When discussing public policy, English lawyers like to quote the famous comment of an English judge in the early 19th century that “public policy is a very unruly horse, and once you get astride it you never know where it will carry you”. Recent history shows how difficult it is to ride the ‘unruly horse’;…
In a decision dated 8 December 2009, published on 13 June 2010 (case 4A_446/2009, published as 136 III 107), the Swiss Federal Supreme Court held that persons acting as board of directors of a company that subsequently became insolvent cannot rely on an arbitration clause contained in the articles of association of that insolvent company…
In two decisions both dated 11 January 2010, published on 16 April 2010 (cases 4A_256/2009 and 4A_258/2009), the Swiss Federal Supreme Court dismissed two appeals regarding the irregular constitution of an arbitral tribunal by stating that the complainant failed to sufficiently substantiate his allegations. Background In 2006, two ICC arbitrations were initiated. They had the…
In a decision dated 11 February 2010, published on 29 March 2010 (case 4A_444/2009), the Swiss Federal Supreme Court dismissed an appeal against a tribunal’s decision that it had jurisdiction over a request for declaration that damages are owed due to the violation of an arbitration clause. The Supreme Court dismissed the appeal because it…
This year’s ICCA Congress in Rio de Janeiro not only confirmed that nobody knows to party better than cariocas, but also served as an impressive reminder of the increasing pro-arbitration approach of Brazilian courts, the remarkable growth in the number of arbitration proceedings in Brazil and the high sophistication of the Brazilian arbitration bar. Yet…
Earlier today, an ad-hoc annulment committee at the International Centre for Settlement of Investment Disputes (ICSID) completely annulled a 2007 arbitral award that had been rendered in favour of US energy company, Sempra Energy International. The striking development serves to nullify a US $128 Million (plus interest) award wherein a panel of ICSID arbitrators had…
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…
27 June 2010 marks the 20th anniversary of investment treaty jurisprudence. On 27 June 1990, the tribunal in Asian Agricultural Products Ltd. v. Sri Lanka (ICSID Case No. ARB/87/3) (AAPL) dispatched its final award to the parties. The AAPL tribunal (Dr. Ahmed Sadek El-Kosheri (President), Professor Berthold Goldman and Dr. Samuel Asante) was the first…
Recent legislative developments in Oklahoma, and a few other U.S. states, reflect a growing mistrust of international and foreign law and legal systems. These proposed statutes and constitutional amendments are one aspect of parochial backlash in the United States and elsewhere against developments in international law and dispute resolution over the past decades. There are…
By the end of the second round of negotiations on the Trans-Pacific Partnership (TPP) in San Francisco June 14-18 some observers were concerned that the lack of inter-agency consensus on the protection of foreign investment risks slowing the negotiation of investment issues in the TPP context. If there is no internal U.S. agreement by the…
The United States’ Supreme Court opinion in Stolt-Nielsen S.A. v. Animalfeeds International Corp. has already been the focus of much discussion in both U.S. and international arbitration circles. One area of interest for arbitration practitioners is the impact which the decision may or should have on how drafters of arbitration clauses should address the issue…
Having had their wings clipped by the European Court of Justice in West Tankers, the English courts have recently confirmed that there is life in the anti-suit injunction yet. In AES UST-Kamenogorsk Hydropower Plant LLP v UST-Kamenogorsk Hydropower Plant JSC [2010] EWHC 772 (Comm), Burton J granted anti-suit relief to restrain litigation in Kazakhstan even…
I spent some time in Namibia and South Africa last December looking into the impact of bilateral investment treaties on land reform. I don’t do a lot of field trips, and my wife harboured some suspicion that this “research venture” was merely a tidy excuse to trade the New York winter for the Southern African…
An interesting issue regarding the enforceability of foreign arbitral awards, in relation to the provisions of the New York Convention of 1958 and its alleged conflict with domestic Greek Civil Code provisions in relation to conflict of laws and public policy doctrines arose in Greek jurisdiction. The matter is of specific interest as the dispute…
The beauty of the World Cup, and especially this game, is that it’s a marvelous opportunity to demonstrate one small piece of lingering English superiority. This “showdown” between England … is in fact a made-for-history moment to score one back for the old country. It’s the one darned thing they know they can beat America…
In the past year, there have been several posts (here , here, and here) on the applicability of 28 U.S.C. § 1782 to international arbitration and on the issuance of conflicting judicial opinions on this topic. As reported by Roger Alford in a recent post , a federal district court in the Southern District of…
The arbitrability of a dispute is not generally limited to private law. In many countries, including Germany and Switzerland, it is admitted that arbitration can also bear on claims derived from public law, and in particular on rights conferred upon by contracts subject to administrative law. Arbitrability of such disputes may however be more problematic…
The preliminary hearings in the Pacific Rim v. El Salvador CAFTA arbitration went off without a hitch at the start of this week. I’d like to report that I hung on every word via the live webcast that had been arranged by the International Centre for Settlement of Investment Disputes. However, I spent my Monday…
UNCTAD’s most recent note on investment treaty arbitration (Latest Developments in Investor-State Dispute Settlement, IIA Issues Note No. 1 (2010)) provides a useful overview of the growth in investment treaty arbitration and the major jurisprudential developments in 2009. According to UNCTAD, the total number of known investor-state cases under investment treaties stood at 357 at…
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.
On April 27, 2010, the Supreme Court of the United States issued its decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., No. 08-1198, 559 U.S. ___ (2010). The Court reversed a Second Circuit ruling permitting arbitrators to impose class arbitration upon four shipping companies—including White & Case client Stolt-Nielsen S.A.—under those shipping companies’ shipping contracts…
At the recent Northwestern Law School conference on the Israeli-Arab Dispute and International Law I had the good fortune to address one of the few bright spots in current Arab-Israeli relations. Most international law scholars of the Arab-Israeli conflict seem to know little about international trade, and focus almost exclusively on the laws of war…
In the aftermath of the turmoil West Tankers has created in the arbitration community, the Cour de cassation has confirmed France’s reputation as being an arbitration-friendly jurisdiction by holding that anti-suit injunctions are not contrary to international public policy. A French company (In Zone Brands Europe) had entered into an exclusive distribution agreement of beverages…
Even casual observers of American arbitration law will have encountered the “manifest disregard of the law” doctrine. It has been invoked for decades by litigants seeking to set aside (vacate) an award under the Federal Arbitration Act (FAA). The doctrine is just one example of why the regime affecting commercial arbitration in the United States…
