Land deals could sow arbitration disputes
In recent months, there have been a steady barrage of media reports about so-called “land grabs”.
Many believe that we are seeing a new “Scramble for Africa”, as food-scarce countries and private investors alike jostle to lease or purchase vast swathes of agricultural land abroad.
There are multiple drivers for such deals: including the perennial hope that land values will rise over time, as well as the inability of some Asian and Middle Eastern countries to grow enough food to feed their burgeoning populations.
Lately, the size and number of these land-deals are attracting concern in some quarters.
Earlier this month, I participated in a symposium on land investments at t [...]
The Arbitrator as Diplomat
In submitting his instructions to the American delegation attending the 1907 Second Hague Conference, Secretary of State Elihu Root argued that the Permanent Court of Arbitration system needed radical improvement. In his instructions he wrote:
There can be no doubt that the principal objection to arbitration rests, not upon the unwillingness of nations to submit their controversies to impartial arbitration, but upon an apprehension that the arbitrations to which they submit may not be impartial. It has been a very general practice for arbitrators to act, not as judges deciding questions of fact and law upon the record before them under a sense of judicial responsibility, but as negotiators [...]
The Effects of Insolvency on International Arbitration
The Swiss Supreme Court recently rendered a decision (4_A428/2008, dated 31 March 2009) regarding the effects of insolvency proceedings on international arbitrations seated in Switzerland.
This case concerns a multi-party arbitration conducted under the ICC Rules with its seat in Geneva. One of the co-respondents in the arbitration, a Polish company, informed the tribunal that insolvency proceedings had been opened against it in Poland and that Polish law provided for the invalidity of arbitration agreements to which the insolvent company was party. The Polish company relied on Article 142 of the Polish Insolvency Law (the “PIL”), which provides “any arbitration clause concluded by the bankr [...]
Arbitral Jurisprudence in International Commercial Arbitration: The Case For A Systematic Publication Of Arbitral Awards In 10 Questions…
1. Is Arbitral Jurisprudence anything more than a myth?
2. How does persuasiveness of past awards operate?
3. Is Precedent the product of the intrinsic qualities of one or more particularly well-reasoned awards?
4. Why do arbitral awards need to be available?
5. Why is reliance on arbitral precedents not frequent?
6. Should all awards be published?
7. Should awards be published with the names of the arbitrators?
8. How could a mass publication of complete, unabridged awards be achieved?
9. Is confidentiality a valid objection to the publication of arbitration awards?
10. Is there really an overriding principle of confidentiality?
1. Is Arbitral Jurisprudence anything more than a [...]
Latest time for raising of a counterclaim
In a Swiss Chambers for Arbitration and Mediation case decided in May last year and reported in ASA Bulletin, vol. 26, no. 4, p. 731, the Arbitral Tribunal admitted a counterclaim submitted with the rejoinder based on Article 20 Swiss Rules. The Swiss Rules do not contain a provision as we find in Article 19 (3) of the UNCITRAL Rules.Respondent argued that it had not been possible to calculate the exact amount of the counterclaim at an earlier stage and that in its defence it had already submitted several claims for set-off which were identical with those of the counterclaim. The Arbitral Tribunal ruled that the late admission of the counterclaim does not result in a disadvantage for claiman [...]
HKIAC’s New Administered Arbitration Rules
- By Kim M. Rooney, White & Case LLP,
for White & Case
On 1 September 2008, the Hong Kong International Arbitration Centre (the “HKIAC”) adopted a new set of arbitration rules, entitled the Hong Kong International Arbitration Centre Administered Arbitration Rules (the “Administered Rules”). In a press release in January 2009, the HKIAC announced that it had already received cases under the Administered Rules.
The Administered Rules supersede the old HKIAC Procedures for the Administration of International Arbitration in accordance with the UNCITRAL Arbitration Rules (the “Old Procedures”).
The Administered Rules set out a comprehensive framework for HKIAC administered arbitration and it is the HKIAC’s intention that all partie [...]
