Declaratory award held enforceable by English Court of Appeal: further support for reform of the Brussels Regulation
- By Phillip Capper, White & Case LLP,
for White & Case
This is an update on the post of 27 January 2012 dealing with the African Fertilisers decision. Last week, the English Court of Appeal handed down its judgment in the latest episode of the West Tankers dispute, upholding the first instance decision and approving the decision of the Commercial Court in African Fertilisers. The decision affirms the continued pro-arbitration stance of the English courts, the Court of Appeal emphasising that “the efficacy of any award by an arbitral body depends on the assistance of the judicial system”.
The factual background to West Tankers has been widely discussed (and is summarised in paragraphs 1 to 14 of the judgment) and there is no need to do so [...]
Declaratory award held enforceable by English court: a healthy move for arbitration?
- By Phillip Capper, White & Case LLP,
for White & Case
Following the path of the hotly debated West Tankers decision, in African Fertilizers v BD Shipsnavo, the English Commercial Court held that a declaratory award is enforceable, allowing judgment to be entered on the same terms as the arbitral award. Such an order enables a party to obtain the material benefit of the award and indicates the continuing trend of the English courts in favour of arbitration and the enforcement of arbitral awards. However, this approach does raise questions for the health of the inter-twining co-existence of the arbitration and court systems.
The declaratory award (on the tribunal’s jurisdiction) was made pursuant to an arbitration agreement contained in a bi [...]
December Surprise: New Second Circuit Ruling on Forum Non Conveniens in Enforcement Proceedings
On December 14, the Second Circuit rendered its decision in Figueiredo Ferraz e Engenharia de Projecto Ltda. v. Republic of Peru, 2001 WL 6188497 (2d Cir. Dec. 14, 2011), which represents a significant development in the court’s jurisprudence on forum non conveniens dismissals of actions to enforce foreign arbitral awards. As explained below, the decision also reveals anomalies in the New York Convention and the Federal Arbitration Act (FAA), which take the instruments beyond the scope of international commercial arbitration and, thus, may encourage forum non conveniens dismissals in certain cases.
As previously discussed in this blog, the Second Circuit drew criticism in 2002 by applyi [...]
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 [...]
Iura Novit Curia in Investment Treaty Arbitration: May? Must?
Iura novit curia (usually translated as “the court knows the law”) refers to the power and/or obligation of a court to conduct its own legal analysis outside the parties’ pleadings. While there are very few decisions on iura novit curia in the investment treaty arbitration context, a small number of investment treaty arbitral tribunals and ad hoc annulment committees have found that they have similar powers. More recently, at least two ICSID annulment committees have gone further, suggesting that iura novit curia is not only a power tribunals may exercise, but one tribunals must exercise. This short note does not address the appropriateness of iura novit curia in investment treaty arbi [...]
Valuation approaches and the financial crisis. Part 1 – market methods
A key part of an expert witness’s role involves explaining, in as clear terms as possible, complex accounting, economic and valuation concepts, to arbitration lawyers who may be less familiar with or even daunted by the world of finance.
My suspicion is that expert witnesses could do much more to assist the arbitration community in their dealings with the important issue of quantum. Without wishing to make sweeping generalisations, I do wonder whether some arbitrators’ relative lack of familiarity with different approaches to measuring damages might be at least a partial explanation for the following:
• The existence of relatively few awards which explain in any real detail arbitrator [...]
