In a landmark decision of 13 April 2010 (4A_490/2009, published on 2 July 2010), the Swiss Federal Supreme Court confirmed that the principle of res judicata is part of procedural public policy, and it set aside a CAS award for violation of that principle. At first sight, the decision of the Federal Supreme Court seems…
Many leading jurisdictions in international arbitration have adopted all or part of the UN Model Law on International Commercial Arbitration (“Model Law”). The question that remains is: Why Hasn’t the United States? The Federal Arbitration Act does provide many similarities to the Model Law. They both address enforcement of an arbitral award, grounds for setting…
It is true that Canada did not qualify for FIFA’s World Cup and did not dominate at the Winter Olympics. However, when it comes to the UNCITRAL Model Law on Commercial Arbitration, Canada is a leader. This year marks the 25th anniversary of the Model Law. Since becoming the first state signatory to the Model…
In 1924, the League of Nations launched a worldwide effort to codify three important subjects of public international law: Nationality, Territorial Waters, and the Responsibility of States for Damage Caused in Their Territory to the Person or Property of Foreigners. These efforts culminated in the First Conference for the Codification of International Law, which took…
The ongoing saga regarding Chevron’s legal travails in Ecuador took an interesting twist this week. As I reported earlier, Chevron has secured key outtakes of the movie Crude that appeared to show alarming collusion between the plaintiff lawyers and the Court-appointed expert. According to pleadings filed yesterday pursuant to 28 U.S.C. 1782, the outtakes include…
This year, the State of Florida, with significant help from the many international practitioners working in Florida, proposed and passed a bill changing the Florida Arbitration Act to substantially match the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”). On May 12, 2010, Governor Crist signed into law Bill CS/HB 821 modifying Florida Statutes…
The 14 July 2010 Award in Saba Fakes v. Turkey (Fakes) is notable because it expressly disapproves of the approach taken by the Tribunal in Phoenix Action v. Czech Republic, which found in its 15 April 2009 Award that good faith and legality are jurisdictional requirements for access to ICSID arbitration. Fakes is a welcome addition to…
Can arbitrators be called to give testimony on the arbitral procedure before the court in charge of annulment or enforcement actions? Courts in England and Norway had to tackle this issue and have given a similar answer to this question: arbitrators can be asked to give testimony as to the elements of facts of the…
A string of mainstream media reports are suggesting that Uruguay is looking to compromise with Philip Morris International in relation to a sensitive international arbitration. On Tuesday, The UK-based Guardian newspaper reported that Uruguay has promised to water down anti-smoking laws after pressure from the tobacco giant Philip Morris, prompting accusations of corporate bullying. More…
The recent publication of the LCIA India Arbitration Rules (the ‘Rules’) has sparked a fair amount of discussion and interest, not in small measure owing to the fact that this is the first instance when an international arbitral institution has published a set of arbitration rules tailored for the Indian scenario. One of the ways…
Last month a number of noteworthy arbitration-related developments took place in Moscow. Firstly, the international conference “Commercial Arbitration in Russia, Sweden and the UK: New Business Opportunities”, was held on 9-10 June at the Congress Center of the Russian Chamber of Commerce and Industry. The conference was jointly organized by the Center of Arbitration and…
I recently spoke at a conference co-sponsored by the Milan Chamber of Arbitration and the ICC on the occasion of the publication of the new Italian arbitration treatise entitled Commentario Breve al Diritto Dell’Arbitrato Nazionale ed Internazionale (CEDAM 2010) by my colleague Massimo Benedettelli, along with co-authors Claudio Consolo and Luca Radicati di Brozolo. The…
Switzerland may be one of the world’s most important arbitral seats, even so one would scarcely expect arbitration to hold much interest for the tubercular residents of Davos in Mann’s novel Der Zauberberg or The Magic Mountain. Yet aficionados of arbitration who persevere to the sixth chapter of his lengthy book are treated to a…
The 2010 World Cup may have come and gone (good, or perhaps bad news, depending where you stand on this), as by the looks of it (at least from where I’m sitting in London, SE1), has our short-lived summer. Thoughts spring to mind: why did we ever complain about the sweaty carriage on the London…
As is well known, Section 1782(a) provides that a “the district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal”. The applicability of 28…
The discussion on the position of arbitration in the Brussels Jurisdiction and Enforcement Regulation (Regulation 44/ 2001) has now reached the Committee on Legal Affairs of the European Parliament. Just to remind those less familiar with the issue: the present Regulation, as well as the preceding Jurisdiction Convention, allowed courts in EU countries to assume…
“With over 20,000 contracts executed each year, it is simply impossible to address the problems of cost and delay in arbitration through artful drafting.” That was the gist of comments made by a general counsel of a major corporation at last month’s ITA workshop. To which another general counsel on the panel replied, “No, we…
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…
