Europe

Arbitration Awards, Enforcement, Europe, European Convention on International Commercial Arbitration 1961 (ECICA)

(Konrad & Justich)/ /Leave a comment

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…

Arbitration clause, Europe, ICC Arbitration

(Drakopoulos Law Firm)/ /Leave a comment

The Supreme Court of Greece, further to its recent ruling in favor of enforcing international arbitral awards in Greece, issued a second ruling in favor of international ADR. In a recent decision, the Supreme Court found that a major dispute deriving from a contract which contained an arbitration clause with a clear reference to ICC…

Appointment of arbitrators, Arbitrators, Europe

(Dr Stefan Kröll, LL.M., Rechtsanwalt)/ /3 Comments
Institute for Transnational Arbitration (ITA)

In a recent contribution to this list serve Alexis Mourre vigorously defended the parties’ right to appoint their own arbitrator. The appointment of an arbitrator is probably one of the single most important decisions during an arbitration. In so far it is not surprising that the right to appoint ones own arbitrator is regularly mentioned…

BIT, Europe, European Law, Investment Arbitration, Other Issues, Vienna Convention on the Law of Treaties

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

The growing success of investment arbitration may collide with the European Commission’s attitude towards intra-EU BITs, as shown recently by a development reported in August 2010 (the IA Reporter, August 5, 2010, Vol. 3, No. 12) regarding the Eureko v. Slovakia arbitration. In this case, Eureko initiated a claim against the Slovak Republic based on…

Arbitration clause, Enforcement, EU Regulation 44/ 2001, Europe

(Katholieke Universiteit Leuven, Faculty of Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

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…

Enforcement, Europe, Public Policy

(Herbert Smith Freehills LLP)/ /1 Comment
Herbert Smith Freehills

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’;…

Anti-suit injunction, Arbitration Proceedings, Enforcement of an arbitration clause, Europe

(Debevoise & Plimpton LLP)/ /Leave a comment
YIAG

Having had their wings clipped by the European Court of Justice in West Tankers, the English courts have recently confirmed that there is life in the anti-suit injunction yet. In AES UST-Kamenogorsk Hydropower Plant LLP v UST-Kamenogorsk Hydropower Plant JSC [2010] EWHC 772 (Comm), Burton J granted anti-suit relief to restrain litigation in Kazakhstan even…

Arbitration Awards, Enforcement, Europe, New York Convention, Public Policy

(Drakopoulos Law Firm)/ /Leave a comment

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…

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 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….

Europe, European Law, Legal Practice, Legislation

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

Art. 207 of the Lisbon Treaty defines the new common commercial policy of the European Union, and states that it shall furthermore relate also to “foreign direct investments”. This provision has the appeal of an outright earthquake, given that the field of foreign investment, and in particular investment treaties, has always been the exclusive realm…

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…

Europe, European Law, kompetenz-kompetenz, New York Convention, Public Policy

(Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law)/ /Leave a comment

Does a blind law professor intend to destroy the benefits of the New York Convention? Reading the post of Alexis Mourre, I was wondering whether I should react to it, as the post refers to my opinion at least incompletely. However, as I’m still convinced that a fair and open discussion is beneficial, I would…

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…

Europe, Set aside an international arbitral award, Sport arbitration

(von Segesser Law Offices)/ /3 Comments

In a decision dated 10 February 2010 (4A_612/2009), the Swiss Federal Tribunal rejected a petition to set aside a November 2009 CAS Award against German speed-skater Claudia Pechstein. The Federal Tribunal took some unusual procedural steps – including foregoing the usual exchange of written pleadings – to speed up the proceedings and to decide the…

Arbitration Proceedings, Europe, Legislation

(von Segesser Law Offices)/ /Leave a comment

As of 1 January 2011, Swiss domestic arbitration proceedings will be governed by Articles 353 et seq. of the new Swiss Code on Civil Procedure (“CCP”). Articles 353 et seq. CCP will replace the Concordat on Arbitration (“Concordat”), currently governing domestic arbitration proceedings. The dichotomy between domestic arbitration and international arbitration will continue to exist,…

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

(White & Case LLP)/ /1 Comment
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 Proceedings, Europe

(von Segesser Law Offices)/ /Leave a comment

In a recent decision dated 26 October 2009 (4A_428/2009), the Swiss Federal Tribunal held that a party that enters into a procedural agreement in parallel state court proceedings following unsuccessful compulsory judicial conciliation does not waive its right to arbitration when that party does not proceed on the merits without making any objections.

Arbitration Awards, Arbitration Proceedings, Europe

(von Segesser Law Offices)/ /Leave a comment

In two recent decisions, the Swiss Federal Supreme Court rejected petitions for annulment and revision of an arbitral award by the Court of Arbitration for Sport. The decisions highlight the importance of raising new facts in arbitral proceedings without delay and as explicitly as possible.

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 Proceedings, Europe, Legal Practice

(von Segesser Law Offices)/ /Leave a comment

In a decision of 25 August 2009 (4A_160/2009), the Swiss Federal Supreme Court held that where a claimant by piercing the corporate veil can assert a contractual claim against the majority shareholder, all rights and obligations from the respective agreement, including the arbitration clause, become binding on the majority shareholder, thus precluding the jurisdiction of…

Europe, International Courts, Investment Arbitration, Public Policy

(Loyola Law School Los Angeles)/ /4 Comments
American Society of International Law (ASIL)

On September 9th, 2009, an intriguing editorial penned by Jeffrey Golden, a special US Counsel and global derivatives senior partner at Allen & Overy LLP, appeared on the Financial Times. It was titled “We Need a World Financial Court with Specialist Judges”. The reason why I bring this article to the attention of the readers…