On March 22, the United States Court of Appeals for the Second Circuit held in Bechtel do Brasil Construções Ltda. v. UEG Araucária Ltda., 638 F.3d 150, that the question whether a claim subject to arbitration was time-barred was for the arbitrator, not the district court, to decide, notwithstanding a New York state law that…
This post addresses the U.S. Supreme Court’s misadventures with class arbitration over the past decade. Those misadventures have resulted in striking confusion and waste of resources by litigants, courts and arbitral institutions. More broadly, the Court’s conflicting and often ill-considered decisions on the subject now threaten to undermine U.S. arbitration law more generally – turning…
The Court of Appeal of England and Wales ruled last month that where parties have entered into an arbitration agreement, one party can obtain an anti-suit injunction to prevent the other party from initiating proceedings in a foreign court, even where no arbitration is underway or indeed even contemplated. In AES Ust-Kamenogorsk Hydropower Plant LLP…
There are two legal jurisdictions in Qatar with laws containing specific provisions related to arbitration: the State of Qatar and the Qatar Financial Center (the “QFC”). The latter is a separate jurisdiction with its own laws within the state. The QFC Law provides for the arbitration of commercial disputes in relation to contracts that have…
In a landmark provisional judgment in Democratic Republic of the Congo v. FG Hemisphere Associates FACV Nos. 5, 6 & 7 of 2010, the Hong Kong Court of Final Appeal (CFA) has held by a majority of 3:2 that absolute sovereign immunity applies in Hong Kong, with no exception for purely commercial transactions or assets….
As a journalist, I miss out on all the fun of nominating arbitrators. And I also refrain from counseling others as to whom they should nominate to arbitral tribunals. But, today I’d like to make an exception. Recently, Zimbabwean President Robert Mugabe engineered the effective demise of the regional tribunal of the Southern African Development…
The four most recent ICSID disqualification decisions (Universal Compression v. Venezuela, OPIC Karimum v. Venezuela, Tidewater v. Venezuela and Urbaser v. Argentina) have unanimously rejected applications to disqualify arbitrators on ICSID tribunals. This post addresses an issue raised in three of the most recent decisions—disqualification based on repeat appointments by the same party or counsel—and…
The seventh round of TPP negotiations will take place in Vietnam the week of June 20 but caution on the part of U.S. negotiators makes it highly unlikely that after fifteen months of ongoing negotiations any of the major issues will be resolved or even fully opened to discussion. In particular, the United States Trade…
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…
In a recent decision, the Swiss Supreme Court examined whether contractual provisions contemplating certain procedural steps before initiating arbitration proceedings impacted the jurisdiction of the arbitral tribunal (Case no. 4A_46/2011 of 16 May 2011, to be published in ASA Bulletin, 2011. English translation to be published in Swiss International Arbitration Law Reports, 2011). The contract,…
The Singapore Court of Appeal issued a decision recently articulating a principled framework for the arbitrability of insolvency-related claims. It provides useful guidance on when an insolvency-related claim would be considered non-arbitrable under Singapore law. In seeking to strike the delicate balance between its robust pro-arbitration stance and its insolvency regime, the Court’s underlying philosophy…
January 28, 2011 – violent protests rocked Egypt; February 2, 2011 – political anxiety and ongoing unrest in Egypt threaten to shake other economies; February 11, 2011 – Mubarak resigned. March 22, 2011 – fire at Egypt interior ministry; April 17, 2011 – ex-ministers to be tried. Recently, a significant amount of unrest has occurred…
According to the rules governing domestic arbitration (Art 30 of the Concordat on Arbitration, and, as of 1 January 2011, Art. 378 of the Swiss Federal Code on Civil Procedure), a party that does not pay its share of the advance on the arbitration costs requested by the arbitral tribunal risks to lose the benefit…
The recent decision of the New York Supreme Court, Appellate Division (an intermediate state appellate court) in Sojitz Corp. v. Prithvi Information Solutions Ltd., 2011 N.Y. Slip Op. 1741; 2011 N.Y. App. Div. LEXIS 1709, bolsters New York’s reputation as a jurisdiction friendly to international arbitration. In this case, which involved two non-U.S. parties in…
According to article 7 of the Swiss Private International Law (PILA), if the parties have entered into an arbitration agreement, the Swiss Court before which the action is brought shall decline its jurisdiction unless it finds that the agreement is null and void, inoperative or incapable of being performed. An initiative to amend article 7…
On 11 March 2011, the UNASUR treaty entered into force. UNASUR (the Union of South American Nations) is a regional organisation that comprises all twelve South American countries: Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay and Venezuela. The entry into force of the treaty is an important development for the international arbitration community given some of the proposals that UNASUR is advancing, particularly in the field of investor-State arbitration.
When it comes to appeals of international arbitral awards Switzerland lives up to its reputation for order and efficiency. A recent victory in defending an appeal here prompts me to comment on the practical effects and consequences of the now well-honed Swiss system for appealing international awards rendered in my small but clearly “arbitration friendly”…
Introduction: Many international commercial contracts (such as e.g., construction, distribution, sale and purchase) are governed by Swiss (substantive) law as per a choice of law provision. Often the choice of law is made in combination with an arbitration clause referring disputes to arbitration in Switzerland. The effect of international sanctions on commercial contracts has become…
Anyone considering Canada as the seat of an arbitration or as one among several jurisdictions where recognition and enforcement proceedings could be commenced should pay close attention to the Supreme Court of Canada’s March 18 decision in Seidel v. TELUS Communications Inc., 2011 SCC 15, which appears to mark a philosophical shift in Canadian arbitration…
Will a court injunct arbitral proceedings if parties, before an arbitration hearing, allegedly reach a settlement agreement and a dispute subsequently arises over the existence of such an agreement? Is the tribunal functus? Recently, the Singapore High Court in Doshion Ltd v Sembawang Engineers and Constructors Pte Ltd [2011] SGHC 46 (“Doshion”) rightly held that…
Sports arbitration is becoming an increasingly important field. In Switzerland, where the Court for Arbitration for Sports is located, the Swiss Supreme Court is seeing lately nearly half of its cases coming from the CAS. Sports arbitration, however, gives rise to a specific concern with respect to the issue of consent. Often, athletes find themselves…
While Russia is a signatory to the New York Convention, there is a perception amongst some practitioners and arbitration users that Russia is not an arbitration friendly jurisdiction. This viewpoint is, no doubt, due to a perceived scepticism of the Russian courts and is the driving force behind many foreign investors doing business in Russia…
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…
The SIAC dispenses hospitality to the legal profession in Singapore on a regular basis, as part of its “outreach” efforts to what I suppose we can describe as its local client base. The latest of these events took place at the end of January at the Helipad — a dimly lit bar with, disappointingly, no…
