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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 [...]

The Duty to Negotiate in Good Faith: Compensation for Expropriation

The Dissenting Opinion of Georges Abi-Saab to the Decision on Jurisdiction and Merits of September 3, 2013 in the case ConocoPhillips, Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhillips Gulf of Paria B.V. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30 (hereinafter the “Dissenting Opinion”), raises the issue of whether there is a duty to negotiate compensation in good faith, and if there is, the subsequent question of whether the lack of good faith in compensation negotiations defines the lawfulness or unlawfulness of an expropriation.

Good faith is a general principle of international law, which in different forms permeates the entirety of international legal order [...]

Trouble in the Caspian Sea: Clarification of the Breadth of the Word ‘hereunder’ in Arbitration Clauses

In the recent case Integral Petroleum SA v Melars Group Ltd [2015] EWHC 1893 (Comm) arbitrator Mr W Laurence Craig was asked to decide a dispute involving three companies: Integral Petroleum SA (“Integral” or “Claimant”), Melars Group Ltd (“Melars” or “Respondent”) and Dartex Trade Ltd (“Dartex”).

By a contract signed on 14 December 2011 (the “December Agreement”) the buyer, Melars, agreed to purchase 300mt of gasoil from Integral for US$264,300.  Integral was required to deliver its gasoil on FOB Incoterms at the Russian port of Makhachkala on the Western side of the Caspian Sea.  That contract contained a “Law and Jurisdiction” clause stating:

“The contract [...]

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