Commercial Arbitration

Arbitral seat, Arbitration, Arbitration Act, Arbitration Agreements, Arbitration Awards, Commercial Arbitration, Disclosure, International arbitration, National Arbitration Laws, Seat of the arbitration

(White & Case LLP)/ /1 Comment
White & Case

Clear tendencies towards an arbitration-friendly approach have been demonstrated by the Swedish Supreme Court during the latter part of 2010. During this term the Supreme Court has repeatedly taken an arbitration-friendly stance and emphasized that Swedish arbitration law and practice ought to be in line with international best practice in arbitration. Sweden has a long-standing…

Arbitration, Arbitration Act, Commercial Arbitration, Europe, International arbitration, Legislation, National Arbitration Laws

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White & Case

The new French arbitration law, published on 14 January 2011, further reinforces Paris’ position as a leading arbitration centre. The new law, which comes thirty years after the previous 1980 law regarding domestic arbitration and the 1981 law dealing with international arbitration, maintains the distinction between domestic and international arbitration. It clarifies and enhances an…

Arbitration Proceedings, Arbitrators, Commercial Arbitration, Public Policy

(von Segesser Law Offices)/ /2 Comments

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…

Anti-arbitration, Appointment of arbitrators, Arbitration clause, Commercial Arbitration, Damages

(MDisputes)/ /1 Comment

Certain practices are as unwholesome as they are repeated with hard-headed stubbornness that they merit the denomination “worst practice”. A good New Year’s resolution for those engaging in international arbitration would be to pledge to stop engaging in them. I’ll limit myself to throwing stones at my own glass house: the worst practices committed by in-house counsel like myself and the lawyers we appoint.

Arbitration Agreements, Asia-Pacific, Commercial Arbitration, Domestic Courts, National Arbitration Laws

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White & Case

In two recent decisions, the Singapore High Court reaffirmed its stance on minimal intervention in arbitration proceedings. The two decisions were made against different sets of circumstances but the Court nonetheless abided by its policy of minimal intervention. This posting examines the two recent decisions, in particular, the approach taken by the High Court. In…

Arbitration Agreements, Arbitration Awards, Arbitration clause, Arbitration Proceedings, Brazil, Commercial Arbitration, Domestic Courts, South America

(TozziniFreire Advogados)/ /Leave a comment

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…

Appointment of arbitrators, Arbitration Agreements, Arbitration Awards, Arbitration Institutions and Rules, Arbitration Proceedings, Arbitrators, Commercial Arbitration, Domestic Courts, ICC Arbitration, National Arbitration Laws, Partial award, Set aside an international arbitral award

(Castaldi Mourre & Partners)/ /2 Comments

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…

Arbitrators, Commercial Arbitration, Confidentiality, Other Issues

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White & Case

A major new survey on international arbitration conducted by Queen Mary University London and sponsored by White & Case revealed several interesting findings on corporate choices concerning international arbitration.* As already reported by Global Arbitration Review, the survey shows “the extent to which the governing law is a driver of choice among those framing arbitration…

Actual expenditure, Commercial Arbitration, Damages, Fair market value, Historic costs

(FTI Forensic and Litigation Consulting)/ /Leave a comment

As a forensic accountant specializing in the quantification of damages, I listened with keen interest to the various presentations at the recent Swedish Arbitration Days event ‘damages and other relief in international arbitration’. One of the more lively debates centered on whether it is appropriate, as has happened in several well-known treaty cases, to make…

Arbitration Institutions and Rules, Arbitrators, Commercial Arbitration, Investment Arbitration

(Castaldi Mourre & Partners)/ /1 Comment

In his April 2010 inaugural lecture as holder of the Michael R. Klein’s Chair at the Miami University, Jan Paulsson advocated a fundamental change in the culture and practice of international commercial arbitration (Moral Hazard in International Arbitration, Miami, 29 April 2010, see also on this blog). In a nutshell, his views can be summarized…

Commercial Arbitration, Domestic Courts, Russia

(White & Case LLP)/ /2 Comments
White & Case

The clearest indication of a shift in the approach of the Russian arbitrazh (commercial) courts* came in April 2010, when the Presidium of Russia’s Supreme Arbitrazh (Commercial) Court issued a precedential decision, holding that interim relief measures may be ordered by Russian arbitrazh courts in aid of foreign arbitration. The ruling has resolved an ongoing…

Commercial Arbitration

(Castaldi Mourre & Partners)/ /Leave a comment

Is there a duty to arbitrate in good faith? Is there a need for a Code of Ethics in international arbitration? Those are certainly amongst the most important questions for the future development of the law and practice of arbitration. They have been hotly debated in occasion of certain recent and much publicized cases. And…

Commercial Arbitration, Domestic Courts, Jurisdiction, Legal Practice

(von Segesser Law Offices)/ /Leave a comment

In a decision dated 8 December 2009, published on 13 June 2010 (case 4A_446/2009, published as 136 III 107), the Swiss Federal Supreme Court held that persons acting as board of directors of a company that subsequently became insolvent cannot rely on an arbitration clause contained in the articles of association of that insolvent company…

Commercial Arbitration, Domestic Courts, Jurisdiction, Legal Practice

(von Segesser Law Offices)/ /Leave a comment

In two decisions both dated 11 January 2010, published on 16 April 2010 (cases 4A_256/2009 and 4A_258/2009), the Swiss Federal Supreme Court dismissed two appeals regarding the irregular constitution of an arbitral tribunal by stating that the complainant failed to sufficiently substantiate his allegations. Background In 2006, two ICC arbitrations were initiated. They had the…

Commercial Arbitration, Domestic Courts, Jurisdiction, Legal Practice

(von Segesser Law Offices)/ /Leave a comment

In a decision dated 11 February 2010, published on 29 March 2010 (case 4A_444/2009), the Swiss Federal Supreme Court dismissed an appeal against a tribunal’s decision that it had jurisdiction over a request for declaration that damages are owed due to the violation of an arbitration clause. The Supreme Court dismissed the appeal because it…

Arbitration Proceedings, Commercial Arbitration, Domestic Courts, South America

(Debevoise & Plimpton LLP)/ /1 Comment
American Society of International Law (ASIL)

This year’s ICCA Congress in Rio de Janeiro not only confirmed that nobody knows to party better than cariocas, but also served as an impressive reminder of the increasing pro-arbitration approach of Brazilian courts, the remarkable growth in the number of arbitration proceedings in Brazil and the high sophistication of the Brazilian arbitration bar. Yet…

Arbitration Proceedings, Commercial Arbitration, Enforcement of an arbitration clause, National Arbitration Laws, United States

(Wilmer Cutler Pickering Hale and Dorr LLP)/ /Leave a comment
WilmerHale

Recent legislative developments in Oklahoma, and a few other U.S. states, reflect a growing mistrust of international and foreign law and legal systems. These proposed statutes and constitutional amendments are one aspect of parochial backlash in the United States and elsewhere against developments in international law and dispute resolution over the past decades. There are…

Arbitration Agreements, Arbitration Awards, Commercial Arbitration, Domestic Courts, Europe, Public Policy, Set aside an international arbitral award

(Castaldi Mourre & Partners)/ /Leave a comment

The arbitrability of a dispute is not generally limited to private law. In many countries, including Germany and Switzerland, it is admitted that arbitration can also bear on claims derived from public law, and in particular on rights conferred upon by contracts subject to administrative law. Arbitrability of such disputes may however be more problematic…

Arbitration Agreements, Arbitration Institutions and Rules, Arbitration Proceedings, Commercial Arbitration, Domestic Courts, kompetenz-kompetenz, South America

(Veirano Advogados)/ /Leave a comment
American Society of International Law (ASIL)

The Court of Appeals for the state of Bahia in Brazil recently handed down an arbitration-friendly decision and vacated an injunction intended to stay an arbitration proceeding. In FAT Ferroatlàntica S.L. vs. Zeus Mineração Ltda. and others, the Court of Appeals addressed the issue of whether the existence of conflicting arbitration clauses in contracts pertaining to a single economic transaction justifies judicial intervention at the outset of the arbitration. The Court of Appeals held that, provided an arbitration agreement exists, such issue is to be dealt with by the arbitrators, not by the Courts.

Commercial Arbitration, Other Issues

(Wilmer Cutler Pickering Hale and Dorr LLP)/ /1 Comment
WilmerHale

A defining characteristic of international arbitration is the ability to choose the decision-makers who determine the dispute. The parties’ right to choose their arbitrator is qualified by the requirement that the arbitrator adhere to standards of independence and impartiality. Where the parties consider that the arbitrators do not meet these standards, they can bring a…

Arbitration Awards, Arbitration Proceedings, Arbitrators, Commercial Arbitration, Domestic Courts, Europe

(Castaldi Mourre & Partners)/ /Leave a comment

In recent years, there has been increasing concern about court orders aimed at preventing a party from initiating, continuing or participating in arbitration proceedings (see notably, IAI Series on International Arbitration, no 2, Anti-Suit Injunction in International Arbitration, E. Gaillard ed., 2005; ICCA Congress Series, No 13 International Arbitration 2006, Back to Basics?, A. J….

Arbitration Agreements, Commercial Arbitration, North America

(Cleary Gottlieb Steen & Hamilton LLP)/ /Leave a comment

On April 27, 2010, the United States Supreme Court held in Stolt-Nielsen S.A. v Animalfeeds International Corp., that under the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), “[A] party may not be compelled . . . to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to…

Arbitration Proceedings, Commercial Arbitration, International Courts

(Norton Rose LLP)/ /Leave a comment
YIAG

Anti-suit injunctions have certainly received their fair share of air time (and some would say more) as a result of the West Tankers debate – about which this blog entry is not. Now that all eyes are on anti-suit injunctions, it is interesting to keep an eye on how the cases post West Tankers pan…

Arbitration Agreements, Arbitration Awards, Commercial Arbitration, Domestic Courts, Enforcement, Europe, European Law, Jurisdiction, kompetenz-kompetenz, Lis Pendens, National Arbitration Laws, New York Convention, Public Policy, Seat of the arbitration, Set aside an international arbitral award

(Castaldi Mourre & Partners)/ /Leave a comment

I am grateful to Professor Hess for his comments on my 3 March 2010 blog. It greatly contributes to advancing the debate. However, it also perfectly illustrates the difficulties of a proposition – the total or partial deletion of the arbitration exception in Regulation 44/2001 – that has not been sufficiently thought through. 1. Professor…