Can the United Nations Convention on Contracts for the International Sale of Goods (CISG) be applicable to arbitration agreements? The literature has been divided on this matter, with several discernible approaches. This post explores the topic of applicability of the CISG to arbitration agreements from the perspective of the now (in)famous Enka v. Chubb case,…
On 21 February 2024, the District Court of Amsterdam (“the court”) rendered a decision in summary proceedings. The key question that arose from this decision was: Can parties facing an unclear arbitration agreement ask the national courts to resolve their disputes instead? The issue of ambiguity surrounding arbitration agreements is not a novel phenomenon (see,…
In Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG [2024] HCA 4 (“Carmichael v BBC”), the High Court of Australia (“High Court”) upheld a stay of proceedings in the Federal Court of Australia (“Federal Court”) in favour of a London Maritime Arbitrators Association (“LMAA”) arbitration seated in London. This unanimous…
Introduction This article explores the latest development of the People’s Republic of China’s jurisprudence regarding asymmetrical arbitration agreements. (Cambodia) Fiber Optic Communication Network Co., Ltd. v. China Development Bank (2022) Jing 74 Min Te No. 4 (“Fiber Optic v. CDB”), a recent case adjudicated by the Beijing Financial Court in October 2022 and made public…
Under the Indian Contract Act 1872 (“ICA”), an arbitration agreement is a distinct and separate contract. Like all other contracts, it can be transferred by way of assignment to third parties under Section 37 of the ICA. The Supreme Court of India in Khardah Company Ltd vs Raymon & Co. (India) Private Ltd has held…
The Supreme Court of India (“Supreme Court”), in its recent landmark judgment in In Re: Interplay between Arbitration Agreements under the Arbitration and Conciliation Act 1996 and the Indian Stamp Act 1899 (“the 7J Judgment”), provides welcome clarity on the question of enforceability of arbitration agreements contained in unstamped or inadequately stamped contracts, and reinforces…
The Indian arbitration bar was waiting for an important judgment of a 7-judge bench of the Indian Supreme Court (“Judgment”), which reviewed its own earlier judgment in NN Global Mercantile Private Limited v. Indo Unique Flame Ltd. and Ors. (“NN Global”) covered in a previous blog post here. The issue before the Indian Supreme Court…
On 1 November 2023, the Grand Chamber of the Ukrainian Supreme Court – the highest judicial body in the country – opined on the extension of the arbitration clause to non-signatories in its judgement in case No. 910/3208/22 (Berezan Processing Plant v Grain Power, hereinafter ‘Berezan case’). This judgement is a landmark one because it…
An arbitration agreement is an agreement to resolve disputes through arbitration. Its existence precludes disputing parties from bringing their dispute to court: see Article 3 of the Arbitration and ADR Law of the Republic of Indonesia (“Arbitration Law”), which stipulates that Indonesian courts have no jurisdiction to try disputes between parties bound by an arbitration…
Assuring a speedy resolution of potential disputes is a very important concern for most parties entering into arbitration agreements. One means to ensure a speedy arbitration can be a fixed deadline for the arbitral tribunal’s decision. With a focus on Italian law –under which Article 820(2) of the Code of Civil Procedure fixes a 240-day…
In a recent decision, Case No. 10/2023 dated 24 October 2023, the General Assembly of the Dubai Court of Cassation decided to reverse a position introduced by the Dubai Courts of Cassation in around 2013 (see, e.g., Case No. 379/2013 (Real Estate), ruling of the Dubai Court of Cassation; and then also affirmed in Case…
In a recent decision, the General Assembly of the Dubai Court of Cassation (“General Assembly”) decided that non-payment of the advance on arbitration costs does not affect the arbitration clause which remains in force and can continue to be relied upon by the parties. This decision reflects a complete reversal of the prior majority view…
In 2010, the Supreme People’s Court of the People’s Republic of China (the “SPC”) issued the Provisions of the Supreme People’s Court on Case Guidance (the “Provisions”). The Provisions are widely considered to establish a unique case guidance system in China, under which courts at all levels should refer to the selected guiding cases when…
As experienced negotiators know, the process of contract negotiation can give rise to fruitful and long-lasting business relationships. The parties may meet several times to develop the precise terms of their agreements, through videoconferences, in conference rooms, or over dinner and drinks. But for many contracts, the parties’ representatives never meet, limiting their negotiations to…
The question of the validity of unilateral arbitral appointments in the Indian scenario has risen above the surface yet again. The Delhi High Court recently, in Margo Networks Pvt. Ltd. and Another v Railtel Corporation of India Ltd (“Margo”), reiterated the conflict in the existing legal position and the need for finality on this issue….
Can an arbitration agreement be binding on a party that did not sign it? Generally, an arbitration agreement only binds its signatories. This is a transnational principle, also anchored in the German Constitution. There are, however, widely accepted exceptions. This article examines the extension of arbitration agreements to third parties under the requirements of Sec. 25(1)…
In an India-seated arbitration, if your contract is unstamped or insufficiently stamped, the Supreme Court of India has now confirmed in its authoritative judgement passed on April 25, 2023, in N N Global Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. (“NN Global”) that this would be a valid ground to disallow acting…
Identifying the law governing the arbitration agreement has increasingly proven to be a complex and confusing process. This is particularly true after the UK Supreme Court’s Enka v. Chubb judgment, which already was the topic of extensive discussion on Kluwer Arbitration Blog (see here, here and here). In spite of being criticised by many scholars…
The issue of the governing law of the arbitration agreement was brought into the spotlight with the U.K. Supreme Court decision in Enka v. Chubb (discussed on the Blog here and here), and it became a hotly debated topic following the conflicting decisions from French and English courts on Kabab-Ji SAL (Lebanon) v. Kout Food…
Under the UNCITRAL Model Law and the laws of many ‘arbitration friendly’ jurisdictions, courts must refer a matter subject to a valid and operative arbitration agreement to arbitration if requested by a party within the relevant time period. The principle of kompetenz-kompetenz prescribes that an arbitral tribunal may determine its own jurisdiction (which necessarily includes…
Issues relating to the arbitrability of disputes have gained increasing prominence in recent years. The question of which law ought to govern an arbitration agreement and concomitantly the inquiry as to whether a dispute is arbitrable, in the absence of an explicit choice of law governing the arbitration agreement has been explored in previous judgments…
The landmark decision of the UK Supreme Court (the “Court”) handed down in 2021 in the case Kabab-Ji SAL v. Kout Food Group has already attracted considerable attention. Thus far comments focused on the Court’s construction of the New York Convention of 1958. Yet, the decision deserves a second look – which this post aims…
The epic finale of the Kabab-Ji saga has arrived. On 28 September 2022, the French Court of Cassation has delivered its long-awaited decision in Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) (Court of Cassation, Appeal No. 20-20.260) less than a year following the United Kingdom Supreme Court’s (UK SC) final say in the case’s…
The COVID-19 pandemic made us realize that a lot of business can be conducted remotely, and that drafting contracts does not have to involve physical signatures on the same documents by all the parties involved. This progress, of course, has not bypassed arbitration. In this post, we will look at how to effectively conclude an…
