Jurisdiction

Appointment of arbitrators, Arbitrators, Domestic Courts, India, International arbitration, National Arbitration Laws

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The most quintessential element of international arbitration is an impartial, independent and neutral tribunal. Where impartiality and independence of the arbitrators is equated with direct relation to or bias towards one of the parties, neutrality is related to the nationality of the arbitrator. In international sphere, the “appearance of neutrality” is considered equally important, meaning…

Arbitration Agreements, Argentina, BIT, Investment agreements, Investment Arbitration, Treaty, U.S. Supreme Court

(Linklaters LLP)/ /2 Comments

As reported earlier, the US Supreme Court has recently adjudicated on the issue of the standard of review in relation to arbitration agreements in international investment arbitration. It is a fact that the majority of the Court has decided that deference should be given to arbitral tribunals to examine questions of procedural conditions, as it…

Ad hoc arbitration, Arbitration Institutions and Rules, Arbitrators, arbitrators’ conduct, India

(ICC International Court of Arbitration)/ /Leave a comment

and Niyati Gandhi A done to death topic in arbitration gatherings in emerging markets, particularly in India, is the debate about ad hoc versus institutional arbitration. The basic arguments in favour and against both have been discussed time and again. However, renewed support for institutional arbitration can be found in two recent judgments from the…

Arbitration Agreements, Arbitration clause, Arbitration Institutions and Rules, Domestic Courts, Israel

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Facts The applicant, Darie Engineering (Darie), and the first respondent, Alstom Transport SA (Alstom), had a business relationship spanning over 20 years in which Darie acted as Alstom’s representative in the transportation sector in Israel. Darie filed an action against Alstom and the second respondent, Alstom Israel Ltd. (the Respondents), in the Israeli District Court,…

Arbitration Proceedings, BIT, Foreign Investment Law, Investment, Investment Arbitration, Investment protection, Venezuela

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Linklaters

Apropos of a recent decision in ConocoPhillips v. Venezuela (ICSID Case No ARB/07/30), this post discusses the potential underlying concerns an arbitral tribunal may consider when deciding whether it can revise earlier decisions within the context of fragmented proceedings. Background The ICSID proceedings in ConocoPhillips v. Venezuela (ICSID Case No ARB/07/30) commenced in November 2007…

Arbitration Proceedings, Foreign Bankruptcy Proceedings, Law governing the arbitration, Switzerland

(Schellenberg Wittmer)/ /1 Comment
Schellenberg Wittmer

This post suggests revisiting the issue of whether bankruptcy of a foreign company party to arbitration proceedings pending in Switzerland can prevent the arbitration from moving forward and questions whether a specific provision should be introduced in Swiss legislation to specifically address the issue. The State of Play As it stands, the issue is not…

Arbitration Agreements, Argentina, BIT, Investment agreements, Investment Arbitration, Treaty, U.S. Supreme Court

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Introduction In BG Group v. Republic Argentina, a divided U.S. Supreme Court (“the Court”) continued to hold that arbitrators are the proper decision makers in gateway questions of arbitrability, not courts. The issue here concerned whether or not the local litigation requirement in the U.K-Argentina BIT was a procedural prerequisite to investor-state arbitration, or a…

Brazil, Domestic Courts, kompetenz-kompetenz, New York Convention

(Lee Taube Gabardo; Editor in Chief, Brazilian Arbitration Journal)/ /Leave a comment

The Competence-Competence Principle is a fundamental principle of international arbitration. It is recognized in article 8 of Brazilian Arbitration Law. However, in Companhia de Geração Térmica de Energia Elétrica – CGTEE v. Kreditanstalt Fur Wiederaufbau Bankengruppe, the Rio Grande do Sul Court of Appeals raised some doubts about it is applicability in Brazil. (Rio Grande…

Enforcement, ICSID Convention, Iraq, Middle East, New York Convention

(Armstrong Teasdale)/ /Leave a comment

Setting the scene Iraq currently ranks with Libya and Yemen amongst those recalcitrant Arab states that have thus far failed to ratify the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention or Convention). This state of affairs and the inadequacy of the country’s domestic and…

Governing Law, India, Seat of the arbitration

(ICC International Court of Arbitration)/ /5 Comments

and Niyati Gandhi On 14 February 2014, the Supreme Court of India (SCI) in Enercon India v. Enercon GMBH [Civ. App. 2086/7 of 2014] (Enercon) found occasion to revisit issues in connection with potential laws that govern an arbitration agreement. The impugned arbitration agreement contained the following clause: 18. DISPUTES AND ARBITRATION 18.1 * *…

Anti-suit injunction, Arbitration Agreements, Commercial Arbitration, Enforcement of an arbitration clause, Jurisdiction of the arbitral tribunal, Parallel Proceedings, Set aside an arbitral award, Switzerland, Uncategorized

(Editor in Chief, ASA Bulletin; LALIVE)/ /1 Comment

Arbitration proceedings sometimes spawn a host of parallel court proceedings.  It is not unheard for parties to seek to instrumentalise courts, sometimes with the complicity of the courts themselves, to escape the jurisdiction of an arbitral tribunal.  Such conduct may, however, expose parties to liability for breach of the arbitration agreement, as was confirmed by…

Arbitration, Arbitration Proceedings, Discovery, Section 1782 Discovery, United States

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Young ICCA

Co-authored by Christopher Smith and James Menz, Schellenberg Wittmer On 10 January 2014, the U.S. Court of Appeals for the Eleventh Circuit issued a highly anticipated decision in Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 2014 WL 104132 (11th Cir. Jan. 10, 2014) (hereinafter Consorcio II). The holding vacated the same panel’s…

Arbitrability, Arbitral Tribunal, Arbitration Agreements, Enforcement of an arbitration clause, Fraud, India

(ICC International Court of Arbitration)/ /1 Comment

and Niyati Gandhi, National Law School of India University in Bangalore The issues arising out of allegations of fraud in international commercial arbitration can be listed by way of two closely connected questions: 1) Do arbitral tribunals have the substantive jurisdiction to make determinations upon allegations of fraud? 2) If the contract containing an arbitration…

Arbitration, Asia-Pacific, China, CIETAC, Hong Kong

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Herbert Smith Freehills

By Justin D’Agostino and Sean Izor In the past, arbitration laws and arbitral institutions in Asia have often been seen as less well developed when compared to their Western counterparts. However, just as Asia’s economies have grown at a rapid pace, catching up to (or surpassing) those of Europe and the United States, so has…

Energy, ICSID Convention, Investment, Latin America

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The numbers of energy and mining related disputes in Latin America constitute 67 out of 162 or 41% of the total ICSID cases within the region. In most of these disputes the respondents are Argentina, Bolivia, Ecuador or Venezuela, which represent 52 out of 67 or 78% of the total energy and mining ICSID cases…

Arbitral seat, Arbitration, Domestic Courts, Federal Arbitration Act (FAA), National Arbitration Laws, United States

(DLA Piper)/ /1 Comment
YIAG

As leading jurisdictions around the world continue to establish national courts dedicated to the oversight of international arbitration issues, one wonders whether this is an idea whose time has come. This issue was previously discussed on this blog in September 2010. Much progress has been made in the intervening years. The most recent jurisdiction to…

Argentina, Domestic Courts, ICSID Convention, Investment, Investment Arbitration, United States, vacatur

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

and Luis Miguel Velarde Saffer Last December, the U.S. Supreme Court heard oral argument on BG Group v Argentina – an appeal from a controversial and much-criticized decision of the D.C. Circuit Court of Appeals. The case arose out of emergency actions taken by the Republic of Argentina in late 2001 in the wake of…

Arbitration Act, Brazil

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By Manuel Castelo Branco and Raquel Galvão Silva The proposal prepared by the Committee for the modification of the Brazilian Arbitration Law was finally revealed and approved with some adjustments on 11 December 2013 by the Constitution, Justice and Citizenship Commission of the Federal Senate (the “Proposal”). The Proposal comes 17 years after the publication…

Arbitration, Code of Ethics, IBA Guidelines on Conflicts of Interest, Portugal

(BCH Advogados)/ /1 Comment

The Board of Directors of the “ACL Arbitration Centre” (the Arbitration Centre of the “Portuguese Chamber of Commerce and Industry – Lisbon Commercial Association”) recently approved a new set of rules for arbitration proceedings administrated under its auspices. Along with the new rules, the Board also approved an “Arbitrator’s Code of Ethics”. Divided into 9…

Arbitral Tribunal, Jurisdiction, Set aside an arbitral award

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Linklaters

By Roland Ziadé and Claudia Cavicchioli, Linklaters LLP On 17 December 2013, the Paris Court of Appeal added a new chapter to the Jnah vs. Marriott saga, when it ruled on an action to set aside an arbitral award issued on 3 February 2012 by which an arbitral tribunal denied jurisdiction over claims brought on…

New York Convention, Qatar, Set aside an international arbitral award

(Qatar International Center for Conciliation and Arbitration)/ /Leave a comment

In an earlier post, it was reported that several domestic arbitral awards rendered in Qatar have been set aside by the national judges based on the necessity to be rendered in the name of His Highness The Emir of Qatar, otherwise these awards were considered in violation of public policy. Few weeks ago, a new…

Arbitration, Customary international law, India, International Law, Pakistan, Permanent Court of Arbitration, Res Judicata

(University of Alberta Faculty of Law)/ /Leave a comment

On 20 December 2013, the final phase in the Indus Waters Kishenganga Arbitration was completed with the rendering of a Final Award by the seven-member Court of Arbitration (“Court”) tasked with resolving the latest water dispute between Pakistan and India. The Court was constituted in 2010 following a Request for Arbitration submitted by Pakistan under…

Arbitrability, Arbitral seat, Arbitral Tribunal, Arbitration Agreements, Arbitration Awards, Argentina, BIT, Investment Arbitration, Investor, SCOTUS, Transparency in investment arbitrations, Treaty, U.S. Supreme Court, UNCITRAL Arbitration Rules, vacatur

(DLA Piper) and (Law Offices of Kiran N Gore PLLC; The George Washington University Law School)/ /Leave a comment

It has been over two years since the DC Circuit Court of Appeals (“Circuit Court”) vacated an award in a bilateral investment treaty arbitration (BG Group PLC v. Republic of Argentina (UNCITRAL)) concluding that the panel did not have authority to adjudicate the dispute because the claimant had not satisfied a pre-arbitration requirement, namely, litigating…

Arbitral seat, Arbitration Agreements, Enforcement of an arbitration clause, Middle East, United Arab Emirates

(Blanke Arbitration LLC)/ /Leave a comment

A recent amendment to Dubai International Financial Centre (DIFC) Law No. 1 of 2008, the DIFC Arbitration Law, brings the DIFC into line with the New York Convention (on the recognition and enforcement of foreign arbitral awards, done in New York on 10 June 1958). DIFC Law No. 6 of 2013, the Arbitration Law Amendment…