India signed the Convention on the Recognition and Enforcement of Arbitral Awards, 1958, commonly known as the New York Convention (“the Convention”), on 10th June, 1958 and ratified it on 13th July, 1960. Often criticised as a “non-friendly” arbitration jurisdiction by the international community, this post analyses how India has fared in its obligations under…
On the 60th anniversary of the New York Convention, we can generally conclude that the public policy basis for refusing to enforce an arbitration award has for the most part worked as the drafters intended. The drafters knew that by permitting courts to refuse to enforce foreign arbitral awards based on public policy, they were…
On 26 April 2018, the Singapore High Court (“Court”), in China Machine New Energy Corp v Jaguar Energy Guatemala LLC and another [2018] – SGHC 101, has upheld an ICC award of a truly international nature. The case raised intriguing procedural questions in international arbitration: The impact of an “attorney-eyes-only order” (“AEO Order”), handling allegations…
In a decision dated 26 July 2018 and published on 29 August 2018, the Swiss Federal Supreme Court (the “Supreme Court”) dismissed an appeal to set aside an arbitral award as it found that Swiss public policy was not violated by a sole arbitrator’s confirmation of a success fee owed to a Swiss law firm…
Over the last few years, third-party ownership of soccer players (“TPO”) has become controversial. TPO is a mechanism through which a soccer club assigns a player’s economic rights, including the right to benefit from transfer fees every time the player is transferred to another club, to third-party investors in return for a financial counterpart. Considering…
In 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), the U.S. District Court for the District of Columbia (“District Court”) refused to stay the enforcement of a foreign arbitral award that ordered the Indian Government (“India”) to reinstate an…
On 5 April 2018, the Civil and Criminal Chamber of the Madrid High Court of Justice (Tribunal Superior de Justicia de Madrid, TSJM) set aside an arbitral award as contrary to public policy, because the challenged award contained “an unreasonable assessment of the evidence and unreasonable failure to apply applicable rules”.1) Competent Court to deal…
To readers of this Blog, the Dubai International Financial Centre (DIFC) is well known as an arbitration-friendly seat of arbitration in its own right. Developments there are fast apace and have more recently given rise to two challenge actions that, in turn, have raised considerations of arbitrability within the DIFC and the status of the…
The Swiss Federal Supreme Court, in a rare appeal against an award in a bilateral investment treaty arbitration, confirmed its statutory restraint in reviewing arbitral awards pursuant to article 190 of the Private International Law Act (“PILA”) and rejected the host state’s request to set aside the award for violating substantive public policy. (Case 4A_157/2017,…
On 1 November 2017, a division bench of the Supreme Court of India (hereinafter SCI) referred the matter between Venture Global Engineering LLC and Tech Mahindra Ltd. to a larger bench, in view of the diverging opinions emerging from the division bench. In substance, the SCI was looking at the legality of the order of…
In India, the Arbitration and Conciliation Act, 1996 does not address the question of which categories of disputes are capable of resolution by arbitration, and those that are not. Instead, this question has arisen before and been decided by Indian courts, in a variety of different contexts. In recent times, Courts have determined arbitrability claims…
Over the last years, European arbitration institutions show the increasing number of arbitration cases involving Russian and other former Soviet Union countries, most of which are members of the Commonwealth of Independent States (CIS). Russian parties were second only to local Swedish companies appearing before the Arbitration Institute of the Stockholm Chamber of Commerce (SCC)….
In June 2017, the Fourth European Anti-Money Laundering Directive (the “Fourth EU Directive” (EU) 2015/849) was transposed into German law. The regime was further tightened, its scope was extended and new features, such as the transparency register, were introduced. With the fifth European Anti-Money Laundering Directive already on the horizon, more changes are to come….
For many doing business in Serbia, the local legal framework, including for arbitration, is the great unknown. However, a short introduction to this legal culture should suffice to reveal that when it comes to arbitration-related matters, Serbian laws are not so different from those in countries hosting some of the most popular arbitral seats. In…
The U.S. District Court for the Western District of Washington has enforced a settlement between a Jones Act seaman and his employer for maintenance and cure payments, pursuant to the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). Castro v. Tri Marine Fish Co., LLC, 2017…
1. I have written elsewhere about the uncertainty that the Portuguese courts have experienced in defining the “international public policy” of the Portuguese State and, more specifically, in finding in some particular cases that there was a situation amounting to a violation of that standard for the purposes of annulment of (or refusal to recognise)…
On April 28, 2017, the Court of Appeals for the District of Columbia Circuit (in a majority decision) affirmed the district court’s decision to set aside an award issued by a sole arbitrator finding that the award violated public policy. The award was rendered in the context of mandatory arbitration of statutory claims under the…
It is well known that Greek public finances have been in a precarious state since the country’s debt crisis erupted in 2010. In an environment of tough fiscal consolidation, compensation awards running in millions present a significant economic and political challenge. This post discusses a case before the Greek Supreme Court that resulted in a…
An arbitration-friendly decision was rendered by the 11th Civil Chamber of the Turkish Court of Appeals (“Court of Appeals”) on 22 June 2016 [File no. 2016/4931, Decision no. 2016/6886]. The decision deals with the question as to whether the arbitral tribunal’s failure to refer the calculation of damages to experts constitutes a violation of public…
The decisive underlying reasoning (motifs, Begründung) is, without doubt, an essential part of any arbitral award and as such bears the potential of frustrating parties and arbitrators alike. On the one hand, elaborate reasoning in arbitral awards more often than not comes at the price of long waiting periods for the issuance of the awards,…
The Ukrainian “saga” on the enforcement of the SCC emergency arbitrator’s award continues – the case is pending the second round of cassation review. The arbitration proceedings were initiated by the Dutch and English investors OIL&GAS PLC and POLTAVA GAS B.V. (“JKX” or “Claimants”) on January 7, 2015. The case concerns the alleged Ukraine’s failure…
Two recent decisions (nos. 14/2015 and 176/2015) delivered by the Greek Supreme Court analyze the issue of annulling arbitral decisions on public policy grounds. Since arbitration is particularly valuable for the contractual freedom, the general tendency is to restrict the powers of civil courts when they (re)consider and overturn an arbitral award, so that private…
In a recent enforcement action of a foreign arbitral award rendered under the ICC Rules in London, England, the Dubai Court of Appeal questioned the United Kingdom’s proper membership of the 1958 New York Convention (on the recognition and enforcement of foreign arbitral awards) (the “NYC” or simply the “Convention”). The action was brought by…
Public policy remains one of the most popular grounds used by the parties to oppose the recognition and enforcement of an arbitral award. Its vague content also makes its application in court greatly challenging – academics still refer to public policy as the “unruly horse”. This creates a significant responsibility for the courts to find…
