The Chinese Arbitration Act (1995) recognizes the principle of competence-competence in Article 20, under which a party challenging the validity of the arbitration agreement may request the relevant arbitration commission to make a decision or apply to the court for a ruling. Ultimately, though, it is the reviewing courts in PR China that shall have…

The Abu Dhabi Court of Cassation in Case No. 922 of 2020 recently considered the requirements that must be satisfied to conclude an arbitration agreement by powers of attorney. The judgment is the latest in a line of authorities confirming that special requirements apply to the formation of arbitration agreements (a courtesy translation of the…

On 21 April 2021, the CIArb’s London Branch hosted its annual Keynote Speech, which was held online this year. In her speech on “The Proper Law of the Arbitration Agreement”, Professor Dr. Maxi Scherer discussed the different approaches taken by jurisdictions worldwide in determining the law governing the arbitration agreement. She further compared those approaches…

On February 28, 2021, the First Chamber of the Costa Rican Supreme Court (“the Court”) confirmed a US$ 23 million ICC award won by Panama-registered Hidroeléctrica San Lorenzo S.A. against Saret de Costa Rica S.A. When it comes to the recognition and enforcement of foreign arbitral awards, Costa Rica is party to relevant international conventions,…

With the coming into force of the 2020 Arbitration Act, Tanzania certainly has the potential to become a go-to place for international arbitration, at least in Eastern Africa. In addition to its favourable geographical location, now the country also has modern arbitration legislation largely based on the well-established and often tested English model. Section 1…

Section 35 of the Indian Stamp Act, 1899, which is similar to Section 14(4) of the English Stamp Act, 1891, provides that, any instrument executed within the country that is unstamped or inadequately stamped, cannot be read in evidence “for any purpose”, barring in criminal proceedings. The provision is widely worded, but, does it preclude…

In a recent High Court case, it was held that a reference in a contract to the “court” did not mean a court at all but meant instead – perhaps alarmingly – arbitration. This decision in Helice Leasing S.A.S. v PT Garuda Indonesia (Persero) TbK [2021] EWHC 99 (Comm) may be a cause of concern…

This report highlights the most significant arbitration related decisions of the Swiss Federal Supreme Court (the “SFSC”) issued in 2020.   Tribunal’s Jurisdiction – Scope of Arbitration Agreement In 2020, the SFSC issued several decisions on the jurisdiction of an arbitral tribunal and on the determination of the objective (ratione materiae) and subjective (ratione personae)…

2020 saw important case law developments concerning the proper law of arbitration agreements, where the seat of the arbitration is in a different jurisdiction from the governing law of the main contract, particularly in the UK. However, various jurisdictions have adopted different approaches to this issue. It remains to be seen which jurisdictions will follow…

In Pakistan, the law governing international arbitrations resulting in a foreign award is the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 (“2011 Act”). To those who are unfamiliar with the 2011 Act, it may come as a surprise that it does not provide any remedy to an applicant challenging the arbitration…

During the last decade, antitrust arbitration has experienced some turbulent times. While many national courts decided against the arbitrability of competition disputes, a handful of them allowed for such proceedings to take place before an arbitral tribunal. Recently, the U.S. Department of Justice has relied on arbitration to resolve an antitrust dispute in the United…

Uber Technologies Inc. v. Heller raises questions on the possibility of third-party funding limiting unconscionable arbitration agreements. This post examines (I) how third-party funding could reduce the amount of unconscionable arbitration clauses and (II) how it could promote more specific criteria for the doctrine of unconscionability. Finally, this post offers some concluding remarks.   I. Third-Party Funding…

In any arbitration, the parties’ choice of seat normally determines the legal regime under which an arbitration is conducted and any award is enforced.1)At the beginning of her career, Tereza was a tribunal secretary to Dr. Jane Willems in her role as sole arbitrator in the arbitration case at hand: Brentwood Industries, Inc. v. Guangdong…

In Part I of our post, we discussed the long-standing uncertainties existing in China about what legal regime governs arbitrations administered by foreign arbitral institutions.1)At the beginning of her career, Tereza was a tribunal secretary to Dr. Jane Willems in her role as sole arbitrator in the arbitration case at hand: Brentwood Industries, Inc. v….

In its recent decision of 9 October 2020 in Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb” & Ors [2020] UKSC 38 (Enka), the UK Supreme Court upheld the decision of the England and Wales Court of Appeal earlier this year restraining Chubb Russia from proceeding with parallel court proceedings in Russia, but…

On August 11th, 2020, the Cayman Islands Court of Appeals overturned the decision that denied the enforcement of the arbitral award that ordered the MatlinPatterson Global Opportunities Partners private investment fund (“MP Funds”) to pay approximately USD 55 million to Gol Airlines. The amount refers to the purchase of the airline Varig by Gol.  …

Since the enactment of the People’s Republic of China (“PRC”) Arbitration Law (1994), Chinese arbitration commissions have had exclusive access to the mainland China arbitration market. This is primarily because the establishment and operation of arbitration institutions are subject to the prior approval of the “administrative department of justice of the relevant province, autonomous region…

In a recent judgement in the proceedings for setting aside an arbitral award, the Swedish Court of Appeal addressed issues concerning the law applicable to an arbitration agreement, the validity of an arbitration agreement, the due process standard applicable in cross-examination, and the procedural error of rendering an award without considering all the arguments raised…

Almost a decade after the Dallah saga, the French and English courts are once again considering the enforcement of the same award yet reaching conflicting solutions. On 29 March 2019, the High Court of England and Wales, followed on 20 January 2020 by the England and Wales Court of Appeal both refused to enforce an…

Despite the fact that Bosnia and Herzegovina (BiH) has two arbitration courts – The Arbitration Court attached to the Foreign Trade Chamber of Bosnia and Herzegovina which has existed since 2003 and the Foreign Trade Court of Arbitration of the Republika Srpska (‘RS’) Chamber of Commerce and Industry since 1998 – arbitration still remains an…

Three recent decisions of the Courts of Appeal in Singapore and England (BNA v BNB and another [2019] SGCA 84 (“BNA v BNB”); Kabab-JI S.A.L v Kout Food Group [2020] EWCA Civ 6 (“Kabab v Kout”); and Enka Insaat Ve Sanayi A.S. v OOO “Insurance Company Chubb” and others [2020] EWCA Civ 574 (“Enka v…

On June 26, 2020, the Supreme Court of Canada (“SCC”) released a decision with significant implications for international businesses by placing significant limits on the application of arbitration clauses.   Background The case, Uber Technologies Inc. v Heller (2020 SCC 16 ) (“Heller”), involved a challenge to Uber’s standard agreement with drivers requiring disputes to…

The Prolonged saga of enforcement of the ICC commercial arbitration award of 2015 in Devas v. Antrix (ICC Case No. 18051/ CYK of 2011) has not only raised several interesting questions in respect of pathological arbitration agreements but has also highlighted the ineffectiveness of the “Negative Effect” of the doctrine of Kompetenz-Kompetenz, given the possible…

Whenever litigating against states or sovereign entities – or international organisations for that matter – outside of their home jurisdiction there is a roadblock to consider: immunities. On closer inspection, immunities turn out as two roadblocks: immunity from jurisdiction and immunity from enforcement. Whereas the general assumption is that an agreement to arbitrate waives immunity…