispute resolution to respond to the challenges created by climate change and natural disasters.
World Arbitration Update (“WAU”) invites you to attend a 75-minute webinar discussion by leading practitioners in the international dispute resolution field on the recent developments concerning the intersection of dispute resolution and the Ukraine-Russia crisis. According to the Kyiv School of Economics, Ukraine has so far experienced economic damage amounting up to $600 billion. Over $10 billion in airplane assets have been reportedly stranded in Russia setting off potentially large insurance claims and related disputes. Yale School of Management has collected data showing that almost 1,000 companies have publicly announced they are voluntarily curtailing operations in Russia to some degree beyond the bare minimum legally required by international sanctions. The Russian parliament continues to consider the expropriation of foreign assets. International disputes involving Russia and Ukraine are arising from the crisis and more likely to follow. Our speakers will discuss related topics, including: the impact of sanctions, the proposed formation of an international claims commission for Ukraine, the impact of the crisis on the legal profession, the potential and current international forums in which Ukrainian businesses and investors could submit legal recourse to address the consequences of the war in Ukraine, as well as an update on the ICJ case, Ukraine v. Russian Federation.
September 26 at 6:00 pm to 7:30 pm GMT
Moderators: Gene Burd (FisherBroyles) (TBC)
Presenter: Rob Houston (K&L Gates Straits Law LLC)
Panelist: Tatyana Slipachuk (Of Counsel at Chief Legal Department of the Ukrainian Parliament, Special Advisor at Sayenko Kharenko Law Firm) (TBC)
Panelist: Raja Bose (K&L Gates Straits Law LLC) (TBC)
Panelist: Derek Loh (Deputy Director-General (Economic & Social), Attorney-General’s Chambers, Singapore) (TBC)
Panelist: Simon Chesterman (Dean, National University of Singapore School of Law)
In response to the imposition of international sanctions on Russia for its invasion of Ukraine, Russia has imposed sweeping economic measures on foreign investors from States it considers “unfriendly”, including Singapore, the UK, the US, and EU Member States. Both international sanctions on Russia and Russia’s own economic measures on foreign investors have had wide-ranging impacts across global market sectors, affecting foreign investors from around the world both directly through compliance mechanisms and indirectly through international commercial contracts.
However, a number of venues exist for the resolution of the wide range of disputes anticipated to result from the current crisis. In particular, foreign investors may still seek protection under investment treaties. Currently, there are 62 BITs in force between Russia and other States, including 27 States that Russia has determined to be “unfriendly” as a result of international sanctions imposed on Russia. Such treaties generally include substantive obligations to promote and protect foreign investment (e.g., to provide fair and equitable treatment, not to undertake unlawful expropriation of foreign investments, etc.) as well as for access to investment treaty arbitration against the Host State in certain circumstances. Such public international law obligations under international investment treaties now appear at odds, for example, with recent economic measures imposed by Russia against foreign investors including:
Currency Transfer Restrictions
Transaction Approval Requirements
Prohibition of Foreign Currency Export
Restrictions on Debt Repayment
Prohibition of Certain Exports and Imports
Non-Enforcement of Intellectual Property Rights
Also, the Russian Duma has considered additional measures (which many anticipate to be expropriatory) to effect the transfer of ownership or operation of certain foreign investments where foreign investors have ceased operating in Russia in the current climate of international sanctions. The resulting international legal climate arising from Russia’s actions in Ukraine breaks new ground in public and private international law. Practitioners are therefore broadly anticipating a wave of disputes both in international commercial arbitration and in investor-State arbitration, including with respect to claims advanced by covered investors in investment treaty arbitration against Russia for economic measures like the above.
This panel will explore the implications of these developments both from a global perspective and a regional perspective in Southeast Asia, highlighting the following key points of interest:
The Current International Sanctions Climate
Regional Focus on International Sanctions in Southeast Asia
Consideration of Current Venues for Disputes Arising from the Invasion of Ukraine
Potential Mechanisms for Foreign Investors to Pursue Claims Arising from the Conflict in Ukraine in Investment Treaty Arbitration
Anticipated Disputes and Issues in International Commercial Arbitration Prompted by the Conflict in Ukraine
The Current Landscape for Sovereign Immunity and the Potential for Enforcement of Arbitral Awards Against State Assets
This program will provide a brief summary of recent developments in relation to Russia’s invasion of Ukraine and identify key legal issues, including the interplay between international sanctions and customary international law (e.g., the characterization of countermeasures and the application of the law of State Responsibility (including State Defences) in Public International Law as well as issues arising in Private International Law and International Commercial Arbitration (such as Force Majeure). The panel discussion will be followed by a Q&A period as well as a networking session.
