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….
Last year at about the same period, I reported on two major events that had been taking place in the world of Intra- and Extra-EU BITs, the Regulation establishing transitional arrangements for bilateral investments agreements between Member States and Third Countries, on the one hand, and the Electrabel decision, on the other. See blog of…
and Matthew Lam, Partner, Clyde & Co As announced recently on this blog Chinese Court Decision Summaries on Arbitration, edited by WunschARB, were recently published by Kluwer Arbitration. The case summaries are a welcome addition to the Kluwer Arbitration database, particularly given the paucity of caselaw analysis currently available in this area, and the editors’…
A judgment of the European Court of 17 October 2013 (C-184/12) honors gold plated provisions when considered mandatory. Member state courts are allowed to consider their national gold-plating (the practice of implementing rules tougher than the minimum required by the EU) as being of overriding mandatory character. Arbitration clause In 2005, Unamar, a Belgian commercial…
In a recent decision in the long-running Astro v. Lippo dispute,1)PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v. Astro Nusantara International BV and others and another appeal (2013) SGCA 57. the Singapore Court of Appeal (the “Court“) grappled with the question of whether an unsuccessful party to an international arbitration award…
The “contribution of assets” requirement of the Salini test was often overlooked by commentators and tribunals, probably due to its “I-know-it-when-I-see-it” nature. The recent award in KT Asia Investment Group B.V. v Republic of Kazakhstan, however, demonstrates that a failure to meet the contribution requirement may put to rest a claim of an offshore company…
and Michael Nueber, Schönherr Introduction A new version of the so-called “Vienna Rules” came into force on 1 July 2013. Due to practitioners’ broad acceptance of the Vienna Rules 2006, changes were made only with regard to specific matters. The major focus of the amendments lies on expediting the arbitration proceedings and addressing cost-related issues….
The objective of this post is to help in-house and outside counsel communicate better with each other when addressing the topic of international commercial arbitration. While both may be (highly) conversant on the topic, the perspectives of each are potentially very divergent and true communication between them may be incomplete and ineffective. My desire here…
This article argues for the inclusion of synopses in arbitral awards, particularly ICSID awards which tend to be widely publicized and often exceed 100 pages in length, and in some cases, 300 pages. As international investment disputes continue to “mushroom” (UNCTAD, 2012), it is important for the arbitration community to think of ways to maximize…
The new Recast Brussels I Regulation, which governs the jurisdiction of courts and the recognition and enforcement of judgments in the Member States of the European Union, has taken the strong position that arbitration will continue to be excluded from its coverage. The Recast Regulation will begin to apply to Member States in January 2015,…
and Pol Thielen, Managing Associate, Litigation, Linklaters LLP, Luxembourg Luxembourg is home to many international holding companies and special purpose vehicles. As a consequence, when disputes between shareholders or power struggles within the management arise, the resulting proceedings usually takes place at the level of the Luxembourg entity. One of the weapons of choice in…
Imagine you are an arbitrator being asked to decide on the validity of a flawed international arbitration agreement. The parties have spent great time and effort negotiating and finally agreeing on the arbitration agreement in question. The parties’ representatives engaged in marathon negotiation sessions. The representatives exchanged correspondence throughout the negotiation. They also preserved each…
For those who may have missed earlier announcements, I’m delighted to inform you of a new content set – Chinese Court Decision Summaries on Arbitration – we added to Kluwer Arbitration in September. Edited by WunschARB, the cases launched last month with 126 summaries of cases concerning enforcement of arbitral awards. Another 139 summaries have…
I have written previously[1] about the preemptive effect of Section 2 of the Federal Arbitration Act (“FAA”), which provides: A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole…
One of the most important legal developments in Latin America during the last few decades has been the expansion in the protection of fundamental rights. This has occurred not only with regard to the express recognition of new substantive rights into several national legal systems, but also regarding the creation of procedural remedies geared to…
This morning, a colleague in Asia forwarded me an article with news of the latest efforts by Singapore to establish itself as a preferred location for international dispute resolution: an ambitious initiative by the country’s Law Ministry to make Singapore a regional destination for international commercial mediation, and plans to create a Singapore International Commercial…
Last week the hearing on jurisdiction and liability in an arbitration between Bilcon of Delaware et al. and the Government of Canada was streamed live on the website of the Permanent Court of Arbitration (‘PCA’). One of the most disputed issues between the parties in this case is the meaning and the scope of the…
The Office of the United States Trade Representative has issued another update on its long-running dispute with Guatemala over lax protection of worker rights in the latter country. Readers of this blog may recall that the United States initiated a state-to-state arbitration against Guatemala in 2011, invoking for the first time a fast-track arbitration mechanism…
A recent ruling of the Dubai Court of Appeal (see Case No. 1/2013 – Commercial Appeal, ruling of the Dubai Court of Appeal of 9 July 2013) gives new hope that despite the Dubai Court of Cassation’s disappointing approach in Case No. 156/2013 (see my blog of 21st October 2013), the UAE courts are, in…
The Full Court of the Federal Court of Australia (the Court) recently upheld a decision enforcing an arbitral award made by three London arbitrators (Gujarat NRE Coke Limited v. Coeclerici Asia (Pte) Ltd [2013] FCAFC 109). The Court dismissed the appeal confirming that the arbitrators did not deny the appellants procedural fairness and did not…
Introduction On 01 January 2014, a government bill (ErläutRV 2322 BlgNR 23. GP) introducing changes to the Austrian Arbitration Law will come into force (SchiedsRÄG 2013). Mainly Sec. 615 and 616 of the Austrian Code of Civil Procedure (ACCP), which regulate the procedural levels for challenging an arbitration award in front of an Austrian state…
Financial markets participants traditionally opt for the jurisdiction of the sophisticated English or New York courts to resolve disputes arising out of complex financial transactions. However, the globalization of financial markets and the increasing involvement of parties from emerging market jurisdictions in particular, concurrently with the recent financial depression, have caused stakeholders to seek alternative…
With regard to multicontract arbitration, the CEPANI Arbitration Rules (“the Rules”) contain a specific provision (Article 10). Article 10(1) allows the parties to pursue claims arising out of different contracts or in connection with more than one contract in one single arbitration. This can occur for example when parties decide to conclude different contracts with…
In a blog earlier this year (see my blog of 12 March 2013), I expressed concerns about a Dubai Court of First Instance ruling (see Case No. 489/2012, ruling of the Dubai Court of First Instance of 18 December 2012) that in complete disregard of the prevailing provisions of the New York Convention (see Convention…
