Australia, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor

(University of Sydney & Williams Trade Law)/ /Leave a comment

Indonesia is not the only Asia-Pacific nation that is reassessing investment treaties containing provisions on Investor-State Dispute Settlement (ISDS, especially arbitration). India announced a review in 2013, partly in the wake of the successful claim from an Australian mining investor, although the impact in practice is hard to discern or predict – especially under the…

Arbitral Award, Set aside an arbitral award, UNCITRAL Model Law

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

In further nod to the non-interventionist and pro-arbitration stance of the Singapore courts, the Singapore Court of Appeal in BLC and ors v. BLB and anor [2014] SGCA 40 (“the BLC decision“) reversed the decision of the High Court to set aside part of an arbitration award (“Award“) on the ground of a breach of…

Exhaustion of Local Remedies, International Law, Investment, Investment Arbitration, Investment protection, Investor, NAFTA

(University of Michigan Law School)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

In its Award on Jurisdiction and Admissibility, a unanimous tribunal in Apotex, Inc. v. United States dismissed a Canadian manufacturer’s claims that the United States judiciary had violated NAFTA by mis-applying a regulatory time period. Most of the reaction to Apotex has focused on the tribunal’s decision that the claimant’s activities in the United States—and…

Arbitration, Arbitration Act, Arbitration Institutions and Rules, Arbitration Proceedings, India

/ /3 Comments

The Law Commission of India under the chairmanship of Justice AP Shah had constituted an expert committee to work on the 246th Report on “Amendment to the Arbitration and Conciliation Act, 1996” which was recently submitted to the Government of India. In this piece, Ashutosh Ray, who was a part of the expert committee, covers…

Legislation, United Arab Emirates

(Clyde & Co.)/ /Leave a comment
Clyde & Co.

Enactment of a federal arbitration law has been ‘imminent’ since the United Arab Emirates acceded to the New York Convention in 2006 (the ‘Convention’). Once enacted, it is expected that the federal law will repeal Articles 203 to 218 of Federal Law (11) of 1992, the Civil Procedure Code (‘CPC’), which currently govern arbitration in…

Asia-Pacific, BIT, Indonesia

(Faculty of Law, University of New South Wales) and (Omnia Chambers)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

The value of investor-state dispute settlement (ISDS) procedures has lately been questioned by a number of countries. The Australian Government’s 2011 Trade Policy Statement – stating that Australia would not agree to ISDS in its treaties – caused much debate and controversy. In part, Australia’s policy was motivated by the Philip Morris claim, instituted in…

Arbitration Agreements, Validity

(Berwin Leighton Paisner LLP)/ /1 Comment

By Nicholas Fletcher QC and Victoria Clark of Berwin Leighton Paisner LLP In the recent decision of Christian Kruppa v Alessandro Benedetti and Bertrand des Pallières [2014] EWHC 1887 (Comm), Mr Justice Cooke sitting in the English Commercial Court was asked to decide whether or not or a governing law and jurisdiction clause constituted an…

Best practices

(Young ICCA), , and (Albright StoneBridge Group)/ /Leave a comment

The Young ICCA’s Workshop on “The Art of Persuasion” brought together, from all parts of the world, a future generation of arbitration lawyers and the reunited outgoing and incoming presidents of ICCA: Professors Jan Paulsson and Albert Jan van den Berg. Who else would be better to divulge on the subject of persuasive advocacy? The…

Arbitration Quiz

(MDisputes)/ /1 Comment

Below are the answer keys to the international arbitration word search and crossword puzzle that accompanied the August 14, 2014 post Summer Arbitration Quiz 2014. The answers to the quiz itself will be posted in early September. Reminder: the first person to submit correct answers to the Summer Arbitration Quiz (or the one who comes…

Arbitral seat, Arbitration Agreements, Hong Kong, Law governing the arbitration agreement

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

By Justin D’Agostino and Timothy Hughes, Herbert Smith Freehills The Hong Kong International Arbitration Centre (“HKIAC“) has amended its Model Clauses in order to include an optional provision that specifies the parties’ choice of law to apply to an arbitration clause. The express designation of a particular law to govern an arbitration clause does not…

Arbitration, Arbitration Awards, Arbitration Quiz

(MDisputes)/ /2 Comments

Mid-August is that time in the northern hemisphere when absence from their cases makes vacationing arbitration professionals fidget at the beach or in the mountains. What to do after you have breezed through volume VII of Gary Born’s salacious yet authoritative “50 Shades of Arbitration Procedure”, discovered hundreds of folding patterns in the ICDR arbitration…

English Law, Estoppel, Res Judicata, Third Party

(Lalive)/ /1 Comment
YIAG

In the recent case of OMV Petrom SA v Glencore International AG [2014] EWHC 242 (Comm) (07 February 2014) (“Petrom v Glencore”), the English Commercial Court was faced with the question of whether issues arising and decided in an arbitration should be treated as settled in subsequent court proceedings brought by a non-party to the…

Arbitrators, Conflicts of interest, Costs in arbitral proceedings, Damages

(Freshfields Bruckhaus Deringer LLP)/ /Leave a comment
Freshfields Bruckhaus Deringer

The Austrian Supreme Court (OGH) confirmed that an arbitrator who is dismissed during the arbitration by a state court because of conflict of interest before the award is rendered may recover compensation for (useful) services rendered until dismissal (Austrian Supreme Court, Der Oberste Gerichtshof, OGH, 17 February 2014, 4 Ob 197/13v). The president of an…

Anti-arbitration, Anti-suit injunction, Arbitration, Brazil, Domestic Courts, Interim Orders, Jurisdiction

(BMA Advogados) and (BMA - Barbosa, Müssnich & Aragão Advogados)/ /Leave a comment

Do international arbitrators have the power to overturn interim measures granted by a Brazilian court? Do Brazilian courts have the power to stay international arbitrations? A recent decision rendered in the Petroplus Sul Comércio Exterior S.A. (“Petroplus”) et al. v. First Brands do Brasil Ltda. et al. (“First Brands”) dispute has just provided its answer…

Arbitration Act, Arbitration Agreements, Arbitration Proceedings, India, Seat of the arbitration

(National Law School of India University, Bangalore)/ /Leave a comment

A few days ago, this blog published an outsider’s perspective on the decision of the Supreme Court of India (SCI) in Reliance v Union of India (Reliance v Union of India, Civ App No. 5675 of 2014 (Supreme Court of India)) which has been applauded by international practitioners around the world since it curbed the…

Uncategorized

(Lexlitis) and (DMDB Law)/ /Leave a comment

The advance on costs at the outset of the arbitration ensures that arbitrators are covered for the fees and expenses made upon rendering their final award. It is common practice both in institutional and ad hoc arbitration that the procedure will only continue – or even start – upon payment in full of the advance…

Applicable Law, Arbitration Agreements, Germany, Group of Companies Doctrine

(Linklaters LLP)/ /1 Comment

A recent decision of the German Federal Supreme Court dated 8 May 2014 (case reference no. III ZR 371/12) again calls for a debate on the binding effect of an arbitration agreement for a non-signatory – a well-known and highly-debated phenomenon since the Dow Chemical arbitration. The Dow Chemical case According to the award rendered…

England, English Law, Freezing Orders, Interim Orders, Ukraine

(CAI & Lenard )/ /Leave a comment

I. General Aspects of Enforceability English Worldwide Freezing Order (“WFO”) being called by Matthias Scherer and Simone Nadelhofer one of the “nuclear weapons” of commercial litigation and arbitration, is a preliminary injunction preventing a defendant from disposing of assets pending the resolution of the underlying substantive (arbitration or court) proceedings. Its issue in support of…

German Federal Supreme Court, Germany, Ordre Public, Public Policy, Recognition and enforcement of arbitral award, Set aside an arbitral award

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

In an order dated 28 January 2014 (file number III ZB 40/13), the German Federal Supreme Court (Bundesgerichtshof, the “Court”) clarified that an arbitral award can only be set aside in recognition or enforcement proceedings by a state court in “extremely exceptional cases”, i.e. if an award breaches the fundamental principles of the German legal…

Uncategorized

(MDisputes)/ /1 Comment

Arbitration service providers often seem to handle parties, especially in-house counsel, with gentle kid gloves. A good example is any “roundtable of in-house counsel”, which is now as common at arbitration conferences as children’s tables are at weddings. Just like at weddings, the adults occasionally wander over to check on things and ask, “did you…

Arbitral Tribunal, Arbitration, Arbitration Act, Arbitration Proceedings, Arbitrator Challenges, Arbitrators

(BCH Advogados)/ /3 Comments

In his President’s Message (ASA Bulletin, Vol. 32, no. 2, 2014), Elliott Geisinger proposes a real challenge to the arbitration community. In a simple but rather persuasive rhetorical style, Geisinger places in confrontation Me. Paul Philibert Confus, Avocat à la Cour and Sir Reginald Muddle, QC, giving life to a debate that seems to be…

ICSID Arbitration, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor, Latin America

(Pinheiro Neto Advogados)/ /Leave a comment

Investment arbitration is a crucial and sensitive dispute-resolution method, notably because the treatment given to foreign investment matters may materially affect the economic and social realities of a country or region, particularly those in development. In the last decade, however, as already reported and addressed in this blog by, among many others, Vanessa Giraud and…

Arbitral Award, Enforcement, Mareva Injunction

(Fasken Martineau DuMoulin LLP)/ /1 Comment

By Henri Alvarez and Alexandra Mitretodis, Fasken Martineau DuMoulin LLP In Sociedade-de-fomento Industrial Private Limited v. Pakistan Steel Mills Corporation, decided on June 2, 2014, the Court of Appeal of British Columbia set the test in international arbitration for enforcing foreign arbitral awards by freezing assets. The decision confirms that a party with limited association…

Arbitration Proceedings, ICC Arbitration, Management

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ArbitralWomen

The worldwide launch of the Guide for In-House Counsel and Other Party Representatives on Effective Management of Arbitration Guide took place on 6 June 2014 in Paris. The Guide provides a checklist for the procedural decisions that need to be made at each principal phase of an arbitration. Useful in both large and small cases,…