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Swiss Supreme Court analyses enforceability of pre-arbitral procedure in multi-tier dispute resolution provision (FIDIC DAB)

By Matthias Scherer and Sam Moss, LALIVE

In a judgment dated 7 July 2014, which was made public on 20 August 2014 (case no. 4A_124/2014), the Swiss Federal Supreme Court (the “Supreme Court”) addressed the enforceability of a precondition for arbitration in a multi-tier dispute resolution provision, namely the requirement to submit a dispute to a dispute adjudication board (“DAB”) under Clause 20 of the FIDIC Conditions of Contract (the “FIDIC Conditions”).  The Supreme Court’s decision is generally in line with the trend in Swiss jurisprudence to uphold obligations to resort to pre-arbitral procedures if they are unambiguous. However, the decision is important in a number of [...]

Who Are the Protagonists in Investment Treaty Arbitration?

Procedural orders rarely become the subject of blog posts, much less the impetus for concerted action among states anxious to control the strategic space on which investment treaty arbitrations unfold. However, a series of orders in Detroit International Bridge Company v. Canada generated controversy when the tribunal steadfastly excluded representatives of the United States from attending hearings on jurisdiction. Viewed from one perspective, the incident reflects an element of farce. But it also provides a trenchant and timely reminder of continuing differences regarding the structure of investment treaty arbitration, and the roles assigned to disputing parties, tribunals, and non-disp [...]

Multi-tiered dispute resolution clauses, a friendly Miranda warning

On 29 April 2014, the French Cour de cassation made a decision on the criteria a multi-tiered dispute resolution clause (“multi-tiered clause”) should meet to render claims inadmissible if disregarded.1

In this case, Medissimo, a pharmaceutical company, entered into a contract with Logica, an IT company, to outsource the maintenance of a software program and the writing of two others. Alleging breaches in the performance of the contract, Medissimo initiated proceedings before the French courts against Logica for damages. Logica argued that Medissimo’s claim was inadmissible on the basis that it had failed to comply with the amicable dispute resolution clause in the contract prior to initiati [...]

Is Legal Reform Enough to Succeed in the ‘Battle of the Seats’?

In an article published recently in The New York Times, entitled ‘Cities compete to be the arena for global legal disputes’, Elizabeth Olson discusses a phenomenon that has been labeled ‘the Battle of the Seats’. This concept refers to the competition between different cities to be considered as ‘arbitration hubs’. Cities all over the world compete to be chosen by the parties as suitable venues for international arbitration. In the last months several jurisdictions that are not traditional arbitration hubs have enacted new arbitration laws or declared the intention to do so (examples include the Netherlands, Western Australia, the British Virgin Islands, India, and Myanmar). The [...]

Brazilian Court Recognizes An Unreasoned New York Arbitral Award

On September 1, 2014, the Brazilian Superior Court of Justice (“STJ”) issued an important decision recognizing, for the first time, an unreasoned arbitral award in Newedge USA, LLC v. Manoel Fernando Garcia. Notwithstanding challenges to the recognition and enforcement on the grounds that the New York arbitral award purported violated Brazilian public policy due to the lack of reasoning, the STJ concluded that the award complied with the legal requirements of the law of the place of arbitration and did not violate Brazilian public policy. The STJ’s decision is relevant in the context of actions for recognition and enforcement of foreign awards and demonstrates a pro-enforcement approac [...]

Brussels’ Sanctions Against Russia and Moscow’s Retaliatory Measures Through the Eyes of the Arbitrator

By Resolution of 27 March 2014, the United Nations (UN) General Assembly condemned the violation of Ukraine’s territorial integrity (A/RES/68/262). The Security Council remained, however, powerless to impose against Russia economic sanctions which all UN member States would have had to implement. In the absence of such “multilateral” sanctions, the European Union (EU) and the United States have put in place the broadest spectrum of “unilateral” sanctions against the Big Bear since the end of the Cold War.

Since March 2014, the EU has steadily reinforced its sanctions program. Measures so far imposed encompass the freezing of assets of individuals and entities connected to Russia [...]

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