The 1981 French Arbitration Law did not contain a provision covering the form or the proof of an international arbitration agreement. The former Article 1499 of the Code of Civil Procedure (“CCP”) indirectly addressed the issue of form by stipulating, in the context of the recognition and enforcement of awards, that the existence of an…
To paraphrase Professor Henkin’s classic aphorism about international law – most parties respect most international arbitration agreements most of the time. And likewise, the international arbitral process works smoothly for most parties most of the time. Still, pathological cases arise in international arbitration, as in other contexts. Unfortunately, those aberrations command disproportionate attention, sometimes obscuring…
The International Chamber of Commerce Court of Arbitration (the ICC) is the largest arbitral institute. In addition, its Rules of Arbitration (the Rules) greatly influence the practice of arbitration, resulting in several commentaries. Over the course of 2011, these Rules are continuing to undergo revision and changes to continue to reflect current practices and trends…
Introduction: Many international commercial contracts (such as e.g., construction, distribution, sale and purchase) are governed by Swiss (substantive) law as per a choice of law provision. Often the choice of law is made in combination with an arbitration clause referring disputes to arbitration in Switzerland. The effect of international sanctions on commercial contracts has become…
Anyone considering Canada as the seat of an arbitration or as one among several jurisdictions where recognition and enforcement proceedings could be commenced should pay close attention to the Supreme Court of Canada’s March 18 decision in Seidel v. TELUS Communications Inc., 2011 SCC 15, which appears to mark a philosophical shift in Canadian arbitration…
The Arab Spring transforming the societies of the Middle East has raised more than a few questions among us in-house folk about what this will mean for dispute resolution in the region. Will civil institutions, in particular the courts, be a reliable mechanism in the coming years for upholding contractual rights, including agreements to arbitrate…
Clear tendencies towards an arbitration-friendly approach have been demonstrated by the Swedish Supreme Court during the latter part of 2010. During this term the Supreme Court has repeatedly taken an arbitration-friendly stance and emphasized that Swedish arbitration law and practice ought to be in line with international best practice in arbitration. Sweden has a long-standing…
The OECD-hosted Freedom of Investment (FOI) Roundtable is in the process of finalizing a statement regarding the role of international investment in supporting the realization of countries’ green growth objectives. The draft statement entitled “Harnessing Freedom of Investment for Green Growth” (Draft Statement) and three draft background consultation papers (Draft Papers) are available on the…
The public policy exception under Article V(2)(b) of the New York Convention is well recognised as the amorphous exception. To the extent it has been capable of definition, it has been found to embrace nebulous concepts such as a state’s most basic notions of morality and justice. No doubt it is for this reason that…
In recent years, an increasing number of parties to arbitration clauses providing for CIETAC arbitration in mainland China have chosen to take advantage of Article 4.2 of the CIETAC Rules, which allows parties to adopt “other arbitration rules” as the applicable rules of the arbitration. The underlying reason for this trend is simple: Article 4.2…
Will a court injunct arbitral proceedings if parties, before an arbitration hearing, allegedly reach a settlement agreement and a dispute subsequently arises over the existence of such an agreement? Is the tribunal functus? Recently, the Singapore High Court in Doshion Ltd v Sembawang Engineers and Constructors Pte Ltd [2011] SGHC 46 (“Doshion”) rightly held that…
Sports arbitration is becoming an increasingly important field. In Switzerland, where the Court for Arbitration for Sports is located, the Swiss Supreme Court is seeing lately nearly half of its cases coming from the CAS. Sports arbitration, however, gives rise to a specific concern with respect to the issue of consent. Often, athletes find themselves…
Gary Born has just published a great new casebook that is certain to become a standard text for international arbitration courses around the world. Everyone knows Born’s multi-volume treatise, which is invaluable as a reference tool, but hardly appropriate for the classroom. Now we have both, a great casebook to introduce the material to students…
While Russia is a signatory to the New York Convention, there is a perception amongst some practitioners and arbitration users that Russia is not an arbitration friendly jurisdiction. This viewpoint is, no doubt, due to a perceived scepticism of the Russian courts and is the driving force behind many foreign investors doing business in Russia…
The new French arbitration law, published on 14 January 2011, further reinforces Paris’ position as a leading arbitration centre. The new law, which comes thirty years after the previous 1980 law regarding domestic arbitration and the 1981 law dealing with international arbitration, maintains the distinction between domestic and international arbitration. It clarifies and enhances an…
The SIAC dispenses hospitality to the legal profession in Singapore on a regular basis, as part of its “outreach” efforts to what I suppose we can describe as its local client base. The latest of these events took place at the end of January at the Helipad — a dimly lit bar with, disappointingly, no…
On March 23, in Washington, DC, the Institute for Transnational Arbitration and the American Society of International Law will co-host a conference on “Fault Lines in International Commercial Arbitration.” Building on the American Law Institute’s draft Restatement of the U.S. Law on International Commercial Arbitration, Gary Born, Jan Paulsson, J. William Rowley, QC, Linda Silberman,…
As I discussed yesterday, an Ecuador Court has issued an $8.6 billion judgment against Chevron. I just got off a press conference call with plaintiff’s chief lawyer in Ecuador, Pablo Fajardo. He stated that the plaintiffs will seek enforcement of the Lago Agrio judgment throughout the world as soon as the Ecuador appeals process is…
Should arbitrators be permitted to serve as mediators of the disputes they might ultimately determine? Instinctive reactions to this question are likely to be coloured by a party’s legal background and cultural expectations. To those from common law traditions, the idea of combining the roles of mediator and arbitrator is rather alien, whereas in civil…
Today an Ecuador court fined Chevron $8.6 billion for environmental damage. According to the Wall Street Journal, $5.4 billion of that is to restore polluted soil, $1.4 billion to create a health system for the community, $800 million to treat individuals injured by the pollution, $600 million to restore polluted waters, $200 million to restore…
The goal had seemed an impossible one for many years. And then, recently, a tribunal in Berlin came close to breaking the famed barrier. Their noble effort was thwarted only by the Teutonic lapse of the chair who, on the verge of declaring the proceedings closed at 4 minutes and 43 seconds, spontaneously suggested terms…
The recent Commercial Court decision of A v B [2010] EWHC 3302 (Comm) (16 December 2010) is notable for two reasons. Firstly, the Commercial Court provided clarification of the requirements for pursuing an application for security under section 70(7) of the Arbitration Act 1996. Secondly, the decision is an indication of how the Supreme Court…
During the last quarter of 2010 the German Arbitration Institution (‘DIS’) and the Chartered Institute of Arbitrators (‘CIAarb’) held a conference in Frankfurt to debate the relative merits of the ways in which civil law/common law court procedures are adopted or adapted for use in international arbitrations. One of the more interesting sessions was devoted…
According to a well-placed contact at a major arbitral institute, a significant proportion of new arbitration matters involve post-acquisition disputes; in particular, claims brought against vendors of businesses who are accused of having misrepresented, sometimes fraudulently, an acquired business’s true financial position. Many of these claims relate to transactions carried out at the peak of…
