Legal

Cross-border disputes rarely announce themselves gently. A concession renegotiated by a change in government, a pipeline delayed by permitting disputes, a transmission project caught between two regulatory regimes each can escalate from a contractual disagreement into a matter of national consequence within months. What separates a dispute that is resolved efficiently from one that drags on for years is very often the caliber of the person sitting at the head of the tribunal. As the volume and complexity of international commercial and investment arbitration continues to grow, parties are increasingly selective about who they entrust with adjudicating disputes that sit at the intersection of commerce, regulation, and sovereignty. This is especially true in three categories of dispute that have come to dominate arbitral dockets worldwide: sovereign, energy and infrastructure disputes. The Sovereign Dimension Disputes involving states, state-owned entities, or sovereign wealth funds ... Continue reading →

Commercial arbitration is often described as a single discipline. Still, in practice it splits into distinct trades, each with its own procedural conventions, standard-form contracts, and points of recurring friction. A tribunal member fluent in one sector cannot always transfer that fluency to another without a learning curve, and in time-sensitive commercial disputes, that learning curve is exactly what parties are trying to avoid. The same clause, applied to a grain shipment, a chartered vessel and a delayed infrastructure project, will generate three very different disputes, each turning on a different body of trade practice and a different type of documentary record. Three sectors illustrate the point clearly: commodities, shipping, and construction. Commodity Disputes: Trade-Association Rules and Documents-Only Procedure Commodity trading largely runs on standard-form contracts issued by trade bodies such as GAFTA and FOSFA, which together govern the vast majority of the ... Continue reading →

A single trade transaction can pass through half a dozen banks before it settles. An issuing bank in Mumbai, a confirming bank in London, a correspondent in New York and a reimbursing bank in Singapore may all sit inside one letter of credit, each governed by a different regulatory regime and each with its own view of what the underlying documents actually require. When something goes wrong, whether it is a disputed discrepancy notice, a syndicated loan default or a disputed guarantee call, the parties are rarely in the same country, let alone the same legal tradition. The question that follows is not academic for the banks and corporates involved: which forum will actually resolve the dispute, and how quickly can an enforceable outcome be obtained? Why Banking Disputes Behave Differently Financial disputes rarely turn on a single contested fact. They turn on the interpretation of technical instruments, letters of credit under UCP 600, standby guarantees, ISDA master agreements, and ... Continue reading →

Two companies disputing a supply contract and an investor disputing a license revocation with a national government may both end up in arbitration, but the resemblance largely ends there. A commercial dispute is bounded by the four corners of a contract and the commercial law the parties chose to govern it. A sovereign dispute adds treaty interpretation, sovereign immunity, political sensitivity and the practical difficulty of enforcing an award against a state's assets. Choosing an arbitrator for either category, and especially for matters that straddle both, is a decision with real consequences for how the case is run and how the award ultimately holds up. The Nature of Commercial Disputes Commercial arbitration typically arises from a breach of contract between private parties, and its economy is different; arbitrators are essentially answering a factual and contractual question: what did the parties agree and did one side fail to perform? Confidentiality, industry custom and ... Continue reading →