Final report of government inquiry into banking and financial services
A Government inquiry is examining standards and misconduct in the banking and financial services industry, with a final report due by 1 February 2019. Financial institutions have already been served with legal proceedings (including class actions) arising from the inquiry, which is expected to continue.
First year of Trans-Pacific Partnership
Australia has ratified the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, along with Canada, Japan, Mexico, New Zealand and Singapore. The CPTPP came into force on 30 December 2018. The agreement contains an investor-state dispute settlement mechanism (using arbitration) for breaches of certain investment protections under the treaty.
Third party funding in arbitration to be permitted
Amendments to the Arbitration Ordinance expressly permitting third party funding for arbitration, and introducing related measures, will come into effect on 1 February 2019. An advisory body will monitor compliance by funders with a Code of Practice. The Code will cover the funding agreement, capital adequacy requirements for funders, conflicts of interest, confidentiality and privilege, degree of control by funders over proceedings, disclosure, liability for adverse costs, and grounds for termination.
Legislature considers fewer restrictions on representation by foreign lawyers
In 2018, an amendment to the Act on Special Measures Concerning the Handling of Legal Services by Foreign Lawyers was proposed. This would relax certain restrictions for foreign lawyers to represent clients in international arbitration cases and ADR. The matter may be voted on by Japan’s legislature in 2019 and, if passed, could lead to an increase in the number of international arbitration and ADR cases that take place in Japan.
Simplified procedures under Hague Apostille Convention
With effect from 14 May 2019, foreign public documents issued in states which are party to the Hague Apostille Convention need not be authenticated abroad by foreign embassies or consular offices for them to be recognized as public documents in the Philippines. It is expected that the Philippine Supreme Court will make the appropriate procedural amendments for consistency with the Convention.
Singapore Mediation Convention expected to be signed
A Convention on the Enforcement of Mediation Settlements and accompanying Model Law was published in October 2018, and is expected to be signed in Singapore on 1 August 2019. The Convention, to be named the Singapore Mediation Convention, aims to implement an international framework for the enforcement of mediated settlements. It will come into force six months after ratification by at least three UN states.
Proposed reforms to civil justice system
The Ministry of Law set up the Civil Justice Commission in January 2015 and the Civil Justice Review Committee in May 2016 to review and reform the civil justice system in Singapore. Proposed changes include enhanced judicial control over litigation, greater procedural flexibility, simplified applications and the introduction of scaled legal costs. The consultation period ends on 31 January 2019. No implementation date has been announced but further developments are expected during 2019.
Legislature considers introduction of jury trials
The Legislative Yuan is reviewing the draft Act of Citizen Participation in Criminal Trials, which provides that for certain criminal offenses, the trial would be heard and decided by a panel of three judges and six citizens. Taiwan is a civil law system but has been considering the implementation of a lay participation or jury system in criminal proceedings for many years.
Amendments expected to Arbitration Act
The legislature is considering a draft bill to amend the Thai Arbitration Act. Thai law currently precludes foreign counsel from acting in many arbitrations conducted in Thailand, and foreign arbitrators must go through the inconvenient process of obtaining a work permit. The proposed changes are designed to address these issues. The amendments are expected to come into effect sometime in 2019, although the actual date and final form of amendments are not yet certain.
Supreme Court guidance on interest and contractual penalties to be adopted
In November 2018, the Supreme Court of Vietnam issued a draft Resolution giving guidance on interest payments and contractual penalties. This is intended to resolve inconsistency among local courts and authorities in calculating interest. The draft provides detailed guideline on calculation of interest (e.g. loan interest, overdue payment interest) in civil transactions, and also regulates the application and enforcement of penalty clauses in civil contracts. The draft is expected to be adopted in 2019.
Europe, the Middle East and Africa
New civil law based rules on taking of evidence in international arbitration
The “Prague Rules” on the taking of evidence in international arbitration were launched in Prague in December 2018. The rules were conceived as an alternative to the widely-used IBA Rules, which have been criticised in some quarters as cumbersome and slow, increasing the time and cost of proceedings. The Prague Rules are more akin to the procedures used in civil law jurisdictions, and give the arbitration panel a more inquisitorial role. The success of the new rules will be closely monitored in 2019.
England & Wales
United Kingdom to leave European Union
The United Kingdom is scheduled to leave the European Union on 29 March 2019, following the result of a 2016 referendum. The terms of the UK’s withdrawal have yet to be finalised. The UK is currently party to EU regulations governing dispute-related matters such as reciprocal enforcement of judgments. Depending on the final terms of the withdrawal, these mechanisms may change, resulting in UK-EU enforcement under wider international conventions such as the Hague Convention on Choice of Court Agreements.
Pilot scheme for major shake-up of disclosure regime
A two-year pilot of a new disclosure regime is set to begin on 1 January 2019. The new draft rules for disclosure in civil proceedings aim to reduce the cost and volume of disclosure. The draft rules provide for “basic disclosure” at the outset of a case, with an option to seek the court’s approval for “extended disclosure” later in the case. The emphasis of the draft rules is on co-operative behavior by the parties and the efficient use of technology in document review.
EU proposes new collective representative actions to protect consumer rights
Draft proposals were published by the European Commission in April 2018, permitting a qualified entity such as a consumer organization to seek redress on behalf of a group of consumers that have been harmed by an illegal commercial practice. The proposals, which are subject to amendment during the EU’s legislative process, are expected to be voted on in 2019. Once approved and in force, member states will have 18 months to transpose the new Directive into national law.
Case law to be codified in major update of tort law
Proposals for significant reform of tort law are currently before the National Assembly. At present, tort law is based on a small number of articles in the French Civil Code, which have only seen minor amendments since their adoption in 1804, with recent developments resting on case law. The final text of the proposed changes has yet to be finalized, but it will likely seek to codify case law developments, as well as introduce other novel changes, such as civil fines or an obligation for victims to mitigate their damage.
Frankfurt’s new English language commercial court to hear first cases
Frankfurt’s new Chamber for International Commercial Disputes is expected to hear its first cases in 2019. Established at the start of 2018, it aims to encourage Frankfurt as a destination for cross-border disputes. Hearings will be conducted in English, although written submissions and decisions will be in German. The Chamber will be presided over by a judge and two business people. To be eligible, a dispute must be a “commercial matter”, be international in nature, and both parties must agree to the, Chamber having jurisdiction.
Netherlands seeks to attract international litigation with new commercial court
The Netherlands Commercial Court, a new English-speaking commercial court based in Amsterdam, is expected to open in early 2019. The NCC seeks to offer a specialized forum for the hearing of complex international commercial cases. Proceedings will be conducted primarily in English, before Dutch specialist commercial judges, and based on Dutch law but with expedited procedures. The court appears to be positioning itself as an attractive alternative forum to London.
Long-awaited Hague Judgments Project set for final approval
The Judgments Project of the Hague Conference on Private International Law is set to move towards final approval in 2019. The draft Convention is set to be presented to Hague Conference member states for approval at a diplomatic session in June 2019. The Convention seeks to establish an, international agreement on the recognition and enforcement of court judgments across borders, which should greatly increase the ease of enforceability whilst lessening the time and cost.
Procedural reform underway in Russia
The reform of Russian procedural laws is due to be completed during 2019. The main purpose of the proposed reforms is to ensure greater uniformity of the rules and procedures for resolving disputes in Russian state commercial courts and courts of general jurisdiction, and to improve the way disputes are resolved by state courts. Among the proposed changes are stricter requirements for legal representatives of the parties, who will have to possess a law degree, except in small claims or proceedings before district courts and magistrates.
Swedish Arbitration Act to be modernized
Significant amendments to the Swedish Arbitration Act will enter into force on 1 March 2019. The key changes aim to avoid parallel proceedings, accommodate multi-party arbitrations, clarify how substantive law should be determined, shorten the window for commencing challenge proceedings, and allow the use of English in witness testimonies without the need for simultaneous translation in challenge proceedings. It is intended that the changes will assist in attracting more international arbitration proceedings to Sweden.
United Arab Emirates
New arbitration laws to be put to the test
In 2018, the UAE enacted new arbitration law, based on the UNCITRAL Model Arbitration Law. It adopts a modern and favorable approach to arbitration and addresses problematic procedural issues that arose under the previous regime. It is anticipated that 2019 will see a number of new court decisions on critical issues such as enforcement and interim powers, which will be key in measuring the impact of the new law and its interpretation by the courts.
Long-awaited class actions regulations to be debated
The Ministry of Justice is promoting legislation regulating class actions, which supporters hope will make significant progress in 2019. Although class actions have been possible in Argentina since 1994, there has been a lack of detailed regulation. The current bill includes provision for online case tracking, funding for public education on class actions, and the regulation of punitive damages. The bill remains subject to amendment and is far from certain to pass, but if enacted would represent a significant development in Argentinian dispute resolution.
Updates to arbitration legislation expected
In 2018, the provinces of Ontario and British Columbia adopted the current UNCITRAL Model Law on International Commercial Arbitration. It is expected that more of the 10 Canadian Provinces will follow their lead in 2019 by updating and modernizing both their international and domestic commercial arbitration legislation. This modernization, along with a deepening of arbitration jurisprudence, will continue to position Canada as a desirable seat of arbitration.
Administrative procedures likely to receive digital overhaul
The Government has introduced a digital transformation bill, aimed at reducing bureaucracy and making the state’s work more efficient. This follows 2016 government reforms which mandated that all judicial trials be digitized. The bill will promote the compulsory use of electronic administrative procedures and give legal validity to original paper documents in digital form. It is hoped the reforms will widen access and the breadth of services offered to citizens, as well as increasing transparency.
Congress considers change to role of judicial precedent
The judicial system may be set to change in 2019, with a reform bill currently under review by the congress. Currently, when making a judicial decision, Colombian courts are only required to consider laws that are in force. With minor exceptions, they are not obliged to follow case law, although they may choose to do so. The reform bill aims to change this, obliging courts to have regard to judicial precedent as well as relevant legal provisions. It is hoped that this will provide greater consistency and clarity in judicial decisions in Colombia.
Investment disputes possible following election of new administration
The newly elected, left-leaning government, led by President Andrés Manuel López Obrador, came to power in Mexico in December 2018. The new administration has previously threatened to revoke major investment projects and to enact legislation that some fear may generate uncertainty and volatility in financial markets and the economic activities of the country. We may therefore expect that 2019 will be marked by litigation and arbitration aimed at protecting both local and foreign local investments.
Peru may face numerous investment disputes in wake of Bear Creek decision
A number of potentially significant investment disputes may be brought against Peru in 2019. This follows the ICSID Tribunal’s decision in the high profile 2017 arbitration of Bear Creek Mining Corporation v. Peru, in which the Tribunal concluded there had been an indirect expropriation of a project by Peru, but only ordered the reimbursement of USD 18 million out of the USD 522 million claimed.
Arbitration center set to increase transparency
The Arbitration Center of the Caracas Chamber is currently revising its rules. Planned changes include greater transparency in the appointment of arbitrators. The Caracas Chamber and the CEDCA Arbitration Center, the two main Arbitration Centers of Venezuela, have recently adopted measures that allow them to act as seats in international arbitration cases, administer arbitration in a foreign currency and set fees and arbitration costs in a foreign currency.
NAFTA replacement will alter mechanisms for investor-state disputes
The US–Mexico–Canada Agreement was signed in November 2018. The Agreement, which replaces NAFTA, requires ratification by all three countries before it takes effect. The USMCA contains several different mechanisms for investor-state disputes. It is anticipated that investor-state arbitration will be phased out for the US and Canada (although the claims will be able to be brought in domestic courts), whereas US investors will still be able to bring arbitration claims in many circumstances against Mexico, if the cases meet the required conditions.
Publication of settlement agreements with federal government agencies under review
With a Republican-controlled Senate and a Democratic controlled House of Representatives in 2019, a bipartisan effort is on the agenda to require the publication of settlement agreements with federal government agencies. A measure that was passed by the House in late 2018 would require the establishment of a centralized, publicly-available settlements database. When settlement details are deemed confidential, it would direct the heads of agencies to issue a written public statement justifying any confidential requirements.
A version of this post originally appeared in the 2019 edition of Baker McKenzie’s “The Year Ahead”, a publication looking at key developments in global litigation and arbitration for the coming year.