Domestic Courts

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 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.

Arbitration Agreements, Arbitration Proceedings, Domestic Courts, Federal Arbitration Act (FAA), Manifest disregard of the law

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White & Case

On April 27, 2010, the Supreme Court of the United States issued its decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., No. 08-1198, 559 U.S. ___ (2010). The Court reversed a Second Circuit ruling permitting arbitrators to impose class arbitration upon four shipping companies—including White & Case client Stolt-Nielsen S.A.—under those shipping companies’ shipping contracts…

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….

Domestic Courts, Europe, kompetenz-kompetenz, Other Issues

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

In a post last year we considered the English Court of Appeal’s judgment in the case of Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2009] EWCA Civ 755, where the Court of Appeal held that an order giving leave to enforce a French ICC arbitration award was rightly set aside by the High Court as it had been established, pursuant to section 103(2)(b) of the Arbitration Act 1996 (“the Act”), that as a matter of French law the respondent government was not a party to the arbitration agreement. The High Court and Court of Appeal agreed that an application under section 103(2) of the Act required a rehearing of the facts in contention (in Dallah the existence of an arbitration agreement), not just a review of the award.

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…

Domestic Courts, Investment Arbitration, North America, South America

(Notre Dame Law School)/ /Leave a comment

In the long-running battle between Chevron and Ecuador over environmental damage, a federal court in New York has denied Ecuador’s motion to stay arbitration of a Ecuador-U.S. BIT claim. In September 2009, Chevron filed a notice of arbitration alleging, among other things, that “Ecuador has breached … the Ecuador-United States BIT, including its obligation to…

Arbitration Agreements, Arbitration Awards, Commercial Arbitration, Domestic Courts, Enforcement, Europe, European Law, Jurisdiction, Lis Pendens, National Arbitration Laws, New York Convention, Seat of the arbitration

(Castaldi Mourre & Partners)/ /Leave a comment

Professor Hess is the author of the chapter of the Heidelberg Report on the interplay between arbitration and the Regulation 44/2001 (“the Regulation”). As such, and quite understandably, he actively promotes the suggestion that the arbitration exception should be deleted from the Regulation. The Heidelberg proposal has been followed by a Green Paper of the…

Commercial Arbitration, Domestic Courts, New York Convention, North America

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White & Case

On January 15, 2010, the United States Supreme Court granted a writ of certiorari in Rent-A-Center West, Inc. v. Jackson, Case No. 09-497, agreeing to revisit the oft-litigated issue of whether the court or arbitrator should determine arbitrability under the Federal Arbitration Act (“FAA”). The Court’s prior jurisprudence has established the general rule, as a…

Arbitration Proceedings, Domestic Courts, Investment Arbitration, Jurisdiction, New York Convention

(UC Davis School of Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

I am in Australia in advance of the investment law conference at Sydney Law School at the end of the week, and I took advantage of many plane hours to read the docket in the case pending between Ecuador and Chevron/Texaco Petroleum Company (TexPet) in the Southern District of New York. They repay study. In…

Arbitration Awards, Domestic Courts, Enforcement, Europe, European Law, Public Policy

(Castaldi Mourre & Partners)/ /Leave a comment

In holding that “Article 85 of the [EU] Treaty [now article 101 of the Treaty on the Functioning of the European Union – TFEU] constitutes a fundamental provision which is essential for the accomplishment of the tasks entrusted to the Community and, in particular, for the functioning of the internal market”, and that “the provisions…

Arbitration Agreements, Domestic Courts, Jurisdiction, Legislation, National Arbitration Laws, New York Convention

(von Segesser Law Offices)/ /Leave a comment

The Swiss Parliament is currently contemplating a reinforcement of the negative effect of the “competence-competence” principle in the Swiss legislation. According to a parliamentary initiative, a Swiss court that is seized on the merits and faced with a plea of lack of jurisdiction based on the existence of a valid arbitration agreement should review such…

Arbitration Agreements, Arbitration Awards, Arbitration Proceedings, Commercial Arbitration, Domestic Courts, Enforcement, Europe, European Law, National Arbitration Laws

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White & Case

On 8 July 2009, the French Supreme Court rendered a decision confirming its position that the existence and the validity of an arbitration agreement should be determined primarily in light of the common intent of the parties (Société d’études et représentations navales et industrielles (SOERNI) et autres vs. Société Air Sea Broker limited (ASB), July…

Arbitration Awards, Arbitrators, Commercial Arbitration, Domestic Courts, Investment Arbitration, Legal Practice

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Handicapping investor-state arbitration cases is a tough business. Indeed, it’s difficult to predict when decisions will come down – much less what they will say. The following somewhat-hastily-cobbled-together list constitutes my best guess as to the 10 most notable awards which may come down in 2010. I won’t hazard a guess as to what’s in…

Arbitration Agreements, Arbitration Awards, Arbitration Institutions and Rules, Arbitration Proceedings, Commercial Arbitration, Domestic Courts, Enforcement, Europe, Jurisdiction, National Arbitration Laws, Seat of the arbitration

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

The seat of an arbitration is a crucial factor. It determines the lex arbitri and the courts with supervisory jurisdiction over the arbitration. The important consequences of the seat require parties to choose the seat carefully. Cases where no seat is chosen by the parties are not uncommon. The English High Court in Shashoua v…

Arbitration Agreements, Domestic Courts, National Arbitration Laws, New York Convention, North America

(Notre Dame Law School)/ /3 Comments

The Fifth Circuit earlier this month issued a highly unusual decision addressing whether state law could “reverse preempt” the New York Convention. As any student of international arbitration knows, state law occasionally attempts to limit the enforceability of arbitration agreements. Such a policy is preempted by the New York Convention as implemented by the Federal…

Arbitration Proceedings, Asia-Pacific, Domestic Courts, Enforcement, Legal Practice

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White & Case

Earlier this year, the Hong Kong Court of First Instance ruled that, in future, when it hears unsuccessful attempts to resist enforcement of arbitral awards under the New York Convention, it will “normally consider” awarding costs on an indemnity basis (i.e., in full, regardless whether they were reasonably incurred). This was a bold pro-enforcement statement…

Commercial Arbitration, Disclosure, Domestic Courts, North America, Section 1782 Discovery

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YIAG

United States Code Title 28 Section 1782(a) is well-known to practitioners who have participated in international arbitral proceedings involving U.S. parties. The provision governs the judicial assistance U.S. federal courts can provide in foreign discovery. It states, in relevant part, that federal trial courts “of the district in which a person resides or is found…

Arbitration Awards, Arbitration Proceedings, Domestic Courts, Enforcement, Europe, Other Issues, Public Policy

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White & Case

On May 6, 2009, the French Supreme Court rendered a decision relating to the consequences of insolvency proceedings commenced in France against a party to pending international arbitration proceedings (Jean X. v. International Company For Commercial Exchanges (Income), May 6, 2009, Case no. 08-10281). A French company had signed three contracts for the sale of…

Arbitration Awards, Arbitration Proceedings, Arbitrators, Commercial Arbitration, Domestic Courts, Enforcement, Europe, New York Convention

(Herbert Smith Freehills LLP)/ /Leave a comment
Herbert Smith Freehills

The 9.10.2009 session of the New York Convention subcommittee of the IBA in Madrid saw a lively discussion on the topic of enforcement of annulled arbitral awards. The discussion related to the “Yukos Capital” decision issued by the Amsterdam Court of Appeals in April 2009. The Amsterdam Court of First Instance had previously upheld the…