On 28 February 2014, the Regional Court of Munich rendered a decision in the matter opposing German speed skater Claudia Pechstein to the ISU (Judgment of the Regional Court of Munich I, Case Number 37 O 28331/12; the judgment is not final). This decision is sending waves through the sports arbitration community.
In a matter that started as a doping dispute and was brought to the CAS, the Munich Court decision held that arbitration agreements that are included into agreements entered into by athletes in order to enter into a competition are invalid, because athletes have not voluntarily accepted arbitration as a means of dispute resolution. In addition, the Court considered that there was [...]
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By Ben Knowles and Khaled Moyeed at Clyde & Co LLP
A recent arbitration award has highlighted the question of the enforceability of forfeiture provisions in oil and gas JOAs. The effect of such provisions is that a defaulting party forfeits its participating interest (“PI“) in a project on account of a default, such as a failure to pay a cash call. We look at some of the practical considerations for parties to existing JOAs and those entering into new JOAs, as well as their advisers.
In December 2013, an ICC tribunal handed down an award in an arbitration between RSM Production Corporation (“RSM”) as the claimants and Victoria Oil and Gas (“VOG”) and Rodeo Development Limited (“R [...]
By Peter Godwin, Elaine Wong and James Allsop, Hebert Smith Freehills
The Japan Commercial Arbitration Association (“JCAA”) has introduced an amended version of its Commercial Arbitration Rules (the “New Rules”). The New Rules, which contain comprehensive amendments, came into force on 1 February 2014 and will apply to all arbitrations initiated on or after that date. The changes are intended by the JCAA to update its rules in line with recent trends in the amendment of arbitration rules (such as the 2013 amendments to the Hong Kong International Arbitration Centre (“HKIAC”) and Singapore International Arbitration Centre (“SIAC”) Rules). Accordingly, the New Rules contain provisions aimed at [...]
and Niyati Gandhi
On 14 February 2014, the Supreme Court of India (SCI) in Enercon India v. Enercon GMBH [Civ. App. 2086/7 of 2014] (Enercon) found occasion to revisit issues in connection with potential laws that govern an arbitration agreement. The impugned arbitration agreement contained the following clause:
18. DISPUTES AND ARBITRATION
18.1 * * *
18.2 * * *
18.3 A proceedings in such arbitration shall be conducted in English. The venue of the arbitration proceedings shall be in London. The arbitrators may (but shall not be obliged to) award costs and reasonable expenses (including reasonable-fees of counsel) to the Party (ies) that substantially prevail on merit. The provisions of Indi [...]
Defective arbitration clauses are certainly uncommon, but do appear on a recurring basis in domestic and international arbitration practice. Many practitioners can go their entire professional lives without seeing any, while others encounter two or three cases over their career.
The types of defective arbitration agreements or clauses are varied. Obviously, in most cases the defect is due to the breach of some requirement under the law applicable to the arbitration agreement. This happened fairly often in Spain under the old Arbitration Act 1988, article 5 of which required parties to state their intention not only to take their disputes to arbitration but also to comply with the award. Alth [...]