Toby Landau gave the keynote address at the recent ITA Workshop in Dallas and, as always, he was entertaining and provocative. One of the central themes of his discussion was how arbitration counsel fail to present a case in a manner sensitive to the needs of the arbitration panel. “Inequality of Arms” is the term…
If you live or work somewhere in the northern half of the planet, odds are that at some point this summer you’ll find yourself on a beach, cityscape, mountain, or other scenic destination surrounded with children relaxedly drawing on their coloring pads, and grandparents working attentively at their crossword. What about those of us who…
On March 22, the United States Court of Appeals for the Second Circuit held in Bechtel do Brasil Construções Ltda. v. UEG Araucária Ltda., 638 F.3d 150, that the question whether a claim subject to arbitration was time-barred was for the arbitrator, not the district court, to decide, notwithstanding a New York state law that…
There are two legal jurisdictions in Qatar with laws containing specific provisions related to arbitration: the State of Qatar and the Qatar Financial Center (the “QFC”). The latter is a separate jurisdiction with its own laws within the state. The QFC Law provides for the arbitration of commercial disputes in relation to contracts that have…
CIETAC’s Vice Chairman and Secretary General recently announced at a conference in London that CIETAC may soon permit parties to select arbitrators from outside the CIETAC list. As the CIETAC Rules currently allow parties to appoint off-list only if they have agreed to do so, this announcement suggests that CIETAC may in the future allow…
The four most recent ICSID disqualification decisions (Universal Compression v. Venezuela, OPIC Karimum v. Venezuela, Tidewater v. Venezuela and Urbaser v. Argentina) have unanimously rejected applications to disqualify arbitrators on ICSID tribunals. This post addresses an issue raised in three of the most recent decisions—disqualification based on repeat appointments by the same party or counsel—and…
The Islamic Republic of Pakistan is not foreign to defending investment claims. In order to restore investors’ confidence in its country, the Pakistani government has enacted on April 28, 2011 a law to secure foreign investment. The International Investment Disputes Act (the “Act”) has been qualified by the Pakistani president, Mr. Asif Ali Zardari, as…
I write this post on a train on the way home from a seminar held by the Milan Chamber of Arbitration (CAM) to introduce a new rule and guidelines that could be seen as a necessary next step in the trend towards greater efficiency in arbitration. Before commenting on where these new developments might take…
In the current zeitgeist focusing on the need for efficiency and speed in arbitration, we are at risk of over-correcting to the point of diminishing important functions of the arbitral process. There is little doubt that the arbitral process generally has become too much like litigation, and needs to be more efficient and less costly….
According to article 7 of the Swiss Private International Law (PILA), if the parties have entered into an arbitration agreement, the Swiss Court before which the action is brought shall decline its jurisdiction unless it finds that the agreement is null and void, inoperative or incapable of being performed. An initiative to amend article 7…
The Arab Spring transforming the societies of the Middle East has raised more than a few questions among us in-house folk about what this will mean for dispute resolution in the region. Will civil institutions, in particular the courts, be a reliable mechanism in the coming years for upholding contractual rights, including agreements to arbitrate…
In recent years, an increasing number of parties to arbitration clauses providing for CIETAC arbitration in mainland China have chosen to take advantage of Article 4.2 of the CIETAC Rules, which allows parties to adopt “other arbitration rules” as the applicable rules of the arbitration. The underlying reason for this trend is simple: Article 4.2…
Will a court injunct arbitral proceedings if parties, before an arbitration hearing, allegedly reach a settlement agreement and a dispute subsequently arises over the existence of such an agreement? Is the tribunal functus? Recently, the Singapore High Court in Doshion Ltd v Sembawang Engineers and Constructors Pte Ltd [2011] SGHC 46 (“Doshion”) rightly held that…
Introduction On 1 December 2010 an Arbitral Tribunal, constituted under the auspices of the International Center for Settlement of Investment Disputes (ICSID) delivered its award in the case Global Trading Resource Corp. and Globex International, Inc. vs. Ukraine. The Tribunal decided to dismiss all claims filed by Global Trading Resources Corp. and Globex International Inc….
In a landmark decision dated 29 October 2010, published on 19 November 2010 (case 4A_234/2010), the Swiss Federal Tribunal dismissed a motion to set aside a Court of Arbitration for Sport (“CAS”) award based on the alleged impartiality of one of the co-arbitrators. The Court firstly clarified that the independence and impartiality expected from any…
International arbitration often involves parties, arbitrators, and counsel from both Common Law and Civil Law traditions, which sometimes creates misinterpretations about how evidence production will occur. The recent São Paulo court opinion determining that an ICC arbitral tribunal should widen the scope of the expert evidence it was considering in a dispute regarding the construction…
The controversial topic of third-party funding in international arbitration continues to generate much debate across the conference circuit and in the legal press. On the one hand, supporters claim that such third-party funding arrangements improve access to justice since they allow otherwise cash-poor claimants to pursue meritorious claims; on the other, detractors believe that third-party…
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…
The “Instant Cost Order” is the practical implementation of a means to address the much discussed issue of (the lack of) cost efficiency in international arbitration. It also tackles the question of how pro-active tribunals should be in order to control party-driven arbitral proceedings. The majority of the costs incurred in an arbitral proceeding does…
So far in 2010, at least two jurisdictions have established specialized courts to handle international arbitration matters ─ Australia (in the state of Victoria) and India (in Bombay). Australia: Within Australia’s federal structure, international arbitration matters are in the jurisdiction of state supreme courts. In 2009, Australia’s Parliament gave the Federal Court concurrent jurisdiction over…
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…
Last month a number of noteworthy arbitration-related developments took place in Moscow. Firstly, the international conference “Commercial Arbitration in Russia, Sweden and the UK: New Business Opportunities”, was held on 9-10 June at the Congress Center of the Russian Chamber of Commerce and Industry. The conference was jointly organized by the Center of Arbitration and…
I recently spoke at a conference co-sponsored by the Milan Chamber of Arbitration and the ICC on the occasion of the publication of the new Italian arbitration treatise entitled Commentario Breve al Diritto Dell’Arbitrato Nazionale ed Internazionale (CEDAM 2010) by my colleague Massimo Benedettelli, along with co-authors Claudio Consolo and Luca Radicati di Brozolo. The…
As is well known, Section 1782(a) provides that a “the district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal”. The applicability of 28…
