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…
As reported several months ago – and confirmed last week – the International Centre for Settlement of Investment Disputes (ICSID) has a new Secretary-General. Meg Kinnear comes to the post after working for nearly two and a half decades as a lawyer for the Canadian Government. Of that time, the last decade has been spent…
Gary Born’s magisterial new work International Commercial Arbitration, published in two volumes this year by Kluwer, represents, in the range and depth of its coverage, and in the rigour and perception of its analysis, the most complete exposition of the law of international commercial arbitration ever available. Yet perhaps the most remarkable thing about this…
Just over one week ago, two pieces of anti-arbitration legislation – the Arbitration Fairness Act of 2009 (H. R. 1020) and the Consumer Fairness Act of 2009 (H. R. 991) – were formally introduced in the U.S. House of Representatives. Both acts would limit the ability to arbitrate consumer disputes, and the Arbitration Fairness Act…
In its decision of 9 December 2008 (4A_403/2008), the Swiss Federal Supreme Court took the opportunity to clarify its practice regarding the enforcement of arbitral awards that are suspended at the foreign seat of arbitration. In the case before the Swiss Federal Supreme Court, Company Y requested recognition in Switzerland of an arbitral award rendered…
I spent yesterday afternoon with a group of Latin American business journalists at Columbia University as part of an ongoing training program for developing country journalists. After an hour of sharing my geek-like interest in tracking obscure international business arbitrations, we spent some time talking about reporting methods. One topic of particular interest was the…
On October 9, 2008, the Paris Court of Appeal rendered two decisions confirming the importance of estoppel in international arbitration. See Merial SAS v. Klocke Verpackungs – Service GmbH, October 9, 2008, Case no. 07-06619; Marocaine des Loisirs v. France Quick SAS, October 9, 2008, Case no. 07-14539.
Part III of Born’s treatise concerns International Arbitral Awards. He initially points out that some 90% of international arbitral awards are voluntarily complied with. “This reflects the parties’ contractual undertakings to arbitrate and to comply with the resulting arbitral award, the efficacy of the arbitral process (which leaves the parties believing that their dispute has…
Ten years ago virtually all international arbitration was in a black box. The awards were accessible to the parties and virtually no one else. One had vague impressions about the quality of arbitration generally and individual arbitrators in particular. But there was no objective data from which to judge these impressions. Investment arbitration changed all…
To enhance predictability when litigating disputes arising out of international business transactions, the U.S. signed the June 30, 2005 Hague Convention on Choice of Court Agreements (the “Convention”) on January 19, 2009. In the U.S., such clauses are typically referred to as forum selection clauses, which are almost always included in contracts arising out of…
This excellent treatise provides an in-depth analysis of virtually every aspect of international commercial arbitration. The book offers a comparative approach to arbitration examining the provisions of different nationals, arbitration rules and international conventions. The present review is focused on chapters 11 and 12, which explore and explain respectively: (i) the selection, challenge and replacement…
Kluwer Arbitration Blog is pleased to announce a book discussion of Gary Born’s new book International Commercial Arbitration, which undoubtedly is one of the most important international arbitration books published in recent years. Over the course of the next two weeks we will have contributions from renowned leaders in the field of international arbitration: Judge…
Rex has recently installed himself as the benevolent dictator of a resource-rich country where many live in poverty. He took power from a government he accuses of having distributed national wealth in a grossly unfair manner. He proclaims a policy of redistributive justice, and enjoys passionate popularity among the vast disadvantaged segments of the population….
In a recent decision dated 10 October 2008 (4A_224/2008), the Swiss Federal Supreme Court found an arbitral tribunal competent to decide on a party’s request that its contractual partner should refrain from calling a bank guarantee. A Turkish company active in the production of fertilizer (X A.S.) had concluded a construction contract under which its…
Like its subject-matter, my book on “International Commercial Arbitration” is intended to be of use and interest to the widest possible audience around the world. It aspires to provide a comprehensive description and analysis of the contemporary constitutional structure, law, practice and policy of international commercial arbitration. It also endeavors to identify prescriptive solutions for…
The European Court of Justice issued its eagerly awaited judgment in the so-called West Tankers or Front Comor case on 10 February 2009. To many in the arbitration community, especially those based in London, it will come as a disappointing, if not altogether surprising, conclusion of a lengthy legal saga, which began over eight years…
Global Arbitration Review recently reported that the August 27, 2008 Award in Plama Consortium Limited v. Republic of Bulgaria (ICSID Case No. ARB/03/24) was selected as the Best Award and the Most Surprising Award of 2008 in a survey of participants in the international arbitration on line discussion forum OGEMID. The 120-day period to apply…
As someone who straddles the worlds of specialized and mainstream media, I can appreciate how difficult it is to report on international arbitration for different audiences. It’s much easier writing for readers who are familiar with investment treaties, and the concept of investor-state arbitration – not to mention the alphabet soup of acronyms which abound…
