Top 5 Telehealth Law Predictions for 2021

With 2020 officially behind us, what does 2021 have in store for telemedicine and digital health policy? A year ago, our team predicted 2020 would bring “notable expansions in Medicare and Medicaid coverage” and “the reimbursement landscape looks promising for virtual care services.” Looking back, that was an understatement (if an easy one). Below are five new predictions for what legal changes telemedicine and digital health companies might expect to see this year.

1.  Licensing: More Efforts to Increase Reciprocity and Reduce Barriers

In an effort to balance workload nationally and expand access to health care practitioners during the Public Health Emergency (PHE), many states temporarily suspended medical licensing requirements. As these temporary waivers begin to sunset, some state legislatures will seek to make the waivers permanent, allowing practitioners licensed in other states to deliver telehealth services across state lines, provided the out-of-state practitioner follows local state practice standards. While this may be a topic of discussion among policy shops, we expect few states will actually enact such changes in 2021.

Federally, the PREP Act allows practitioners to deliver telehealth services across state lines under a licensure exemption for COVID testing and certain limited “covered countermeasures” (e.g., treatment of COVID-19 infections). The PREP Act also grants certain immunities and protections, preempting state laws during the PHE. Given its Constitutional complexity and political nature, interstate licensing does not have a widely-accepted “solution,” nor does it have the bipartisan support seen in other areas of telehealth. Licensure will be a friction point between virtual care stakeholders and traditional practitioners invested in brick and mortar locations industry. The status quo (i.e., profession-specific interstate compacts and state-by-state patchwork legislative efforts) has left many digital health stakeholders unimpressed, frustrated, and increasingly searching for an alternate solution. Yet, a federal “top-down” preemption approach will be perceived as an unconstitutional encroachment on states’ rights under the 10th Amendment. Keep an eye out for a third channel to thread the needle, perhaps tying federal funds (e.g., Medicaid or COVID relief dollars) to state adoption of certain licensure waivers, enticing states to opt-in to interstate licensure reciprocity rather than federally compel it.

2.  Modalities: Technology-Neutral State Laws that Prioritize Quality of Care.

In 2020, many states enacted new telehealth laws and rules to change prior practice standards, allowable modalities, or prescribing requirements. Changes included eliminating face-to-face exams, practicing via telephone only, or waiving modality prescribing restrictions on telemedicine. Some of these changes were made by legislation while others by executive order or regulation. Many of the changes were on a temporary basis during the pandemic (with expiration dates that, confoundingly, often did not match the federally declared Public Health Emergency date). These waivers created a telehealth regulatory environment that focused less on technical modalities of care delivery (e.g., audio-video vs. asynchronous) and more on meeting the standard of medical care for a given patient. Aiding in this effort, the American Telemedicine Association (ATA) published model policy language for state telehealth rules, to serve as a reference tool for best practices. This trend towards technology-neutral telemedicine laws will continue in 2021, with stakeholders emphasizing the importance of medical standard of care and clinical quality of services, rather than proscriptive modality requirements.

3.  Privacy: Greater Sensitivity to Patient-as-Consumer in Digital Health

Telemedicine and digital health companies handling patient information on substance use disorder treatment can expect to see favorable changes to HIPAA laws, designed to encourage easier sharing of patient data, particularly for treatment purposes. Similar changes are anticipated to regulations under 42 C.F.R. Part 2 to ease payment and health care operations. Telehealth companies should also keep an eye on state data privacy laws. More states are expected to enact their own consumer laws to protect data privacy, as California did with its California Consumer Privacy Act. And the Federal Trade Commission (FTC)—the nation’s top federal privacy regulator—will continue enforcement investigations against organizations that violate consumer privacy rights. Given the proliferation of new telehealth services and startup companies launched in 2020, increased privacy regulation is likely to occur in 2021.

4.  Enforcement: OIG/DOJ Will Build on Prior Investigations

Building on its 2019 and 2020 criminal and civil investigations, HHS OIG and DOJ will continue its takedown of companies engaged in “telefraud“: scams that couple aggressive online marketing tactics with telemedicine services to serve as a conduit for illegal kickback arrangements with pharmacies, DME suppliers, and laboratories. Most telemedicine enforcement actions to date have involved kickback schemes and billing for medically unnecessary equipment and diagnostic tests, and few have centered on billing and coding of telehealth professional services. The ATA has commented how these companies do not represent the industry at large, and issued a letter articulating hallmarks of legitimate telemedicine providers.

With many traditional in-person providers having newly (and quickly) moved into telehealth in 2020, along with new temporary waivers of billing and coding rules and a relaxed regulatory environment, the future will likely see more Medicare audits and overpayment claims of telehealth professional services. Some niche areas of enforcement may be marketing/referral arrangements with pharmacies and laboratories, waivers of patient financial responsibility, ordering high-cost genetic tests, billing for practitioners located outside the United States, and arrangements seeking to take advantage of the global pandemic.

5.  Payment: Continued Expansion of Telehealth Reimbursement

The pandemic compelled health plans, both government and commercial, to remove prior restrictions on telehealth and expand coverage for virtual care at a rate previously unseen. The new policy changes on Medicare reimbursement followed the previously established pathway of coverage, but the pace at which they were made was stunning. CMS also introduced nearly 100 telehealth service codes covered on a temporary basis until the Public Health Emergency expires. Much of 2020’s reimbursement expansion will continue through 2021, as commercial payers follow CMS’ lead. Remote patient monitoring still has plenty of room to grow. Despite the recent payment expansions RPM has seen, it has yet to have its “breakout year” in widespread use and payment.

Employers will explore more telehealth services for employees to deal with the stress of the pandemic, focusing on tele-primary care, behavioral health, and specialty care like fertility. As more traditional providers offer telehealth services in addition to in-person care, we may see telehealth increasingly paid on a fee for service basis (rather than a PEPM enterprise model). At the same time, value based models focusing on or centered around virtual care, including bundled payments and shared savings, will grow beyond the pilot phase, as providers begin to “own” certain care pathways.

Time will tell how these five predictions will hold up over the next 12 months. What is certain, however, is that telemedicine and virtual care continues to be one of the fastest-growing areas in healthcare.

A Court Recognizes a Duty in Data Breach Litigation

According to many plaintiffs in recently filed data breach litigations, credit and debit card fraud is a growing problem.  It’s great if this sounds familiar to readers of CPW, because it should:  last year, we discussed a class action lawsuit filed by a group of credit unions against a Pennsylvania-based convenience store chain alleging a data breach disclosed sensitive consumer information.  That case was In Re: Wawa Inc. Data Security Litigation, No. 2:19-cv-06019 (E.D. Pa.).  While an opinion in Wawa’s motion to dismiss remains pending, a sister Pennsylvania court recently issued an opinion that may offer a preview of how some courts recognize a duty upon acceptance of a consumer’s electronic payment information.  In In re Rutter’s Data Sec. Breach Litig., 2021 U.S. Dist. LEXIS 761 (M.D. Pa. Jan. 2021), the court addressed a motion to dismiss in the context of litigation regarding an alleged data breach at another Pennsylvania-based convenience store chain.  Rutter’s presents a number of takeaways for emerging case law, especially for its interpretation of Pennsylvania tort law, which was a key issue in Wawa.

Let’s take a look at the underlying factual allegations at issue.  Rutter’s, in contrast to Wawa, was not a lawsuit filed by credit union.  Instead, the plaintiffs were four consumers that alleged they used their debit or credit cards to purchase items from the defendant around or during the time of an alleged data breach.  The plaintiffs filed a class action lawsuit against Rutter’s, a central Pennsylvania convenience store chain.  According to the complaint, in early 2020, the defendant disclosed a possible data breach that concerned payment cards used at the various point-of-sale devices installed throughout some of its locations.

The four plaintiffs can be separated into two different groups, each of which are discussed below.  The first group alleged they experienced fraudulent charges and unauthorized withdrawals from their account because of the alleged data breach.  They also alleged expenses incurred from securing their accounts against further fraudulent activities.  The second group, however, did not allege unauthorized access to their accounts.  Instead, they alleged merely a “continuing interest” in protecting their accounts from fraud and argued this “interest” was heightened or otherwise more legitimate than a passing concern because the first group of plaintiffs alleged fraudulent activity.

On January 6, 2021, the court issued its decision denying in part and granting in part defendant’s motion to dismiss.

First, the court rejected the second group of plaintiffs’ “continuing interest” argument and found those plaintiffs did not have standing.  The court examined relevant case law and concluded, “[t]he Third Circuit was unequivocal—where a plaintiff suffers no actual injury in a data breach, that plaintiff cannot rely on the mere possibility of future injury to establish standing.”  Additionally, the court rejected the second group’s argument that the injuries alleged by the first group should be transmitted to the second group for standing purposes.  Specifically, the court stated, “Plaintiffs’ argument would require us to grant standing to a plaintiff who is entirely without an injury based solely on the injuries allegedly suffered by a separate plaintiff.  That we cannot do.”

Second, the court upheld claims for negligence, implied breach of contract, and unjust enrichment.

For the negligence claim, the court found the defendant created a legal duty when it retained the credit and debit card information of its consumers that used such payment methods because this use created a risk of foreseeable harm from unscrupulous third parties.  This ruling expands the context where a duty might lie beyond that previously recognized in recent Pennsylvania state court decisions–employer’s duty to its employees to “use reasonable means” to protect sensitive information that employees are required to disclose as a condition of employment.

As we discussed in our 2020 Year in Review, in response to the absence of uniform causes of action in data breach litigation, one strategy frequently utilized by plaintiffs in data breach litigations has been to allege negligence claims.

The Rutter’s court stated, “a more general principle … has significant applicability here—that in new factual scenarios, a court need not undertake the burdensome task of carving out new legal duties, but, instead, courts can and should apply longstanding duties where possible.”  The court stated, “in other words, affirmative conduct associated with an increased risk of harm can yield a special relationship for tort purposes.”  The court then stated this defendant’s “affirmative act of retaining credit and debit card information” was sufficient to recognize a legal duty when it created a “risk of foreseeable harm from unscrupulous third parties”.

While it upheld the breach of implied contract claim, the court clarified the claim “may not ultimately succeed”.  According to the opinion, the plaintiffs alleged they entered into an implied contract with the defendant when they provided their payment card information in exchange for the defendant’s goods and services.  Through those transactions, the defendant allegedly “impliedly promised to safeguard their card information,” as evidenced in part by the representations in the defendant’s privacy policy.

The court agreed with plaintiff, going so far as to state, “the context in which a consumer entrusts data to a merchant may be more suggestive of a promise to secure that data than in an employer-employee relationship.”  The court based its reasoning on the limited nature of the merchant and consumer relationship, clarifying:

The merchant and consumer are engaged in a momentary transaction that features all sorts of unspoken assurances between the parties—that the goods sold are as advertised and that the tender paid is valid, for example . . . When a customer provides financial information to a merchant, however, the customer could fairly assume that the data is for a single, limited purpose and thus the information will not be unreasonably exposed to third-parties; in other words, that the data will be used to complete a transaction and nothing more.

Finally, the court upheld the unjust enrichment claim on the theory that the plaintiffs conferred a material benefit to the defendant by paying funds for merchandise, a part of which was supposed to be used to employ adequate data privacy infrastructure.

Rutter’s puts another piece into the puzzle of standing in data breach litigation and offers a look into how a duty may be created upon acceptance of a consumer’s electronic payments.  As we await for a decision from its peer case, WawaRutter’s offers a potential look at developing case law trends.


What You Need to Know about the Corporate Transparency Act

On January 1, 2021, Congress passed the National Defense Authorization Act for Fiscal Year 2021, which includes the Corporate Transparency Act (the CTA).1 The CTA requires all U.S. businesses to file “beneficial ownership” information with the Financial Crimes Enforcement Network (FinCEN). In sum, the CTA is designed to ban the anonymous shell companies that criminals and certain foreign officials use to hide and move corrupt proceeds and other illicit financing.

The CTA is the first significant update to the U.S. anti-money laundering laws in 20 years and gives FinCEN significant authority to adopt necessary regulations to implement the provisions of the CTA.

The CTA’s Key Provisions

The CTA requires companies in the U.S. to file a report that provides the name, date of birth, current address, and unique identification number (from a passport or driver’s license, for example) of the company’s “beneficial owner(s)” to FinCEN, a bureau of the U.S. Treasury Department. This information must be updated every year to reflect any changes.

Reporting Requirements

For purposes of the CTA, the reporting requirements are broad and apply to existing corporations, LLCs, and other similar entities as well as to new entities when they are formed. The CTA, however, provides exemptions for larger companies, heavily regulated companies, and companies that already provide information to a relevant government agency. The CTA explicitly exempts:

  • Companies that employ more than 20 people, report revenues of more than $5 million on tax returns, and have a physical presence in the United States;
  • Most financial services institutions, including investment and accounting firms, securities trading firms, banks, and credit unions that report to and are regulated by government agencies such as the Securities and Exchange Commission, the Office of the Comptroller of the Currency, or the FDIC; and
  • Churches, charities, and other nonprofit organizations.

Beneficial Ownership

Under the CTA, a “beneficial owner” is an individual who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise:

  • Exercises substantial control over an entity; or
  • Owns or controls at least 25% of the ownership interests in an entity.

There are five exceptions from the term “beneficial owner”:

  • A minor child, if the child’s parent’s or guardian’s information is otherwise is reported properly;
  • An individual acting as a nominee, intermediary, custodian, or agent on behalf of another individual;
  • An individual acting as an employee whose control is derived solely because of employment status;
  • An individual whose only interest in the entity is through a right of inheritance; and
  • A creditor of the entity, unless the creditor meets the requirements of a beneficial owner.


The CTA defines “applicant” broadly as an individual who “files” an application to form an entity in the U.S. or, for a foreign entity, an individual who “registers or files” an application for the foreign entity to do business in the U.S. The terms “file” and “register” are not defined in the CTA, and this is an area where FinCEN is expected to provide relevant guidance.

Timing for Compliance

The CTA contemplates different timing requirements for compliance based on the stage of entity formation and changes in beneficial ownership. The timing requirements are as follows:

  • Entities formed after the FinCEN regulations are effective must file this information at the time of formation or registration;
  • Entities existing before the date the regulations are effective must report this information, in a timely manner, and not later than two years after the effective date of the regulations; and
  • A reporting company must update the information provided to FinCEN upon a change in beneficial ownership.

Data Storage and Access

The CTA contains numerous provisions regarding FinCEN’s data protection. FinCEN must store the information received in a private database not accessible to the public. Under the CTA, this information may only be released to:

  • A federal, state, local, or tribal law enforcement agency conducting an active
  • A federal agency making the request on behalf of a foreign law enforcement agency under mutual legal assistance protocols; and
  • A financial institution conducting due diligence under the Banking Secrecy Act or USA PATRIOT Act – with customer consent.

The information is not available to the general public, nor can it be queried under the Freedom of Information Act. The information may only be used for law enforcement, national security, or intelligence purposes.


Violations of the CTA carry civil penalties of up to $500 for every day the violation continues and criminal fines up to $10,000 and/or imprisonment for up to two years. The unauthorized disclosure of information collected under the Act carries the same $500-per-day civil penalty but includes a higher criminal penalty of up to $250,000 and/or a higher maximum term of imprisonment of five years. Unauthorized disclosure includes both a disclosure by a government employee and disclosure by a third-party recipient of information under the CTA.

What Does This Mean For Me?

The CTA will impose new burdens on many entities operating in the U.S and is likely to have significant implications for foreign and domestic businesses. Clients should be aware of these new requirements and continue to monitor FinCEN’s regulations to further understand the full extent of their reporting obligations. Required compliance with the CTA does not start until January 2022, the deadline for Congress to enact the regulations. All companies potentially subject to the CTA should assess their application and, where appropriate, enhance their compliance processes to verify that the required information is being collected and reported to FinCEN in accordance with the CTA.


2020 Advertising Law Year in Review

While 2020 was an eventful year in the world of advertising law, it feels wrong to begin any type of “year in review” without acknowledging the global events of this year, and the challenges they have brought to every individual in one way or another. In our role, we are often in a position of criticizing or defending from criticism the marketers who create the content at the center of our work. But, right now, we would like to take a moment to celebrate and congratulate them for a year spent capturing the tone of the times with sensitivity, insight, and just the right amount of humor, including the challenges of working from home, our newfound sense of responsibility in not going anywhere, the importance of uplifting and supporting each other, and the fact that we can’t wait to end our relationship with 2020. And, amidst all the challenges, we would like to remind everyone that 2020 also brought us Some Good News.

We look forward to a better 2021, and to seeing those of our readers who are old friends in person again and meeting others for the first time. In the meantime, let’s talk about this year’s key developments in advertising law…

Class Actions

The appellate courts didn’t skip a beat this year, issuing several important decisions in the world of class actions:

In California, we saw several unsuccessful attempts to rescue otherwise deficient pleadings by adding allegations related to consumer surveys that purported to show consumers were misled by a defendant’s advertising. Time and time again, in dismissing claims related to Mott’s applesauceGhirardelli baking chips, and Westbrae soymilk, the Northern District of California reaffirmed that consumer surveys alone do not make plausible an allegation that reasonable consumers are misled where the complaint has not otherwise plausibly alleged deception.

Every year brings its own set of new and ever more creative theories of false advertising. This year was no different, with decisions that resolved a plethora of interesting (albeit unsuccessful) allegations of deception:

  • In a case against SeaWorld, the Northern District of California found the (human) plaintiffs failed to demonstrate standing to defend the rights of orca whales via false advertising claims.
  • The District of Vermont dismissed false advertising claims from a consumer disappointed that Ben & Jerry’s ice cream is allegedly not, in fact, made exclusively from milk sourced from “happy cows” and “Caring Dairy” farms.
  • The Southern District of New York reminded us that claims that a seller’s products are “premium” or “the best” are mere puffery, and certainly cannot be used as a backdoor to complain about Starbucks’s alleged use of pesticides.
  • While condemning the exploitation of children in the cocoa bean supply chain, the First Circuit affirmed a series of decisions holding that chocolate companies’ failure to disclose information about upstream labor abuses on product packaging did not constitute unfair or deceptive business practices under Massachusetts law.
  • The Eastern District of New York threw out another cocoa claim, finding plaintiffs failed to plead that the labeling of Oreo cookies with the statement “Always Made With Real Cocoa” was deceptive, where plaintiffs did not dispute that Oreos do contain cocoa, but rather took issue with the fact that the cocoa was allegedly refined through an alkalizing process.
  • The Seventh Circuit affirmed the dismissal on summary judgment of claims that Fruit of the Earth’s aloe vera products were deceptively labeled as “Aloe Vera 100% Gel” and “100% Pure Aloe Vera Gel. ” The Court found (among other things) that plaintiffs failed to demonstrate that consumers interpreted these claims to mean these products were of “high quality” or “especially effective,” and the inclusion of stabilizers and preservatives in the products did not make these claims deceptive.
  • The Second Circuit affirmed the dismissal of claims that Dunkin’s “Angus Steak”  products were deceptively marketed to cause consumers to believe they contained an “intact” piece of meat, when they were actually ground beef patties with additives. The Court noted that the ads at issue included zoomed-in images clearly showing the beef patty, and reasonable consumers purchasing a $2-4 grab-and-go sandwich would not be misled into thinking they were purchasing an unadulterated, intact piece of meat.
  • The Southern District of Florida found that Burger King’s promise of a non-meat patty in its plant-based “Impossible Burger ” did not constitute a promise that the burger would be prepared separately from meat items. The court took it a step further, also granting Burger King’s motion to deny class certification at this early pleading stage, crediting Burger King’s argument that each consumer has different personal preferences for the preparation of his or her food.
  • In a case against Church & Dwight, plaintiffs alleged that the number of “loads” stated on OxiClean stain remover labels  is deceptive because, for some purposes other than a typical load of laundry, more than one load’s worth of product should be used. The court granted Church & Dwight’s motion to dismiss, concluding that plaintiffs failed to plausibly allege a reasonable consumer would be deceived by the labels. The court agreed with defendant’s arguments that reasonable consumers are not likely to be misled by the challenged claims given the disclosures made by the OxiClean labels. Proskauer represented Church & Dwight in this matter.

2020 also brought a series of “white” non-chocolate claims, with lawsuits filed against numerous confection makers alleging their “white”-labeled sugary goods deceived reasonable consumers into thinking the products contain white chocolate, when they do not. The candy gods (i.e., federal district courts) so far have not looked favorably on these claims, dismissing claims against Nestle Toll House’s Premier White MorselsGhirardelli’s Premium Classic White baking chips, and Hershey’s Kit Kat White bars.

However, taking the cake for largest number of class actions filed regarding a single word is almost certainly the category of allegedly deceptive “vanilla” claims, alleging that defendants’ “vanilla”-labeled products contain flavoring ingredients that do not come from vanilla beans. Claims against Wegmans vanilla ice creamWestbrae Natural’s Organic Unsweetened Vanilla Soymilk and Blue Diamond’s vanilla almond milk have been dismissed already, and we expect many more will follow.

Lanham Act

In a year involving a good deal of Supreme Court drama, false advertising (and trademark) law did not go ignored at the highest court in the land:

  • In Romag Fasteners v. Fossil, 140 S.Ct. 1492 (2020), the Court unanimously held that a Lanham Act plaintiff can recover the defendant’s profits without proof the defendant acted willfully.  That being said, willfulness will still be an important part of Lanham Act cases moving forward, as the Court indicated it is a relevant factor for disgorgement (plus, a showing of willfulness can entitle a plaintiff to a presumption of consumer confusion).

Several circuit courts issued notable Lanham Act decisions this year as well:

  • In the great beer battle of 2020, the Seventh Circuit reversed a district court’s decision preliminarily enjoining Anheuser-Busch from advertising that Bud Light has “no corn syrup” whereas Molson Coors’s competing Miller Lite and Coors Lite beers are “made with” or “brewed with” corn syrup.
  • The Fifth Circuit vacated a disgorgement and corrective advertising award in a case involving windshield water repellant, concluding that the plaintiff failed to show the defendant’s profits were attributable to its false advertising, and that corrective advertising constituted an unsupported windfall.
  • The Ninth Circuit affirmed the dismissal of PragerU’s false advertising suit against YouTube and Google, concluding that YouTube’s content restrictions and statements about its moderation policies did not constitute commercial speech sufficient to support a Lanham Act claim.

As for notable district court decisions from the past year:

  • We are closely following the ongoing dispute between Chanel and The RealReal over the latter’s alleged sale of counterfeit Chanel bags.  While the court dismissed Chanel’s trademark infringement claim, it declined to dismiss Chanel’s false advertising claim premised on The RealReal’s marketing claims that the products it resells are “100%” authentic.


The FTC’s Green Guides have become increasingly relevant to advertisers over the past few years as consumer demand for “green” products increases. This past year saw a few challenges in this space. Whether it becomes a focus for the FTC itself remains to be seen, but we anticipate this may be an area that attracts consumer class actions in the wake of an attention-grabbing NPR investigation. Watch this space.

This was a busy year in the self-regulatory space, with the National Advertising Division closing well over 100 cases. Stay tuned—and make sure you’re subscribed to our blog—for our upcoming “NAD Year in Review” deep-dive into notable cases and trends from this past year at NAD and NARB.

The Jury Returns…Returns

Happy New Year! 2021 begins as 2020 ended: mostly without jury trials. Some are determined to change that, however, which brings us to the latest in the saga of Judge Alan Albright’s US District Court for the Western District of Texas case, which we covered immediately below (and elsewhere).

When we left off, Judge Albright had retransferred the case for trial purposes from Austin to Waco so that he could hold a jury trial in January. The defendant had petitioned the US Court of Appeals for the Federal Circuit for mandamus to stop the trial. We noted that “the panel could grant the petition without addressing whether trials should be held in the current environment.” And in fact, that is exactly what happened. On December 23, the Federal Circuit found that Judge Albright had incorrectly applied the US Court of Appeals for the Fifth Circuit standard for retransfer under 28 USC § 1404 and lacked the inherent authority to retransfer. But then, the Federal Circuit wrote:

In granting mandamus, we do not hold that the district court lacks the ability to effectuate holding trial in the Waco Division. We only hold that it must effectuate such result under appropriate statutory authority, such as moving the entire action to the Waco Division after concluding, based on the traditional factors bearing on a § 1404(a) analysis, that “unanticipated post-transfer events frustrated the original purpose for transfer” of the case from Waco to Austin originally. In re Cragar Indus., Inc., 706 F.2d 503, 505 (5th Cir. 1983). Such analysis should take into account the reasons of convenience that caused the earlier transfer to the Austin division.

The Federal Circuit’s analysis includes no discussion of the COVID-19 pandemic.

Back in the trial court, the same day the Federal Circuit granted mandamus, the plaintiff filed an emergency renewed motion for retransfer so that the trial could be held in January. Defendant opposed, arguing, among other things, that this is a patent case in which only money damages are sought that was filed only in April 2019, so there is no urgency to try it. Judge Albright set a December 30 hearing, in which he indicated he would again order a transfer to Waco. The defendant indicated it would again seek mandamus, and Judge Albright agreed to postpone jury selection until February to give the Federal Circuit time to rule. On January 4, 2021, the defendant filed its latest mandamus petition, along with a motion to stay. The motion to stay lays heavily into public interest factors. However, the Federal Circuit has put the motion and the petition itself on the same briefing schedule, which could allow it to again grant the petition without addressing the underlying question of whether a jury trial should be helpful in the current circumstances.

Cairn V. India – Investment Treaty Arbitration

Foreign Investors Continue to Find Relief from Soverign Retrospective Taxation Powers of States Under International Law


On December 21, 2020, the international arbitral tribunal (Tribunal) constituted in the case of Cairn Energy Plc and Cairn UK Holdings Limited (collectively ‘Cairn’) v. The Republic of India1 held that India had failed to uphold its obligations under the 1994 Bilateral Investment Treaty between Republic of India and United Kingdom (India – UK BIT) and under international law. The Tribunal ordered India to compensate the Claimants for the total harm suffered by Cairn as a result of India’s breaches. Reports of passing of the award became public on December 23, 2020. The award is not in public domain, save for an excerpt.

The ill-reputed retrospective taxation by India in 2012 spurred three investment treaty arbitration cases against India, viz. (i) Vodafone International Holdings BV v. The Republic of India (Vodafone case); (ii) Cairn Energy Plc and Cairn UK Holdings Limited v The Republic of India (Cairn case); and (iii) Vedanta Resources Plc v. The Republic of India (Vedanta case). In the past three months, two of the three cases (Vodafone case and Cairn case) have been ruled in favour of the foreign investors against India. For a detailed analysis of the Vodafone case, please see our Case Analysis here. For a detailed analysis of various investment treaty arbitration cases involving India in 2019, please see here.

In this piece, we endeavour to provide a comprehensive understanding of the subject transaction, the retrospective taxation measures and other measures adopted by India against Cairn, the arbitration proceedings initiated in 2015; and set out the reported portion of the award. While we do not have the benefit of reviewing the awards in Vodafone case and Cairn case to understand the manner in which the Tribunal has considered subject issues, we conclude with an analysis of the contentious defence of sovereign taxation powers, and how the Vodafone and Cairn cases are a stern reminder of the limits placed by international law upon the State’s sovereign rights of taxation.

The Transaction–3006HE TRANSACTION – 2006

Cairn India Holdings Limited (“CIHL”) was incorporated in Jersey in August, 2006 as a wholly owned subsidiary of Cairn UK Holdings Limited (“CUHL”), a holding company incorporated in the United Kingdom in June, 2006. Under a share exchange agreement between CUHL and CIHL, the former transferred shares constituting the entire issued share capital of nine subsidiaries of the Cairn group, held directly and indirectly by CUHL, that were engaged in the oil and gas sector in India.

In August 2006, Cairn India Limited (CIL) was incorporated in India as a wholly owned subsidiary of CUHL. In October 2006, CUHL sold shares of CIHL to CIL in an internal group restructuring (the Transaction). This was done by way of a subscription and share purchase agreement, and a share purchase deed, through which shares constituting the entire issued share capital of CIHL were transferred to CIL. The consideration was partly in cash and partly in the form of shares of CIL. CIL then divested 30.5% of its shareholding by way of an Initial Public Offering in India in December 2006. As a result of divesting Approx. 30% of its stake in the Subsidiaries and part of IPO proceeds, CUHL received Approx. INR 6101 Crore (Approx. USD 931 Million).2

In December 2011, UK-based Vedanta Resources Plc (Vedanta UK) acquired 59.9% stake in CIL. In April 2017, CIL merged with Vedanta Ltd. (VL), a subsidiary of Vedanta UK. Under the terms of the merger, Cairn Energy, a subsidiary of Vedanta Resources Plc, received ordinary shares and preference shares in VL in exchange for the residual shareholding of approximately 10% in CIL. As a result, Cairn Energy had a shareholding of approximately 5% in VL along-with an interest in preference shares. As on December 31, 2017, this investment was valued at approximately US$ 1.1 billion.3


On January 20, 2012, pursuant to a challenge by Vodafone International Holdings B.V in the Supreme Court of India against imposition of tax by ITD,4 the Supreme Court of India5 discharged VIHBV of the tax liability. The Supreme Court held that sale of share in question to Vodafone did not amount to transfer of a capital asset within the meaning of Section 2(14) of the Income Tax Act. The Apex Court not only quashed the demand of INR 120 billion by way of capital gains tax but also directed refund of INR 25 billion deposited by the Vodafone in terms of the interim order dated November 26, 2010 along with interest at 4% p.a. within two months.


Soon after the above judgment, in March 2012, the Indian Parliament passed the Finance Act 2012, which provided for the insertion of two explanations in Section 9(1)(i) of the Income Tax Act (2012 Tax Amendments).6 The first explanation clarified the meaning of the term “through”, stating that: “For the removal of doubts, it is hereby clarified that the expression ‘through’ shall mean and include and shall be deemed to have always meant and included ‘by means of’, ‘in accordance of’ or ‘by reason of’.” The second explanation clarified that “an asset or a capital asset being any share or interest in a company or entity registered or incorporated outside India shall be deemed to be and shall always be deemed to have been situated in India, if the share or interest derives, directly or indirectly, its value substantially from the assets located in India”.

The 2012 Tax Amendments also clarified that the term “transfer” includes and shall be deemed to have always included disposing of or parting with an asset or any interest therein, or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditionally, voluntarily or involuntarily, by way of an agreement (whether entered into in India or outside India) or otherwise, notwithstanding that such transfer of rights had been characterized as being effected or dependent upon or flowing from the transfer of a share or shares of a company registered or incorporated outside India.


In January 2014, the Indian tax Assessing Officer initiated reassessment proceedings against CUHL under Sections 147 and 148 of the Income-tax Act, 1961 which provide for reassessment proceedings in cases where income has escaped assessment. The Indian Income Tax Department (ITD) issued a notice to Cairn Energy, requesting information related to the Transaction. The ITD claimed to have identified unassessed taxable income resulting from the Transaction, such transactions having been allegedly undertaken in order to facilitate the IPO of CIL in 2007. The notification sought to implement the 2012 tax Amendments which the ITD sought to apply retrospectively to the Transaction. CUHL was also restricted from selling its shareholding of approximately 10% in CIL, which at that time had a market value of approximately US$ 1bn.

On March 9, 2015, a draft assessment order was passed against CUHL, assessing a principal tax due on the 2006 Transaction to INR 102 billion (US$1.6bn), plus applicable interest and penalties. (CUHL preferred an appeal against the order before the Income Tax Appellate Tribunal, Delhi. On March 9, 2017, the ITAT upheld the capital gains tax demand on CUHL, but rejected the ITD’s demand for interest. In August 2017, CUHL filed an appeal against the ITAT order before the High Court of Delhi, challenging ITAT’s imposition of capital gains tax demand. In October 2017, a cross-appeal was filed by ITD, challenging ITAT’s rejection of the interest demand.


On March 10, 2015, Cairn Energy initiated international arbitration proceedings under the India-UK BIT against the aforesaid measures adopted by the Indian government. It reportedly sought restitution of the value effectively seized by the ITD in and since January 2014.7 Cairn’s principal claims were that the assurance of fair and equitable treatment and protections against expropriation afforded by the Treaty have been breached by the actions of the ITD, which had sought to apply punitive retrospective taxes to historical transactions already closely scrutinised and approved by the Government of India.

Soon thereafter, on March 13, 2015, a draft assessment order was passed by the AO against CIL for failure to deduct withholding tax on alleged capital gains arising during 2006 Transaction in the hands of CUHL. The tax demand comprised INR 10247 Crores of tax, and the same amount as interest (approximately USD3.293 billion). On March 27, 2015, Vedanta UK served a notice of claim against the Government of India under the India-United Kingdom BIT, challenging the tax demand (Vedanta case).

The Treaty proceedings in the Cairn case formally commenced in January 2016. Cairn’s submitted its statement of claim in June 2016. In June 2016, India sought a stay on proceedings in Cairn Energy’s arbitration, stating that it is “unfair” that India has to defend two cases at once. On October 6, 2016, India filed an application for bifurcation of the proceedings to decide issues of jurisdiction and admissibility of claims. India submitted its statement of defence in February 2017. On March 31, 2017, the tribunal rejected the application for ‘stay’. On April 19, 2017, the Tribunal rejected the bifurcation application.


Between 2016 and 2018, during the pendency of the international arbitration proceedings, the ITD seized and held CUHL’s shares in VL for a value of approximately USD 1 billion. While the seizure of those shares remained in place, CUHL could not freely exercise its ownership rights over those shares and could not sell them. Further aggravating matters, the ITD sold part of CUHL’s shares in VL to recover part of the tax demand, realising and seizing proceeds of USD 216 million. It continued to pursue enforcement of the tax demand against CUHL’s assets in India. These enforcement actions seizure of dividends due to CUHL worth USD 155 million, and offset of a tax refund of USD 234 million due to CUHL as a result of overpayment of capital gains tax on a separate matter.

Since the ITD attached and seized assets of CUHL to enforce the tax demand, CUHL pleaded before the Tribunal that the effects of the tax assessment should be nullified, and Cairn should receive recompense from India for the loss of value resulting from the attachment of CUHL’s shares in CIL and the withholding of the tax refund, which together total approximately USD 1.3 billion. The reparation sought by CUHL in the arbitration was the monetary value required to restore Cairn to the position it would have enjoyed in 2014 but for the Government of India’s actions in breach of the Treaty.


The following excerpt of the award is available in public domain:8


2032. For the foregoing reasons, the Tribunal:

Declares that it has jurisdiction over the Claimant’s claims and that the Claimant’s claims are admissible;

Declares that the Respondent has failed to uphold its obligations under the UK-India BIT and international law, and in particular, that it has failed to accord the Claimants’ investments fair and equitable treatment in violation of Article 3(2) of the Treaty; and finds it unnecessary to make any declaration on other issues for which the Claimants request relief under paragraph 2(a), (c) and (d) of the Claimants’ Updated Request for Relief;

Orders the Respondent to compensate the Claimants for the total harm suffered by the Claimants as a result of its breaches of the Treaty, in the following amounts:

(this portion is not available).”

The Tribunal has reportedly ordered the government to desist from seeking the tax, and to return the value of shares it had sold, dividends seized and tax refunds withheld to recover the tax demand.9


The Vodafone and Cairn cases are a stern reminder of limits placed by international law upon States’ sovereign rights of taxation. The fundamental argument in favour of upholding treaty obligations, in the wake of other sovereign powers, is that treaties also constitute sovereign commitments by State to protect foreign investment in their territory. This places sovereign powers defined under national laws against sovereign commitments under international law. However, does the latter trump the former? The answer is clichéd; it depends.

Tax disputes present a strong case for non-arbitrability under majority national laws. They are also safeguarded by special statutes, special fora and specific redress mechanisms. Most States would urge that special statutory mechanisms be fully utilised prior to knocking the doors of fora under international investment treaties. Further, availability of redress under special international tax treaties could also remove tax disputes from the ambit of an investment treaty and place them before a special alternate forum.

Additionally, not only the forum but the stage at which investment treaty protection is invoked may also be important. Tribunals have held that claimants cannot simply treat as irrelevant their statutory rights of appeals and available constitutional review processes, and bring before tribunals a decision made by the lowest revenue officer in the assessment chain and purport to treat it as a finally adjudicated demand.10

It may be possible to decipher limits on international law commitments. For instance, it may be possible to adopt interpretations that narrow the scope of treaty application, restrict the qualifying requirements of ‘investment’ and ‘investors’, restrict the standards of treatment to certain circumstances, or interpret implied exclusions in the absence of express ones. What prevails will therefore depend on the language of the treaty and the creative interpretations adopted by lawyers and tribunals.

However, it is also possible to cut the clutter of a ‘tax dispute’ and bring the dispute within the four corners of an ‘investment dispute’ under the treaty. For instance, in the Vodafone and Cairn cases, it may have been possible to make a case for a tax-related investment dispute covered under a BIT, rather than a pure tax dispute that could be arguably excluded. This is also discernible from the fact that while accepting jurisdiction, Vodafone and Cairn tribunals have not directed India to annul the retrospective tax amendments.

This would be beyond the powers of an investment treaty arbitral tribunal, which has jurisdiction solely over the dispute between the State and the investor. Hence, an investment treaty arbitral tribunal that recognises a dispute as a tax-related investment dispute can provide restitution by restraining application of the tax-related measure on the investment. Yet, this continues to be a broad power placed in the hands of investment treaty tribunals, and must be wielded carefully.

In Cairn case, as much as in the Vodafone case, several questions relating to jurisdictional objections seem to have been put to rest by acceptance of jurisdiction by the Tribunal. Most of these objections and rulings could come to light as India has challenged the award in the Vodafone case in Singapore on December 24, 2020 – the final day of the limitation period of 90 days since the award was passed on September 24. It is likely that India will challenge the award in Cairn case as well before the Dutch courts. Hopefully, this will throw light on key issues decided by the Tribunal.

Further, Cairn could also face hurdles in enforcement of the award in India, and may have to find alternate avenues, if the existing rulings of the Delhi High Court are maintained by the enforcing courts in India.11 As per these rulings, there is no scheme for enforcement of treaty arbitration awards under the Indian Arbitration & Conciliation Act 1996, since it purportedly covers only commercial arbitration. It will also be interesting to see how the Indian courts consider an award restraining Indian tax authorities from imposing tax against the foreign investor, under Indian public policy.

International law is a ‘political construct’, Tory MP says

A Conservative MP has defended the government’s intention to break international law by claiming that countries violate it on a “routine” basis. Theresa Villiers, one of Boris Johnson’s former cabinet ministers, argued that it was “not unusual” for countries to disregard the rules and said such laws were merely a “set of political constructs”.

MPs on Monday are debating the Internal Market Bill, which includes provisions that violate the Brexit withdrawal agreement signed by Boris Johnson last year. Senior figures such as John Major, Theresa May and Tony Blair have warned against the plan, saying it will undermine the UK’s standing in the world and make it harder to criticise other countries that violate international law.

But, taking to the TV studios to defend the government’s actions, Ms Villiers argued: “The reality is that there are routine occasions where countries or indeed the EU are in violation of obligations under international law.

“You can see, for example, parliament’s failure to vote to give prisoners votes. Arguably that is in violation of international law but I don’t see people calling the United Kingdom a pariah state because it has failed to abide by that judgment in the European Court of Human Rights.”

She told Sky News: “The reality is international law is a set of political constructs, which actually countries abide by or depart from in a number of circumstances – including the European Union itself. For example, it didn’t apply WTO rules on Airbus. Arguably that’s a violation of international law but the EU did it because the EU felt it was inappropriate to do that.

“It is not unusual for there to be disputes over international law, it is not unusual in certain limited circumstances for countries not to comply with all obligations under international law.”

A new poll by YouGov shows the public is wary of the government’s approach. Forty-seven per cent of voters say planning to break the law is unacceptable, compared to just 25 per cent who say it can be acceptable. Young people are said to be particularly opposed to the government’s plan, with just 6 per cent of 18- to 24-year-olds in favour. Fifty-two per cent of Conservative voters support the move.

Wera Hobhouse, Liberal Democrat justice spokesperson, said: “It seems that under Boris Johnson, accepting the rule of law has become optional. ”

“For the sake of the future of our country, Ministers must stop playing fast and loose with the rule of law. Far from protecting the national interest, Boris Johnson’s government seem content to see the UK’s international reputation trashed.”


2021 ICC Arbitration Rules Come Into Force

The International Chamber of Commerce (“ICC”) launched the Revised Rules of Arbitration (“2021 ICC Rules”), on 1 December 2020.1 The 2021 ICC Rules enter into force on January 1, 2021. The ICC Arbitration Rules 2017 (“2017 ICC Rules”) will continue to apply to cases registered prior to January 1, 2021.2 The amendments in the 2021 ICC Rules are a step towards greater efficiency, flexibility and transparency in ICC arbitrations.3

Notably, the following revisions have been undertaken by way of the 2021 ICC Rules:

  1. Joinder of Parties and Consolidation of Proceedings;
  2. Disclosure of Third-Party Funding;
  3. Conflict of Interest and Integrity;
  4. Provisions for Investment Treaty Arbitrations;
  5. Remote Hearings;
  6. Additional Awards;
  7. Increase in Threshold for Expedited Arbitrations;
  8. Governing Law and Settlement of Disputes

We are glad to have comments and inputs from leading arbitrators, practitioners and ICC members around the world on the implications of the 2021 ICC Rules.

Notable Revisions

I. Joinder of Parties and Consolidation of Proceedings

Under the 2017 ICC Rules, additional parties could be joined to the arbitration proceedings after appointment or confirmation of Arbitral Tribunal only upon the agreement of all the parties and the additional parties.4

The 2021 ICC Rules have inserted Article 7(5) to allow for the joinder of additional parties to be decided by the Arbitral Tribunal subject to the additional party accepting the constitution of the arbitral tribunal and agreeing to the Terms of Reference, where applicable. In making its decision, the arbitral tribunal is required to consider all relevant circumstances.5 Thus, additional parties may now be permitted to be joined by the arbitral tribunal without requiring the agreement of all the parties.

Article 10(b), which pertains to consolidation of proceedings has also been amended by the 2021 ICC Rules. The amendment provides much needed clarity with respect to consolidation being allowed: (i) where all parties agree to consolidation; (ii) where all claims are made under the same arbitration agreement or agreements between different parties; and (iii) claims involving different parties and may not be under same arbitration agreement, provided that the dispute arises in connection with the same legal relationship and the arbitration agreements are compatible.6 Thus, the 2021 ICC Rules now clarify that claims that are made under similar arbitration agreement(s) can now be consolidated into a single arbitration proceeding. This inclusion is similar to the newly introduced LCIA Rules 2020.7

Guy Pendall, Partner and Head of Commercial, Regulatory and Disputes Practice at CMS, London states “The amendments to the joinder and consolidation provisions reflect the shift in international practice to provide more practical solutions to parties involved in complex projects or transactions. Empowering a tribunal to join a third party to proceedings, provides a simple procedural solution to what may be needed for certainty in the proceedings. It is not always the case that joinder of a party is a controversial step, and this amendment facilitates such a joinder where all parties agree. The updated consolidation mechanism for proceedings between the same parties even where they are not made under the same arbitration agreement(s), represents a small drafting change, but provides another practical solution for disputes arising under different agreements between the same parties, typically where the disputes arise in relation to the same project or transaction. This trend can also be seen in the recent amendments made to the LCIA Rules in what is now Article 22A. There will be many drivers for the legitimate separation of disputes into separate arbitral proceedings between the same or connected parties, but inflexible arbitral rules should not be one of them. Facilitating efficient joinder or consolidation, with appropriate safeguards, is an important element of modern arbitral practice.”

II. Disclosure of Third-Party Funding

Under the 2021 ICC Rules, parties are now required to disclose the presence of third-party funding arrangements, i.e., “of the existence and identity of any non-party which has entered into an arrangement for the funding of claims or defences and under which it has an economic interest in the outcome of the arbitration”.8 This change has been brought in to assist prospective arbitrators in complying with their duties of independence and impartiality during the arbitration and obligation on parties to disclosure funding arrangements. Introduction of this specific provision is in sync with their earlier note9 to check conflict of interest between arbitrators and any party having a direct economic interest.

Quentin Pak, Director at Burford Capital, Singapore welcomed the new rules and states that “they support the ICC’s desire to ensure impartiality and independence of arbitral tribunals and understand their view that greater transparency around the presence of arbitration finance has a role to play. Indeed, the new Article 11(7) of the 2021 Arbitration Rules reflects existing ICC practice and the fact that many parties already disclose the fact of external financing voluntarily.

However, the disclosure of arbitration finance may be misused by respondents to create expensive and time-wasting frolics and detours. For instance, although security for costs applications have been rare in ICC arbitrations, the new Article 11(7) may lead to an increase in frivolous applications. With that in mind, ICC tribunals may become more willing under Article 38(5) to take into account such applications in making decisions on costs against respondents. Furthermore, since respondents will now be cognizant of the use of arbitration finance very early on in an arbitration, tribunals may be more likely to permit successful claimants to recover the costs of funding under Article 38(1).”

III. Conflict of Interest and Integrity

Nicola Peart, Associate, Three Crowns LLP, Washington and Member of IBA Arb 40 Sub-Committee, commented that “the ICC Court is the world’s leading arbitration institution, and it works at the forefront of developments in international arbitration procedure. For example, Three Crowns recently represented the ICC in the UK Supreme Court in the case of Halliburton Company v Chubb Bermuda Insurance Ltd & Ors [2020] UKSC 48, to provide an international and independent perspective on the question of when arbitrators need to disclose appointments in multiple references involving one common party. The recent updates to the ICC’s rules demonstrate the ICC’s focus on ensuring its rules reflect the latest procedural developments in international arbitration.”

The 2021 ICC Rules have strengthened the integrity of the arbitration process by including a new provision, Article 17(2), which provides arbitral tribunals the power to take necessary measures to avoid conflict of interest of an arbitrator arising from a change in party representation. The arbitral tribunal can undertake measures after providing the parties an opportunity to comment (in writing) within a suitable time period. These measures can include exclusion of the new party representative from participating in whole, or a part of, the arbitration proceedings.10 Thus, the arbitral tribunal has now been vested with powers to exclude new counsels representing the parties from the arbitration proceedings, or a part thereof, in the event of a conflict of interest.

Article 12(9) has also been inserted, which provides the International Court of Arbitration of the International Chamber of Commerce (“Court”) with powers to appoint each member of the arbitral tribunal, notwithstanding the agreement between the parties on the arbitral tribunal’s constitution, to avoid a significant risk of unequal treatment and unfairness that may affect the validity of the award.11 The interpretation of the term “exceptional circumstances” for Court to intervene is open to intervention and will be adjudicated on a case-to-case basis. Thereby, the Court now has powers to step in and appoint the arbitral tribunal in case the appointment of arbitrators as per the arbitration agreement between the parties would result in unequal treatment and unfairness that may affect the validity of the resultant award. Both the provisions have been introduced with the idea to bring in more transparency and avoid arbitrator challenges.

IV. Provisions for Investment Treaty Arbitrations

The 2021 ICC Rules provide two new provisions pertaining to Investment Treaty Arbitrations. Article 13(6) has been inserted to ensure that in a treaty arbitration, unless the parties agree otherwise, no arbitrator shall have the same nationality of any party to the arbitration.12 Further, Article 29(6)(c) now provides that the ‘Emergency Arbitrator Provisions’ under the 2021 ICC Rules will not be applicable to applications from arbitration agreements arising from a treaty,13 thus clarifying the 2017 ICC Rules.

V. Remote Hearings

The 2021 ICC Rules have modified Article 26 (Hearings) to allow for hearings to be conducted remotely by videoconference, telephone or other appropriate means of communication.14 The 2017 ICC Rules did provide the Tribunal with the discretion to conduct virtual hearings as clarified in their earlier Guidance Note15, the new provision codifies the discretion. This change will cater to the efficiency of arbitration given the risks of travel due to the Covid-19 pandemic.

The new provision encourages virtual and remote hearings in arbitration based on request of parties, at the same time giving some discretion to the Arbitral Tribunal to decide based on relevant facts and circumstances. While the newly constituted ICCA Task Force is currently deliberating the question, “Does a Right to a Physical Hearing Exist in International Arbitration?”, this new provision is aimed at moving forward with the changing times.

Michael Cartier, Partner at Walder Wyss notes that “Even without the new wording of the 2021 ICC Rules, hearings have of course already been conducted by way of videoconference. However, previously remote hearings were often only considered as a second-best option if a witness could otherwise not participate. COVID-19 has led to a shift in perception due to the large-scale adoption of videoconferencing in business life going hand in hand with technical improvements (bandwidth, quality of sound and video) making hearings by videoconference currently the default rather than the exception. Post COVID-19, video conferences will remain an important tool in the arbitrator’s toolbox, and this is rightly reflected in the 2021 ICC Rules.”

Keeping pace with these changes, the 2021 ICC Rules have also introduced amendments to written communications exchanged between parties,16 aligning to a more technology-oriented and environment-friendly form of arbitration proceedings.

Michael further notes that “Arbitration has inexorably been shifting from paper to electronic over the past years. From paper only filings, to simultaneous filing on paper and email, to determinative filing by email followed up by a courtesy hardcopy, to only electronic filing. This development has been fueled due to additional features available by electronic files (full text search, hyperlinked eBriefs) and technical devices (tablets, dual screens) on the one hand, but also the ever-increasing amount of data and hence exhibits that can be submitted on the other hand. The 2021 ICC Rules do away of the anachronism of requiring hardcopies when parties invariably go for an electronic only arbitration.”

VI. Additional Awards

The 2021 ICC Rules have also inserted a provision for additional awards. Parties can now make an application, within 30 days of receipt of the award, for any additional award on the claims made in the arbitration which the arbitral tribunal has omitted to decide.17 This amendment should result in increasing the enforceability of ICC arbitral awards and compliance with due process.

VII. Increase in Threshold for Expedited Arbitrations

The monetary threshold for applying the ‘Expedited Procedure’ provisions of the 2021 ICC Rules (Article 30 and Appendix VI), has been increased from USD 2 Million to USD 3 Million.18 Thus, the scope of application has been enhanced to permit disputes under USD 3 Million to be adjudicated under the Expedited Procedure.

VIII. Governing Law and Settlement of Disputes

The 2021 ICC Rules have provided clarity on the applicable governing law for claims arising out, of or in connection with, the administration of the arbitration proceedings by the Court under the 2021 ICC Rules. Article 43 has been inserted clarifying that such claims shall be governed by French law and settled by the Paris Judicial Tribunal (Tribunal Judiciaire de Paris) in France, having exclusive jurisdiction.19


The changes in the 2021 ICC Rules have certainly aimed to improve transparency and the integrity of the arbitral process, particularly by requiring the disclosure of third-party funding and strengthening the provisions on conflicts of interest. Further, the amendments on joinder and consolidation should be helpful in improving the flexibility and efficiency of the arbitral process. The 2021 ICC Rules have also adapted to the current global scenario by codifying the availability of remote hearings during the arbitral process, keeping pace with the ‘new normal’. The recent amendments solidify the ICC’s presence as the leading arbitral institution.

China takes action after NYSE delist three Chinese telecom firms

The Chinese Ministry of Commerce said Saturday that it would take “necessary measures” to protect its enterprises’ interests, after the New York Stock Exchange (NYSE) announced Thursday that it had begun proceedings to delist three Chinese telecom firms.

The NYSE’s announcement comes in response to US President Donald Trump’s recent executive orderprohibiting any transaction in “publicly traded securities, or any securities that are derivative of, or are designed to provide investment exposure to such securities, of any Communist Chinese military company.”

The NYSE has determined to delist China Mobile, China Telecommunications and China Unicom Hong Kong.

A spokesperson for the Chinese Ministry of Commerce stated, “China opposes the US practice of abusing national security to include Chinese enterprises on the list of so-called ‘Communist Chinese military companies’ and will take necessary measures to resolutely safeguard the legitimate rights and interests of Chinese enterprises.”

The ministry also expressed its hope that “the US and China will work together to create a fair, stable and predictable business environment for enterprises and investors, so as to get bilateral economic and trade relations back on track.”

UN rights office condemns Iran’s fourth juvenile execution

UN rights office condemns Iran’s fourth juvenile execution in one year, breaching international law

The Office of the UN High Commissioner for Human Rights (OHCHR) condemned Thursday Iranian officials’ fourth execution of a child offender in 2020, stating that the execution of child offenders is “categorically prohibited under international law.”

Mohammad Hassan Rezaiee was executed early Thursday morning for an offence allegedly committed by him at the age of 16. This was Iran’s fourth confirmed execution of a juvenile offender in 2020, while at least 80 others are believed to be on death row.

Iran is a party to the UN Convention on the Rights of the Child (UNCRC). Article 37 of the UNCRC prohibits capital punishment for offences committed by persons below the age of 18. The OHCHR said that the country’s recent spate of executions is, therefore, a marked breach of its international obligations, hinging only upon the reservation it made when ratifying the UNCRC that “if the text of the Convention is or becomes incompatible with the domestic laws and Islamic standards at any time or in any case, the Government of the Islamic Republic shall not abide by it.”

Amnesty International has repeatedly urged Iranian authorities to amend Article 91 of its penal code to abolish capital punishment for crimes committed by people under the age of 18.

The OHCHR also referred to the “troubling allegations” that Rezaiee was convicted on the basis of forced confessions extracted through torture. Amnesty International reported that despite his young age, he had been kept in prolonged solitary confinement, beaten with sticks, kicked and punched, and whipped with pipe hoses.

High Commissioner Michelle Bachelet “urges Iranian authorities to halt all executions of child offenders and immediately review their cases in line with international human rights law.”