kompetenz-kompetenz

Arbitration Agreement, Australia, Competence-Competence, Jurisdiction of the arbitral tribunal, kompetenz-kompetenz

(Victorian Bar)/ /Leave a comment

Under the UNCITRAL Model Law and the laws of many ‘arbitration friendly’ jurisdictions, courts must refer a matter subject to a valid and operative arbitration agreement to arbitration if requested by a party within the relevant time period. The principle of kompetenz-kompetenz prescribes that an arbitral tribunal may determine its own jurisdiction (which necessarily includes…

2021 in Review, Arbitration Act, Arbitration Agreement, Arbitration institution, Cryptocurrency, HK Arbitration Week, Interim measures, ISDS, kompetenz-kompetenz, Legislative amendment, Multi-tiered clauses, PRC, Treaty

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In 2021, East and Central Asia witnessed some noteworthy developments in domestic legislation, jurisprudence, and efforts to enhance the standing of arbitral institutions and seats in the region. There have also been developments in trade/investment agreements and investor-State claims in the region. In this post, our East and Central Asian editorial team reviews this progress…

Arbitration Act, Arbitration Agreements, Arbitration institution, China, judicial review, kompetenz-kompetenz, Validity

(Hui Zhong Law Firm)/ /Leave a comment

On 30 July 2021, the PRC Ministry of Justice issued the Amendment to the Arbitration Law (Consultation Draft) (the “Draft Amendment”), which is the first substantial amendment of the existing PRC Arbitration Law (the “Arbitration Law”) in more than two decades. (See previous posts on the PRC Arbitration Law here and here.) Of the changes…

Arbitration Agreement, judicial review, kompetenz-kompetenz, PRC, SHIAC, Validity

(Shanghai International Arbitration Center)/ /Leave a comment
Shanghai International Arbitration Center (SHIAC)

The Chinese Arbitration Act (1995) recognizes the principle of competence-competence in Article 20, under which a party challenging the validity of the arbitration agreement may request the relevant arbitration commission to make a decision or apply to the court for a ruling. Ultimately, though, it is the reviewing courts in PR China that shall have…

2020 In Review, Amendment, Anti-arbitration Injunction, Arbitrability, BIT, Enforcement, Fraud, India, kompetenz-kompetenz, Limitation period, Seat of the arbitration, Venue

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The “2019 in Review: India” started with a quote from Jeff Bezos that the 21st century belongs to India. Little did we know then that, one year later, Jeff Bezos’ Amazon would be fighting tooth and nail in a SIAC arbitration and related litigation in the Indian courts to claim a share of the burgeoning…

2020 In Review, Arbitrator's mandate, Corruption, Disclosure, Economic Sanctions, Enforcement, France, Immunity, Independence and Impartiality, kompetenz-kompetenz

(Laborde Law) and (Talma Dispute Resolution)/ /Leave a comment

The pandemic did not prevent French courts from bringing their share of arbitration-related developments, although they remained almost inactive from March to June. This post succinctly reviews some of 2020’s noteworthy developments.   Important Decisions of the Paris Court of Appeal’s International Section Operational since March 2018, the International Chamber of the Paris court of…

Arbitrability, kompetenz-kompetenz, United States, United States Courts, USA

(Musick, Peeler & Garrett LLP)/ /Leave a comment

Recently, the U.S. Court of Appeals for the Third Circuit (the “Third Circuit” or the “Court”) addressed what it referred to as a “mind-bending” and “seemingly circular” question “dubbed ‘the queen of all threshold issues’ in arbitration law:” whether a court or arbitrator(s) decides if an agreement exists when the alleged agreement itself “includes an…

International arbitration, kompetenz-kompetenz, Lithuania, National Courts, National Treatment, Seat of the arbitration

(Ellex Valiunas ) and (TGS Baltic)/ /Leave a comment

Global arbitration centers such as Paris or London are well known and need no introduction. In contrast, there are many other arbitration sites around the world that seek a larger role on the international stage of dispute settlement. Lithuania and its capital Vilnius in particular is no exception. In 2014 the Vilnius Court of Commercial…

kompetenz-kompetenz, United States, United States Courts, USA

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Young ITA

Awards are final—mostly. Many institutional rules allow arbitrators to correct clerical errors in their awards, but prohibit revisions to the merits of their decisions. The U.S. Court of Appeals for the Fifth Circuit signaled in a recent case that it will defer to arbitrators in interpreting institutional rules regarding the scope of their correction authority,…

Arbitration Agreement, India, kompetenz-kompetenz, Negative Effect, Positive Effect, UNCITRAL

(Avsai Legal) and / /Leave a comment

The Prolonged saga of enforcement of the ICC commercial arbitration award of 2015 in Devas v. Antrix (ICC Case No. 18051/ CYK of 2011) has not only raised several interesting questions in respect of pathological arbitration agreements but has also highlighted the ineffectiveness of the “Negative Effect” of the doctrine of Kompetenz-Kompetenz, given the possible…

Arbitration Act, Arbitration clause, Brazil, Brazilian Arbitration Act, Consent, kompetenz-kompetenz

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

On September 10, 2019, in considering an interlocutory appeal to stay arbitration proceedings, the Espírito Santo Court of Appeals decided to grant an exception to the competence-competence principle on grounds that the arbitration agreement was prima facie “manifestly illegal”. (Interlocutory Appeal No. 0013950-80.2019.8.08.0012, injunctive relief issued on September 10, 2019).   Background In 2001, the…

Arbitration, Brazil, Forgery, kompetenz-kompetenz, Negative Effect, Positive Effect

(Quinn Emanuel Urquhart & Sullivan UK LLP)/ /Leave a comment

Introduction Unlike other pillars of arbitration like recognition-enforcement of foreign awards and independence-impartiality of arbitrators, the Kompetenz-Kompetenz rule is far from a universal standard. Each jurisdiction has a particular rule, with clear distinctions between the approaches adopted, for example, by the US, the UK, France, Switzerland and China.1)For a comprehensive comparison of these legal systems,…

Arbitration Agreement, China, kompetenz-kompetenz, PRC

(Arnold & Porter) and / /Leave a comment

Introduction Parties to international commercial transactions not infrequently find themselves in disputes over whether a valid arbitration agreement exists between them or whether a court or an arbitral tribunal has the jurisdiction to hear this issue. These situations are especially perplexing because – despite the general international acceptance of the “kompetenz-kompetenz” doctrine – national laws…

Arbitrability, Arbitration Agreement, India, kompetenz-kompetenz

, (National Law University, Jodhpur)/ /Leave a comment

Section 16 (1) of the Arbitration and Conciliation Act, 1996 [“the Indian Act”] confers power upon the arbitral tribunal to decide on matters relating to its jurisdiction. Under section 16 (5), a decision accepting the plea of lack of jurisdiction shall be an appealable order; while decision rejecting the same plea can be challenged only…

Adhesion Contracts, Arbitration Agreement, Brazil, Brazilian Arbitration Act, Franchising Contracts, kompetenz-kompetenz

(Demarest Advogados)/ /Leave a comment

I. Introduction Despite the fact that commercial arbitration has experienced a huge development in Brazil in the last years and a general favorable approach by Brazilian courts, there are fields in which arbitration is still incipient, with complex discussions about its enforceability and to what extent consumer, labor or adhesion contracts can be discussed via…

BIT, ICSID Arbitration, ICSID Convention, India, Jurisdiction, kompetenz-kompetenz, Parallel Proceedings

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Young ICCA

A key issue that has assumed importance in BIT arbitrations today is the role of state courts vis-à-vis investment tribunals. Two aspects of this issue become particularly relevant when courts are faced with claims of vexatious BIT arbitrations: (i) the law applicable in the court’s supervisory capacity, and (ii) the extent to which courts can…

Arbitration Agreement, Arbitration clause, kompetenz-kompetenz, Venezuela

(ADM & Asociados )/ /Leave a comment
Young ICCA

This post focuses on two decisions issued by the Venezuelan Supreme Court of Justice in the Corporación LSR case. The decisions constitute an unexpected change in the approach of the Supreme Court towards arbitration, deviating from its latest and vastly commented case law regarding commercial arbitration matters. Background The dispute in Corporación LSR arose out…

Arbitral Tribunal, Arbitration, Consolidation, HKIAC, ICC, kompetenz-kompetenz, SCC, SIAC

(Drew & Napier)/ /1 Comment
YSIAC

The potential ramifications on a party’s right to challenge an award made in a consolidated proceeding should inform a party’s decision to adopt institutional rules or national arbitration laws that allow for consolidation. Ensuring as a preliminary matter that the mechanism for consolidation and any waiver provisions in the institutional rules or national arbitration laws…

Brazil, Commercial Arbitration, kompetenz-kompetenz

(Demarest Advogados) and (Aprigliano Advogados)/ /Leave a comment

There is no doubt that Brazil is recognized world-wide as one of the most pro-arbitration nations. Brazilian law regulating arbitration is quite innovative, especially after its reform in 2015, which instated clear provisions on relevant topics such as interim measures, the effects of arbitration agreements contained in a company’s bylaws before its shareholders, and arbitration…

Arbitrability, Fraud, India, kompetenz-kompetenz

(West Bengal National University of Juridical Sciences)/ /Leave a comment

The decision of the Indian Supreme Court in A. Ayyasamy v. A. Paramasivam (‘Ayyasamy’) [(2016) 10 SCC 386] has been previously discussed on this blog here, and here. This post seeks to analyse the distinction between arbitrability of fraud concerning India-seated arbitrations and foreign-seated arbitrations created as a result of this judgment. The court in World…

Ad hoc arbitration, China, Free Trade Zones, kompetenz-kompetenz

, (AnJie Law Firm)/ /Leave a comment

On December 30, 2016, the Supreme People’s Court (“SPC”) issued a set of new Opinions. It covers an array of matters relating to legal measures to expedite the development of Free Trade Zones. (Opinions on Providing Judicial Protection for the Construction of Pilot Free Trade Zones, December 30, 2016). Among other matters, the SPC sought…

India, kompetenz-kompetenz

(National Law University Odisha )/ /Leave a comment

A few months back, the Supreme Court of India attempted to set the issue of arbitrability of fraud at rest in the case of A. Ayyasamy v. A. Paramasivam [(2016) 10 SCC 386]. The court, while deciding an application under Section 8 held that although “mere allegations of fraud simplicitor” are arbitrable, “serious allegations of…

Arbitration, Financial Agreements, Financial Industry, kompetenz-kompetenz, Portugal, Swap

(University of Lisbon, Faculty of Law)/ /Leave a comment

and Duarte G. Henriques, BCH Lawyers 1. Until very recently the swaps industry seemed to be reluctant to use alternative dispute resolution or at least was very indifferent as to the choice of the dispute resolution mechanism, with disputes almost always being left for the courts of either London or New York to decide, these…

Ad hoc arbitration, Arbitration, Arbitration Agreements, Arbitration Awards, Arbitration Proceedings, Commercial Arbitration, Enforcement, Georgia, kompetenz-kompetenz, Set aside an arbitral award

(Hogan Lovells)/ /1 Comment

In 2009, Georgia adopted a new Law on Arbitration (“Law on Arbitration”) based on the UNCITRAL Model Law on International Commercial Arbitration with amendments as adopted in 2006 (“Model Law”). Shortly thereafter, Mr. Michael Wietzorek commented on the implementation of the new law on the Kluwer Arbitration Blog (here) and qualified this as a “significant…