The Supreme Court of India (“SC”) in its recent decision M/s Lion Engineering Consultants v. State of M.P. & Ors. (“Lion”) has held that a party that had failed to raise a jurisdictional challenge before the arbitral tribunal under Section 16 of the Arbitration and Conciliation Act, 1996 (“Act”), would yet be permitted to raise such…

The Supreme Court of India (“Court”) in a landmark decision titled “BCCI vs. Kochi Cricket Pvt. Ltd. (previously covered in a blog post) clarified the applicability of the Arbitration and Conciliation (Amendment) Act, 2015 (“Amendment Act”) to pending arbitration and court proceedings commenced under the Arbitration and Conciliation Act, 1996 (“1996 Act”). The Court held…

In a decision dated 26 July 2018 and published on 29 August 2018, the Swiss Federal Supreme Court (the “Supreme Court”) dismissed an appeal to set aside an arbitral award as it found that Swiss public policy was not violated by a sole arbitrator’s confirmation of a success fee owed to a Swiss law firm…

A mandatory legal provision is one that a party has no choice but to obey, whereas a directory provision is one which the party is encouraged to obey. In other words, a mandatory provision must be observed, disobedience of which would lead to a nullification of the legal act, whereas a directory provision is optional….

Part I In a judgment dated 5 April 2018 (Case nº 6/2017), the Madrid High Court of Justice (“TSJM”), the competent court to hear applications to set aside an award when the seat of the arbitration is Madrid, set aside an arbitration award on public policy grounds after finding that the tribunal “[…] unjustifiably omitted…

The Indian Parliament passed the Indian Arbitration & Conciliation (Amendment) Act, 2015 (“Amendment Act”) in a bid to refresh and reform the existing arbitration regime under the existing Arbitration Act. Ironically, the Amendment Act spiralled new waves of persistent ambiguity and uncertainty regarding the applicability of these amendments to pending as well as fresh proceedings…

Enforcement for some may be a chimera, an overrated factor in choosing the dispute resolution methods.1)Cameron Ford, The Enforcement Chimera, Kluwer Arbitration Blog, May 10. 2018. Yet, efforts that have been invested in enforcement of judgments within the Hague Conference on Private International Law2)See the Draft Judgments Convention and of international commercial settlement agreements reached…

Two recent pieces of recent research raise the question of whether arbitration users really value finality in arbitration or take it for granted. Is it time (again) to discuss whether s69 Arbitration Act 1996 is meeting users’ needs? Arbitration Act 1996, s69 Section 69 of the Arbitration Act 1996 (AA 1996, s 69) is a…

After almost 20 years, the Swedish Arbitration Act (“SAA” or “Act”) may be getting a well-deserved face lift. In February 2014, the Swedish Government decided to take definitive steps to begin modernising the Act. The purpose of the reform was to bring Swedish arbitration law more in line with certain advancements in arbitration and to…

Professor Stacie Strong has noted on this blog that “[c]ritics of international arbitration often express concerns about the quality of legal reasoning in arbitration, even though conventional wisdom…suggests that international arbitral awards reflect relatively robust reasoning that is often on a par with that of decisions rendered by commercial courts” .   However, adopting a…

At the end of a lengthy and complex arbitration, the tribunal issues an award that summarises the evidence and submissions of both parties, and concludes with a single paragraph which states, “For the reasons given by the Claimant, which are accepted by this Tribunal, the claim is allowed in full.” Can an award of this…

On December 12, 2017, the Supreme Court of Japan rendered its first decision on the setting aside of an arbitral award based on an arbitrator’s failure to disclose facts allegedly constituting a conflict of interest, reasoning that, in order for the award to be set aside on this ground, it is necessary that the arbitrator…

Under the Japanese Arbitration Act, which was established based on the UNCITRAL Model Law on International Commercial Arbitration in 2003, parties may file a petition with a court requesting the court to set aside an arbitral award under certain circumstances. In such petition, parties frequently assert, among others, that “the terms of the arbitral award…

The Question The question of enforcing arbitral awards which had been subject to set-aside proceedings at their seat is long-standing in academic debate1) For instance, Nadia Darwazeh, Article V (1)(e), in Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention 301, 307-09 (H. Kronke, P. Nacimiento et al. eds.,…

The specter of communism that was once lingering over the Europe has long faded away, and the alliance, one of the biggest socialist experiments in the history of mankind, that stood to safeguard and promote its ideals has failed. In 1991 out of the remains of the Soviet Union emerged five independent Central Asian states….

For many doing business in Serbia, the local legal framework, including for arbitration, is the great unknown. However, a short introduction to this legal culture should suffice to reveal that when it comes to arbitration-related matters, Serbian laws are not so different from those in countries hosting some of the most popular arbitral seats. In…

A recent decision of the Seoul Central District Court provided guidance as to when a party should be considered to have waived its right to object to instances of non-compliance in arbitration proceedings. This post provides a summary of the Court’s judgment case and considers the possible ramifications of the Court’s reasoning for parties involved…

Back in 2010, an arbitral tribunal composed by Luis Ramallo García (chairman), Miguel Temboury and Santiago Gastón ordered Puma to pay € 98 million to Estudio 2000 for the wrongful termination of their distribution contract. Notably, Mr. Gastón – appointed by Puma – did not sign the award. It was later revealed that he was…

On April 28, 2017, the Court of Appeals for the District of Columbia Circuit (in a majority decision) affirmed the district court’s decision to set aside an award issued by a sole arbitrator finding that the award violated public policy.  The award was rendered in the context of mandatory arbitration of statutory claims under the…

The obligation for an arbitral tribunal to deliberate before rendering an award is at the heart of the arbitral process. In fact, parties typically agree to submit their disputes to a panel of three arbitrators for the purpose of ensuring objectivity, well thought decisions and equal treatment. Deliberation is so fundamental to the arbitral procedure…

Background Bulgarian arbitration law has been an area of rare developments. It is incorporated in the International Commercial Arbitration Act (“ICAA”), adopted in 1988 as almost a direct translation of the UNCITRAL Model Law on International Commercial Arbitration in its 1985 version. The only major reform of ICAA was its extension to arbitrations between entirely…

The decisive underlying reasoning (motifs, Begründung) is, without doubt, an essential part of any arbitral award and as such bears the potential of frustrating parties and arbitrators alike. On the one hand, elaborate reasoning in arbitral awards more often than not comes at the price of long waiting periods for the issuance of the awards,…

This post looks at a recent Hong Kong High Court judgment by Mimmie Chan J (Arjowiggins HKK2 Ltd v X Co [2016] HKEC 2472) firmly rejecting a set aside application, brought by a paper producer in relation to an HKIAC award for USD 24 million against it, and which led to indemnity costs being ordered…

The situation that the Bundesgerichtshof was recently faced with in a case is not uncommon: whilst a state court still reviews an arbitral tribunal’s preliminary ruling on its competence, the arbitral tribunal delivers its final award on the merits. This raises one question: What are the implications for the pending challenge to jurisdiction? In previous…