Iura novit curia – the right to be heard (decision of the Swiss Federal Supreme Court as of 9 June 2009 – 4A_108/2009)
In this case, the Swiss Federal Supreme Court decided that the right to be heard (art. 182 para. 3 of the Swiss Federal Act on International Private Law, “PILA”) does not encompass a right of the parties to be specifically heard with regard to the legal qualification of the facts they had introduced into the proceedings. However, an exception to this rule applies if the Arbitral tribunal intends to base its decision on legal grounds which the parties neither have invoked nor could reasonably anticipate as being relevant.In the case at hand, a Hungarian company had entered into a construction contract with a Swiss company for the modernization of an electro steel plant with a COSS-charging sy [...]
Eleventh Circuit Troubled By Choice of Law Not Choice of Arbitration In Thomas v. Carnival
- By Paul Friedland, White & Case LLP,
for White & Case
A recent decision by the Eleventh Circuit Court of Appeals has attracted attention within the arbitration community as it puts into question the enforceability in the United States of international arbitration agreements where foreign (non-US) law is the governing substantive law. The Eleventh Circuit also mistakenly references Article V of the New York Convention in its discussion of arbitration agreements, which are governed by Article II.
Though it addresses enforcement of an arbitration agreement, the Eleventh Circuit decision may be seen as about choice of law more than about arbitration.
The contract at issue in Thomas v. Carnival Corporation, No. 08-10613 (11th Cir., July 1 [...]
Enforcement of International Arbitral Awards in England and the New York Convention
The English Court of Appeal recently upheld a first instance decision to refuse enforcement of a US$20m New York Convention award in Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2009] EWCA Civ 755, on the basis that the arbitration agreement was ‘not valid’ for the purposes of section 103(2)(b) of the English Arbitration Act 1996 (“the Act”), which reflects Article V.1(a) of the New York Convention.
The decision raises issues as to the English courts’ discretion to refuse recognition of a New York Convention arbitral award, and this has been previously discussed on this blog on 23 July 2009 by Phillip Capper, [...]
Sweetener arbitration news tends to come in small serving-sizes
One set of international arbitrations which don’t get enough attention are the series of claims mounted under NAFTA Chapter 11 by US investors in the Mexican sweetener industry.
A group of agri-business heavyweights, including Cargill, Archer Daniels Midland, Tate & Lyle have all invoked NAFTA’s investment protections in order to challenge a Mexican tax levied on those soft drink bottlers who use the sweetener High Fructose Corn Syrup (HFCS). The Mexican tax was introduced against a backdrop of a much broader trade dispute over access for Mexican sugar to the US market.
The NAFTA arbitrations are interesting for a variety of reasons – a couple of which I’ll advert to below – but inform [...]
Is Arbitration Changing?
One can observe two rather opposing trends. On the one hand there is a steady (and more recently significant) increase in the number of arbitration cases; one the other hand there is a rather systematic criticism expressed by certain voices, predominately in the corporate world.Most well established institutions have recorded a 10% increase in their number of case with the exception of LCIA that recorded an increase of cases of 60%. Several arbitration organisations, which operate regionally, in Latin America and in Central Asia also report very good numbers. Indications so far are clear that 2009 will be another very good year. In addition and, despite the recession, which hit many global l [...]
Svea Court of Appeal’s Judgment of 9 June 2009 – When parties are deemed to have agreed on the cessation of an agreement to arbitrate
Introduction
If a party during arbitral proceedings withdraws its claim and the other party does not exercise its right to request an award in respect of the withdrawn claim, it has been suggested in Swedish legal doctrine that the parties, under certain circumstances, may have implicitly agreed that the arbitration agreement shall cease to be effective.
In a recently reported case, Håkan Hederstierna v. Handelshögskolan i Stockholm, No. T 9424-07 (9 June 2009), the Svea Court of Appeal concluded that the parties had not agreed that the arbitration agreement should cease to be effective. Since the agreement to arbitrate was still effective, an arbitral tribunal was competent to adjudicate [...]
