The Unavoidability of Uncertainty: One Lesson from the Recent U.S. Court Ruling in Argentina v. BG Group
It has become fashionable in recent years, each time an ICSID annulment decision is released that takes issue with the procedures or reasoning of an ICSID tribunal, for commentators to bemoan the lack of certainty, predictability and finality that this reflects in the ICSID system for adjudicating investment treaty disputes between investors and host States. Some commentators urge a return to greater use of ad hoc UNCITRAL arbitration, or arbitration before institutions other than ICSID, to avoid the perceived vagaries of the ICSID annulment process. Yet commentators often forget that these alternatives carry their own risks of uncertainty, inherent in the national court review process tha [...]
Arb-med procedures and enforcement in Hong Kong: The crest of the waiver?
Last month’s judgment of the Hong Kong Court of Appeal (“CA“) in Gao Haiyan and Xie Heping v. Keeneye Holdings and another CACV 79/2011, is the latest in a long line of cases demonstrating the pro-enforcement approach of the Hong Kong courts. The decision makes clear that it is not the place of the Hong Kong courts to comment on the merits of an arbitral award. Rather, the courts’ role in enforcing arbitral awards should be as mechanistic as possible. This is consistent with existing caselaw on enforcement and reinforces the respect of the Hong Kong courts for the finality of arbitral awards.
The CA in Keeneye reversed the much-discussed decision of the Hong Kong Court of First Instance [...]
Recent Swedish Ruling on Arbitrability
- By Ola Nilsson, White & Case LLP,
for White & Case
On 7 October 2011 the Svea Court of Appeal ruled on whether an arbitral award should be declared invalid or annulled because the dispute – as alleged by the plaintiff – was not arbitrable under the Swedish Arbitration Act.1 In finding that the dispute was arbitrable, the Svea Court considered several interesting issues analyzed below.
The background is as follows:
To build a golf course in Moscow, a Russian company (the “Russian Borrower”) had borrowed 22 million Swedish Crowns from a Swedish bank (the “Swedish Bank”) under a loan agreement entered into on 24 January 1990 (the “Loan Agreement”). The Loan Agreement included an arbitration clause providing for arbitration und [...]
Sports Arbitration and Due Process: The Sequel
In a post dated March 2, 2011, I reported about a Swiss Supreme Court decision of February 20, 2009 where the Supreme Court had confirmed a CAS award which deemed an appeal withdrawn after the appellant had failed to pay the advance on costs.
I indicated that I did not know what had happened to the dispute afterwards.
As it turns out, about a month after this post, the saga continued with the Supreme Court rendering another decision related to this matter.
As a reminder, the dispute concerned the payment of an indemnity by a football coach to its former club following a transfer. The identity of the parties being revealed in this new decision, I will refer to the parties by their names. Th [...]
Jivraj v. Hashwani – Are Arbitrators Employees?
One of the key issues that now awaits the decision of the U.K. Supreme Court in Jivraj v. Hashwani is whether there is a contract between the parties and the arbitrators, such that the arbitrators may be considered “employees” of the parties (and thereby subject to the law prohibiting discrimination by employers)?
If there is such an “employment” contract, this would be one in which:
• the “employer” cannot give instructions as to how the “employee” is to work or what outcome he is to achieve;
• the “employer” cannot remove the “employee” without an order of the Court;
• the “employee” is immune from suit; and
• the “employee” owes a duty to act [...]
Is The Principle Of Finality “Losing Its Appeal”?
On 27 April 2011, the US Supreme Court in a 5-4 decision (AT&T Mobility LLC v Concepcion (563 US ____ (2011) 17)), concluded that due to the principle of finality, arbitration would be “poorly suited” to cases where the stakes are particularly high (class actions in the instant case). The US Supreme Court added: “[w]e find it hard to believe that defendants would bet the company with no effective means of review […].”
Elsewhere, on 15 March 2011, the Arbitration Rules of the Spanish Court of Arbitration introduced (on an opt-in basis) provisions on an internal appeal mechanism. This appeal mechanism vests an “appellate arbitral tribunal” with the power not only fully to review a “first-i [...]
