Does Investment Arbitration Now Provide a Second Bite at the Cherry?
White Industries Australia Limited v. Republic of India (White v. India) is the latest in a growing line of cases where international investors have successfully resorted to investment treaty arbitration to recover sums owed under international commercial arbitral awards where there have been extensive delays enforcing those awards in domestic courts. However, the potential scope of this method of enforcing commercial arbitral awards remains far from certain: it is unlikely that this will result in a panacea for all enforcement problems.
Following nine years of fruitlessly attempting to enforce an ICC award in India against state-owned mining company, Coal India, over the supply of equipment [...]
2012 Queen Mary / White & Case International Arbitration Survey Launched
- By Paul Friedland, White & Case LLP,
for White & Case
The views of lawyers involved in international commercial and investment arbitration are being sought for a new international arbitration survey from Queen Mary, University of London (QMUL).
Conducted by QMUL’s School of International Arbitration and sponsored by White & Case LLP, the 2012 survey aims to examine whether a “harmonised international arbitration procedure is emerging, by canvassing the views of experienced arbitration practitioners from all over the world,” comments Professor Loukas Mistelis, Director of the School of International Arbitration at QMUL.
Entitled “Current and Best Practices in the Arbitral Process,” the survey is the fourth carried out by QMUL since 2006, [...]
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 [...]
