Cairo Regional Centre for International Commercial Arbitration: A Step Into The Future

The Cairo Regional Centre for International Commercial Arbitration (CRCICA) has announced its plans to implement the revised CRCICA Arbitration Rules (Rules), marking the first set of comprehensive amendments to the Rules since 2011. The Rules, available here, have been formally adopted by the CRCICA Board of Trustees and are due to take effect on 15 January 2024.

The Rules are based on the UNCITRAL Arbitration Rules and introduce a raft of changes aimed at enhancing efficiency and flexibility in the arbitral process. Notably, the Rules introduce mechanisms for the use of electronic means to exchange communications, remote hearings, early dismissal of claims and emergency arbitration, among other substantial changes. These changes bring the Rules in line with the approaches followed by other major arbitral institutions such as SIAC, LCIA, ICC, ICSID and HKIAC, cementing CRCICA’s international reputation as a leading arbitration centre in Africa, the Arab World and the MENA region.

In this post, we summarise the key changes introduced by the Rules and consider their potential practical impact.

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New Rules for Emergency Arbitration in Chile

On August 11, 2023, the Arbitration and Mediation Center of the Santiago Chamber of Commerce (CAM Santiago) introduced new rules on emergency arbitration (EA) to its domestic Arbitration Rules, through the inclusion of a new article 21 bis and a new Title IX (EA Regulation).  The EA Regulation will enter into force on September 1, 2023, and addresses the EA procedure, the appointment of an emergency arbitrator (and grounds for their disqualification), service upon respondent parties, and standards applicable to a request for an emergency measure.[i] Continue reading


On April 13, 2023, in Corporación AIC v. Hidroelectrica Santa Rita,1 the U.S. Court of Appeals for the Eleventh Circuit overturned en banc more than two decades of prevailing precedent (Industrial Risk2and Inversiones3) which held that international arbitral awards rendered in the U.S. (known as “nondomestic awards”) may only be vacated (set aside) on the grounds set out in Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention).  The Eleventh Circuit instead ruled that only Chapter 1, Section 10, of the Federal Arbitration Act (FAA) provides the grounds to vacate these nondomestic awards rendered in the U.S.  As a result of this ruling, the Eleventh Circuit has now joined the Second,4 Third,5 Fifth,6 Sixth,7 and Seventh8 Circuits to put an end to the long-standing circuit split on this issue.9

We discuss below the distinction between “domestic,” “nondomestic” and “foreign” awards in the context of international arbitration in the U.S., the origin of the circuit split, an overview of the Eleventh Circuit’s decision in Corporación AIC, and its significance in international arbitration in the U.S.

The U.S. distinction between “domestic,” “nondomestic,” and “foreign” awards

The FAA distinguishes between three types of arbitral awards: (1) domestic awards, (2) nondomestic awards, and (3) foreign awards.  While both, domestic and nondomestic awards, are arbitral awards rendered in the U.S., foreign awards are rendered in arbitral proceedings having their legal seat outside of the United States.  Also, both, nondomestic and foreign awards arise from an arbitration involving a non-U.S. party, “property located abroad,” “performance or enforcement abroad,” or “some other reasonable relation with one or more foreign States.”10  Thus, the difference between each kind of award lies in a territorial criterion (where it was rendered), and the presence of other international elements.

These distinctions are supported by the language used in the New York Convention.  Indeed, article I(1) of the New York Convention states that it applies to the recognition and enforcement of both “foreign” awards (those “made in the territory of a State other than the State where the recognition and enforcement of such awards are sought”) and “nondomestic” awards (those “not considered domestic awards in the State where the recognition and enforcement of such awards are sought”).

In the United States, domestic awards (which are those rendered in the U.S. without an international element) are governed by Chapter 1 of the FAA, which was enacted in 1925.  Among other purposes, Chapter 1 regulates the enforceability of arbitration agreements, providing for very limited scope of judicial review.  Nondomestic and foreign awards are governed by Chapter 2 of the FAA, which incorporates into the FAA the New York Convention.11  Chapter 2 was added to the FAA in 1970 and provides a specific legal framework for arbitral agreements and awards falling under its scope.  Chapter 1 still applies to nondomestic and foreign awards, but only to the extent Chapter 1 does not conflict with Chapter 2.12

Where did the split lie for nondomestic awards?

The specific regime for “nondomestic” awards under the FAA gave rise to the issue the Eleventh Circuit addressed in Corporación AIC.  As nondomestic awards are rendered in the U.S., they are subject to vacatur under Section 10, Chapter 1 of the FAA.  Also, since section 202, Chapter 2 of the FAA extends the application of the New York Convention to nondomestic awards, they are also subject to “confirmation” (recognition and enforcement) under Article V of the New York Convention.  Thus, in the U.S., nondomestic awards are subject to both confirmation (recognition and enforcement) and vacatur procedures at the arbitration seat, which is a distinctive feature of the U.S. arbitration system.

However, as its name suggests, the New York Convention governs the recognition and enforcement of awards, and not their vacatur grounds, which have been left to the arbitration laws of each country.  But, since section 207 of the FAA mandates courts to “confirm the award unless it finds one of the grounds” in Article V of the New York Convention, different interpretations arose as to whether Section 207 set the grounds for both, vacating and confirming a nondomestic award.  This led to a Circuit split regarding which grounds for vacatur apply to nondomestic awards: those provided in Section 10 for domestic awards, or those provided in Article V for denying recognition and enforcement of foreign awards.  The Eleventh Circuit decision in Corporación AIC has now put an end to this circuit split.

Corporación AIC v. Hidroeléctrica Santa Rita S.A.

This case arose from Corporación AIC’s motion to vacate an arbitral award rendered in Miami, Florida, in an arbitration against Hidroeléctrica, on grounds that the arbitral tribunal had exceeded its powers – a ground established in Section 10(a)(4), Chapter 1 of the FAA, but not included in the New York Convention (Chapter 2 of the FAA).  In August 2020, the district court denied Corporación AIC’s motion following the precedents in Industrial Risk and Inversiones.  Both cases had found that the grounds for vacatur of nondomestic awards were not governed by Section 10, Chapter 1 of the FAA, but rather by the New York Convention (Chapter 2 of the FAA), under which “excess of power” is not a ground for vacatur.13  On appeal, in May 2022, a panel from the Eleventh Circuit affirmed, finding that it was bound by the precedent established in Industrial Risk and Inversiones. However, the panel further opined that those cases had been wrongly decided and that they should be overruled by the full court (also known as en banc) – which subsequently occurred on April 13, 2023.

After analyzing the intricacies of the U.S. international arbitration framework, the Eleventh Circuit sitting en banc found that Article V of the New York Convention “does not purport to regulate the procedures or set out the grounds for vacatur in the primary jurisdiction,”14 that is, “the country which is the legal seat of the arbitration (or whose law governs the conduct of the arbitration).15  Instead, it found that Article V and Chapter 2 of the FAA “focuses only on recognition and enforcement.”16  The Eleventh Circuit then cited Section 208 of the FAA, which provides that “Chapter 1 applies to actions and proceedings brought under [Chapter 2] to the extent that [Chapter 1] is not inconsistent with [Chapter 2] or the Convention as ratified by the United States.”  Based on this, the Eleventh Circuit concluded that since neither Chapter 2 nor the New York Convention set out vacatur grounds, there was no conflict in applying Chapter 1 of the FAA to the vacatur proceedings of nondomestic awards.17  Therefore, the full court held that “in a New York Convention case where the arbitration is seated in the United States, or where United States law governs the conduct of the arbitration, Chapter 1 of the FAA provides the grounds for vacatur of an arbitral award” and, to the extent inconsistent with this holding, overruled Industrial Risk and Inversiones.

Under the Eleventh Circuit’s approach, a district court simultaneously considering the confirmation or vacatur of a nondomestic award should look to Chapter 2 of the FAA and Article V of the New York Convention regarding the confirmation, and to Section 10 of Chapter 1 of the FAA for the applicable vacatur grounds.  This position – shared by the other U.S. Circuits – has faced some criticism by commentators who, acknowledging that the New York Convention does not provide for vacatur grounds, argue that the grounds for denying recognition and enforcement of an award under Section 207 of the FAA should be the same as those for vacatur.18  For these commentators, the unique status of a “nondomestic award” created by Chapter 2 of the FAA should have a bearing on the grounds for vacating them, making them distinguishable from domestic awards subject to Chapter 1’s vacatur grounds.  Otherwise, subjecting nondomestic awards to different grounds for recognition and enforcement and for vacatur, may lead a court to deny confirmation of nondomestic awards on grounds different to the ones set out in Article V of the New York Convention, in direct violation of Section 207 of the FAA.


Although the grounds for vacatur provided in Section 10 of the FAA largely correspond to the grounds for refusing recognition and enforcement of awards set out in Article V of the New York Convention, they are not identical.  This is in contrast to the grounds for set aside provided in the UNCITRAL Model Law on International Commercial Arbitration, which are virtually identical to the Article V grounds.

Further, and although controversial, some federal circuits have found an additional implied ground for vacatur based on a “manifest disregard of the law” which is not set out in section 10 of the FAA.19

Parties to international arbitrations seated in Alabama, Georgia, and Florida as a seat for arbitration now have to account for these additional grounds for vacatur as result of the Eleventh Circuit’s recent departure from its previous precedent limiting grounds for challenges of nondomestic awards to those set forth in the New York Convention.  Nevertheless, it is to be expected that the Eleventh Circuit’s, like other sister circuits,20 will take a narrow approach to these additional grounds for vacatur,21 which have generally been considered to overlap with Article V of the New York Convention,22 consistent with the United States’ Supreme Court’s pro-arbitration policy.

For further information, please contact Christian Leathley, Partner, Amal Bouchenaki, Partner, Daniela Paez, Senior Associate, Carlos Hafemann, Visiting Attorney, or your usual Herbert Smith Freehills contact.

Christian Leathley
Christian Leathley
+1 9175427812
Amal Bouchenaki
Amal Bouchenaki
+1 9175427830
Daniela Paez
Daniela Paez
Senior Associate
+1 9175427829
Carlos Hafemann
Carlos Hafemann
Visiting Attorney
+1 9175427835

















1 Corporación AIC, SA v. Hidroelectrica Santa Rita S.A., 2023 WL 2922297, at *9 (11th Cir. 2023)

2 Indus. Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434 (11th Cir. 1998).

3 Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Monte Int’l GmbH, 921 F.3d 1291 (11th Cir. 2019).

4 Yusuf Ahmed Alghanim & Sons v. Toys “R” Us, Inc., 126 F.3d 15, 23 (2d Cir. 1997) (“[t]he Convention specifically contemplates that the state in which, or under the law of which, the award is made, will be free to set aside or modify an award in accordance with its domestic arbitral law and its full panoply of express and implied grounds for relief.”).

5 Ario v. Underwriting Members at Lloyds, 618 F.3d 277, 292 (3d Cir. 2010) (agreeing with Yusuf, that “‘[t]he Convention specifically contemplates that the [country] in which, or under the law of which, the award is made, will be free to set aside or modify an award in accordance with its domestic arbitral law.’”).

6 Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 368 (5th Cir. 2003) (“By its silence on the matter, the Convention does not restrict the grounds on which primary-jurisdiction courts may annul an award, thereby leaving to a primary jurisdiction’s local law the decision whether to set aside an award.”)

7 Jacada (Europe), Ltd. v. Int’l Mktg Strategies, 401 F.3d 701, 709 (6th Cir. 2005) (“Because this award was made in the United States, we can apply domestic law, found in the FAA, to vacate the award”).

8 Lander Co. v. MMP Invs., Inc., 107 F.3d 476, 478 (7th Cir. 1997) (“[T]he New York Convention contains no provision for seeking to vacate an award, although it contemplates the possibility of the award’s being set aside in a proceeding under local law […] and recognizes defenses to the enforcement of an award.”).

9 In 2010 the Fourth Circuit affirmed a decision from the United States District Court for the Eastern District of Virginia which declined to follow Yusuf and held “that the reasons enumerated in Article V of the Inter–American Convention provide the exclusive list of grounds to vacate international arbitration awards.”  See RZS Holdings AVV v. PDVSA Petroleos S.A., 598 F. Supp. 2d 762, 766-67 (E.D. Va. 2009), aff’d, 383 F. App’x 281 (4th Cir. 2010).

10 FAA, Section 202; see Bergesen v. Joseph Muller Corp., 710 F.2d 928, 932 (2d Cir. 1983) (“We adopt the view that awards ‘not considered as domestic’ denotes awards which are subject to the Convention not because made abroad, but because made within the legal framework of another country, e.g., pronounced in accordance with foreign law or involving parties domiciled or having their principal place of business outside the enforcing jurisdiction.”)

11 Chapter 3 of the FAA incorporates the Inter-American Convention on International Arbitration or Panama Convention to the FAA.  This Convention overlaps with the New York Convention, and to a large extent replicates it.

12 FAA, Section 208.

13 Corporacion AIC, S.A. v. Hidroelectrica Santa Rita, S.A., 2020 WL 4485226, at *4 (S.D. Fla. Apr. 16, 2020), report and recommendation adopted, 2020 WL 4478424 (S.D. Fla. Aug. 4, 2020) (“The New York Convention does not provide that an award can be vacated if the arbitrators ‘exceeded their powers.’ The defense is therefore inapplicable to these Arbitration Awards.”)

14 Corporación AIC, 2023 WL 2922297, at *5.

15 Id., at 3.

16 Id., at 5.

17 Id., at 6 (“[B]ecause Article V of the Convention is “simply silent” on the grounds for vacatur, there is no conflict if Chapter 1 is applied.”)

18 See Born, 3211-3214; see also F. Mantilla-Serrano, Non-Domestic Award: The Second Hypothesis of Article I(1), in 60 Years of the New York Convention: Key Issues and Future Challenges, 55, 60, 65 (K. Fach Gómez & A. López Rodríguez, eds., 2019).

19 Hall Street Assocs. L.L.C. v. Mattel, Inc., 552 U.S. 576, 585 (2008) (citing cases).

20 See e.g. Banco de Seguros del Estado v. Mut. Marine Office, Inc., 344 F.3d 255, 262 (2d Cir. 2003) (“We have ‘consistently accorded the narrowest of readings’ to the FAA’s authorization to vacate awards ….”

21 Gianelli Money Purchase Plan & Trust v. ADM Investor Servs., 146 F.3d 1309, 1311 (11th Cir. 1998) (“The Federal Arbitration Act … provides that a federal district court can vacate an arbitration award, but only in extremely narrow circumstances.”)

22 See e.g. Mgmt. & Tech. Consultants S.A. v. Parsons-Jurden Int’l Corp., 820 F.2d 1531, 1534 (9th Cir. 1987) (“In interpreting the grounds specified [in the New York Convention], it is generally recognized that the Convention tracks the Federal Arbitration Act.”)


Welcome to issue 14 of Inside Arbitration.

We are delighted to share with you the latest interactive issue of this publication from Herbert Smith Freehills’ Global Arbitration Practice.

Despite signs of post-Covid recovery, the invasion of Ukraine has had global ramifications, exacerbating the already challenging cost-of-living crisis, with soaring inflation as energy, food and consumer product prices have spiked. Many of our corporate clients have been faced with closing their Ukrainian operations and supporting staff through enormously challenging circumstances. As trusted advisors to our clients, we need to be able to anticipate and respond to the challenges and opportunities on the horizon as political and financial instability have knock-on effects across regions and sectors.

Incorporating articles, interviews and videos from our practitioners around the network, this edition features articles and interview spotlights from across our global team in addition to recent arbitration news and developments including:

  • The war in Ukraine – implications for investments and contracts: Andrew Cannon, Hannah Ambrose, Olga Dementyeva and Jake Saville-Tucker explore some of the principal considerations in relation to terminating Russia-related commercial contracts and how investment treaties may offer an avenue for recourse if investments in Ukraine or Russia are affected by Russian state action.
  • The future of energy disputes: shocks to the system: Craig Tevendale, Louise Barber and Divyanshu Agrawal discuss how battered supply chains and turbulent geopolitics mean the energy sector should brace for a surge in disputes
  • Cyber disputes – are there borders in the blockchain? With the cyber economy fast emerging, courts are struggling with drawing borders in a decentralised world. Simon Chapman QC and Troy Song highlight one recent case that hints at the path ahead
  • Arbitration in Dubai: wa hala’ la wein (where do we go from here?): Following a busy year, Stuart Paterson, Nick Oury and Patrick O’Grady reflect on how the consolidation of two leading Dubai arbitration centres has radically changed the UAE disputes landscape
  • Whether virtual or physical, we can do more to make arbitration hearings sustainable: Amal Bouchenaki, Craig Tevendale, Maguelonne de Brugiere and Olga Dementyeva present the findings of our study comparing the carbon impact and expense of virtual hearings with in-person equivalents.
  • Investor-state dispute resolution series part II: Reform or rebirth?: With concerns from stakeholders growing, Andrew Cannon and Vanessa Naish consider how ongoing reforms could rebalance the ISDS process.
  • Asia-Pacific private equity disputes to rise as deal volumes grow: Following a period of pandemic-enforced turbulence, private equity deals have rebounded strongly, with disputes likely to grow as a result. Chad Catterwell and Guillermo Garcia-Perrote consider the implications of recent developments for disputes in this sector.
  • Spotlight interviews: Our three new arbitration partners Jonathan Ripley-Evans, Dan Waldek and James Allsop feature in our Spotlight articles, shedding light on their specialisms in their regions (and their story so far)

Previous issues can also be viewed here. We hope that you enjoy reading issue #14 of Inside Arbitration and would welcome any feedback you may have.

Amal Bouchenaki contributes to the Fifth Edition of Global Arbitration Review’s “The Guide to Advocacy”

Amal Bouchenaki, Partner in Herbert Smith Freehills’ New York office, has contributed to the Fifth Edition of Global Arbitration Review’s “The Guide to Advocacy” with a chapter entitled “Cultural Considerations in Advocacy: United States”.

The chapter looks at procedural, ethical and societal considerations against which the cognitive framework of advocates in the United States has developed.

Amal’s contribution is available to download as a PDF here. The full publication can be accessed online here.

For more information, please contact Amal Bouchenaki, Partner, Christopher Boyd, Associate, or your usual HSF contact.

Amal Bouchenaki
Amal Bouchenaki
+1 917 542 7830
Christopher Boyd
Christopher Boyd
+1 917 542 7821

An extract from the fifth edition of GAR’s The Guide to Advocacy, first published in September 2021. The whole publication is available at


On June 30, 2021, Ecuador’s Constitutional Court (Constitutional Court) held that President Guillermo Lasso had the power to ratify the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) without the approval of Ecuador’s National Assembly (the Decision).[1] The Constitutional Court also held that the ratification of the ICSID Convention does not imply that Ecuador has assigned inherent domestic powers to international jurisdiction nor that the ratification of the treaty automatically binds Ecuador to investor-state arbitration.

Following the Decision, on July 16, 2021, President Lasso ratified the ICSID Convention and on August 4, 2021, deposited Ecuador’s Instrument of Ratification with the World Bank. Pursuant to Article 68(2) of the ICSID Convention, it will enter into force today, September 3, 2021.

In response to Ecuador’s latest ratification of the ICSID Convention and the Decision, Ecuador’s legislative branch, the National Assembly, voted on a resolution which (i) opposed the ratification of the ICSID Convention and the Decision, and (ii) supported the launching of a constitutional action seeking a declaration from the Constitutional Court that the ICSID Convention is unconstitutional.[2] As a result, at least three actions have been filed by members of the National Assembly during August 2021.[3] A decision from the Constitutional Court is pending. Continue reading


On 15 June 2021, the International Centre for the Settlement of Investment Disputes released its latest working paper as part of its Rules Amendment Project. In addition to proposing changes to the ICSID Convention and ICSID Additional Facility arbitration and conciliation, as covered in our earlier blog post, Working Paper 5 also refines the proposed new rules for ICSID fact-finding and mediation. The changes to the Mediation Rules between Working Paper 4 and Working Paper 5 have been minimal, and the ICSID Secretariat has expressed a hope that this will be the final iteration of the rules.

To further promote mediation in investor-State arbitration, in July 2021 ICSID also released a Background Paper on Investment Mediation, which provides an overview of mediation in an investor-State context, as well as an Overview of Investment Treaty Clauses on Mediation, which reviews existing treaty mechanisms that address investor-state mediation and other amicable dispute resolution mechanisms.

This blog post provides an overview of how a mediation would be initiated, conducted, and concluded under the proposed Mediation Rules – highlighting any key changes in the latest iteration of the rules and flagging key takeaways from ICSID’s additional publications.

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In a recent post on our Public International Law Notes blog, Christian Leathley, Amal Bouchenaki, Florencia Villaggi and Louis Thivierge consider the UNCITRAL Secretariat’s initial draft provisions on the regulation of third-party funding in Investor-State Dispute Settlement, which presents various potential models that the Working Group on Investor-State Dispute Settlement Reform may adopt for regulating third-party funding. The full post can be found here

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On March 4, 2021, the Parliament of Iraq passed the “Law on the Accession of the Republic of Iraq to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards,” which, upon being published in the Official Gazette, will formally ratify the country’s anticipated accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “New York Convention”).

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The International Centre for Dispute Resolution (ICDR) of the American Arbitration Association (AAA) has released its revised Arbitration and Mediation Rules, which came into force on March 1, 2021 (the 2021 ICDR Rules). The 2021 ICDR Rules will apply to any arbitration or mediation commenced after such date unless agreed otherwise.

The Arbitration Rules were last revised in 2014, and the Mediation Rules in 2008. The changes introduced are therefore a comprehensive update, responding to issues that have arisen in both arbitration and mediation over the past decade. They reflect discussions held by the ICDR management and administrative teams, a specific ICDR Committee of practitioners, and feedback from ICDR’s users. Following the trend of recent changes implemented by other major institutions such as the London Court of International Arbitration and the International Chamber of Commerce, the 2021 ICDR Rules include changes relating to third-party funding, joinder and consolidation, data protection, and  the effects of COVID-19 on the arbitral process.

Key takeaways for parties and practitioners

The key changes to be aware of in the 2021 ICDR Rules for parties and practitioners are as follows:

  • The new Arbitration Rules:
    • Permit joinder after the constitution of the tribunal with the consent of the joining party, when the arbitral tribunal considers it appropriate;
    • Allow consolidation when the arbitration involves related parties – as opposed to the more limited “same” parties requirement under the prior rules;
    • Embrace early disposition of issues;
    • Introduce a provision on the disclosure of third-party funding and “undisclosed economic interests;”
    • Acknowledge the use of video, audio, or other electronic means for conducting preliminary matters and final hearings;
    • Require tribunals to discuss cybersecurity, privacy, and data protection with the parties to provide an appropriate level of security and compliance.
  • The new Mediation Rules:
    • Emphasize the importance of party involvement and the obligation of the ICDR to assist the parties in finding an agreeable mediator;
    • Set out best mediation practices by comprehensively outlining how a mediation should proceed;
    • Recognize that all or part of a mediation proceeding may be conducted via video, audio, or other electronic means;
    • Reinforce that it is the responsibility of each party to have present at the mediation a representative with authority to execute a settlement agreement;
    • Allows the parties to request from the ICDR or mediator an attestation that a settlement was reached to assist in enforcing settlement agreements according to the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) or other applicable law.

The most significant of these changes are discussed in more detail below.

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