We are delighted to share the sixth edition of our annual top trends analysis: International Arbitration: top trends in 2021.
Our forward-looking and practical guide looks at the following key themes that our global arbitration specialists predict will shape the international arbitration landscape for our clients and the arbitration community in the year ahead.
1. The future of remote hearings in a post-pandemic world: the extensive use of remote hearings during the pandemic has shown that in many cases they work as an efficient and cost-effective alternative to in-person hearings. Once in-person hearings again become an option, we expect parties and tribunals to consider how and when virtual hearings should continue to be a feature of the arbitral process going forward.
2. Covid-19-related disputes: disputes arising from the pandemic leading to arbitration have come in waves. Government assistance packages and temporary renegotiation of contracts have prevented an anticipated major spike in cases. However, contractual disputes have arisen on the scope of force majeure clauses and we expect further disputes to arise from the economic turmoil of the pandemic in the coming year, as well as potential investment treaty claims.
3. Insolvency and arbitration: corporate insolvencies are expected to rise sharply in most major economies around the world. Where an arbitral counterparty is insolvent, or at risk of becoming insolvent, the case strategy needs to be carefully managed to minimise the risks associated with insolvency and the arbitral process.
4. Arbitration landscape in the EU and UK post-Brexit: investment protection in the EU and UK will be an area to watch in 2021 as the arbitration community considers the impacts of the agreement terminating intra-EU Bilateral Investment Treaties (BITs) and the UK’s formal departure from the EU. It is not yet clear what approach the UK will take in its international investment agreements, but the lack of ISDS provisions in the new EU-UK and Japan-UK trade agreements indicates that UK investors will increasingly need to rely on the UK's BIT network to protect their investments.
5. The future of ISDS: investor-state dispute settlement has come under increasing scrutiny and challenge over recent years and states continue to implement measures to redress the balance of rights and obligations vis-à-vis investors, including renegotiating their international investment agreements and removing or renegotiating traditional ISDS mechanisms. Institutional reform efforts to address these challenges remain underway.
6. Investment treaty trends: in addition to Government measures taken in response to the pandemic that may give rise to new investment treaty claims in 2021, we expect recent government policy reforms in the energy, technology and pension funds sectors, particularly in Latin America, may to lead to new claims being filed by affected investors in coming months.
7. Investment claims: project finance lenders have rights too: following the landmark decision in Portigon AG v Spain, which opened the door for project finance lenders to benefit from investment treaty protection, lenders have an opportunity to upgrade their risk and investment strategy to protect their investments against the risk of future adverse state measures.
8. Latest arbitral rules reforms facilitating shorter, cheaper virtual arbitrations: recent reforms of some of the major arbitral institutional rules have paved the way for greater efficiency and more cost-effective conduct of arbitrations, with increased tools, procedures and technology at the tribunal and parties’ disposal.
9. Continuing economic woes for the construction and infrastructure sectors: the pandemic has hit the international construction and infrastructure industry hard. The combination of market uncertainty, reduced finance available and a hardening of both national and commercial protectionism is likely to lead to more disputes as ongoing projects reach completion and the parties seek to address the economic realities of the pandemic.
10. Arbitrators’ duties of disclosure in the spotlight: given the recent UK Supreme Court Judgment in Halliburton v Chubb and other international cases concerning disclosure, there is likely to be increased focus on arbitrators’ duties of disclosure in the year ahead.
11. Arbitration and climate change: with an increasing spotlight on sustainability globally, the final trend evaluates the role that arbitration plays in the context of resolving climate change disputes and the steps being taken by the arbitration community to make the arbitration process more sustainable by reducing its carbon footprint.