For several years now, Asia has been growing constantly and become a key player in world trade. Despite the pandemic, Asia again seems to be the continent that is doing best in economic growth. The GDP growth remained relatively stable despite the shock of the pandemic and compared to the rest of the world: The Asian economy contracted by 1.5 percent in 2020, while the world economy shrank by 3.2 percent. Moreover, Asia is expected to recoverfaster than the rest of the world. From July 2021, the International Monetary Fund (IMF) projected that Asia would grow at 7.5 percent in 2021 and 6.4 percent in 2022, compared to 6.0 percent and 4.9 percent for the world, respectively.
What has contributed to maintaining this economic strength in a period where the whole world has slowed down? There may be several contributing factors, including the creation and development of special economic zones, particularly linked to arbitration procedures or adjudicative processes.
A closer look into the experiences of certain countries—including United Arab Emirates (UAE), Singapore and China—may provide insights of their models, and possibly whether they offer flexible regulatory frameworks adapted to the needs of entrepreneurs seeking to grow their ventures in special economic zones.
UNCITRAL instruments have been of relevance. In 2013 the Model Law on Arbitration was introduced in the financial free zone Dubai International Financial Centre (DIFC). In December 2015 arbitration regulations were enacted for another financial free zone, the Abu Dhabi Global Market (ADGM). Those regulations apply to arbitrations seated in the ADGM, include provisions on arbitral proceedings, and recognition and enforcement of arbitral awards. The recent recognition of all these laws as UNCITRAL model laws have contributed to the entry into force of the UAE Federal Arbitration Law in June 2018, which goes further than traditional model laws by incorporating highly modern provisions particularly useful in the current COVID-19 period. Such law incorporates the use of new technologies reflected in legal instruments—e.g., the e-commerce Model Law on Electronic Transferable Records (2017) rolled out in the Abu Dhabi Global Market in 2021— geared to increase the efficiency of the arbitral process and promote business. Similarly, Singapore has joined the Model Law on Electronic Transferable Records.
In addition, some studies show that simplified business registration for micro, small, medium-sized, and enterprises looking to set up in special economic zones would facilitate trade and promote investment. This may be another area ripe for legal harmonization as UNCITRAL has a legislative guide on simplified business registration.
Thus, some governments in Asia may be determined to promote business in special zones (whether SEZs, financial zones, or special ports) through dispute resolution relying on new technologies. Understanding and explaining the intersection of those zones and arbitration, and how they are used by governments as regulatory sandboxes to attempt harmonizing the legislation that they might introduce on a national level are central subjects for this panel, which will also address the following questions:
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.
