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Qatar Blockade Dispute at ICJ Begins, Expands

The Monthly Wrap: News, insights, and analysis from Arent Fox's International Arbitration team.

Qatar Blockade Dispute at ICJ Begins, Expands

ICJ hearings began last week in Qatar’s case against the UAE. The proceedings were instituted earlier last month in response to a 2017 blockade imposed on Qatar by the UAE, Egypt, Saudi Arabia, and Bahrain. Qatar alleges that the UAE “enacted and implemented a series of discriminatory measures directed at Qataris based expressly on their national origin [that] remain in effect to this day,” in violation of the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965. Qatar’s Application Instituting Proceedings alleges that the UAE:

  • expelled all Qataris within its borders, without exception, giving them just two weeks to leave;
  • prohibited Qataris from entering into or passing through the UAE, and ordered UAE nationals to leave Qatar or face severe civil penalties, including deprivation of their nationality and the imposition of criminal sanctions;
  • closed UAE airspace and seaports to Qatar and Qataris and prohibited all inter-state transport, which together with coordinated measures enacted simultaneously by other nearby states, rendered Qatar inaccessible by air, land, and sea;
  • interfered with the rights of Qataris who own property in the UAE;
  • prohibited by law any speech deemed to be in “support” of Qatar or opposed to the actions taken against Qatar, on threat of severe financial penalty or up to fifteen years imprisonment; and
  • shut down the local offices of Al Jazeera Media Network (“Al Jazeera”) and blocked the transmission of Al Jazeera and other Qatari stations and websites.

At the same time, as reported last week in the press, the UAE, Egypt, Saudi Arabia, and Bahrain announced plans to bring their own ICJ case against Qatar. This case reportedly relates to Qatar’s challenge before the UN International Civil Aviation Organization to those four countries’ joint decision to close their airspace and airports to Qatari planes. When the ICAO rejected arguments by the four blockading countries that it lacked jurisdiction, they announced their decision to add their claims to the ICJ’s docket as well.

UNCITRAL Recommends Adoption of Draft Mediation Convention

On June 26, at its 51st session in New York, the United Nations Commission on International Trade Law recommended that the UN General Assembly adopt a draft Convention on the Enforcement of Mediation Settlements. The draft Convention provides a legal framework for the cross-border enforceability of international settlement agreements arising out of mediation. To complement this effort, UNCITRAL has also adopted revisions to the Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation.

Once adopted by the UN General Assembly, the instrument will be known as the Singapore Convention on Mediation and is planned to be signed in Singapore in August 2019.

The text of the draft Convention will appear on UNCITRAL’s website.

Want more information?
Contact Lee Caplan

Global Foreign Direct Investment Flows Fell Sharply in 2017

According to UNCTAD’s World Investment Report, which was released on June 6, 2018, the value of global foreign direct investment flows in 2017 was USD 1.43 trillion. This 23 percent fall from the previous year’s USD 1.87 trillion was attributed, in part, to a decrease in the global average return on foreign investment, especially in Africa, Latin America, and the Caribbean. Prospects for 2018 are muted and expected to remain below the average of the past 10 years.

Read more about global foreign direct investment flows.

Want more information?
Contact Ucheora Onwuamaegbu

UAE Federal Arbitration Law Issued

One month after it was published on May 3, 2018, UAE Federal Law No. 6 of 2018 came into effect as the new arbitration law for the country. The law, which is based on the UNCITRAL Model Law, repeals provisions in the Arbitration Chapter of the UAE Civil Procedures Law No. 11 of 1992. It includes a number of provisions that are designed to increase efficiency of arbitration proceedings in line with international best practice. The law will apply to arbitrations that are ongoing at the time and to new cases going forward.

Read the United Arab Emirates: Federal Law No. (6) of 2018 on Arbitration in English and Arabic.

Want more information?
Contact Ucheora Onwuamaegbu

US District Court Declines to Confirm International Arbitration Award Ordering Specific Performance Against Sovereign

On June 7, 2017, Judge Rudolph Contreras of the United States District Court for the District of Columbia denied, pursuant to the US Federal Arbitration Act, a Petition to Confirm an Arbitration Award on the grounds that the Arbitral Tribunal’s award of specific performance to the Claimant was contrary to the public policy of the United States. The case concerned a Production Sharing Contract between Hardy Exploration and Production (India), Inc. (“HEPI”) and the Government of India, pursuant to which HEPI entered into a contract with the Government permitting it to search for and potentially extract hydrocarbons from an area off of India’s southeastern coast.

According to the contract, if HEPI discovered a reserve of crude oil, it was entitled to a two-year period to ascertain commercial viability and begin production; if it was determined to be a reserve of natural gas, HEPI was entitled to a five-year period to ascertain commercial viability and begin production. HEPI discovered a hydrocarbon reserve and declared it to be natural gas. The government of India disagreed, and after two years, the government informed HEPI that its right to the block had been relinquished. An international arbitration ensued, and the arbitral panel, among other things, ordered India to allow HEPI back on to the block for another three years. This order of specific performance the key issue on confirmation. In his decision, Judge Contreras stated that the “case presents the court with a unique opportunity to balance two important US public policy values: respect for the sovereignty of other nations and respect for foreign arbitral agreements.” He took the opportunity to hold in favor of India’s right “to control the extraction and processing of natural resources within their own sovereign territories.” We will keep tabs on this should this decision be appealed.

Read the court's decision in full.

Want more information?
Contact Timothy Feighery

Arent Fox Contributes to the Delos Guide to Arbitration Places

Arent Fox LLP International Arbitration & Dispute Resolution Partners Lee M. Caplan and Jeffrey R. Makin and Associates Diane Roldan and Karen Van Essen authored the California Contribution to the Delos Guide to Arbitration Places, which is now available online.

The GAP is a practical look at arbitration in jurisdictions around the World, and it is designed to be a resource for in-house counsel, corporate lawyers, and arbitration practitioners so they can easily access a contemporary set of best practices across the globe.

“Delos is a prize-winning, innovative authority in dispute resolution, and we are excited to work with Delos to provide an effective, useful guide to resolving disputes across the globe,” said Mr. Makin. “Delos has delivered quality, flexibility, and cost efficiencies to the startup community and small to medium sized enterprises, and the GAP continues in that tradition.”

The GAP includes tips for negotiating the choice of arbitral seats and conducting arbitral proceedings, and a checklist of idiosyncrasies for arbitration practitioners. The guide has been published online and is freely accessible here

Delos is an independent arbitration institution. It helps to reduce risk for businesses globally by promoting time and cost efficiently in the resolution of their disputes. Delos provides an innovative approach to commercial dispute resolution by combining quality with flexibility.

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