Incorporation of arbitration clauses (or arbitration agreements) by reference is a concept that has been around for well over a century. It all began with the explosion in international trade in the nineteenth century, coupled with the growth of fairly standard documentation for individual transactions, which was normally connected to the manner in which goods would move from the seller in country A to the buyer in country B. These documents included bills of lading, charterparties, and the contract itself, as well as letters of credit, guarantees, etc. From international trade to construction and insurance, the idea of A and B incorporating words from another document sufficient (or not) to create a binding arbitration agreement has troubled the English judiciary for more than 125 years, since when there have been dozens of reported cases. Where English law is now on the matter, however, is not quite clear. While the courts of other common law jurisdictions (particularly Singapore and Hong Kong) have, we think, taken a much more pragmatic and modern attitude toward the problem, it can fairly be said that English law has stubbornly remained anchored in the past (though, to be fair, there are - as this article will hopefully demonstrate hints of change). div/div
The sanctions by the UK and European Union (EU) against Russia have raised difficult questions about upholding exclusive jurisdiction and arbitration clauses. One way of trying to uphold jurisdiction clauses is by granting injunctive relief to restrain the enforcement of any resulting judgment in breach of the same. This article examines the recent approach of the English Courts to granting Anti-Enforcement Injunctions (AEIs) which seek to restrain a party from enforcing a judgment obtained in a foreign Court in breach of a jurisdiction clause. Two shifts have occurred: the role of comity has been substantially marginalized; and the English Courts have been willing to grant AEI relief on a pre-emptive basis before any foreign judgment is rendered. The article argues that whilst these developments reflect an appropriate response to the use of Russian legislation to circumvent arbitration agreements and exclusive jurisdiction clauses, the Russian cases should be understood as exceptional and may not represent a permanent recalibration by the English Courts.
This article explores the rationale and evolving practice of cost allocation in ICC arbitration. While the ICC Rules grant arbitral tribunals broad discretion in awarding costs, a review of recent awards reveals an emerging pattern: tribunals commonly apply the ‘costs follow the event’ principle, often adjusted through the relative success rule. The analysis also highlights the influence of party conduct, proportionality, and reasonableness in cost decisions. Drawing on thirty recent ICC awards, the article examines the practical limits of arbitral discretion and offers proposals, such as early procedural consideration of cost issues and settlement offers, designed to promote greater predictability in cost outcomes.
This article proposes a Structured Admissibility Test for counterclaims submitted after a claimant materially amends its case. It addresses an under-examined asymmetry in international commercial arbitration, particularly in disputes arising from commercial contracts: claimants may be permitted to reshape the dispute, while respondents remain subject to deadlines established by reference to the original claims. The article conceptualizes procedural reciprocity as a functional application of equality of arms to the allocation of procedural opportunities in evolving proceedings. It does not treat a material amendment as creating an automatic right to counterclaim. Rather, the amendment may justify consideration of a genuinely responsive counterclaim that falls within the parties’ existing consent to arbitration. The analysis distinguishes the tribunal’s jurisdiction, which derives from consent, from the evolving scope of the dispute submitted for determination. A comparison of the UNCITRAL, ICC, SIAC, and LCIA frameworks shows that contemporary rules confer sufficient flexibility but provide limited guidance on its exercise. The proposed test requires tribunals to assess jurisdiction and consent, the causal justification for delay, respondent diligence, and whether prejudice can be cured through proportionate timetable and cost measures. The framework disciplines arbitral discretion, promotes procedural consistency, and reduces fragmented dispute resolution.
Bulgaria is rarely the forum of choice when a foreign investor seeks to monetize an arbitral award against a sovereign. Yet as the enforcement campaign of NJSC Naftogaz of Ukraine and Others v. The Russian Federation has demonstrated, creditors of states routinely find themselves chasing assets across Europe, and Bulgaria is one of the jurisdictions where Russian property has been identified. This article examines, against the backdrop of the Partial Award of 22 February 2019 and the Final Award of 12 April 2023 rendered under the Russia–Ukraine Bilateral Investment Treaty, whether and how a foreign arbitral award against a sovereign can be recognized and enforced in Bulgaria. It maps the tripartite hurdle that any such creditor must clear – exequatur, interim relief, and forcible execution – and analyses each stage through the prism of Bulgarian procedural law, customary international law on state immunity, the European Union sanctions regime, and the emerging debate on judicial countermeasures. The conclusion is that enforcement against a sovereign in Bulgaria is not a legal fiction, but is also neither straightforward nor predictable: the outcome will depend heavily on how Bulgarian courts reconcile a thin and partly contradictory body of case law with treaty obligations they rarely have occasion to apply.
