Recent reports of the freezing of Russian government funds at the Stockholm Arbitration Institute may be premature, but it still remains possible that a Swedish bailiff could move to seize such funds. At the time of this writing, a freezing request by German businessman Franz Sedelmayer remained under active review at a Swedish government debt…
In 1961, three years after the adoption of the New York Convention, the European Convention on International Commercial Arbitration was adopted in Geneva (the Geneva Convention). At the time, the Geneva Convention was noteworthy as being the first international instrument to refer to “international commercial arbitration” by name. Today, however, many practitioners give little consideration…
In Galsworthy Ltd of the Republic of Liberia v Glory of Wealth Shipping Pte Ltd [2010] SGHC 304 (“Galsworthy”), the Singapore High Court held that a losing party to an arbitration seeking to challenge an arbitral award had the “alternative and not cumulative options” of applying to set aside the award, or, applying to set…
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…
The new Hong Kong Arbitration Ordinance (Cap. 609) (the “Ordinance”) comes into effect today, having been approved by the Hong Kong Legislative Council at the end of last year. The Ordinance represents the culmination of many years of discussion and consultation and marks a significant milestone in the development of Hong Kong as a world-class…
The recent Commercial Court decision of A v B [2010] EWHC 3302 (Comm) (16 December 2010) is notable for two reasons. Firstly, the Commercial Court provided clarification of the requirements for pursuing an application for security under section 70(7) of the Arbitration Act 1996. Secondly, the decision is an indication of how the Supreme Court…
On Thursday, 13 January 2011, France revealed its long-awaited new arbitration law. The décret n° 2011-48 portant réforme de l’arbitrage, was published in France’s Official Journal, alongside a report commenting on the reform. The new law can be found here, as well as the accompanying commentary here. The reform concerns both domestic and international arbitration…
Paul Hobeck and Christian Stubbe explained that internationally operating companies fear a “surprising interpretation of the term public policy” 1)“eine überraschende(…) Auslegung des Begriffs Ordre Public“, Hobeck / Stubbe, Genese einer Schiedsklausel (The Genesis of an Arbitration Clause), German Arbitration Journal (SchiedsVZ) 2003, p. 15, 19. when it comes to the recognition and enforcement of…
The UK Supreme Court released its judgment today in a much-written about dispute pitting a Saudi company against the Government of Pakistan. In the judgment, the Court declined to enforce a 2006 ICC arbitral award in favour of Dallah Real Estate and Tourism Holding Company. A central issue in the case was whether the Government…
The European Convention on International Commercial Arbitration 1961 (ECICA) is a multilateral treaty regulating certain aspects of international arbitral proceedings. Some of its provisions cover issues also governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, also known as the New York Convention (NYC), which was concluded three years earlier…
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…
The discussion on the position of arbitration in the Brussels Jurisdiction and Enforcement Regulation (Regulation 44/ 2001) has now reached the Committee on Legal Affairs of the European Parliament. Just to remind those less familiar with the issue: the present Regulation, as well as the preceding Jurisdiction Convention, allowed courts in EU countries to assume…
When discussing public policy, English lawyers like to quote the famous comment of an English judge in the early 19th century that “public policy is a very unruly horse, and once you get astride it you never know where it will carry you”. Recent history shows how difficult it is to ride the ‘unruly horse’;…
An interesting issue regarding the enforceability of foreign arbitral awards, in relation to the provisions of the New York Convention of 1958 and its alleged conflict with domestic Greek Civil Code provisions in relation to conflict of laws and public policy doctrines arose in Greek jurisdiction. The matter is of specific interest as the dispute…
Under the Russian legal system, the last resort a party has with respect to challanging a court decision is to apply to the Constitutional Court of the Russian Federation with a claim to review the decision’s compliance with the Russian Constitution in terms of the provisions of laws and/or regulations applied by lower courts. There…
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…
Several years ago, three United States Courts of Appeal contemporaneously dismissed actions to enforce foreign arbitral awards for lack of personal jurisdiction, a development that provoked expressions of concern from the arbitration bar. Adding to their dread, the United States Court of Appeal for the Second Circuit dismissed an enforcement action on forum non conveniens…
In post-Soviet time Russian courts have already developed quite a vast practice of recognition and enforcement of international arbitral awards. One can even already fetch out some trends in such practice. Thorough case study shows that certain distrust to international arbitration and unexpected obstacles to the enforcement of the awards caused by lack of experience…
As I have noted earlier, there is a pitched battle between victims of Pan Am 73 terrorist hijacking over the distribution of treaty funds secured by the United States for American victims in a 2008 diplomatic settlement with Libya. The treaty and Executive Order stipulate that the money shall be distributed solely for the benefit…
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…
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…
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…
The emerging rule in the U.S. that, to recognize and enforce an arbitral award under the New York Convention, a U.S. court must have personal jurisdiction over the award debtor or his or her property in the forum, has attracted criticism. International arbitration specialists argue that this requirement restricts enforcement of valid arbitral awards in…
One aspect of Chinese arbitration law that is of enduring interest to the international arbitration community is the question of whether Chinese law permits non-Chinese arbitration institutions, such as the ICC, to administer arbitrations in China. In practice, a number of arbitrations have taken place and are currently taking place in China under the rules…
