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International Arbitration Review

The new normal? Trends in international arbitration and policy

The Covid-19 pandemic dominated the agenda for much of 2020, leading to rapid changes in the conduct and subject matter of international arbitration. We also saw other important developments, some influenced by changing global trade dynamics and the Brexit trade deal, and others by the push to reform investor-state dispute settlement, as well as the move towards making ESG and climate change commitments binding and enforceable across borders.

Read about key trends in international arbitration

Many types of Covid-19 related disputes will be arbitrated

Covid-19 is giving rise to numerous disputes, many of which will be resolved through international arbitration. The subject matter of those arbitrations will be varied, but inevitably includes disputes relating to commercial contracts, M&A and investment treaty claims.

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Brexit changes to civil justice cooperation may make arbitration more appealing for some

As well as representing a profound change in the UK-EU trading relationship, Brexit affects the regime for UK-EU cross-border disputes, in particular in relation to questions of jurisdiction and the enforceability of UK court judgments.

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Bilateral UK/EU investment treaties have been reinvigorated but gaps remain

Following the Court of Justice’s 2018 judgment in Achmea, in which investor State dispute settlement (ISDS) arbitration provision of an intra-EU bilateral investment treaty (BIT) was found to be incompatible with EU law, a majority of EU Member States have moved to terminate their intra-EU BITs.

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Government measures around the globe will lead to more investment treaty claims

Measures taken by governments in response to the Covid-19 pandemic may give rise to investment arbitration claims in the year ahead, but 2020 also saw a number of other political developments that may have the same effect. As a result, the pattern of year-on-year growth in the number of investment arbitration claims filed globally looks likely to continue in 2021.

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A growing number of sustainability and ESG-related disputes will be resolved through arbitration

Contrary to expectations, the 2020 Covid-19 tragedy has accelerated trends that prioritise sustainability and focus on Environmental, Social and Governance (ESG) issues. Many States have announced that low-carbon investment will be at the core of economic recovery packages, while carbon-intensive energy production will be phased out in the coming years.

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Increased pressure to reform use of arbitration in investor-state dispute settlement

While global foreign direct investment (FDI) collapsed in 2020, efforts to reform the complex system of nearly 3,000 treaties that protect foreign investment continued largely (but not entirely) unabated. In recent years, some States have challenged the use of arbitration as the primary means of ISDS.

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Modernised arbitration rules will offer great efficiency and effectiveness of arbitration

Recent months have seen rule changes at the two most popular commercial arbitration institutions, with the introduction of the LCIA Arbitration Rules (2020) in October last year and the ICC 2021 Arbitration Rules from 1 January, with others like the Singapore International Arbitration Centre (SIAC) expected to revise their rules during 2021.

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Recent developments and emerging trends in international arbitration law and policy

Allen & Overy’s International Arbitration group

Our International Arbitration group advises a diverse range of corporates, financial institutions and governments on complex cross-border commercial and investment treaty arbitrations.

With specialist arbitration practitioners, including leading advocates, in all the key arbitral jurisdictions globally, we advise on the most pressing and complex disputes wherever they arise. Our global expertise is combined with regional expertise in disputes involving the Americas, Europe, the Middle East, Africa and Asia-Pacific.

A&O’s international arbitration expertise spans the full range of sectors in which arbitration is used, including:

Representing clients in arbitrations under all the key rules, including the ICC, LCIA, HKIAC, SIAC, ICSID and UNCITRAL Rules, our specialist practitioners around the world are qualified in many jurisdictions and fluent in numerous languages. Senior members of our team regularly sit as arbitrators and hold key positions with the leading arbitral institutions, legal associations and academic faculties.

We advise our clients at every step of the process and typically conduct our own advocacy in clients’ arbitration cases, delivering cost savings and ensuring our advocates are involved from the very start of proceedings. Our approach to the conduct of matters is always informed by our clients’ commercial interests and strategic objectives.