John Gaffney

Biography

John Gaffney is a Senior Counsel with the Abu Dhabi office of Al Tamimi & Company, where he leads the office’s arbitration practice.

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Thought Leadership

Honours:

• Ambassador, ICC Commission on the Belt and Road Initiative.
• Member, ICC Commission for Arbitration and ADR
• Nominated for the 2018 Global Arbitration Review (GAR) Award for Innovation
• Member of the Sounding Board, Business and Human Rights Arbitration Project
• Country Reporter for the UAE, ITA Board of Reporters
• Guest Lecturer, International Commercial Arbitration, Sorbonne University, Abu Dhabi
• Editorial Board, Law Update (an Al Tamimi & Company publication)
• ICCA Ambassador – ICCA Congress, Mauritius, May 2016
• Reporter for European Parliament Study on Arbitration, January 2015
• Rapporteur for the popular OGEMID Listserv, and Associate Editor, TDM
• Former Case Notes Editor of the European International Arbitration Review
• Member of the Drafting Committee for the 2011, 2015 Skadden, Arps FDI Moot
• Listed in Who’s Who Legal (for Arbitration, Construction), Roster of International Arbitrators, and Euromoney Guide to Leading Commercial Arbitration Experts.

Publications:

Books and special editions:

• Rapporteur, “Legal Instruments and Practice of Arbitration in the EU”, a Study prepared for the JURI Committee of the European Parliament, and the Case Notes editor of the European International Arbitration Review.
• Co-Editor, TDM Special Issue on the Modernisation of the Energy Charter Treaty (‘ECT’), TDM (2019)
• Part V (Court Decisions) of Yearbook Commercial Arbitration Volume XLII (2017)(with M. Nasreddine)
• UAE Chapter in Delos Guide to Arbitration Places (2018) (co-author with S. Aranjo and M. Nasreddine)
• UAE Chapter in Commercial Arbitration, Global Arbitration Review (2018)(co-author with T Snider and D Al Houti)
• Contribution to the UAE Arbitration Yearbook 2017 entitled, The QMUL Study on Resolving TMT Disputes: What Lessons for the UAE (co-author with M. Nasreddine)
• Chapter entitled ‘Overview of Recent EU-Related Developments in Commercial and Investor-State Arbitration’, in Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2015 (ed. Rovine)(2016)
• Co-Editor, TDM Special Issue on “Comprehensive Economic and Trade Agreement between the European Union and Canada (CETA)”, TDM 1 (2016)
• National Report on Ireland in World Arbitration Reporter (2018)(with E. Crowley)
• Chapter entitled ‘European Bilateral Approaches’ in International Investment Law: A Handbook (ed. Bungenberg, Griebel et al) (2015) (with Z. Akcay)
• Chapter entitled ‘How Important Is It To Develop A Coherent Case Law?: The Role Of Judicial Dialogue In Investment Arbitration’ in Droit européen (Le) et l’investissement, Colloque (2011)
• Chapter entitled ‘Going to Pieces without Falling Apart: Wälde’s Defence of ‘Specialisation’ in the Interpretation of Investment Treaties’ in Liber Amicorum: Thomas Walde, Law Beyond Conventional Thought, edited by Thomas Wälde, Jacques Werner and Arif Hyder Ali (2009)
• Chapter on ‘Enforcement’ in Practical Aspects of Arbitrating EC Competition Law (Schulthess, Zurich) (with S. Wade) (2007)
• Chapter on ‘Ireland’ in Transnational Litigation: A Practitioner’s Guide, (ed. John Fellas) (co-author with A. Collins and P.A. McDermott) (2006).

Articles:

• “Intra-EU investment protection in a post-Achmea world,’ Columbia FDI Perspectives, No. 266, December 2, 2019 (with George A Bermann)
• “The Abu Dhabi Global Market: An Arbitral Seat Open to All”, Kluwer Arbitration Blog, 14 May 2019
• “Achmea and Commercial Arbitration”, Global Arbitration Review, 29 April 2019
• “The Arbitral Jurisdiction of the Abu Dhabi Global Market”, ICC Institute Newsletter – Issue 11, December 20, 2018
• Overview of the UAE Federal Arbitration Law No. 6 of 2018, (4 October 2018, Kluwer Arbitration ITA Arbitration Report, Volume No. XVI, Issue No. 9)
• “X v. Y, Court of First Instance of Dubai, 1289 of 2018, 19 September 2018”, (Kluwer Arbitration ITA Arbitration Report, Volume No. XVI, Issue No. 11-12)
• “Slovak Republic v. Achmea: A Disproportionate Judgment?”, Kluwer Arbitration Blog, Sep 14, 2018
• “Could BITs and BATs be combined to ensure access to human rights remedies?”, Columbia FDI Perspectives, No. 229, July 2, 2018
• “Has the Time come for Full and Frank Financial Disclosure in International Commercial Arbitration?”, ICC Institute Newsletter (2017) (nominated for GAR Award)
• “Should the European Union regulate commercial arbitration?”, Arbitration International (2017) 33 (1): 81-98
• “The revision of Article 257 of the UAE Penal Code”, ICC Institute Newsletter, No 8 (2017)
• “The Revision of Article 257 of the UAE Penal Code: Concerns, Context, and a call to Countermand”, International Journal of Arab Arbitration, Volume 8 – No. (2) (co-author with Hassan Arab & Malak Nasreddine)
• “The Revision of Article 257 of the UAE Penal Code: A problem also for Party-Appointed Experts?”, Kluwer Arbitration Blog, 10 March 2017
• “Banyan Tree Corporate Pte Ltd v. Meydan Group LLC and Meydan City Corporation, Court of First Instance of Dubai, Case No. 1619/2016, 15 February 2017”, (Kluwer Arbitration ITA Arbitration Report)
• “Arbitrating in Abu Dhabi’s commercial freezone – an overview”, Global Arbitration Review, February 06, 2017
• “State Courts and the Proposed New Investment First Instance and Appellate Decisions”, TDM 1 (2017)
• “The Rule of Law and Alternatives to Investment Arbitration”, European Investment Law and Arbitration Review (EILARev), 2016
• “The Enforceability of DIAC Arbitral Awards by the DIFC Courts in Confirmed: the DRA and DIAC join forces”, (28 October 2016, Kluwer Arbitration Blog)
• “Fluor Transworld Services v. Petrixo Oil, Court of Appeal of Dubai, Commercial Appeal No. 52-2016, 28 September 2016”, (Kluwer Arbitration ITA Arbitration Report)
• “How to navigate the UAE’s complex jurisdictions”, The Lawyer, Sept 2016 (with T. Shrayh)
• “The EU proposal for an Investment Court System: what lessons can be learned from the Arab Investment Court?”, Columbia FDI Perspectives, Aug. 29, 2016
• “Arbitration Awards as Works of Art”, Kluwer Arbitration Blog, June 1, 2016
• “X v. Y, Court of Cassation of Dubai, Commercial Appeal No. 38-2016, 29 May 2016”, (31 August 2016, Kluwer Arbitration ITA Arbitration Report, Volume No. XIV, Issue No. 8)
• “Gavin v. Gaynor, Court of First Instance of the DIFC, 03 April 2016”, (Kluwer Arbitration ITA Arbitration Report)
• “When is investor-state dispute settlement appropriate to resolve investment disputes? An idea for a rule-of-law ratings mechanism,” Columbia FDI Perspectives, June 8, 2015
• “International Commercial Arbitration – Procedural Approaches: Civil Law versus Common Law”, Transnational Dispute Management, January 2015 (with A. Ndong)
• “Appellant v. Respondent, Court of Cassation of Abu Dhabi, Judgment No. 708-2014, 29 October 2014”, (2 October 2017, Kluwer Arbitration ITA Arbitration Report, Volume No. XV, Issue No. 9)
• “Cost allocation in investment arbitration: Forward toward incentivization”, Columbia FDI Perspective No. 123 June 9, 2014 (with J. Nicholson)
• Achieving sustainable development objectives in international investment: Could future IIAs impose sustainable development-related obligations on investors?”, Columbia FDI Perspective (co-author with J. Sarvanantham)
• “Intra-EU BITs: Toothless Tigers Or Do They Still Bite?”, SchiedsVZ 2013, Heft 2, 68 (German Arbitration Journal) (co-author with J. Schaefer)
• “Should Investment Treaty Tribunals Be Permitted to Request Preliminary Rulings From the Court of Justice of the European Union?”, Transnational Dispute Management, Vol. 2 (2013)
• “EU Member State Defends Measures Adverse to Energy Sector Investments on the basis of EU law,” in King & Spalding Energy Newsletter (February 2013) (with C. Soule)
• “Case Comment – Slovak Republic v. Eureko B.V., OLF Frankfurt (10 May 2012),” in The Paris Journal of International Arbitration, Vol. 4, (2012) (with C. Soule)
• “Threats to Investment Protection in the EU Energy Sector,” in King & Spalding Energy Newsletter (August 2012)
• “Non-party Autonomy:  Displacing the Negative effect of the Principle of ‘Competence-Competence’ in England?” in 1 Journal of International Arbitration (2012)
• “How Important is it to Develop a Coherent Case Law?: The Role of Judicial Dialogue in Investment Arbitration” in Le droit européen et l’arbitrage d’investissement (2011).
• “Tilting at Windmills?: The Quest for Independence of Party-Appointed Expert Witnesses in International Arbitration,” Asian Dispute Review, July 2011 (co-author with G. O’Leary).
• “EC Law and Intra-EU Investment Treaties:  AES Summit Generation Limited and AES-Tisza Eromu Kft. v. Republic of Hungary,” KLRCA Newsletter, October 2010.
• “Counsel Must Ensure The Right of Cross-Examination In Arbitration”, International Litigation Quarterly (Fall 2010)
• “Abuse of Process in Investment Treaty Arbitration”, Journal of World Investment & Trade, Vol. 11 No. 4 (August 2010)
• “West Tankers: Fuelling the Debate on the Position of Arbitration” (co-author with Colm P. McInerney), The International Litigation Quarterly, Vol. 25, Issue 3 (Summer 2009)
• “Is an investment treaty tribunal entitled to dismiss a claim where it amounts to an ‘abuse of process?”, Kluwer Arbitration Blog, August 4, 2009
• “The New York Convention: A Basis For The Enforcement By National Courts Of A Justiciable Liberty Of Decision Of The Arbitral Tribunal,” in The New York Convention: 50 Years Of Experience, Mealey’s Executive Summary (Oct. 2008)
• “Precedent in the United Nations Compensation Commission,” 5(3) TDM (May 2008)
• “The ‘Effective Ordinary Meaning’ of BITs and the Jurisdiction of Treaty-Based Tribunals to Hear Contract Claims,” Volume 8, No.1 Journal of World Investment & Trade5 (Mar. 2007)(with J. L. Loftis)
• “Jurisdiction ratione temporis of ICSID Tribunals: Lucchetti and Jan De Nul considered,” 3(5) Transnational Dispute Management (2006)
• “Immunity of arbitrators from suit,” IBA Committee D Newsletter, Vol. XI, No. 1, at 26 (Feb. 2006)(with P. Griffin)
• “European Community Law and International Arbitration: A recent OGEMID discussion,” Transnational Dispute Management, Vol. 2, No. 5 (Nov. 2005)
• “Salini v. Jordan – An Important Contribution To ICSID Jurisprudence on Jurisdictional Issues,” 20(4) Int’l Arb. Rep. 35 (2005)
• “Ireland- Scope of arbitration clause,” 9(2) Arb. & ADR 62 (2004)
• “The Group of Companies Doctrine and the Law Applicable to the Arbitration Agreement,” 19(6) Int’l Arb. Rep. 47 (2004)
• “Confidentiality in International Arbitration: A Recent English Decision,” 18(5) Int’l Arb. Rep. 18 (2003)
• “Ex Parte Measures in International Arbitration,” 17(11) Int’l Arb. Rep. 39 (2002)
• “Evidentiary privileges in international arbitration – Ireland,” 7(2) Arb. & ADR 36 (2002)
• “The Bay Hotel Case: Accommodating the Parties’ Wishes,” 17(1) Int’l Arb. Rep. 31 (2002)(with D. Rosenblum)
• ‘International, Foreign and Domestic Arbitrations and the Granting of Interim Relief in Ireland’, 16(9) Int’l Arb. Rep. 37 (2001) (with O. O’Sullivan).

International Law Publications:

• ‘Due Process in the United Nations Compensation Commission’, Mealey’s International Arbitration Report (October 2000)
• ‘Precedent in the United Nations Compensation Commission, Mealey’s International Arbitration Report (December 1999)
• ‘The United Nations Compensation Commission: A Structural and Procedural Overview’, Arbitration – Journal of the Chartered Institute of Arbitrators (August 1999)
• ‘An Overview of WTO Law’, Commercial Law Practitioner (August/September 1999);
• ‘Due Process in the WTO: The Need for Procedural Justice in the Dispute Settlement System’, 14 American University International Law Review (1999) (Special Edition dedicated to the World Trade Organization)
• ‘The GATT and the GATS: Should they be Mutually Exclusive Agreements?’ 12 Leiden Journal of International Law (1999)
• ‘Enforcement Proceedings under Article 169 EC and the Duty of Member States to Furnish Information Requested by the Commission: Is There a Regulatory Gap?’ 25 Legal Issues of European Integration (1998)
• ‘The Review of Corporate Claims by the United Nations Compensation Commission’, Commercial Law Practitioner (March 1999).
• ‘The Status of Customary International Law in Irish Domestic Law: a Review of the “Toledo” Case’, Irish Law Times (August 1996).

Energy and Natural Resources Law Publications:

• ‘Ireland: Market Arrangements in Electricity and Gas Sectors’, Oil, Gas & Energy Law Intelligence, Issue: Vol. 2 – issue 1.
• ‘Climate Change: A Taxing Issue for Ireland, Oil, Gas & Energy Law Intelligence, Issue: Vol. 2 – issue 3.
• ‘Current Practice: Ireland’, Journal of Energy and Natural Resources Law: Vol. 18 No. 4, Vol. 18 No. 3; Vol. 19 No. 2 (coauthor with Claire Waterson); Vol. 19 No. 4 (with Claire Waterson); Vol. 20 No. 1 (with Claire Waterson); Volume 20 Number 3 (with Gayle McGratten); Vol. 20 No. 4 (with Claire Waterson).

Commercial Law Publications:

• ‘Competition Issues in Commercial Agreements’ (co-author) European Business Law Review (2007) (with Fiona O’Connell and Emily Gibson).
• ‘New E-Commerce Regulations: Ireland Catches Up!’, International Business Lawyer, October 2003 (with Clare McGuinness).
• The Irish Copyright Act’, Journal of World Intellectual Property, July 2002.
• ‘The Regulation of Electronic Commerce in the European Community’, Irish Journal of European Law, 2001 (with Sandra Delaney).
• ‘Ireland’s E-Commerce Regulatory Framework: A Practitioners Perspective’, Electronic Commerce & Law, Volume 6, Number 24 (13 June 2001)
• ‘Electronic Commerce and European Community Competition Law’, International Business Lawyer (June 2001).
• ‘To B2B or not to be’, Gazette of the Law Society of Ireland, January/February 2001.
• Electronic Commerce Act 2000: Ireland leads the way’ International Business Lawyer, (December 2000) (with Vincent Nolan)
• ‘B2B Exchanges: Competitive or Anti-competitive?’ International Business Lawyer (November 2000)
• “EU Directive on Electronic Commerce”, Gazette of the Law Society of Ireland (October 2000)
• ‘Electronic Commerce: Commercial, Legal and Regulatory Issues’ Irish Business Law (August 2000) (with Sandra Delany).
• ‘The Use of Minimum Pre-qualification criteria: the Whelan Group case’, Public Procurement Law Review, January 2003
• ‘Public Procurement in Ireland: Recent Developments’, Law Society Gazette, December 2002
• ‘New Competition Act’, Newsletter of the IBA Antitrust and Trade Law Committee, July 2002
• ‘Public Procurement in Ireland: Recent Developments’, Law Society Gazette, December 2001
• ‘The European Company Statute: A Case of “All Kinds of Everything”’, Commercial Law Practitioner (May 1998).
• ‘Staff Consultation and European Works Councils’, Gazette of the Incorporated Law Society of Ireland (March 1997).

Speaking Engagements:

• Guest Lecturer, International Commercial Arbitration, Sorbonne University, Abu Dhabi, February 2019
• Commentator on Keynote Speech: Constructing a multilateral investment court: the path ahead, EFILA Conference, London, Jan. 2019
• Panelist, Conduct within the arbitration process, Dublin International Arbitration Day, Nov 2018
• Presentation on UAE Law to the DIFC Courts’ Annual Judges Meeting, DIFC, Nov 2018
• Visiting Lecturer, International Commercial Arbitration, Paris Sorbonne University, Abu Dhabi, March 2018 (with Michael Hwang SC)
• Panelist, “Rethinking the Role of Courts and Judges in Supporting Arbitration in Africa”, Lagos Court of Arbitration Centre, 2016
• Speaker, International Arbitration Symposium, CILS, Salzburg, Jun. 2016
• Speaker, EFILA Conference, Paris, Feb. 2016
• Moderator, “Queen Mary School of International Arbitration – Inaugural Working Seminar on Group Claims in Arbitration”, Nov. 2015
• Moderator & Speaker, “The Confluence of EU Law and International Arbitration—Both Commercial and Investor-State”, 10th Annual Conference on International Arbitration and Mediation, Fordham Law School, New York, Nov. 2015
• Speaker, Energy Disputes, CIArb Centenary Conference, Dublin, Oct. 2015
• Speaker ICC PIDA conference, Dubai, 2014
• Speaker, McGill University & QMUL, CETA Conference, Montreal, 2014
• Speaker, Eighth Dublin Forum on Resolution of International Commercial Disputes, 2014
• Keynote speaker, CIArb European Branch AGM and Conference, Warsaw, 2014
• Panelist, “Non-enforcement of Arbitration Awards as Breaches of Bilateral Investment Treaty (BIT) obligations”, ICC YAF Conference, Bangalore, 2014
• Panelist, Inaugural Conference of the CIArb Young Members Group in Dublin on “Investment Arbitration: Fit for purpose?’, Dublin, 2012
• Speaker, Journée d’étude/Seminar, Le droit européen et l’arbitrage d’investissement, European Law and Investment Arbitration, Paris, 2010
• Speaker, UCC Annual Law Conference, Cork, Ireland, on “The Impact of European Community Law in Irish Litigation”, November 2008
• Panelist, Arbitration and ADR Section, International Bar Association Annual Meeting, Singapore, 2007
• Panelist, International Arbitration Seminar, Association International de Jeunes Avocats (AIJA) Congress, Geneva, 2006.
• Guest Speaker at Annual Conference organized by University College Cork Law Society on “The Role of Community Law in the Irish Legal System: Parasitic or Symbiotic?”, December 2005.
• Lecture on “Pleading EC Law in Irish Litigation”, PPC 1 Course, Law Society of Ireland, 5 December 2005 and 16 January 2006.
• Guest Speaker at Annual CPD Conference organized by University College Cork on “Pleading EC Law in Irish Litigation”, November 2005
• Guest Speaker at presentation organized by University College, Cork for students of the Franklin Pierce Law Center on “The role of Community Law in the Irish Legal System”, July 2005.
• Guest Speaker at ETC Seminar to local authority employees on Tendering and Public Procurement, Cork, 2005.
• Guest Speaker at CPD Conference, University College, Cork on “”Recent Developments in Competition Law”, December 2004.
• Guest Speaker at Irish Centre for European Law/Law Society Conference, Dublin on “Pleading in EC Law in Irish Litigation: A Case Study”, September 2004.
• Guest Speaker at CPD Conference, University College, Cork on “”Data Protection and Business: Some Key Legal Issues”, May 2004.
• Chairman, SMI “Irish Energy” Conference, Dublin, November, 2002.
• Speaker at the SMI “Irish Energy” Conference, on “Regulation of Electricity Market in Ireland: Recent Developments”, September 2001.
• Guest Speaker at ETC Seminars on Tendering and Public Procurement, Dublin, 2001/ 2002/2003.
• “Irish Competition Law”, Diploma in Commercial Law, Law Society of Ireland, June 2002.
• “Electronic Commerce and Competition Law”, Diploma in Electronic Commerce Law, Law Society of Ireland, May and December 2001 and January 2003.
• “E-Commerce legislation in Ireland: A Practitioners view”, International Law Congress, Dublin, 14 May 2001.
• “E-Commerce – Getting value from your technology”, Hibernian Learning Partnership, April 2001 (with David Cullen).
• “Enforcement of EC and Irish competition law”, Diploma in Commercial Law, Law Society of Ireland, April 2001.
• Chairman of Law Society Conference on E-Commerce Law, 8 March 2001;
• “E-Commerce: Commercial, Legal and Regulatory Issues”, Advanced Course, Law Society of Ireland, July, November 2000 and January 2001.
• “Electronic Commerce”, European Law Health Check, Law Society of Ireland, October 2000.
• “Practitioner’s Guide to E-Commerce”, Law Society of Ireland, 15 June 2000.
• EC Rules on State Aids”, Diploma in Applied EC Law, Law Society of Ireland, 17 June 2000.
• “Electronic Commerce”, Continuing Legal Education, November 2000;
• “Free Movement of Capital and Payments”, Diploma in Applied EC Law, Law Society of Ireland, 30 April 2000;
• “The Societas Europaea: Is the Commission trying to make it all things to all persons?’ Paper presented at a meeting of the Union de Jeunes Avocats in Paris in March 1997.

Recent Experience

• Subsidiary of a leading UAE telecommunications service provider in an arbitration with a UAE service provided (DIFC-LCIA arbitration, DIFC seat)
• Subsidiary of a global provider for hospitals and other facilities in the healthcare sector in a dispute with a UAE hospitals company concerning the development of hospital (ICC arbitration, Abu Dhabi seat)
• International industrial service provider in a dispute with a Korean contractor on major infrastructure project in Abu Dhabi (ICC arbitration, Abu Dhabi seat)
• UAE insurance company (owned by one of the UAE’s leading banks) in an insurance policy related dispute with a state-owned oil company (ICC, Abu Dhabi seat)
• UAE gypsum products supplier in an arbitration with an Indian company (ICC, Singapore)
• Abu Dhabi aluminum extrusions company in a construction dispute with a Lebanese contractor (ICC Expertise Rules & ADCCAC arbitration, Abu Dhabi seat