The ‘West Tankers’ Saga Continues (2) : The Arbitral Tribunal Dodges the Torpedo
This post follows on from the highly informative Kluwer Arbitration Blog post by Elizabeth Kantor, “The ‘West Tankers’ Saga Continues: Can Damages Compensate for Breach of an Arbitration Clause?”
Whilst that focussed principally on the implications for, and efficacy of, the type of award in issue the purpose this post is, in contrast, to look again at the argument that initially prevailed before the tribunal and what it would have meant for English arbitrations more generally had Flaux J accepted it.
The basis upon which the tribunal ruled that it could not make any award of damages will strike many as highly controversial.
The starting point was the reasoning of the ECJ that it de [...]
The ‘West Tankers’ Saga Continues: Can Damages Compensate for Breach of an Arbitration Clause?
In the most recent of a long-running series of decisions in the West Tankers saga, the English court has found that the majority of the tribunal was wrong to decline jurisdiction to award equitable damages or to declare a party liable to indemnify the other as a result of the breach of an arbitration clause.
Background to the English court’s decision
The protracted history of this dispute will be familiar to many arbitration practitioners worldwide, and particularly to those in Europe. It all began in August 2000, when a vessel owned by West Tankers, under charter to Erg, collided with Erg’s jetty in Syracuse, Italy. The charter party was governed by English law and contained an agreement t [...]
Hold on to your seats! A settled test for the proper law of arbitration clauses?
The High Court of England & Wales has confirmed the nature of the test that will be applied when determining the proper law of an arbitration agreement in the absence of the parties’ express or implied choice. In two recent cases, Sulamérica CIA. Nacional De Seguros S.A. and Anors v Enesa Engenharia S.A. – ENESA and Anors [2012] EWHC 42 (Comm) and Abuja International Hotels Limited v Meridien SAS [2012] EWHC 87 (Comm), the court heard argument in two very different contexts on the law governing the parties’ agreement to arbitrate, but delivered judgments affirming the same principle.
The distinct identity afforded to arbitration agreements under the doctrine of separability means t [...]
Carlyle leaves out mandatory arbitration clause in IPO
The Carlyle group today announced that it was withdrawing the mandatory arbitration clause that was included in its registration statement filed with the Securities and Exchange Commission (“SEC”), in response to pressure from shareholder rights activists, potential investors and the SEC. Carlyle, which is preparing to conduct an IPO this year, had earlier included in its filing, a provision mandating that all shareholder disputes be settled only through arbitration, and further that all arbitration be brought in an individual capacity. The clause which would have prohibited Carlyle’s shareholders from filing class-action law suits had attracted intense criticism for its lack of respec [...]
A primer on pathological arbitration clauses in Swiss law
By Matthias Scherer and Sam Moss
In a recent decision issued on 7 November 2011 on a request for annulment of a partial award on jurisdiction rendered by the Court of Arbitration for Sport (“TAS”), the Swiss Supreme Court recalled and applied its previous jurisprudence on the interpretation of pathological arbitration clauses (Case 4A_246/2011).
The case arose out of a contract between a football club and an agent relating to the transfer of a player. The contract contained a dispute resolution clause which provided that “[t]he competent instance in case of a dispute concerning this Agreement is the FIFA Commission, or the UEFA Commission, which will have to decide the dispute that cou [...]
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 [...]
