The Permanent Court of Arbitration (“PCA”) has played key role in the resolution of international disputes for well over a hundred years now. Over the past decade, however, the PCA’s importance and activities have significantly increased. Thirty-five investor-state arbitrations under bilateral or multilateral investment treaties or investment laws are currently pending at the PCA, in…
A recent decision of the English Commercial Court (Lombard North Central plc & Anor v GATX Corporation [2012] EWHC 1067 (Comm)) has provided some insight and clarification into how the English courts will interpret and implement Section 9(1) of the Arbitration Act 1996. Section 9 is how English law has complied with Article II(3) of…
The United States Supreme Court’s decision in AT&T v. Concepcion last April appeared to signal the demise of class arbitration in the United States. That decision upheld a consumer contract arbitration agreement that waived the consumer’s right to initiate a class action lawsuit or arbitration. In its recent D.R. Horton v. Cuda decision (Case 12-CA-25764),…
West Tankers Inc v Allianz SpA v Generali Assicurazione Generali SpA [2012] EWCA Civ 27 On 24 January 2012, London’s status as a pro-arbitration forum was given a major boost when the Court of Appeal handed down judgment on the latest chapter of the West Tankers dispute. Upholding an earlier Commercial Court decision of 6…
When the strong federal policy in favor of honoring arbitration agreements in the U.S. comes into conflict with another strong legal principle, which one should come out on top? The United States Court of Appeals for the Ninth Circuit recently illustrated this tension in Kolev v. Euromotors West/The Auto Gallery, 658 F.3d 1024, holding that…
In August 2011, the tribunal in Abaclat and others v Argentina decided (by a majority) that it had jurisdiction over claims brought by approximately 60,000 Italian investors, and that the claims were admissible.1)Argentina has in the meantime requested the disqualification of the two arbitrators responsible for the decision and the proceedings are currently suspended. The…
Adjudicating contract disputes where it is alleged that the contract has been tainted by bribery, either in its procurement or in its performance, presents difficult issues for arbitrators, as well as for counsel. While the arbitrability of disputes involving allegations of bribery is generally no longer in doubt, a tribunal will still confront a number…
In February 2011, the United States Supreme Court granted certiorari in Stok & Associates, P.A., v. Citibank, N.A, (No. 10-514). The question presented was whether, under the Federal Arbitration Act (“FAA”), a party should be “required to demonstrate prejudice after the opposing party waived its contractual right to arbitrate by participating in litigation, in order…
On March 22, the United States Court of Appeals for the Second Circuit held in Bechtel do Brasil Construções Ltda. v. UEG Araucária Ltda., 638 F.3d 150, that the question whether a claim subject to arbitration was time-barred was for the arbitrator, not the district court, to decide, notwithstanding a New York state law that…
This post addresses the U.S. Supreme Court’s misadventures with class arbitration over the past decade. Those misadventures have resulted in striking confusion and waste of resources by litigants, courts and arbitral institutions. More broadly, the Court’s conflicting and often ill-considered decisions on the subject now threaten to undermine U.S. arbitration law more generally – turning…
The recent decision of the New York Supreme Court, Appellate Division (an intermediate state appellate court) in Sojitz Corp. v. Prithvi Information Solutions Ltd., 2011 N.Y. Slip Op. 1741; 2011 N.Y. App. Div. LEXIS 1709, bolsters New York’s reputation as a jurisdiction friendly to international arbitration. In this case, which involved two non-U.S. parties in…
To paraphrase Professor Henkin’s classic aphorism about international law – most parties respect most international arbitration agreements most of the time. And likewise, the international arbitral process works smoothly for most parties most of the time. Still, pathological cases arise in international arbitration, as in other contexts. Unfortunately, those aberrations command disproportionate attention, sometimes obscuring…
The recent Commercial Court decision of A v B [2010] EWHC 3302 (Comm) (16 December 2010) is notable for two reasons. Firstly, the Commercial Court provided clarification of the requirements for pursuing an application for security under section 70(7) of the Arbitration Act 1996. Secondly, the decision is an indication of how the Supreme Court…
If a national court is called upon, in the context of an application to refer parties to arbitration, to determine whether a valid arbitration agreement exists, how probing should the court’s examination of the existence or validity of the putative agreement be? Judicial authorities in countries that have adopted the UNCITRAL Model Law on International…
The subject of codes of conduct for international arbitration practitioners has received considerable attention of late. On one side of the debate, several proposals for such a code of conduct have been circulated recently – one at the ICCA Congress in Rio de Janeiro, another by the International Law Association (“ILA”) Study Group on the…
In an important contribution to the ongoing debate among courts and commentators regarding the scope of 28 U.S.C. § 1782 – and the first such case related to ICSID proceedings – the D.C. district court recently exercised its discretion to decline a discovery request by Caratube International against the Republic of Kazakhstan. In re Caratube…
Recent legislative developments in Oklahoma, and a few other U.S. states, reflect a growing mistrust of international and foreign law and legal systems. These proposed statutes and constitutional amendments are one aspect of parochial backlash in the United States and elsewhere against developments in international law and dispute resolution over the past decades. There are…
In the past year, there have been several posts (here , here, and here) on the applicability of 28 U.S.C. § 1782 to international arbitration and on the issuance of conflicting judicial opinions on this topic. As reported by Roger Alford in a recent post , a federal district court in the Southern District of…
A defining characteristic of international arbitration is the ability to choose the decision-makers who determine the dispute. The parties’ right to choose their arbitrator is qualified by the requirement that the arbitrator adhere to standards of independence and impartiality. Where the parties consider that the arbitrators do not meet these standards, they can bring a…
In a post last year we considered the English Court of Appeal’s judgment in the case of Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2009] EWCA Civ 755, where the Court of Appeal held that an order giving leave to enforce a French ICC arbitration award was rightly set aside by the High Court as it had been established, pursuant to section 103(2)(b) of the Arbitration Act 1996 (“the Act”), that as a matter of French law the respondent government was not a party to the arbitration agreement. The High Court and Court of Appeal agreed that an application under section 103(2) of the Act required a rehearing of the facts in contention (in Dallah the existence of an arbitration agreement), not just a review of the award.
The English Court of Appeal recently upheld a first instance decision to refuse enforcement of a US$20m New York Convention award in Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2009] EWCA Civ 755, on the basis that the arbitration agreement was ‘not valid’ for the purposes of…
One of the benefits of international commercial arbitration is the ability to resolve disputes between the parties in a single, neutral forum that gives neither party a “home court advantage.” After a dispute arises, however, litigious parties sometimes engage in tactical maneuvering aimed at circumventing the parties’ agreement to arbitrate. A recent US case gives…
For international arbitrations seated in the United States, there has sometimes been a tension between the so-called “American rule” against the shifting of attorneys’ fees and litigation costs to the loser of the proceedings, and the more accepted practice of fee-shifting in international arbitrations as expressed in procedural rules such as the UNCITRAL and LCIA…
The much-awaited decision of the European Court of Justice (“ECJ”) in Allianz SpA v. West Tankers Inc, Case C-185/07 in February this year has focused renewed attention on the remedies available to a party confronted with court proceedings commenced in another jurisdiction in breach of an agreement to arbitrate. Now that the possibility of seeking…
