The Austrian Supreme Court (OGH) confirmed that an arbitrator who is dismissed during the arbitration by a state court because of conflict of interest before the award is rendered may recover compensation for (useful) services rendered until dismissal (Austrian Supreme Court, Der Oberste Gerichtshof, OGH, 17 February 2014, 4 Ob 197/13v). The president of an…
In his President’s Message (ASA Bulletin, Vol. 32, no. 2, 2014), Elliott Geisinger proposes a real challenge to the arbitration community. In a simple but rather persuasive rhetorical style, Geisinger places in confrontation Me. Paul Philibert Confus, Avocat à la Cour and Sir Reginald Muddle, QC, giving life to a debate that seems to be…
How can arbitrators ensure the fair exchange of documents, and what role should arbitrators play in calling expert witnesses? When and how, if at all, should interim measures be used in international arbitration proceedings? These questions were tackled during a breakout session titled Arbitral Legitimacy: The User’s and Judge’s Perspectives at the ICCA Miami 2014…
On Monday, 7 April, at the 2014 ICCA Miami Conference, the international-arbitration community gathered to address the question, “Who are the arbitrators?” The answer, panel attendees were told, was “male, pale, and stale” – that is, a large majority of the individuals chosen to serve as international arbitrators are male, from North America or Western…
The most quintessential element of international arbitration is an impartial, independent and neutral tribunal. Where impartiality and independence of the arbitrators is equated with direct relation to or bias towards one of the parties, neutrality is related to the nationality of the arbitrator. In international sphere, the “appearance of neutrality” is considered equally important, meaning…
and Niyati Gandhi A done to death topic in arbitration gatherings in emerging markets, particularly in India, is the debate about ad hoc versus institutional arbitration. The basic arguments in favour and against both have been discussed time and again. However, renewed support for institutional arbitration can be found in two recent judgments from the…
I. Power To Sanction Courts generally enjoy power to enforce procedural rules and orders by various means, such as fines, adverse inferences, cost/fee awards, preclusion of evidence, and even default judgment. Surprisingly, when arbitrators employ such measures, they enter a legal frontier of unsettled law. Why? An arbitrator’s procedural power derives from private contract, not…
Introduction Unable to make this year’s ASA Conference I accepted the invitation to submit a brief paper which I entitled: “Six Modest Proposals Before You Get to the Award”. A principal theme was Tribunal logistics and attention. I was happy to receive some positive feedback and have given this theme more thought. Arguably I have…
by James Menz and Anya George, Schellenberg Wittmer The (proper) use of administrative secretaries is a recurring topic in the arbitration community. The debate has flared up again in recent months, following the issuance, in August 2012, of the ICC Secretariat’s new Note on the Appointment, Duties, and Remuneration of Administrative Secretaries and, a few…
The Danish Institute of Arbitration (“DIA”) revised its rules effective May 1, 2013, an overhaul from the prior 2008 iteration of its rules that brings the DIA rules into line with those of leading arbitral institutions. As part of these revisions, the DIA has both reorganized the structure of its rules and updated various key…
Improving the search for information about arbitrators Last week I received an invite to a summer gathering organized by English mediator, David Richbell. One of the events is “Speed dating: Senior mediators including, amongst others, Michel Kallipetis, Liz Birch, Nicholas Pryor available for ten-minute personal interview.” Imagine how such an innovative method for choosing an…
The U.S. Federal Arbitration Act (FAA) provides that a federal district court may vacate an arbitration award, among other reasons, “where there was evident partiality or corruption in the arbitrators.” 9 U.S.C. §10(a). However, as illustrated by a recently decided case in the Southern District of New York, U.S. district courts apply different standards of…
A new study of dispute resolution practices in Fortune 1,000 corporations shows that many large companies are using binding arbitration less often and relying more on mediated negotiation and other approaches aimed at resolving disputes informally, quickly and inexpensively. The 2011 survey of corporate counsel developed by researchers at Cornell University’s Scheinman Institute on Conflict…
Over the past decade, Africa has emerged as a leading center of economic growth. From mining and manufacturing, to banking and telecoms, nearly every industry is witnessing rapid expansion in Africa, driven by both African enterprises and businesses from around the world. Naturally, an increase in international commerce has resulted in an attendant increase in…
Co-authored by Christopher Boog and Benjamin Moss, Schellenberg Wittmer An arbitral tribunal’s duty to render an enforceable award is frequently used by commentators and counsel alike in support of positions on myriad matters ranging from procedural fairness and jurisdiction to the application of mandatory foreign law. Its considerable malleability has indeed made it very attractive…
By Pia Eberhardt, Corporate Europe Observatory, and Cecilia Olivet, Transnational Institute At the end of November, Corporate Europe Observatory and the Transnational Institute published Profiting from Injustice, a report that looks at the role of law firms, arbitrators and third-party funders in investment treaty arbitration. In it, we argued that the arbitration industry has fuelled…
As its Council Member I attended the ICC Institute of World Business Law’s 32nd annual meeting on ‘Third-Party Funding in International Arbitration’ held in Paris on 26 November 2012. It was a grand success as it drew many professionals, arbitrators, experts, academic specialists and, above all, representatives from some major third-party funding bodies such as…
“Research is formalized curiosity…” – Z. Hurston In what follows I have tried to gather information from publicly available sources regarding some of the questions which have troubled my mind lately. It is hoped that the results would be of interest to the readers. For me, this proved to be one of my most exciting…
The new international survey on arbitral practices has just been released. Now in its fourth iteration, the survey has come a long way since its inception in 2006 at the School of International Arbitration of Queen Mary, University of London. While the first three surveys purported to measure in-house counsel attitudes about arbitration and the…
In June 2010 the Court of Appeal’s decision in Jivraj v Hashwani caused dismay in the arbitration community. Does an arbitration agreement which provides criteria for the appointment of arbitrators risk falling foul of the Employment Equality (Religion or Belief) Regulations 2003 (the “Regulations”) or other UK anti-discrimination law? The Supreme Court judgment of 27…
In the recent case of Itochu Corporation vs. Johann M.K. Blumenthal GMBH & Co KG & Anr [2012] EWCA Civ 996 (“Itochu vs. Blumenthal”), the English Court of Appeal decided obiter that – in the absence of an agreement on the number of arbitrators – a sole arbitrator should be appointed even when the arbitration…
As Rusty Park remarked, “[I]n real estate the three key elements are ‘location, location, location,’ … in arbitration the applicable trinity is ‘arbitrator, arbitrator, arbitrator.”’ Empirical studies consistently verify that parties’ ability to select arbitrators is one of the primary reasons they select arbitration as a means of dispute resolution. Parties also consistently vote with…
The situation of a truncated arbitral tribunal may be caused by various factors. It may arise when a three-member tribunal during the course of the arbitral proceedings and before the rendering of the award does not remain the same at some point, meaning that one of the members of the tribunal dies, resigns or fails…
In recent decades, Spanish legislators have increasingly turned their attention to private arbitration. The Spanish Arbitration Act 1953, mainly dealing with civil actions, was replaced by the 1988 Act directed at resolutions of commercial disputes, with a particular focus on international commercial arbitration. The aim was to make Spain a leader in the field, taking…
