The Commission's proposal will be sent to the European Parliament and the Council to be considered under the ordinary legislative procedure (formerly the co-decision procedure). The Commission has indicated that final approval of the proposal is expected in the next two to three years.
The ICC Commission Task Force is continuing its review of the ICC Rules of Arbitration. The Task Force was formed in October 2008 to ensure that the rules continue to meet the needs of users and to take into account any developments in the fields of arbitration and information technology since the current rules came into force in 1998. The new rules are expected to be launched in 2011.
In March 2009, a further ICC Task Force on arbitration involving states or state entities was tasked with reviewing the ICC rules and procedures and their use in disputes involving a state party, in particular in investment treaty arbitration. According to the ICC statistics in 2009, at least one of the parties was a state or state entity in 9.5% of cases. The Task Force met in 2010 to approve certain recommendations that will enhance the new ICC Rules in the settlement of such disputes.
We will continue to report on developments in 2011.
UNCITRAL
In 2010, the UNCITRAL Working Group II resumed its discussions on transparency in treaty-based investor-state arbitration (proposed revisions had previously been put on hold while the working group completed its review of the UNCITRAL Rules). The UNCITRAL Commission has tasked the working group with preparing a legal standard on the topic. At the latest meeting, the working group had preliminary discussions regarding the form and possible content of any standard, against the backdrop of widespread acknowledgement of the desirability of greater transparency in relation to international investment (see Legal update, UNCITRAL working group's report on transparency in investment arbitration). Discussions will continue at the next session, which will take place in New York on 7-11 February 2011. We will continue to report on developments in 2011.
In Jivraj v Hashwani [2010] EWCA Civ 712, the Court of Appeal held that arbitrators were in "employment" for the purposes of religious discrimination legislation and that an arbitration clause requiring the arbitrators to be Ismaili was unlawful. It also held that the offending part of the clause could not be severed to leave the rest of the clause intact, so the whole clause was void (see Legal update, Arbitrators are employees for the purpose of religion and belief discrimination). Of particular concern for the arbitration community is that the decision potentially applies to arbitration agreements which place restrictions on the nationality of individuals who may be appointed as arbitrators. This includes agreements which incorporate institutional rules, such as the ICC and LCIA Rules, that contain nationality provisions.