The much-awaited decision of the European Court of Justice (“ECJ”) in Allianz SpA v. West Tankers Inc, Case C-185/07 in February this year has focused renewed attention on the remedies available to a party confronted with court proceedings commenced in another jurisdiction in breach of an agreement to arbitrate. Now that the possibility of seeking…
The Japan Commercial Arbitration Association (the “JCAA”) introduced their International Commercial Mediation Rules (the “Rules”) on 1 January 2009. The JCAA has followed the lead of other international arbitral institutions in devising and promoting a set of mediation rules for international disputes. Settling disputes by mediation is hardly new to Japan. In a domestic context,…
In Switzerland, the Federal Supreme Court has recently, and for the first time, had the opportunity to hear and reject the challenge of an award rendered pursuant to the Expedited Procedure (Article 42) of the Swiss Rules. There is nowadays a recurring complaint that arbitration is becoming too long and too expensive a dispute resolution…
What could be more basic? Arbitrations begin with each side naming an arbitrator. References are occasionally made to “the fundamental right” to name one’s arbitrator. But there is no such right. Moreover, if it existed, it would certainly not be fundamental. The original concept that legitimates arbitration is that of an arbitrator in whom both…
George Bermann, the ALI Reporter for the Restatement (Third) on the U.S. Law of International Commercial Arbitration, presented a wonderful summary of the current progress on the Restatement at the ASIL annual meeting last week. Here are a few key thoughts from my notes. The Restatement is in its early stages and it could take…
American Bar Association’s International Law Section Criticizes the ABA Dispute Resolution Section’s Subcommittee Draft on Arbitrator Disclosure Guidelines It has been interesting to watch the strong reaction to the draft disclosure guidelines and checklist for arbitrators proposed by the Disclosure Subcommittee of the Arbitration Committee of the ABA’s Dispute Resolution Section. Over the last two…
In recent weeks, there has been widespread condemnation of the Sudanese government’s decision to expel 13 international aid agencies operating in Darfur. The expulsions came, of course, as retaliation for the international arrest warrant issued against Sudanese President Omar Al-Baashir. Most members of the UN Security Council have denounced the expulsions and warned that they…
In a recent decision of 22 January 2009 (4A_424/2008), the Swiss Federal Supreme Court had to consider an appeal against a decision of the Court of Arbitration for Sport (CAS). In the run-up to the 2008 Summer Olympics in Beijing, a qualifying competition was held for the women’s Olympic hockey tournament. The Spanish team won…
“…so many construction disputes are now heading towards arbitration” remarks the calling notice for the next Society of Construction Law-Gulf event in Dubai in April. Around the world, the economic downturn is producing very many financial disputes. The speculation is that with the global recession deepening, the number of arbitrations is set to spiral upwards….
A recent decision of the English High Court (F Ltd v M Ltd [2009] EWHC 275 (TCC)) confirms that the Court may intervene and allow successful challenge of an arbitral award in order to protect parties against the unfair conduct of an arbitration. However, the case also demonstrates that the applicable test (i.e. a serious…
I. Introduction On 9 February 2009 the Swiss Federal Tribunal (FT) quashed a Court of Arbitration for Sport (CAS) award (Case reference 4A_400/2008). Annulment of an award is a rare enough event to call attention in itself, though this case warrants further inspection. The issue is not the choice of the applicable law (Article 187…
Banks and financial institutions traditionally have favoured litigation over arbitration as the means of resolving international disputes. The reasons often given include: (i) financial disputes typically involve straightforward payment claims and do not involve complex legal questions or fact finding, with the latter more suited for arbitration; (ii) arbitration does not provide for the possibility…
One of the defining features of the international arbitration community is the plethora of international arbitration conferences. Every month the calendar is full of opportunities to travel the world to attend conferences. This month it is Frankfurt, Lausanne, The Hague, and Washington. Last month it was Paris, Dubai, Vienna and Bonn. It’s not exactly normal…
In November 2008 in the City of London v. Sancheti, the English Court of Appeal overturned the decision in Roussel-Uclaf v. G.D. Searle, where the English High Court had held that a subsidiary claiming the benefit of an arbitration agreement to which it was not a party was entitled to a stay of court proceedings…
Article 186 of the Swiss Private International Law Act (“PIL Act”) provides as follows: “1. The arbitral tribunal shall decide on its own jurisdiction. 1bis. It shall decide on its jurisdiction notwithstanding an action on the same matter between the same parties already pending before a state court or another arbitral tribunal, unless there are…
The Federal Arbitration Act (“FAA”) applies to interstate and international arbitrations in the United States, and it defines the limits of an arbitrator’s power to order non-party discovery. See 9 U.S.C. §§ 2 (directing U.S. courts to enforce arbitration agreements in “any maritime transaction or a contract evidencing a transaction involving commerce”) & 7 (related…
Two weeks ago, an LCIA tribunal issued its Award on Remedies in a dispute filed by the U.S. against Canada under the 2006 Softwood Lumber Agreement (SLA). This dispute is interesting in many respects. Most obviously, it is a state-to-state dispute adjudicated under the auspices of the LCIA, more commonly used for commercial arbitration. This…
The U.S. Supreme Court’s recent decision in Hall Street Associates, L.L.C. v. Mattel, Inc., 128 S. Ct. 1369 (2008) has provoked substantial commentary – as with many Supreme Court decisions regarding arbitration. The Hall Street decision held that the Federal Arbitration Act (“FAA”) did not permit parties contractually to expand the grounds for vacating or…
The mechanism for referring questions regarding a preliminary ruling allows the national judge to ask the ECJ for a clarification on a point of EC law. Art 234 EC Treaty, governing preliminary rulings before the ECJ, applies to national courts or tribunals ruling as courts of final appeal and it does not open up directly…
Last week I attended a wonderful conference at Pepperdine Law School on international sports arbitrations administered by the Court of Arbitration for Sport (CAS). It is a remarkably sophisticated regime that deserves far greater attention than it typically receives by the international arbitration community. Under the CAS Rules, all CAS tribunals have their seat in…
This week, many are talking about the long-awaited European Court of Justice judgments which have held Sweden and Austria in breach of their European Community Law obligations. (A third case against Finland has been delayed slightly, but will likely be resolved in the same way by the ECJ). According to the ECJ, Austria and Sweden…
On August 14, 2008, while the armed conflict over Abkhazia and South Ossetia between Georgia and Russia was raging, Georgia filed a request for the indication of provisional measures with the International Court of Justice (ICJ) in The Hague in order to preserve its rights under the International Convention on the Elimination of All Forms…
Last week the ALI Reporters held an invitation-only meeting in New York with arbitration luminaries to discuss the first draft of the first-ever “Restatement of the U.S. Law of International Commercial Arbitration.” The focus of the first draft is on the enforcement of international arbitral awards, which includes New York Convention grounds for challenge, as…
In light of interest in the international arbitration community concerning investment treaty cases against Argentina since the 2001 economic crisis, we thought it could be useful to share Freshfields’ working collation. We caution that this is based only on public records and press reports. Corrections are welcome. According to our data, 46 treaty cases have…
