In its judgment of 26 November 2019 (I ACa 457/18), the Warsaw Court of Appeal gave its view on the duties of arbitrators and counsel in cases involving state aid. In a well-argued decision, the Court reversed the decision of the lower court and annulled an award rendered by a prominent international tribunal on the…
An award set-side underlines that it has been annulled in the jurisdiction in which it has been rendered. The grounds for setting aside an award are provided by the UNCITRAL Model Law and are quite similar throughout numerous jurisdictions. Article V of the New York Convention (‘NYC’) presents a set-aside award as one of the…
In a recent decision, National Agricultural Co-operative Marketing Federation of India (NAFED) v. Alimenta S.A. (“NAFED”), the Indian Supreme Court (“SC”) refused to enforce a foreign award on the ground of it being opposed to public policy under Section 7 (1) (b) (ii) of the Foreign Awards (Recognition and Enforcement) Act, 1961 (“the 1961 Act”)….
The COVID-19 pandemic and the ensuing lockdowns have the legal community debating and exploring force majeure. That, however, does not rule out the imminent likelihood of international arbitration locking horns with domestic insolvency law. Arbitration agreements and subsequent awards may possibly be left redundant and award-holders remediless where insolvency proceedings are commenced in respect of…
Public policy defences to the recognition and enforcement of arbitral awards continue to generate uncertainty. Under Article V(2)(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), an award may be refused recognition or enforcement if “[t]he recognition or enforcement of the award would be contrary…
In January 2020, following the Executive Order of President Trump, the United States imposed additional sanctions targeting predominately Iran’s metals sector including copper, iron and steel manufactures (the “Order”). These sanctions were designed to expand secondary sanctions to cover new industry sectors such as mining, textiles and construction. The secondary sanctions aim to deter and…
The Paris Court of Appeal considers that the arbitral awards annulled at the place of the arbitration do not amount to a valid cause for refusal of enforcement in France. Recently, the Court specified that whether the interests at stake are international or national does not change this position. Background of the Dispute On…
A decision by the Paris Court of Appeal rendered in 2018 rejected a request by the state of Cameroon for annulment of an arbitral award that had applied OHADA law over Cameroonian law (CA Paris 16/25484, 20 December 2018). The action for annulment had been brought by the state of Cameroon against three arbitral awards…
We live in time when sanctions hit the headlines almost every quarter. Naturally, this frustrates contracts and creates additional causes for disputes. However, there exists uncertainty as to whether sanctions also render awards unenforceable on the grounds of public policy. As will be shown in this post, even within the supreme court of one country…
The overwhelming weight of opinion among legal practitioners is that enforcement of foreign arbitral awards in Kazakhstan is theoretically possible under the New York Convention (“NY Convention”), albeit problematic in practice due to ambiguity in the Kazakh legislations. Many problems associated with the recognition and enforcement of foreign arbitral awards in Kazakhstan and the application…
Like virtually all arbitration laws, the Austrian Arbitration Act is silent on whether the lack of impartiality and independence of an arbitrator may be invoked for the first time in setting aside proceedings in cases where a party becomes aware of the relevant circumstances only after the award was rendered. The Austrian Supreme Court has,…
“Recourse to arbitration has now become a right of the competent ministry with the agreement of the Ministry of Finance. Whereas recourse to arbitration was previously an exception, now, this is a clear confirmation by the government of the importance of arbitration and the government’s commitment to participate in more rapid, cost-effective litigation.” – Saudi…
This is the 1st part of the report highlighting the most significant arbitration related decisions of the Swiss Federal Supreme Court (the “Supreme Court”) issued in 2019. Arbitrability In the decisions 4A_244/2019 and 4A_246/2019 of 12 December 2019, the Supreme Court dealt with the issue of arbitrability. In two arbitrations brought before a tribunal…
Questioning About the (Inexorable?) Future Could artificial intelligence (AI) carry out decision-making? Is it just a matter of time? Will AI replace human arbitrators? Further, will emotional intelligence always trump AI, or will AI enhance the arbitral process? Despite the topicality of the subject, the arbitration rules remain silent about AI. However, there is also…
For a number of years, most Hungarian domain name disputes have been decided by an Alternative Dispute Resolution Forum (hereinafter: ‘Forum’) operated by the Council of Hungarian Internet Providers (‘Internet Szolgáltatók Tanácsa’, abbreviated as ‘ISZT’). Although the procedure conforms to the Uniform Domain Name Dispute Resolution Policy established by the Internet Corporation for Assigned Names…
There have been some false dawns but Thailand has become significantly more arbitration-friendly in recent years. This post briefly canvasses the recent developments and identifies potential areas for further development. Amendments to the Thai Arbitration Act – Arbitrators and Representatives Allowed to Work in Thailand Previously, foreign arbitrators were required to undergo an onerous…
Introduction Since the enactment of the Argentine Civil and Commercial Code (the “CCCN”),1)The CCCN, Law No. 26.994, is in force since August 1, 2015. Argentina counts on a national statute to regulate the “arbitration agreement”. This legislative milestone has been mostly welcomed by the arbitral community, although some of its provisions have been subject to…
In a landmark decision rendered on May 15, 2019, the Brazilian Superior Court of Justice rejected the argument that transmission of an arbitration agreement via subrogation violated public policy. The Court thus gave full effect in Brazil to a foreign arbitral award resulting from a transmitted arbitration agreement. The decision sets the “law of the…
The decision of the Supreme Court of India (“SC”) in Ssangyong Engineering & Construction Co. Ltd. v. National Highways Authority of India (NHAI) (“Ssansyong”), has led to three notable developments: (1) it clarifies the scope of the “public policy” ground for setting aside an award as amended by the Arbitration and Conciliation (Amendment) Act 2015…
A recent court judgment confirms enforceability in Greece of a US judgment awarding USD 10 million in punitive damages The Judgment no. 722 of 2019 of the Single Member Civil Court of Piraeus paves the way to a more permissive approach as regards the enforceability of foreign court judgments and arbitral awards on punitive damages…
The principle of res judicata is a universal principle recognized by the legal systems of all civilized nations. The res judicata principle should be applied by arbitral tribunals as the arbitral tribunals are alternative to the courts and when an award is enforced it becomes a part of the legal order of the country where…
The Public Policy Exception as an Unruly Horse There is an ongoing quest for a uniform application of the New York Convention. However, the interpretation of the exceptions to enforcement still varies. Albeit applying the same provisions, national courts continue to adopt different approaches to the enforcement of foreign arbitral awards. This is particularly true…
In a decision from June 6, 2018, the Third Chamber of the Paraguayan Court of Appeal (the “Court”) decided an annulment application, recognizing that issues of illegality and corruption are arbitrable, as long as such decision does not imply the imposition of sanctions, something that is left to the local criminal courts1)Recurso de Nulidad interpuesto…
The decision made in the case of Hardy Exploration & Production (India), Inc. v. Government of India, Ministry of Petroleum & Natural Gas (Civ. Action No. 16-140 (D.D.C. 7 June 2018)) (“Hardy case”) is yet another decision in a string of outcomes under the New York Convention proving that the repeated adagio “if it ain’t broken,…
