Arbitration Agreements, Arbitration Awards, Commercial Arbitration, Domestic Courts, Europe, Public Policy, Set aside an international arbitral award

(Castaldi Mourre & Partners)/ /Leave a comment

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…

Arbitration Proceedings, Investment Arbitration

(Investment Arbitration Reporter)/ /3 Comments

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…

Investment Arbitration

(University of Victoria Faculty of Law)/ /Leave a comment

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…

Arbitration Agreements, Arbitration Institutions and Rules, Arbitration Proceedings, Commercial Arbitration, Domestic Courts, kompetenz-kompetenz, South America

(Veirano Advogados)/ /Leave a comment
American Society of International Law (ASIL)

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.

Arbitration Agreements, Arbitration Proceedings, Domestic Courts, Federal Arbitration Act (FAA), Manifest disregard of the law

(White & Case LLP)/ /Leave a comment
White & Case

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…

Investment Arbitration, Middle East

(Notre Dame Law School)/ /Leave a comment

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…

Arbitration Awards, Jurisdiction, National Arbitration Laws

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

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…

Federal Arbitration Act (FAA), Manifest disregard of the law, North America, Set aside an arbitral award

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

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…

Arbitration Institutions and Rules, Arbitration Proceedings, Arbitrators, Disclosure

(International Council for Commercial Arbitration)/ /Leave a comment
Freshfields Bruckhaus Deringer

When it comes time to identify an arbitrator candidate, be it in the investor-state context or in an international commercial arbitration, there are many factors to consider. One such factor, however, that has been the focus of much attention recently by arbitration institutions, practitioners and commentators alike, is arbitrator availability. It is clearly a sore…

Commercial Arbitration, Other Issues

(Wilmer Cutler Pickering Hale and Dorr LLP)/ /1 Comment
WilmerHale

A defining characteristic of international arbitration is the ability to choose the decision-makers who determine the dispute. The parties’ right to choose their arbitrator is qualified by the requirement that the arbitrator adhere to standards of independence and impartiality. Where the parties consider that the arbitrators do not meet these standards, they can bring a…

Arbitration Proceedings, forum non conveniens, Investment Arbitration, North America, South America

(Notre Dame Law School)/ /1 Comment

Yesterday a federal court in New York granted Chevron’s request for discovery of outtakes from the 2009 documentary Crude about the multi-billion dollar litigation in Ecuador. Chevron’s request was pursuant to 28 U.S.C. 1782, which authorizes a judge in the United States to order discovery of evidence to be used in proceedings before a foreign…

Arbitration Awards, Arbitration Proceedings, Arbitrators, Commercial Arbitration, Domestic Courts, Europe

(Castaldi Mourre & Partners)/ /Leave a comment

In recent years, there has been increasing concern about court orders aimed at preventing a party from initiating, continuing or participating in arbitration proceedings (see notably, IAI Series on International Arbitration, no 2, Anti-Suit Injunction in International Arbitration, E. Gaillard ed., 2005; ICCA Congress Series, No 13 International Arbitration 2006, Back to Basics?, A. J….

Arbitration Agreements, Commercial Arbitration, North America

(Cleary Gottlieb Steen & Hamilton LLP)/ /Leave a comment

On April 27, 2010, the United States Supreme Court held in Stolt-Nielsen S.A. v Animalfeeds International Corp., that under the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), “[A] party may not be compelled . . . to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to…

Arbitration Awards, Compensation for Moral Damages, Investment Arbitration

(University of Ottawa Faculty of Law, Civil Law Section)/ /Leave a comment

Until very recently, the issue of moral damages had arisen in only a handful of investor-State disputes. However in 2008 and 2009 alone, no less than five arbitration awards discussed the issue. While some tribunals dismissed moral damages claims based on lack of evidence (Pey Casado v. Chile; Biwater v. Tanzania and Europe Cement v….

Arbitration Proceedings, International Courts, Investment Arbitration

(British Institute of International and Comparative Law (BIICL))/ /Leave a comment

King Solomon might have split the baby had he not realised the identity of its parent in time. Judges and arbitrators – some 3,000 years later – might be quicker to identify a company’s real group structure, but are they any better in splitting parent from child-subsidiary? A typical corporate veil piercing case involves a…

Europe, European Law, Legal Practice, Legislation

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

Art. 207 of the Lisbon Treaty defines the new common commercial policy of the European Union, and states that it shall furthermore relate also to “foreign direct investments”. This provision has the appeal of an outright earthquake, given that the field of foreign investment, and in particular investment treaties, has always been the exclusive realm…

Arbitration Institutions and Rules, Conciliation

(Habib Al Mulla & Co.)/ /Leave a comment

It was a deliberate decision of the Abu Dhabi Commercial Conciliation and Arbitration Centre (ADCCAC) to include both the term and procedures for “conciliation” in their rules. Representatives of ADCCAC regularly comment to the effect that they see it as one function of a dispute resolution body to offer to the disputants a pre –…

Disclosure, Investment Arbitration, Transparency in investment arbitrations

(Investment Arbitration Reporter)/ /5 Comments

I spent yesterday at a Georgetown Law School conference on transparency and international arbitration. Ostensibly focused on arbitration writ large, the event tended to zero in on investor-state arbitration (and investment treaty arbitration more specifically). While various arguments were aired for and against transparency, I was struck (anew) by the extent to which the transparency…

Arbitration Institutions and Rules, Middle East, Other Issues

(Habib Al Mulla & Co.)/ /Leave a comment

The most commonly used form of construction contract in the Gulf is the FIDIC form. Although the FIDIC forms, for project procurement and consultantcy services, progressed slowly over the years, culminating in the burst of colours in the suite of contracts issued in 1999, some parts of the Middle East still use the 1987 (Red…

Costs in arbitral proceedings, Legal Practice, North America

(Notre Dame Law School)/ /3 Comments

The ABA Journal has an interesting article on the Americanization of international arbitration. There’s nothing particularly new to our readers in this article. It’s a theme that my friend and colleague Tom Stipanowich has written about extensively. I’ve written a bit about the subject as well. But the fact that the story is being told…

Arbitration Agreements, Arbitration Proceedings, Investment Arbitration

(University of Victoria Faculty of Law)/ /Leave a comment

The principle of good faith arises in investment treaty arbitrations in various contexts. Tribunals, of course, regularly refer to Article 31(1) of the Vienna Convention for the rule that treaties shall be interpreted in good faith. Tribunals have noted that states must perform their treaty obligations in good faith. References to good faith occur in…

Investment Arbitration, Other Issues

(New York Law School)/ /1 Comment
Institute for Transnational Arbitration (ITA)

In the last month, two professors mused to one of the authors that “international investment arbitration is undertheorized”. One of the professors is a serious scholar of international law. The other professor was a former clerk at The Hague and writes about international investment arbitration. Their comment got us thinking: Is international investment arbitration undertheorized?…

Legal Practice, Middle East

(Habib Al Mulla & Co.)/ /Leave a comment

Constructively, commercial arbitration is a judicially recognized and an enforced method of dispute resolution in the UAE. Via Article 203 (5) of the Civil Procedure Law (1992), if the parties have agreed to refer a dispute to arbitration, an action on that dispute cannot be brought before the courts. So let us assume for present…