Challenges: Do Institutional Rules matter? The situation after Tecnimont II
Amongst the many issues raised by the now famous Tecnimont case, which we analyzed in our 19 May 2009 blog , was the relevance in setting aside proceedings of institutional rules relating to challenges.
The ICC partial award had been quashed by a 12 February 2009 judgment of the Court of Appeal of Paris, because the chairman of the arbitral tribunal, a well-known international arbitrator who is part of one of the world’s largest law firms, had failed to disclose certain links between his firm and one of the parties’ group.
Tecnimont had however raised before the Court an estoppel argument based on the fact that the arbitrator had already been unsuccessfully challenged before the ICC Cou [...]
Are unilateral appointments defensible? On Jan Paulsson’s Moral Hazard in International Arbitration
In his April 2010 inaugural lecture as holder of the Michael R. Klein’s Chair at the Miami University, Jan Paulsson advocated a fundamental change in the culture and practice of international commercial arbitration (Moral Hazard in International Arbitration, Miami, 29 April 2010, see also on this blog). In a nutshell, his views can be summarized as follows: contrary to a well established idea, there is no right of the parties to appoint arbitrators; quite to the opposite, the established practice of unilateral appointments is incompatible with the very concept of impartial dispute resolution, for a party cannot be expected to accept the legitimacy of an award rendered by its opponent’s a [...]
Good Faith and Ethics in International Arbitration: An Important Initiative by the IBA Arbitration Committee
Is there a duty to arbitrate in good faith? Is there a need for a Code of Ethics in international arbitration? Those are certainly amongst the most important questions for the future development of the law and practice of arbitration. They have been hotly debated in occasion of certain recent and much publicized cases. And in its keynote address to the last ICCA Congress in Rio, Doak Bishop argued that existing codes of conduct for lawyers are not up to the task. There is no doubt that this debate will strongly develop in coming years.
In 2008, the Arbitration Committee of the International Bar Association has formed a Task Force on Counsel Ethics in International Arbitration for the purpose [...]
Can Discovery Costs be treated as Arbitration Costs?
As is well known, Section 1782(a) provides that a “the district court 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 applicability of 28 U.S.C. § 1782 to international arbitration has generated an interesting debate, especially on this blog (see lastly G. Born’s post, L. Reed’s post, E. Triantafilou’s post, adde, Y. Lahlou, l’applicabilité de l’article 28 USC 1782 à l’arbitrage commercial international, Gaz. Pal., 2009-3). The debate is essentially concerned with the question whether an international arbitral [...]
The INSERM decision of the Tribunal des Conflits: a storm in a teacup?
The arbitrability of a dispute is not generally limited to private law. In many countries, including Germany and Switzerland, it is admitted that arbitration can also bear on claims derived from public law, and in particular on rights conferred upon by contracts subject to administrative law. Arbitrability of such disputes may however be more problematic in countries, like France, where the administrative jurisdiction plays an important role in the judicial system alongside with civil courts.
In that respect, French law has traditionally been said to be restrictive in permitting arbitration for administrative law disputes.
In France, under Article 2060 of the Civil Code, domestic disputes [...]
French Courts firmly reject anti-arbitration injunctions
In recent years, there has been increasing concern about court orders aimed at preventing a party from initiating, continuing or participating in arbitration proceedings (see notably, IAI Series on International Arbitration, no 2, Anti-Suit Injunction in International Arbitration, E. Gaillard ed., 2005; ICCA Congress Series, No 13 International Arbitration 2006, Back to Basics?, A. J. Van Den Berg, Kluwer Law Int 2007).
The Paris court of first instance (Tribunal de Grande Instance) has in recent months rendered two interesting decisions in this respect. These two decisions address the issue whether and to what extent French courts can interfere with the arbitral proceedings, in particular [...]
