The rise of international arbitration as the dispute resolution mechanism for cross-border transactions
International arbitration is, for many businesses, now the default dispute resolution mechanism for cross-border transactions. In some sectors, arbitration is firmly established as a preferred alternative to litigation in the national courts of contracting parties.
Why is this? Arbitration offers businesses a range of attractive features. Arbitration is consensual: parties can decide how, where, by whom, and in what language the dispute is heard. It's perceived the world over as neutral with tribunals often made up of different nationalities. Hearings are held in private and the process is often also confidential. Crucially, arbitration also promises finality: awards are generally not subject to appeal and may be challenged in limited circumstances. Add to that the relative ease of enforcement of awards worldwide under the New York Convention – and the case for arbitration is strong.
Beyond commercial disputes
However, arbitration is not confined to typical commercial disputes. Businesses also turn to arbitration when they are threatened by political risk. In some cases (for example, when a state expropriates a foreign investor's assets or discriminates against it), arbitration under an investment treaty may be the only viable option for redress. Foreign investors commonly bring actions against states under one of the more than 3000 bilateral or multilateral investment treaties that exist to protect their rights, including before tribunals constituted under the International Centre for Settlement of Investment Disputes (ICSID) rules.
From drafting the arbitration clause in a contract to final hearing of disputes and beyond to oral advocacy at the final hearing, Osborne Clarke has extensive experience of the most complex commercial and treaty-based disputes, frequently acting on disputes from around the world and under all the major rules (including those of the International Chamber of Commerce, the London Court of International Arbitration, the Stockholm Chamber of Commerce, DIS (the German Arbitration Institute), the Singapore International Arbitration Centre, the United Nation Commission on International Trade Law and ICISD.)
Our areas of focus include the energy sector (in particular, renewables), retail, life sciences, construction, and the rapidly growing area of digital business – specifically interactive entertainment and video games.
Osborne Clarke has extensive experience of the most complex commercial and treaty-based disputes, frequently acting on disputes from around the world and under all the major rules."
Acted in a €1 billion DIS arbitration arising out of a multi-billion euro energy transaction.
Acted in high-value ICC proceedings arising out of a FIDIC construction dispute in the Middle East.
Acted in related ICC and SCC arbitrations relating to breaches of metal trading agreements with a total value of US$150 million.
Acted for a multinational renewables company in high-value LCIA arbitrations arising out of a supply dispute in the solar sector.
Financial services company
Acted for an investor in a US$40 million LCIA dispute arising out cross-border financing agreement.
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