27 February 2026
Arbitration Matters Bulletin: February 2026
Key updates, clear impact
French arbitration law reform: First phase unveiled
In December 2025, following a Working Group report published earlier last year, the French Ministry of Justice issued a draft decree that is part of the first phase of a three-step reform of French arbitration law – the first significant revision since 2011. Aimed at maintaining France’s position as a leading arbitration seat, the draft decree proposes key, largely uncontested reforms: the immediate enforcement of domestic awards; the enforceability of tribunal-ordered interim measures; expressly granting tribunals a power to liquidate penalties during the course of the arbitration; the recognition of electronic awards; and expanded consolidation possibilities.
The Ministry of Justice launched a public consultation, which ran until 20 January 2026. Initial publications commenting on the draft decree revealed broad support for the proposed reforms, despite some objections. The decree is expected to be adopted in final form during the first half of 2026, with further phases to address some of the Working Group's more debated proposals.
Séréna Salem, Counsel, and Marie Morier, Senior Associate, Paris, comment:
“French arbitration law has long been recognised as efficient and arbitration-friendly – yet this reform shows that France never rests on its laurels. While the draft decree is not a wholesale overhaul, it introduces welcome amendments: aligning domestic arbitration with international standards where these have proven more effective, reinforcing the authority of arbitrators’ procedural decisions, and streamlining processes. We look forward to the next phases.”
For more information, see:
Assignment of ICSID Convention awards under English law
The English High Court recently held that arbitral awards issued in ICSID Convention proceedings – or, alternatively, ICSID Convention arbitrations arising from Energy Charter Treaty (ECT) disputes – cannot be assigned to third parties without State consent (Operafund Eco‑Invest Sicav Plc & Anor v Spain [2025] EWHC 2874 (Comm)). The judgment followed an application to replace two investors with a Delaware-based investment entity, which had been assigned the investors’ rights in an ICSID Convention award, as the sole claimant in enforcement proceedings before the English courts. The Maltese and Swiss investors obtained the award against Spain after the State withdrew economic incentives for investment in its renewable energy sector.
On assignment, the court construed the provisions of the ICSID Convention regarding the rights of a “party” to seek enforcement, in particular Article 54(2), and rejected the claimants' arguments that "a party" could include anyone other than a party to the underlying arbitration. As a consequence, only a party to the underlying arbitration may seek recognition or enforcement of an ICSID Convention award in England.
James Carter, Partner, London, comments:
“The decision brings into focus two dynamics that are relevant to our clients. First, it underscores the difficulties of navigating the global enforcement landscape for arbitral awards against States and State Owned Entities. Effective enforcement requires careful, jurisdiction-specific advice. England remains a pro-enforcement jurisdiction, including for intra-EU arbitration awards. The Operafund decision (if upheld on appeal) is limited in scope: assignments of non-ICSID Convention awards remain permissible and, in practice, ICSID Convention awards form only a small, though significant, category of awards. Importantly, the underlying intra-EU award in this case remains capable of being recognised and enforced in England by the original investors (the assignors), as they are the parties to the underlying ICSID Convention arbitration, although continued State resistance may be likely based on other actions.
“Second, the case highlights the growing secondary market in high value arbitral awards issued against States. This development has been especially prominent among EU investors who have received awards in intra-EU investment arbitrations, as these awards are typically not enforceable within the EU (and there may be challenges to enforcement elsewhere). Some States, for example Spain, have also sought (and in some cases obtained) injunctions from EU courts to restrict enforcement actions outside of the EU. While the potential returns from collecting on assigned awards can be substantial, enforcement proceedings can be lengthy and costly. This is why some award creditors seek to assign their interests to specialist award collection entities. Depending on the circumstances, parties considering such assignments should factor in the need for the assignor’s cooperation in any enforcement proceedings, in order to manage the risk illustrated by this decision.”
HKIAC: Growth, fees revisions, and widening access to expedited arbitration
The Hong Kong International Arbitration Centre (HKIAC) has reported record-breaking growth in 2025 with 582 new cases filed, including 388 arbitrations. Total dispute values surged to USD16.2 billion, while international participation reached nearly 85% of cases, involving parties from 61 jurisdictions. The data shows increased diversity in governing laws and tribunal nationalities, with strong use of procedural efficiency tools like multi-contract arbitrations.
HKIAC also introduced fees updates with effect from 1 January 2026. The registration fee was increased for the first time in 12 years, from HKD8,000 to HKD10,000, and the arbitrator hourly rate cap moved from HKD6,500 to HKD7,500, the first adjustment since 2013.
HKIAC also revised its fees for HKIAC-administered arbitrations under the 2024 HKIAC Administered Arbitration Rules. HKIAC administrative fees now range between HKD15,000 and HKD440,000, depending on the amount in dispute. As for tribunal fees, the maximum agreed hourly rate is now HKD7,500 per hour under Schedule 2 and a maximum of HKD13,831,400 for fees under Schedule 3 (where calculated according to the sum in dispute).
Also, effective 1 January 2026, the monetary threshold for HKIAC’s Expedited Procedure has doubled from HKD25 million to HKD50 million, substantially widening eligibility for faster dispute resolution.
May Ng, Partner, Hong Kong, comments:
"These adjustments show HKIAC’s continued commitment to offering a modern and commercially realistic framework for resolving disputes. The expanded threshold for expedited procedure will be welcomed by industry participants that prioritise efficiency and cost certainty without compromising procedural fairness. The 2025 case statistics underscore HKIAC's expanding role as a premier global dispute resolution hub."
EU investors holding ECT awards seek enforcement outside the EU
EU investors who secured arbitral awards under the ECT face a challenging landscape in the EU. The EU institutions and EU Member States have taken the position that the ECT’s dispute resolution provisions – which represent a key protection for investors unwilling to bring investor-state disputes in national courts – are incompatible with EU law and do not apply to disputes between EU investors and EU host states. The Court of Justice of the European Union has issued rulings affirming this position, leaving EU-based investors, primarily in the renewables sector, unable to enforce in EU courts the significant arbitration awards they obtained in response to violations of the ECT’s substantive international law standards. This position has stalled enforcement efforts within the EU and led EU courts to set aside duly-rendered awards.
As a result of the EU’s hostility toward these awards (known as “intra-EU awards”), investors have begun to seek to enforce their awards outside the EU, where national courts have shown considerable skepticism towards the EU’s position. Specifically, parties holding ECT awards against EU states have successfully enforced their awards in Australia, Singapore, Switzerland, and the United Kingdom. And parties have also looked to the United States, where at least 18 intra-EU awards (representing well over USD1 billion in claims) are pending before the US courts.
DLA Piper has played a crucial role in litigating these cases in the US. We successfully won recognition of an ICSID arbitral award rendered in our clients’ favour against Spain and are defending the resulting judgment on appeal. We are defending that same client in Luxembourg against an action brought by Spain that seeks to block enforcement of the ICSID award in the US. Similarly, we are representing a party who obtained an arbitral award against Poland. We are seeking recognition of that award despite the annulment.
James Berger, Partner, New York, comments:
"For intra-EU investors that now find themselves facing EU Member State refusal to comply with ECT awards, the legal and practical challenges are immense. These awards represent years of effort and significant investment, and they compensate investors for real harm for which international law provides a remedy. Bringing these matters to the US opens a path to recognition and enforcement in the US. It also allows creditors to use robust US discovery tools to assist with enforcement on a global basis. These ECT enforcement matters present cutting edge legal issues that offer an opportunity for law firms with deep cross-border expertise to stand alongside clients in some of their most complex, precedent-setting matters in multiple jurisdictions.”
Abu Dhabi court considers interplay between ADGM Regulations and chosen arbitration rules
The ADGM Court of Appeal confirmed that mandatory provisions of the ADGM Arbitration Regulations 2015 take precedence over procedural limitations in the LCIA Arbitration Rules (A30 v E30 [2025] ADGMCA 0003). The case arose from a major project financing dispute in which the claimant consortium of banks suspected imminent dissipation of funds by the respondents. Although the LCIA Rules require tribunal authorisation before a party applies to court for interim relief, the Court of Appeal held that section 31 of the ADGM Arbitration Regulations expressly empowers the ADGM courts to grant interim measures, before or during the arbitration, regardless of any contrary party agreement or institutional rules. The key statutory condition - that the tribunal must be "unable to act effectively" – was satisfied because any application to the tribunal would have been on notice and could have prompted dissipation. The Court of Appeal overturned the first instance decision and granted a worldwide freezing order in support of an ongoing ADGM-seated LCIA arbitration.
Nouria Hammeda, Associate, Dubai comments:
"The decision underscores the ADGM’s commitment to providing a reliable arbitration framework, including reinforcing that the mandatory law of the seat prevails over the parties' chosen procedural rules. For clients, the message is clear: where there is a real risk of dissipation, the ADGM courts will not allow procedural technicalities in arbitration rules to frustrate urgent protective relief. The ruling strengthens confidence in choosing the ADGM as a seat, particularly for high value disputes where rapid court support can be critical to preserving assets and maintaining commercial leverage."
For more information, see:
"May" not "must": Arbitration clause treated as an "agreement to agree" in Australia
The New South Wales Supreme Court reaffirmed that permissive language may not be sufficient to establish a binding arbitration agreement. In Iosefa v Polar Air Cargo Worldwide [2025] NSWSC 1500, the court decided a multi-tiered dispute resolution clause stating that the parties"may elect" to use arbitration did not constitute an arbitration agreement for the purposes of section 7 of the International Arbitration Act 1974 (Cth). The use of optional language, together with references to the parties potentially failing to agree on the arbitration process, indicated that arbitration was intended to proceed only by mutual agreement. In the absence of such agreement, the dispute would be settled through litigation. The court also considered this interpretation to be commercially sensible, as it avoided the risk of parallel proceedings and unnecessary duplication of costs.
Gitanjali Bajaj, Partner, Sydney, comments:
"While Australian courts continue to adopt a liberal, pro-arbitration approach to the interpretation of arbitration clauses, Iosefa confirms that the binding obligation to arbitrate will arise only where that intention is expressed in clear and mandatory terms. As arbitration clauses are often included in an agreement at the last minute, the Supreme Court's decision serves as a timely reminder of the need for deliberate and precise drafting. Where arbitration is intended to be mandatory, the clause must state that intention unequivocally. Careful drafting is also essential to ensure the dispute resolution procedure is appropriately tailored to the parties' commercial context and avoids unintended and costly consequences."
South Korea: New arbitration rules for KCAB International
Revised KCAB International arbitration rules took effect on 1 January 2026, the first substantive update to the South Korean institution's international rules in a decade. A KCAB Arbitration Court has been established to perform case administration functions, mirroring the model of leading arbitral institutions such as the ICC and LCIA. Parties and co-arbitrators are encouraged to consider diversity when choosing arbitrators, and the Arbitration Court will also factor in diversity during its appointments. Joinder of additional parties is now permitted before the tribunal is constituted in certain cases. The grounds for consolidating arbitrations have also been broadened. The revised rules also provide for the possibility of the early determination of claims/defences, a fast-track arbitration procedure, and the scrutiny of awards by the Secretary-General or Arbitration Court.
Barry Allott-Fletcher, Senior Knowledge Lawyer, London, comments:
"After record new arbitration filings in 2021 (domestic and international combined), the South Korean institution's caseload has been more modest in subsequent years, and international cases remain in the minority. KCAB International will hope the changes to its rules boost their popularity with users. For clients accustomed to arbitrating under other leading international arbitration rules, the 2026 rules will look and feel familiar. In some respects the revisions are quite novel. For example, arbitrators are encouraged to discuss with parties the implications and guidelines for the use of tools powered by or embodying artificial intelligence. I predict this is the start of a trend of arbitration rules being amended to include similar provisions as the use of AI by participants in arbitration proceedings increases."
Arbitration Matters
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