In general terms, a couple of the known advantages of arbitration are: (i) normally it is faster than adjudication before national courts and, (ii) the arbitral award is final. Now, both of these perceived advantages are often tested by local courts and losing parties. Ecuadorian players are not the exception. In the case of Emelec…
and Jose Luis Repetto Deville, Miranda & Amado Recently, the First Commercial Chamber of the Superior Court of Lima issued an annulment decision in the case MDIS v. CORAL. The court had to deal with an arbitral award rendered by two arbitrators that had been challenged (without the participation of the other arbitrator) and while…
In a highly unusual arbitral decision, the Cour Commune de Justice et d’Arbitrage (CCJA), the court created by the Organisation pour l’Harmonisation en Afrique du Droit des Affaires (the Organisation for the Harmonisation of Commercial Law in Africa) (OHADA) Treaty, signed by 17 African States, has ruled that an award should be set aside on…
by Daniela Páez-Salgado, Herbert Smith Freehills (Assistant Editor for South America) On November 2, 2015, an ICSID-appointed Committee issued its Decision on Annulment in Occidental v Ecuador (Occidental Petroleum Corporation and Occidental Exploration and Production Company v. Republic of Ecuador, ICSID Case No. ARB/06/11). The Committee rejected twelve of the thirteen grounds for annulment raised…
by Juan Carlos Herrera Q. Puente & Asociados In the middle of a short holiday, the Ecuadorian Government anxiously expected the Decision on Annulment issued by the Ad-hoc Committee regarding the investment arbitration initiated by Oxy. On November 2nd, 2015, the ICSID published on its web site the Decision and this event provoked a major…
A ruling of the Austrian Supreme Court, the Oberste Gerichtshof in Vienna, Austria, of earlier this year (see ruling of 18 February 2015, 2 Ob 22/14w) raises anew the much debated question of the type and intensity of supervisory court review of European Union (EU) competition law awards. Readers may recall that EU competition law…
The Odyssey is one of the most famous epic poems of the classic era. Attributed to Homer, it describes the journey of Odysseus from Troy to Ithaca, his homeland. It took the hero about ten years to complete his journey. This history is full of unexpected events, sudden changes and new obstacles that Odysseus must…
The recent annulment decision in Tza Yap Shum v. Peru (ICSID Case No. ARB/07/6) has brought back the discussion regarding the ‘pure’ adversarial nature of investor-state arbitration system. Mr. Shum, a Chinese investor claimed indirect expropriation under the Agreement on Promotion and Reciprocal Protection of Investments (APPRI) between the Governments of Peru and China arising…
In one of the very rare decisions issued by courts in the Arab world applying the provisions of the Unified Agreement for the Investment of Arab Capital in the Arab States (the “UAIAC”), the Cairo Court of Appeal has revived in its decision dated February 5, 2014, the principle of finality of arbitration awards, by…
By Lorraine M. Brennan, Esq 1)Lorraine M. Brennan is a full-time arbitrator and mediator at JAMS, specializing in international and domestic dispute resolution. Her bio can be found at www.jamsadr.com. Based in the New York office, Ms. Brennan was the Managing Director of JAMS International for three years and worked at the ICC International Court…
Introduction On 13 March 2014, Thailand’s Central Administrative Court annulled an arbitration award in the case between Hong Kong-based Hopewell Holding and the Thai Ministry of Transport (“MoT”) and State Railway of Thailand (“SRT”). The dispute arose out of a 30-year concession dating back to 1990 to build a 60-km elevated highway and rail line…
By Matthias Scherer and Sam Moss, LALIVE In a judgment dated 7 July 2014, which was made public on 20 August 2014 (case no. 4A_124/2014), the Swiss Federal Supreme Court (the “Supreme Court”) addressed the enforceability of a precondition for arbitration in a multi-tier dispute resolution provision, namely the requirement to submit a dispute to…
and Oleg Temnikov Foreword The recent decision on preliminary objections, dated 17 January 2014, against the application for annulment in Elsamex S.A. v. Honduras (ARB/09/4) brought renewed interest in the procedure for summary dismissal of unmeritorious claims under Rule 41(5) of the ICSID Arbitration Rules. The present post examines shortly this procedure as well as…
An English court recently ruled on important questions relating to arbitration due process. In Interprods Ltd v De La Rue International Ltd, [2014] EWHC 68 (Comm), the Queen’s Bench Division of the High Court dismissed an application to annul an arbitral award rendered by a sole arbitrator sitting in London. The circumstances that gave rise…
In an encouraging ruling of earlier this year (see Case No. 249 of 2013 – Middle East Foundations LLC v. Meydan Group LLC (formerly Meydan LLC), Commercial Appeal, ruling of the Dubai Court of Appeal of 15 January 2014), the Dubai Court of Appeal confirmed the time extension provisions for rendering final awards under the…
One of the most important elements to consider when participating in arbitration proceedings is the available mechanisms to challenge the award of the arbitral tribunal. This element acquires an added significance when it comes to international arbitration where the award may be enforced in several jurisdictions. With that in mind, it is pertinent to refer…
Article 52(4) of the ICSID Convention identifies the provisions of the Convention that apply, mutatis mutandis, to annulment proceedings: “[t]he provisions of Articles 41–45, 48, 49, 53 and 54, and of Chapters VI and VII . . . .” While there is wide agreement that an annulment committee may neither “amend or replace the award…
An earlier post examined the general limitations on arbitral discretion. This part will look into the question of actions taken proprio motu and the limits thereto. Functions exercisable proprio motu are perceived as a special case of application of the discretionary powers enjoyed by a tribunal. Actions taken proprio motu must be distinguished from functions…
The problem of arbitral discretion has major implications on the rights of the parties. It is a concept foundational to international arbitration. Yet, it has proven to be so elusive as to escape any definition or treatment in literature. Why is this topic important? In order to answer this question, let us take pre-award interest…
On 6 September 2012, the Indian Supreme Court delivered its much-awaited judgment in Bharat Aluminium Co v. Kaiser Aluminium Technical Services (‘BALCO’). For the reasons discussed in detail below, the 190-page long BALCO decision is likely to go down in the annals of arbitration reports as the watershed decision that heralded a new dawn for…
The Supreme Court of India has finally spoken to deliver a definitive ruling on the role of Indian courts in international arbitrations seated outside India. Overruling the controversial decision of Bhatia International v Bulk Trading (2002), the Supreme Court held that Indian courts do not have supervisory authority over international arbitrations taking place outside India….
Our interest on this topic has been provoked by a reading of the Repsol v. Petroecuador Stay Orders (See ICSID Case No. ARB/01/10, Procedural Order No. 1 (Unofficial translation), 22 December 2005; Procedural Order No. 4 Termination of Stay (Unofficial translation), 22 February 2006) in the context of a research on conditional stay of enforcement…
On 13 January 2011, the Belgian Supreme Court (Cour de cassation/Hof van cassatie) ruled that an arbitral award could be set aside by a Belgian judge on the basis of a contradiction in the award’s motivation. In so ruling, the Belgian Supreme Court took a view opposite to that of the French Supreme Court (Cour…
With its decision of 27 March 2012, the Swiss Federal Supreme Court held unlawful a disciplinary sanction by which FIFA threatened the football player Matuzalem with a lifetime ban in case he failed to pay a damage claim of his former club and employer. By an earlier decision of the CAS, Francelino da Silva Matuzalem,…
