Update on Restatement Project
George Bermann, the ALI Reporter for the Restatement (Third) on the U.S. Law of International Commercial Arbitration, presented a wonderful summary of the current progress on the Restatement at the ASIL annual meeting last week. Here are a few key thoughts from my notes.
The Restatement is in its early stages and it could take between eight and twelve years to complete the project.
The Reporters are unusually transparent in presenting their progress to stakeholders. This is consistent with the intense interest in the project by the international arbitration bar.
The project is scheduled to have six chapters, and thus far the reporters have focused on the fifth chapter dealing with recognit [...]
Confusion in Disclosure Guidelines for Arbitrators?
American Bar Association’s International Law Section Criticizes the ABA Dispute Resolution Section’s Subcommittee Draft on Arbitrator Disclosure Guidelines
It has been interesting to watch the strong reaction to the draft disclosure guidelines and checklist for arbitrators proposed by the Disclosure Subcommittee of the Arbitration Committee of the ABA’s Dispute Resolution Section. Over the last two years the Subcommittee has released for comment several versions of its draft disclosure guidelines for arbitrators. Most recently, on January 3, 2009 a new draft (the “Revised Draft”) was posted for public comment, with comments due last Friday, March 13th. The Draft is titled “Disclosures for [...]
Can evicted aid groups sue Sudan for breach of investment treaties?
In recent weeks, there has been widespread condemnation of the Sudanese government’s decision to expel 13 international aid agencies operating in Darfur.
The expulsions came, of course, as retaliation for the international arrest warrant issued against Sudanese President Omar Al-Baashir.
Most members of the UN Security Council have denounced the expulsions and warned that they are exacerbating the humanitarian crisis in Darfur.
Despite sustained diplomatic criticism of Sudan, there has been little discussion of the international law recourse available to not-for-profit organizations.
In one sense, this is not surprising given the paucity of tailor-made protections accorded to s [...]
Pitfalls in proceedings to set aside an arbitral award in Switzerland
In a recent decision of 22 January 2009 (4A_424/2008), the Swiss Federal Supreme Court had to consider an appeal against a decision of the Court of Arbitration for Sport (CAS). In the run-up to the 2008 Summer Olympics in Beijing, a qualifying competition was held for the women’s Olympic hockey tournament. The Spanish team won the event and qualified for the Games. However, two of its players had tested positive for doping abuse, which could have led to disqualification of the entire team had the Judicial Commission of the International Hockey Federation found more than one player of the team to have violated an Anti-Doping Rule. Yet the Commission found that only one of the two players had [...]
Ups and Downs In Institutional Arbitration
- By Phillip Capper, White & Case LLP,
for White & Case
“…so many construction disputes are now heading towards arbitration” remarks the calling notice for the next Society of Construction Law-Gulf event in Dubai in April. Around the world, the economic downturn is producing very many financial disputes. The speculation is that with the global recession deepening, the number of arbitrations is set to spiral upwards.
Does this mean a smooth ride to increased success for the arbitral institutions? Trends certainly seem to show a global increase in the number of arbitrations and an increasing institutional regionalisation. But is the news only positive for international arbitration?
According to the latest statistics from the LCIA, 221 [...]
English court sets aside an award on the basis of serious irregularity, but confirms the doctrine has limited scope
- By Francesca Richmond, Baker & McKenzie,
for YIAG
A recent decision of the English High Court (F Ltd v M Ltd [2009] EWHC 275 (TCC)) confirms that the Court may intervene and allow successful challenge of an arbitral award in order to protect parties against the unfair conduct of an arbitration. However, the case also demonstrates that the applicable test (i.e. a serious irregularity in the conduct of proceedings causing substantial injustice to a party) remains a high bar to establishing that an arbitral award should be set aside. The case is also unusual in that the dissenting opinion of a member of the arbitral tribunal provided the meat for challenge in this case – illustrating the risks attaching to a lack of unity amongst tribunal memb [...]
