Federal Tribunal Rejects Pechstein Petition
In a decision dated 10 February 2010 (4A_612/2009), the Swiss Federal Tribunal rejected a petition to set aside a November 2009 CAS Award against German speed-skater Claudia Pechstein. The Federal Tribunal took some unusual procedural steps – including foregoing the usual exchange of written pleadings – to speed up the proceedings and to decide the case before the 2010 Winter Olympic Games in Vancouver.
Blood samples taken from Claudia Pechstein at the International Skating Union (ISU) World Speedskating Championships in Hamar, Norway, in February 2009, showed elevated reticulocytes values. On 1 July 2009, the ISU Disciplinary Commission declared Claudia Pechstein responsible for an an [...]
U.S. Supreme Court to Revisit Who Determines Arbitrability
- By Raoul Cantero, White & Case LLP,
for White & Case
On January 15, 2010, the United States Supreme Court granted a writ of certiorari in Rent-A-Center West, Inc. v. Jackson, Case No. 09-497, agreeing to revisit the oft-litigated issue of whether the court or arbitrator should determine arbitrability under the Federal Arbitration Act (“FAA”). The Court’s prior jurisprudence has established the general rule, as a matter of federal substantive arbitration law, that challenges to a contract’s validity as a whole should be heard by the arbitrator, while those specific to the arbitration provision should be heard by the court. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445 (2006). The variation now before the high court conc [...]
ICC Rules: What Do You Do When the Respondent Refuses to Pay its Portion of the Advance on Costs? An Alternative Approach
It is interesting to consider how to handle the situation when a party refuses to pay its portion of the advance on costs. I have previously published an article on this matter and, looking to the ICC Rules, would recommend an alternative route to the traditionally referenced ones. I will consider the options that exist when the Respondent fails to pay its portion and what theories, if any, apply. The two most common theories are what I refer to as the Contract Theory Approach and the Interim Measure Approach. I do not intend to discuss in length these respective approaches – looking to articles published by leading arbitral scholars adequately covers this area. Instead, I want to suggest [...]
New Rules on Domestic Arbitration and Their Relation to the Rules Governing International Arbitration in Switzerland
As of 1 January 2011, Swiss domestic arbitration proceedings will be governed by Articles 353 et seq. of the new Swiss Code on Civil Procedure (“CCP”). Articles 353 et seq. CCP will replace the Concordat on Arbitration (“Concordat”), currently governing domestic arbitration proceedings. The dichotomy between domestic arbitration and international arbitration will continue to exist, i.e., international arbitration proceedings will continue to be governed by Chapter 12 of the Swiss Private International Law Act (“PILA”). However, there are new possibilities for parties to chose between the two systems.
Currently, parties to an international arbitration can opt out of Chapter 12 PILA and subjec [...]
Ecuador Moves to Stay Arbitration Brought by Chevron
- By Andrea Bjorklund, UC Davis School of Law,
for ITA
I am in Australia in advance of the investment law conference at Sydney Law School at the end of the week, and I took advantage of many plane hours to read the docket in the case pending between Ecuador and Chevron/Texaco Petroleum Company (TexPet) in the Southern District of New York. They repay study. In short, Ecuador has asked the U.S. federal court to stay an arbitral claim that Chevron and TexPet have submitted under the Ecuador-United States BIT and the UNCITRAL arbitration rules, and Chevron and TexPet have asked the court to dismiss the motion. These are only the latest in a series of events that date back to at least 1993, when a group of indigenous peoples filed claims in New [...]
Provisional Application of the Energy Charter Treaty: Article 45(1) “Limitation Clause”
On November 30, 2009, an arbitral tribunal issued three interim awards for Yukos Universal Limited, Hulley Limited Enterprises, and Veteran Petroleum Limited v. the Russian Federation under the Energy Charter Treaty (“ECT”). These interim awards addressed the issue of jurisdiction over the Russian Federation, analyzing the Provisional Application under Article 45(1) and (2), labeling the following italicized portion of Article 45 as the “Limitation Clause”:
(1) Each signatory agrees to apply this Treaty provisionally pending its entry into force for such signatory in accordance with Article 44, to the extent that such provisional application is not inconsistent with its constitution, [...]
