Inside Arbitration: Issue #6 of the publication from Herbert Smith Freehills’ Global Arbitration Practice

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

In addition to sharing knowledge and insight about the markets and industries in which our clients operate, the publication offers personal perspectives of our international arbitration partners from across the globe.

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Upheaval and uncertainty in mineral regulation in parts of Africa: resurgence of resource nationalism highlights the importance of investment treaty protections

The last few months have seen significant changes to mining regulations in various African states, giving rise to a concern that a regional trend of resource nationalism may be (re-)emerging. In this context it is important for companies associated with the mining sector to be aware of the protection international investment treaties may provide against the impact of resource nationalism on their assets, and how to maximise that protection before risks materialise.  This bulletin briefly considers some of the last few months’ developments, before discussing how companies can use investment treaties to protect themselves against the risks they pose.

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Is the recently signed Morocco-Nigeria BIT a step towards a more balanced form of intra-African investor protection?

On 3 December 2016, Morocco and Nigeria signed a new bilateral investment treaty (the "BIT"), with the overarching aim of strengthening "the bonds of friendship and cooperation" between the two States.  The BIT (available here) is yet to be ratified and to enter into force. 

The BIT takes an interesting and in some ways innovative approach to the balance of rights and obligations as between investors and the respective host States, placing emphasis on the promotion of sustainable development and expressly safe-guarding the State's discretion to take measures to meet policy objectives.  As compared to traditional investment treaties, the BIT imposes additional obligations on investors and appears to seek to address, to a degree, the criticism that such investment treaties have been too heavily geared towards protecting investor interests. 

We explore below some of the more unusual aspects of the BIT, and consider the innovative nature of the BIT by comparison to other intra and extra-African treaties concluded in recent years.   

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New York Convention 1958 to enter force in Angola on 4 June 2017

Angola has become the 157th Contracting State to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. On 6 March 2017, Angola deposited its instrument of accession to the Convention with the UN Secretary General.  Under Article XII(2), the Convention will enter into force in Angola on 4 June 2017, 90 days after the deposit of its instrument of accession. Unlike many states, Angola has not made any declarations, notifications or reservations regarding the application of the Convention.  The most frequently made declarations are to apply the Convention only to: (i) recognition and enforcement of awards made in the territory of another contracting State (the so-called "reciprocity reservation"); and (ii) differences arising out of legal relationships that are considered commercial under the national law (the so-called "commercial reservation").

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New dispute resolution rules for foreign investors in South Africa

South Africa’s draft regulations for investor-state mediation require refinement to work effectively with international arbitration.

Interested parties have until 28 February 2017 to comment on draft Regulations on Mediation Rules (Regulations) published by South Africa’s Department of Trade and Industry (DTI) on 30 December 2016, under the Protection of Investment Act, 2015 (Act).

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Inside Arbitration: Issue #3 of the publication from Herbert Smith Freehills’ Global Arbitration Practice

We are delighted to share with you the latest issue of the publication from Herbert Smith Freehills' Global Arbitration Practice, Inside Arbitration.

In addition to sharing knowledge and insights about the markets and industries in which our clients operate, the publication offers personal perspectives of our international arbitration partners from across the globe.

In this issue:

  • Paula Hodges QC, Peter Leon, Craig Tevendale and Chris Parker share their insights into the development of commercial arbitration on the African continent and consider dispute resolution choices for parties negotiating Africa-related contracts.
  • We consider the development of arbitration in Rwanda and the Kigali International Arbitration Centre "in conversation" with KIAC's secretary general, Dr Fidèle Masengo.
  • Peter Godwin, Regional Head of Disputes Asia, reflects on his 16 years in Asia and the changes in attitudes towards dispute resolution amongst Japanese parties.
  • Dr Patricia Nacimiento, Thomas Weimann and Dr Mathias Wittinghofer give their view on whether Germany is on its way to becoming a true arbitration powerhouse.
  • Chris Parker, Elaine Wong, Gitta Satryani and Elizabeth Kantor provide a global perspective on the availability of security for costs and claim in international arbitration.
  • Dr Larry Shore discusses his path into public international law and the development of his interest in treaty disputes, as well as the differences in arbitration practice in the US and the UK and trends in US arbitration.
  • We highlight a number of key considerations for parties negotiating contracts with state and state-owned entities across the globe and provide comparative into state immunity in five key jurisdictions.

We are pleased to present our clients with an infographic providing a snapshot of our global arbitration practice in the two years 2014-2016.

The infographic details the successes of our growing practice and our huge geographical reach. The infographic is available at this link and at page 25 of Inside Arbitration.

The full digital edition can be downloaded in PDF by clicking on this link.

We hope that you enjoy reading Issue #3 of Inside Arbitration. We would welcome your feedback.

Angola becomes 157th Contracting State to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Angola has ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.  Its ratification was endorsed domestically via resolution No. 38/2016, published in the Official Gazette of Angola on 12 August 2016. Under Article XII(2) of the New York Convention, the ratification will take effect on the 90th day after deposit by Angola of its instrument of ratification with the Secretary-General of the United Nations.

Angola has one of the world’s fastest growing economies and in 2015 was reported by the US State Department to be sub-Saharan Africa’s second largest oil exporter. Ratification of the New York Convention represents a further step by Angola in fostering and promoting a stable investment climate. It follows the ratification of the Private Investment Law in August 2015, the main purpose of which was to simplify the procedure for national and foreign investment and to provide tax and other incentives.

The Angolan Arbitration Law (Law 16/2003 of 25 July) (the Arbitration Law) is largely based on the old Portuguese Arbitration Law (Law 31/1986 of 29 August) and bears considerable similarity to the UNCITRAL Model Law. The Arbitration Law provides for domestic and international arbitration.

The ratification of the New York Convention will provide reassurance for parties investing or intending to invest in Angola that they can resolve their Angola-related disputes by means of arbitration seated outside Angola, and that arbitral awards made in relation to such disputes should be recognised and enforced in Angola.  Precisely how the Convention obligations will be implemented of course remains to be seen over the coming months, including in the context of the application of the Arbitration Law to those obligations, and the practical commercial and judicial acceptance of arbitration as a method of resolving disputes going forward.

Foreign investors should also continue to consider the application of the Private Investment Law in relation to arbitration. The Private Investment Law permits the arbitration of disputes that arise from investment contracts between the Angolan state (represented by the direct or indirect administration body to which authority is delegated) and the private investor (Article 46(3)). However, if arbitration is chosen as the form of dispute resolution for such investment contracts, it must take place in Angola, and the law applicable to the substance of the contract and the proceedings must be Angolan (Article 46(4)). 

Herbert Smith Freehills launches the second edition of its ground-breaking Guide to Dispute Resolution in Africa in September 2016. The Guide covers all 54 of Africa's diverse jurisdictions.

For further information, please contact Peter Leon, Partner, Andrew Cannon, Partner, or Hannah Ambrose, Professional Support Consultant or your usual Herbert Smith Freehills contact.

Peter Leon
Peter Leon
Partner
+27 11 282 0833
Andrew Cannon
Andrew Cannon
Partner
+ 33 1 5357 6552
Hannah Ambrose
Hannah Ambrose
Professional Support Consultant
+44 20 7466 7585

Inside Arbitration: Issue #2 of the publication from Herbert Smith Freehills’ Global Arbitration Practice

We are delighted to share with you the latest issue of the publication from Herbert Smith Freehills' Global Arbitration Practice, Inside Arbitration.

Inside arbitration #2

 

In addition to sharing knowledge and insights about the markets and industries in which our clients operate, the publication offers personal perspectives of our international arbitration partners from across the globe.

In this issue:

  • Sarah Grimmer, the new Secretary General for the Hong Kong International Arbitration Centre shares her insights on, and ambitions for, HKIAC.
  • Nick Peacock and Dr Mathias Wittinghofer consider whether arbitration is a suitable tool for resolution of derivative disputes, as well as the future of the ISDA arbitration guide.
  • Jessica Fei, Chinese national and NY lawyer, talks about the unique blend of cultures and legal qualifications that shape her perspective as a practitioner.
  • Mark Lloyd-Williams, Hamish Macpherson, Craig Shepherd, Emma Kratochvilova and Thomas Weimann give a global perspective on arbitrating construction and infrastructure disputes.
  • Dominic Roughton and Andrew Cannon consider the impact of territory and maritime boundary disputes on commercial investments and the role of private actors and states in their resolution.
  • Peter Leon and Ben Winks give their view from Johannesburg on the future of arbitration in South Africa.
  • Vanessa Naish and Hannah Ambrose take a practical look at the effect of Brexit on dispute resolution choices, both now and in the future.
  • Andrew Cannon talks about his experience working at the Foreign and Commonwealth Office and how it has shaped his public international law practice.


The full digital edition can be downloaded in PDF by clicking on this link.

We hope that you enjoy reading Issue #2 of Inside Arbitration. We would welcome your feedback.