The Continuing Debate As to Whether Non-Chinese Institutions May Administer Arbitrations In China
- By Richard Hill, Fulbright & Jaworski LLP,
for YIAG
One aspect of Chinese arbitration law that is of enduring interest to the international arbitration community is the question of whether Chinese law permits non-Chinese arbitration institutions, such as the ICC, to administer arbitrations in China. In practice, a number of arbitrations have taken place and are currently taking place in China under the rules of the ICC and other non-Chinese institutions. Often the question of whether this is in compliance with Chinese law does not arise, for example where no damages are awarded or where the award is enforced against assets outside of China. But will the Chinese courts enforce awards resulting from Chinese arbitrations administered by foreign [...]
When is the ‘Venue’ of an Arbitration its ‘Seat’?
- By Phillip Capper, White & Case LLP,
for White & Case
The seat of an arbitration is a crucial factor. It determines the lex arbitri and the courts with supervisory jurisdiction over the arbitration.
The important consequences of the seat require parties to choose the seat carefully. Cases where no seat is chosen by the parties are not uncommon. The English High Court in Shashoua v Sharma [2009] EWHC 957 (Comm) addressed an interesting aspect of this issue: does the selection of a ‘venue’ for arbitration imply choice of the ‘seat’? This decision has been the subject of considerable commentary relating to West Tankers [2009] EUECJ C-185/07, but the ‘seat’ aspects have received relatively less attention.
Shashoua v Sharma c [...]
Piercing the Corporate Veil – Effect on the Arbitration Clause and Jurisdiction
In a decision of 25 August 2009 (4A_160/2009), the Swiss Federal Supreme Court held that where a claimant by piercing the corporate veil can assert a contractual claim against the majority shareholder, all rights and obligations from the respective agreement, including the arbitration clause, become binding on the majority shareholder, thus precluding the jurisdiction of the state courts.
On 7 April 2003, the complainant (“A”), a Swedish national domiciled in Italy, and the Corporation Y (“Y”), incorporated under the laws of and having its corporate seat in British Virgin Islands (“BVI”), entered into a sales agreement (“Sales Agreement”) according to which A sold [...]
The New York Convention and Reverse Preemption
The Fifth Circuit earlier this month issued a highly unusual decision addressing whether state law could “reverse preempt” the New York Convention. As any student of international arbitration knows, state law occasionally attempts to limit the enforceability of arbitration agreements. Such a policy is preempted by the New York Convention as implemented by the Federal Arbitration Act. But there is one narrow category of insurance disputes governed by the McCarran-Ferguson Act that is subject to a federal requirement of “reverse preemption.”
In Safety National Casualty Corp. v. Certain Underwriters at Lloyd’s, London, the Fifth Circuit concluded that a non-self-executing treaty, [...]
A v R: Enforcement at any Cost(s)?
- By Aloke Ray, White & Case LLP,
for White & Case
Earlier this year, the Hong Kong Court of First Instance ruled that, in future, when it hears unsuccessful attempts to resist enforcement of arbitral awards under the New York Convention, it will “normally consider” awarding costs on an indemnity basis (i.e., in full, regardless whether they were reasonably incurred). This was a bold pro-enforcement statement by the Court, explicitly designed to remove any incentive for losing parties to “have a go” at avoiding enforcement. This posting considers whether the ruling goes too far in discouraging challenges to enforcement.
In A v R, the applicant obtained an award for US$3 million plus interest and costs in arbitral proceed [...]
The Renewed Debate on the Limits of Discovery Under Section 1782
- By Epaminontas Triantafilou, White & Case LLP,
for YIAG
United States Code Title 28 Section 1782(a) is well-known to practitioners who have participated in international arbitral proceedings involving U.S. parties. The provision governs the judicial assistance U.S. federal courts can provide in foreign discovery. It states, in relevant part, that federal trial courts “of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal….” The court may issue the order “pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal, or upon the application of any interested [...]
