Review of Gary Born’s International Commercial Arbitration
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 book is what it represents in terms of a coming of age of the field of international commercial arbitration, such that a book of this kind could be written at all.
Born states modestly in his Introduction, that his treatise ‘is intended to be clear, direct and accessible’, and so it is. Indeed, devotees of Gary Born’s ear [...]
American Anti-Arbitration Legislation – A Threat?
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 also would limit the ability to arbitrate employment disputes, franchise disputes, and disputes arising under statutes designed to protect civil rights. Nearly identical versions of these acts were introduced in 2007 but failed to make it past the committee stage. The introduction of these acts has led many members of the international arbitration community [...]
Can an award be enforced in Switzerland while its execution is suspended at the foreign seat of arbitration?
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 in France before the time limit for challenging the award in France had elapsed. Company X opposed recognition on the grounds that Article 1506 of the French NCPC suspended the execution of the arbitral award as long as the award could still be challenged. The Swiss Federal Supreme Court held that recognition could be refused under Article V [...]
A human right to information about investment arbitration?
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 potential for access to information laws to open up information about foreign investment projects – including legal disputes arising out of such projects.
Access to information laws are in the process of being strengthened in some Latin American countries thanks to a very interesting 2006 ruling by the Inter-Ame [...]
Paris Court of Appeal Confirms Importance of Estoppel in International Arbitration
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.
In Merial, the claimant, a French company, sought annulment of an arbitral award on the grounds, inter alia, that it was not given the opportunity to reply in writing to new claims introduced by the defendant, a German company, two months before a scheduled hearing during the arbitration proceedings. The claimant also argued that the arbitral tribunal had ruled on the defendant’s t [...]
Born and Arbitral Awards
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 been fairly resolved), and the likelihood that the award can be coercively enforced….Nevertheless, not all international arbitral awards are voluntarily complied with. The ultimate test of any arbitration is therefore its ability to render an award which, if necessary, will be recognized and enforced in releva [...]
