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What’s Next? – Practical Ponderings on Arbitrators and Overturned Jurisdictional Awards

The views expressed in this article are those of the author alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or the author’s law firm.

There are a number of questions that influence how arbitration treats cases in which an award is challenged successfully. A court overturns an award declining jurisdiction, but what’s next? The easy answer, and certainly the practical one is for the arbitrator to resume the case and render an award on the merits.

When trying to justify why this should be so, the easy answer becomes more complicated. To clarify the justification of this seemingly obvious answer, the following thoughts and conclusions prompted this [...]

International Energy Charter as a milestone for global energy co-operation in the 21st century

In May this year some seventy-five states and institutions adopted (of which sixty-five signed) the International Energy Charter (IEC) in The Hague ministerial conference to herald a new age of global energy co-operation. The Charter is a political declaration by states and it modernises its predecessor the European Energy Charter (1991) – the foundation of the Energy Charter Treaty which established a legally binding energy governance framework. It has to be recognised that the adoption of the IEC is the first major political achievement since the Treaty itself was signed in 1994. The new Charter is an indication of the maturity and self-confidence of the Process after 25 years of its ex [...]

Narrowing the powers of the national courts to grant interim measures – A measure too far?

There appears to be a gradual shift in international arbitration, towards an assumption that parties to an arbitration agreement who are seeking interim relief will look first to the tribunal, rather than to the national courts.  This is seen in recent iterations of the institutional rules, such as the 2012 ICC Rules, the 2014 LCIA Rules and the 2013 HKIAC Rules, which allocate broad powers to the tribunal to provide interim relief, limiting the national court’s power to do so to only narrow circumstances.

This shift is complemented by the increasing prevalence of emergency arbitrator provisions in the institutional rules (including the 2014 LCIA Rules, the 2012 ICC Rules, the 2010 SCC Rule [...]

Setting Aside of Arbitral Award Due to Improper Constitution of the Tribunal

This article discusses the successful challenge of a unanimous arbitral award on the grounds that the arbitral tribunal was improperly constituted due to the bias of one of the three arbitrators. The challenge was successful before the Higher Regional Court of Munich (Decision of Feb. 2nd 2014, Case 34 Sch 7/13). The German Supreme Court, Bundesgerichtshof, dealing with the appeal of this decision strongly backed the decision of the Higher Regional Court.

The German Arbitration Law is based on the UNCITRAL Model Law and provides that an arbitral award may be set aside in the Courts of the lex arbitri if the composition of the arbitral tribunal or the arbitral procedure was not in accordanc [...]

Breaking Arbitration’s 5-Minute Barrier: from the Archives

Dear Readers,

you may have noticed the dearth of recent posts, for which we make no excuses.

It is late summer for the northern hemisphere contributors. At this point, most of us are lingering poolside at the Kluwer International Arbitration Resort and Amusement Park, sipping procedural cocktails in the waning light as the children take turns riding the garyborn-a-coaster (but only when they are not fighting over who gets to calculate the VAT on arbitrator fees).

It’s not that we’re lazy. It’s just that we don’t feel like doing any work.

So here’s a reprint from the Kluwer archives. In other professions, this would be considered regurgitating one’s former writings. In international arbitra [...]

The PRC’s New Provisions on Recognition and Enforcement of Taiwan’s Civil Judgments and Arbitral Awards

The views expressed in this article are those of the author alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or the author’s law firm.

Taiwan is not a signatory to the New York Convention owning to its subtle status. To enforce a mainland China’s award or civil judgment in Taiwan, a party has to refer to Article 74 of the “Act Governing Relations between the People of the Taiwan Area and the Mainland Area” promulgated by the Taiwan government, which provides that a final civil ruling or judgment, or an arbitral award rendered in mainland China which is not contrary to the public order or good morals of the Taiwan region can be recognized by a Taiwan [...]

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