It must be an arbitrator’s nightmare: Imagine a high-stake arbitration that goes on for years, the entire distance, including witness hearings and expert evidence, only for the final award to be set aside on procedural grounds. And this is exactly what the Frankfurt Court of Appeals (Oberlandesgericht Frankfurt) did in a judgment in February 2011:…

One of the oft quoted advantages of arbitration is the perceived certainty that the national courts of New York Convention states should enforce an arbitral award unless one of the limited grounds for refusal is met. However, the relationship between national courts and arbitration is far from straightforward. In particular, one notable area where there…

By Matthias Scherer and Sam Moss In a recent decision issued on 7 November 2011 on a request for annulment of a partial award on jurisdiction rendered by the Court of Arbitration for Sport (“TAS”), the Swiss Supreme Court recalled and applied its previous jurisprudence on the interpretation of pathological arbitration clauses (Case 4A_246/2011). The…

It has become fashionable in recent years, each time an ICSID annulment decision is released that takes issue with the procedures or reasoning of an ICSID tribunal, for commentators to bemoan the lack of certainty, predictability and finality that this reflects in the ICSID system for adjudicating investment treaty disputes between investors and host States….

2011 has delivered some significant arbitration developments in Hong Kong, most of which (with some exceptions!) have been undoubtedly positive. So, what were the highlights of the Hong Kong arbitration year – and what challenges might lie ahead? First, Hong Kong’s new Arbitration Ordinance (cap. 609) came into effect on 1 June 2011 (blogged here)….

If it isn’t pleaded, you can’t consider it. That in a nutshell appears to be the holding established recently by the Singapore High Court in Kempinski Hotels SA v PT Prima International Development [2011] SGHC 171 (“Kempinski”). That case saw the setting aside of three related international arbitration awards on the basis that the tribunal…

In 1961, three years after the adoption of the New York Convention, the European Convention on International Commercial Arbitration was adopted in Geneva (the Geneva Convention). At the time, the Geneva Convention was noteworthy as being the first international instrument to refer to “international commercial arbitration” by name. Today, however, many practitioners give little consideration…

At the Herbert Smith Singapore Management University Asian Arbitration Lecture delivered by Michael Hwang SC on 4 August 2011, Hwang SC discussed incisively issues concerning the enforcement of arbitral awards concerning contracts allegedly tainted by corruption. Less than three weeks after that seminal lecture, the Singapore Court of Appeal in AJU v AJT [2011] SGCA…

Last year, around this time, I offered a list of 10 investor-state arbitral awards I hoped to see in 2010. If time permits, I may do another list for 2011. But, first I thought I’d take a look back at last year’s list and offer a brief update on those cases. Rather, than do all…

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…

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…

The arbitrability of a dispute is not generally limited to private law. In many countries, including Germany and Switzerland, it is admitted that arbitration can also bear on claims derived from public law, and in particular on rights conferred upon by contracts subject to administrative law. Arbitrability of such disputes may however be more problematic…

I am grateful to Professor Hess for his comments on my 3 March 2010 blog. It greatly contributes to advancing the debate. However, it also perfectly illustrates the difficulties of a proposition – the total or partial deletion of the arbitration exception in Regulation 44/2001 – that has not been sufficiently thought through. 1. Professor…

In a decision dated 10 February 2010 (4A_612/2009), the Swiss Federal Tribunal rejected a petition to set aside a November 2009 CAS Award against German speed-skater Claudia Pechstein. The Federal Tribunal took some unusual procedural steps – including foregoing the usual exchange of written pleadings – to speed up the proceedings and to decide the…