A recent decision of the English High Court (F Ltd v M Ltd [2009] EWHC 275 (TCC)) confirms that the Court may intervene and allow successful challenge of an arbitral award in order to protect parties against the unfair conduct of an arbitration. However, the case also demonstrates that the applicable test (i.e. a serious…
Article 186 of the Swiss Private International Law Act (“PIL Act”) provides as follows: “1. The arbitral tribunal shall decide on its own jurisdiction. 1bis. It shall decide on its jurisdiction notwithstanding an action on the same matter between the same parties already pending before a state court or another arbitral tribunal, unless there are…
Two weeks ago, an LCIA tribunal issued its Award on Remedies in a dispute filed by the U.S. against Canada under the 2006 Softwood Lumber Agreement (SLA). This dispute is interesting in many respects. Most obviously, it is a state-to-state dispute adjudicated under the auspices of the LCIA, more commonly used for commercial arbitration. This…
Last week I attended a wonderful conference at Pepperdine Law School on international sports arbitrations administered by the Court of Arbitration for Sport (CAS). It is a remarkably sophisticated regime that deserves far greater attention than it typically receives by the international arbitration community. Under the CAS Rules, all CAS tribunals have their seat in…
On August 14, 2008, while the armed conflict over Abkhazia and South Ossetia between Georgia and Russia was raging, Georgia filed a request for the indication of provisional measures with the International Court of Justice (ICJ) in The Hague in order to preserve its rights under the International Convention on the Elimination of All Forms…
In light of interest in the international arbitration community concerning investment treaty cases against Argentina since the 2001 economic crisis, we thought it could be useful to share Freshfields’ working collation. We caution that this is based only on public records and press reports. Corrections are welcome. According to our data, 46 treaty cases have…
In its decision of 9 December 2008 (4A_403/2008), the Swiss Federal Supreme Court took the opportunity to clarify its practice regarding the enforcement of arbitral awards that are suspended at the foreign seat of arbitration. In the case before the Swiss Federal Supreme Court, Company Y requested recognition in Switzerland of an arbitral award rendered…
Rex has recently installed himself as the benevolent dictator of a resource-rich country where many live in poverty. He took power from a government he accuses of having distributed national wealth in a grossly unfair manner. He proclaims a policy of redistributive justice, and enjoys passionate popularity among the vast disadvantaged segments of the population….
The European Court of Justice issued its eagerly awaited judgment in the so-called West Tankers or Front Comor case on 10 February 2009. To many in the arbitration community, especially those based in London, it will come as a disappointing, if not altogether surprising, conclusion of a lengthy legal saga, which began over eight years…
Global Arbitration Review recently reported that the August 27, 2008 Award in Plama Consortium Limited v. Republic of Bulgaria (ICSID Case No. ARB/03/24) was selected as the Best Award and the Most Surprising Award of 2008 in a survey of participants in the international arbitration on line discussion forum OGEMID. The 120-day period to apply…
In recent years the international arbitration community seems to be obsessed with the issue of arbitrator impartiality, independence and bias. The 2004 IBA Guidelines were followed by the LCIA’s 2006 Special Report and Decision to Publish challenge determinations, followed in 2007 by the ICC Bulletin Special Supplement, and most recently by TDM’s 2008 Special Issue…
Questions regarding the future of the FAA are no longer of passing concern. With a Democratic President and a Democratic Congress, there is a significant likelihood that some version of the proposed “Arbitration Fairness Act” will become law. As one prominent academic said to me this weekend, “The worst part about Obama getting elected is…
Parties involved in foreign litigation have a powerful U.S. discovery tool at their disposal in 28 U.S.C. § 1782(a). Section 1782(a) provides that a federal district court “may order” a person “resid[ing] or found” in the district to give testimony or produce documents “for use in a proceeding in a foreign or international tribunal…” Accordingly,…
