Over the last few years, commentators on international arbitration practice have routinely reported on growth in the ‘market’, the setting-up of new arbitral institutions and important technical advances, whether in the shape of new rules or key rulings. As we explain below, the last twelve months could be said to have witnessed ‘all of the above’. However, it is not only what happens that defines a period of time, but also what fails to materialise. And it may well be that the past year will be remembered for what did not ultimately come to pass.

When we were writing the equivalent introduction for last year’s GAR Reference, many practitioners were returning from summer vacations to news of a curious English arbitration case which had, it appeared, rather disturbing implications. That case was Jivraj v Hashwani.

In Jivraj, the Court of Appeal held that the UK’s Employment Equality (Religion or Belief) Regulations 2003 rendered an arbitration agreement void which stipulated that arbitrators should be members of a specified religious group. Many practitioners were rather surprised to discover that such legislation might extend to arbitrators (as a result of their being treated as ‘employees’ for the purposes of the Regulations). Predictably, Jivraj then became the source of endless debate, client bulletins, clause revisions and conference papers. Arbitration watchers feared that both existing arbitration agreements and leading institutional rules incorporating restrictions on the nationality of arbitrators might fall foul of the Regulations. Arbitration agreements might, like the one in Jivraj, be declared void, resulting in a ‘chilling effect’ on English arbitration.

The winter of arbitral discontent did not in the event materialise. Indeed, the climate was all rather more clement when the UK Supreme Court handed down its unanimous decision in Jivrajin July. The Supreme Court overturned the decision of the court below, providing inter alia welcome confirmation that arbitrators are not to be regarded as employees subject to UK anti-discrimination legislation.

Across the channel, there were (as it proved, similarly unwarranted) fears about Paris’s future as a favoured arbitral venue, despite the passing of new and improved arbitration legislation in January. The source of concern was reports that the ICC was considering a move away from Paris and had received offers of hospitality from Vienna and Geneva. To outsiders at least, this seemed unthinkable: surely the link with Paris would not be broken?

It was not. In January 2011, the ICC confirmed that it had reached a new agreement with the French Government to remain in Paris. Then, as if in celebration (and following the launch of revised UNCITRAL Rules last year), the ICC published its new rules in September 2011, which come into force on 1 January 2012.

On balance, this may prove to be the most significant long-term development of the past twelve months. Following extensive consultation and several years of work by the ICC’s dedicated task force, the 2012 Rules represent a significant revision of the existing Rules. Practitioners in England and elsewhere will be used to the concept of ‘case management conferences’ embodied in the 2012 Rules. Such ‘CMCs’ (long used in English High Court proceedings) tend to force the adjudicators of disputes and the parties to engage with the realities of how a particular dispute will need to be run from the outset. In line with other institutions such as the SCC and SIAC, the ICC has also introduced the option of (at a price) an ‘emergency arbitrator’ with the power to grant interim and conservatory measures before the appointment of the tribunal. New rules on joinder, multiple contracts and consolidation should also provide further clarity in the context of multiparty disputes.

As noted above, over the past few years the growth in arbitration across the globe has seen new arbitral institutions springing up in various new locations. In this context, Mauritius merits a particular mention for developments over the last twelve months, not least given the ongoing competition to be the ‘seat of choice’ for disputes with an African dimension. In September 2010, the Permanent Court of Arbitration (PCA) established a permanent presence in Port St Louis. Then, in July 2011, the LCIA set up a new Mauritius International Arbitration Centre. Boasting bespoke arbitration legislation drawn up in conjunction with leading UK counsel, and now the requisite institutional infrastructure, certain key elements are clearly in place for the jurisdiction to prosper as an arbitral seat. Although some hard yards have had to be negotiated at the outset, success will naturally be judged on results over the longer term.It will, as one leading practitioner noted, be an ‘endurance race and not a sprint’.

Finally, we note a rather remarkable development in investor-state arbitration.

It has long been accepted that bilateral investment treaty arbitration is a ‘vast continent’, still to be fully explored. As cases proliferate and the jurisprudence grows, the mapping of investor-state territory has continued. However, the ‘class action’ style proceedings of Abaclat and others v Argentina perhaps tell us how far the borders may extend.

The background to the Abaclat case was Argentina’s default on its sovereign debt in 2001 and the subsequent ‘restructuring’ which certain bondholders opposed and refused to accept. In its majority decision on jurisdiction, the ICSID tribunal in Abaclat held that it could hear a mass claim under the Italy-Argentina BIT, which had been brought by over 60,000 Italian bondholders against Argentina. It remains to be seen how the claims will, in practice, be managed by the tribunal at the liability stage. Nevertheless, what is not in doubt is that, in recognising that a mass claim is in principle compatible with the ICSID Convention, the tribunal has broken new ground (triggering a vigorous dissenting opinion). And of course, with a Eurozone sovereign debt crisis unfolding day by day, inventive lawyers will be wondering whether Abaclat is a sign of things to come…