kompetenz-kompetenz

Arbitration, kompetenz-kompetenz, Language of arbitration

(International Council for Commercial Arbitration)/ /1 Comment

The very nature of international arbitration entails parties, arbitrators and any other participant in the arbitral proceedings generally being of different nationalities and speaking different languages. Therefore, the language in which the proceedings will be held becomes of great importance for the characteristic purpose of arbitration itself: the consensual resolution of disputes. Nevertheless, the procedural…

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…

Arbitration Agreements, Jurisdiction of the arbitral tribunal, kompetenz-kompetenz, Latin America

(Clyde & Co. LLP)/ /1 Comment
Clyde & Co.

The Brazilian Superior Court of Justice (“STJ”) has issued, on 19 June 2013, a landmark decision addressing the principle of Kompetenz-Kompetenz (Resp. no. 1,278,852-MG Samarco Mineração S/A v Jerson Valadares da Cruz). The decision deals with the allocation of competence between arbitral tribunals and national courts to decide on the validity of an arbitration agreement….

Arbitral Tribunal, Arbitration, Arbitration Agreements, Arbitration Proceedings, Brazil, kompetenz-kompetenz

(Mattos Muriel Kestener Lawyers)/ /Leave a comment

The facts On January 9, 2008, in the middle of the Amazon Rainforest, the dam of a hydroelectric power plant ruptured liberating 3.1 billion liters of water and precipitating an environmental mishap. Brazilian authorities hastily cornered the electricity generation company. The electricity generation company hastily pointed the finger at the builder of the hydroelectric power…

Domestic law, Enforcement, International arbitration, Jurisdiction, kompetenz-kompetenz, New York Convention

(Leaua & Asociatii)/ /3 Comments

By Crenguta Leaua and Stefan Dudas (Leaua & Asociatii) A new Code of Civil Procedure (CCP) including two separate sections on domestic and international arbitration entered into force in Romania on 15th of February. With this step, Romanian law continues to differentiate between domestic and international arbitration and to allow for a flexible regime for…

Annulment, Anti-arbitration, Appeal, Arbitration, Arbitration Agreements, Arbitration clause, Arbitration Proceedings, BIT, Foreign Investment Law, ICSID Convention, International arbitration, Investment Arbitration, Jurisdiction of the arbitral tribunal, kompetenz-kompetenz, New York Convention, Pre-arbitration Dispute Settlement Procedures, Principle of finality, Set aside an international arbitral award

(Independent Arbitrator)/ /Leave a comment

It has become fashionable in recent years, each time an ICSID annulment decision is released that takes issue with the procedures or reasoning of an ICSID tribunal, for commentators to bemoan the lack of certainty, predictability and finality that this reflects in the ICSID system for adjudicating investment treaty disputes between investors and host States….

English Law, Jurisdiction, kompetenz-kompetenz

(Wilmer Cutler Pickering Hale and Dorr LLP)/ /1 Comment
WilmerHale

Adjudicating contract disputes where it is alleged that the contract has been tainted by bribery, either in its procurement or in its performance, presents difficult issues for arbitrators, as well as for counsel. While the arbitrability of disputes involving allegations of bribery is generally no longer in doubt, a tribunal will still confront a number…

Arbitral seat, Arbitration, Arbitration Act, Asia-Pacific, Confidentiality, Enforcement, International arbitration, kompetenz-kompetenz, Mediation, National Arbitration Laws, New York Convention, Seat of the arbitration, UNCITRAL Model Law

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

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…

Arbitration Proceedings, kompetenz-kompetenz, South America

(M.A. Ribas Law Firm)/ /Leave a comment

Less than two weeks before arbitration practitioners’ eyes turned to Rio de Janeiro for the ICCA Congress 2010, a court from that same jurisdiction rendered a decision improving case law on important matters related to arbitration. On May 12th, 2010, the Tribunal de Justiça do Estado de Rio de Janeiro (which is similar to a…

Arbitration Agreements, Arbitration Institutions and Rules, Arbitration Proceedings, Commercial Arbitration, Domestic Courts, kompetenz-kompetenz, South America

(Veirano Advogados)/ /Leave a comment
American Society of International Law (ASIL)

The Court of Appeals for the state of Bahia in Brazil recently handed down an arbitration-friendly decision and vacated an injunction intended to stay an arbitration proceeding. In FAT Ferroatlàntica S.L. vs. Zeus Mineração Ltda. and others, the Court of Appeals addressed the issue of whether the existence of conflicting arbitration clauses in contracts pertaining to a single economic transaction justifies judicial intervention at the outset of the arbitration. The Court of Appeals held that, provided an arbitration agreement exists, such issue is to be dealt with by the arbitrators, not by the Courts.

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…