Article

The Investor/Investment Dichotomy in Investment Treaty Law

By Dr Simon Foote QC and Samuel Jeffs

This article deals with an investment treaty jurisdictional concept: the distinct jurisprudential approaches to the concepts of an investor and an investment.

While the concepts of investor (jurisdiction ratione materiae) and investment (jurisdiction ratione materiae) are inextricably linked as the jurisdictional gatekeepers of the ICSID Convention and investment treaties (a qualifying investor must make a qualifying investment to procure coverage of a treaty or the Convention), the jurisprudential approach to the existence of each concept is different. Whether a protected investment exists is assessed in a substantive economic sense, while the foreign nature of a qualifying corporate investor is determined in a formal or literal way, which eschews an economic reality test unless expressly provided for in the relevant treaty instrument. Further, the reasons expressed by tribunals for resisting a substantive economic approach to the nationality of a corporate investor — primarily, the sanctity of express treaty language and a concern for lack of sufficient certainty for putative investors — are not considered obstacles to a substantive approach to the existence of an investment.

Article

Witness-Gating in International Commercial Arbitration: Guidelines for the Gatekeepers

By James M Hosking

We come across the 2021 case of CBS v CBP, a rare instance in which the steadfastly arbitration-friendly Singapore courts set aside an international arbitration award. The decision addresses what is often called “witness-gating”: the arbitrator’s power to exclude witness testimony. Sometimes this may occur because the arbitrator deems the evidence irrelevant or cumulative, or if the witness is called belatedly. Witness-gating may also encompass various gradations, such as allowing a witness to submit a written statement but not to testify orally. In CBS, however, the arbitrator excluded all witness evidence in any form and despite the fact that the evidence was critical to a party’s case. According to the Singaporean courts, that was a bridge too far. As will be discussed, the facts in CBS are unusual. Yet, the underlying procedural dilemma faced by the arbitrator is not uncommon.

This article describes the CBS case before turning to an analysis of two key considerations in witness-gating cases: the arbitrator’s authority to exclude witness evidence and cases in which reviewing courts have been asked to treat witness-gating as a breach of natural justice that demands setting aside or refusing enforcement. Finally, based on the preceding survey, the article offers some practical guidance on where, when and how witness-gating might be appropriate.

Article

Arbitration and Access to Civil Justice in Aotearoa

By Polly Pope, Sharnika Leleni, and Lily Leishman, Russell McVeagh

At the end of 2020, the Chief District Court Judge, Judge Heemi Taumaunu, announced a new model for the District Court: the Te Ao Mārama model. This model is inspired by the concept “mai te po ki te ao mārama”, meaning: “the transition from Night to the enlightened world”. It reflects the needs of a multicultural Aotearoa, where everyone should be able to seek justice and feel they are heard and understood. Speaking at the 2021 Arbitrators’ and Mediators’ Institute of New Zealand Conference in Rotorua, Judge Taumaunu called on arbitration and mediation professionals to rise to the challenge of Te Ao Mārama. In December 2020, the New Zealand Law Society released Access to Justice: Stocktake of Initiatives, which set out to identify barriers to access to justice in Aotearoa and review initiatives which could be implemented.

A uniting theme of these projects is a recognition that, to improve access to civil justice in Aotearoa, the legal profession needs to look beyond merely increasing the speed and efficiency of court proceedings. This article seeks to prompt practitioners to consider the role of arbitration in addressing barriers to justice in Aotearoa in the broader sense identified by these recent projects.

Article

Looking at the Future of Arbitration in New Zealand: What Opportunities are Available for Junior Practitioners?

By Diana Qiu

Like young people, arbitration is dynamic and ever evolving. It has become a staple in resolving disputes globally and its growth shows no sign of stopping. As a form of alternative dispute resolution (ADR), arbitration offers parties many advantages including confidentiality, cost-efficacy, award enforceability and speed. Yet, despite arbitration’s well-documented benefits to its users, comparatively little attention has been directed to the perks arbitration provides to its practitioners. This, combined with a general lack of exposure to arbitration in legal education, is perhaps why the typical New Zealand law graduate leaves law school with only a surface-level understanding, if any understanding at all, about an entire field of common legal practice. While some graduates do go on to learn more about arbitration in their professional roles, this blind spot is incongruous with arbitration having already become a key part of commercial legal reality. In this paper, I seek to provide information to fill in this blind spot and to encourage more junior practitioners to learn about and consider practising in arbitration.