Amongst the many issues raised by the now famous Tecnimont case, which we analyzed in our 19 May 2009 blog , was the relevance in setting aside proceedings of institutional rules relating to challenges. The ICC partial award had been quashed by a 12 February 2009 judgment of the Court of Appeal of Paris, because…

The “Instant Cost Order” is the practical implementation of a means to address the much discussed issue of (the lack of) cost efficiency in international arbitration. It also tackles the question of how pro-active tribunals should be in order to control party-driven arbitral proceedings. The majority of the costs incurred in an arbitral proceeding does…

So far in 2010, at least two jurisdictions have established specialized courts to handle international arbitration matters ─ Australia (in the state of Victoria) and India (in Bombay). Australia: Within Australia’s federal structure, international arbitration matters are in the jurisdiction of state supreme courts. In 2009, Australia’s Parliament gave the Federal Court concurrent jurisdiction over…

Can arbitrators be called to give testimony on the arbitral procedure before the court in charge of annulment or enforcement actions? Courts in England and Norway had to tackle this issue and have given a similar answer to this question: arbitrators can be asked to give testimony as to the elements of facts of the…

Last month a number of noteworthy arbitration-related developments took place in Moscow. Firstly, the international conference “Commercial Arbitration in Russia, Sweden and the UK: New Business Opportunities”, was held on 9-10 June at the Congress Center of the Russian Chamber of Commerce and Industry. The conference was jointly organized by the Center of Arbitration and…

I recently spoke at a conference co-sponsored by the Milan Chamber of Arbitration and the ICC on the occasion of the publication of the new Italian arbitration treatise entitled Commentario Breve al Diritto Dell’Arbitrato Nazionale ed Internazionale (CEDAM 2010) by my colleague Massimo Benedettelli, along with co-authors Claudio Consolo and Luca Radicati di Brozolo. The…

As is well known, Section 1782(a) provides that a “the district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal”. The applicability of 28…

“With over 20,000 contracts executed each year, it is simply impossible to address the problems of cost and delay in arbitration through artful drafting.” That was the gist of comments made by a general counsel of a major corporation at last month’s ITA workshop. To which another general counsel on the panel replied, “No, we…

This year’s ICCA Congress in Rio de Janeiro not only confirmed that nobody knows to party better than cariocas, but also served as an impressive reminder of the increasing pro-arbitration approach of Brazilian courts, the remarkable growth in the number of arbitration proceedings in Brazil and the high sophistication of the Brazilian arbitration bar. Yet…

Less than two weeks before arbitration practitioners’ eyes turned to Rio de Janeiro for the ICCA Congress 2010, a court from that same jurisdiction rendered a decision improving case law on important matters related to arbitration. On May 12th, 2010, the Tribunal de Justiça do Estado de Rio de Janeiro (which is similar to a…

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…

Having had their wings clipped by the European Court of Justice in West Tankers, the English courts have recently confirmed that there is life in the anti-suit injunction yet. In AES UST-Kamenogorsk Hydropower Plant LLP v UST-Kamenogorsk Hydropower Plant JSC [2010] EWHC 772 (Comm), Burton J granted anti-suit relief to restrain litigation in Kazakhstan even…

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…

The preliminary hearings in the Pacific Rim v. El Salvador CAFTA arbitration went off without a hitch at the start of this week. I’d like to report that I hung on every word via the live webcast that had been arranged by the International Centre for Settlement of Investment Disputes. However, I spent my Monday…

The Court of Appeals for the state of Bahia in Brazil recently handed down an arbitration-friendly decision and vacated an injunction intended to stay an arbitration proceeding. In FAT Ferroatlàntica S.L. vs. Zeus Mineração Ltda. and others, the Court of Appeals addressed the issue of whether the existence of conflicting arbitration clauses in contracts pertaining to a single economic transaction justifies judicial intervention at the outset of the arbitration. The Court of Appeals held that, provided an arbitration agreement exists, such issue is to be dealt with by the arbitrators, not by the Courts.

On April 27, 2010, the Supreme Court of the United States issued its decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., No. 08-1198, 559 U.S. ___ (2010). The Court reversed a Second Circuit ruling permitting arbitrators to impose class arbitration upon four shipping companies—including White & Case client Stolt-Nielsen S.A.—under those shipping companies’ shipping contracts…

When it comes time to identify an arbitrator candidate, be it in the investor-state context or in an international commercial arbitration, there are many factors to consider. One such factor, however, that has been the focus of much attention recently by arbitration institutions, practitioners and commentators alike, is arbitrator availability. It is clearly a sore…

Yesterday a federal court in New York granted Chevron’s request for discovery of outtakes from the 2009 documentary Crude about the multi-billion dollar litigation in Ecuador. Chevron’s request was pursuant to 28 U.S.C. 1782, which authorizes a judge in the United States to order discovery of evidence to be used in proceedings before a foreign…

In recent years, there has been increasing concern about court orders aimed at preventing a party from initiating, continuing or participating in arbitration proceedings (see notably, IAI Series on International Arbitration, no 2, Anti-Suit Injunction in International Arbitration, E. Gaillard ed., 2005; ICCA Congress Series, No 13 International Arbitration 2006, Back to Basics?, A. J….

King Solomon might have split the baby had he not realised the identity of its parent in time. Judges and arbitrators – some 3,000 years later – might be quicker to identify a company’s real group structure, but are they any better in splitting parent from child-subsidiary? A typical corporate veil piercing case involves a…

The principle of good faith arises in investment treaty arbitrations in various contexts. Tribunals, of course, regularly refer to Article 31(1) of the Vienna Convention for the rule that treaties shall be interpreted in good faith. Tribunals have noted that states must perform their treaty obligations in good faith. References to good faith occur in…

Anti-suit injunctions have certainly received their fair share of air time (and some would say more) as a result of the West Tankers debate – about which this blog entry is not. Now that all eyes are on anti-suit injunctions, it is interesting to keep an eye on how the cases post West Tankers pan…

On a first reading this might seem like a particularly narrow question. Perhaps geographically of limited utility. But to almost every international organization in the industrial, defence and major projects sectors it is, in fact, one of the burning issues confronting their participation in a market planning to spend or invest $USD450billion in 2010. In…

In this blog I return to the theme of investor misconduct, albeit in a different context from my previous posts:  host state criminal investigations during investment treaty arbitration proceedings.  This issue has arisen in a number of recent investment treaty arbitrations, most notably in a series of cases against Turkey (Cementownia, Europe Cement and Libananco),…