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 [...]
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 [...]
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 [...]
Anti-Arbitration: 10 Things To Do Before The Arbitration Gets Underway
Even when I think I know what I’m doing (be it self-confidence or self-deception), I still find checklists can be useful. Sometimes they can help validate or compare processes with others, but mostly they are good at making sure I haven’t forgotten some critical step.
Below is a checklist for when someone – a business client, my boss, or a legal department colleague – has informed me that an arbitration is possible, likely, or has just been filed.
1. Check for any pre-arbitration procedures and assess whether to comply with them
Of course, the first thing any litigator will do when presented with a contractual dispute is to check the contract’s dispute resolution and governing law [...]
The New ICC Rules: Continuing Evolution of Case Management Powers to Control Costs and Delays in International Arbitration
- By Paul Friedland, White & Case LLP,
for White & Case
The escalation of costs and delays in international arbitration and the consequent dissatisfaction of the system’s users have become prime subjects for users of and commentators on international arbitration.1 An informal study by the Corporate Counsel International Arbitration Group (CCIAG) in 2010 found that every single corporate counsel who was surveyed thought that arbitration ‘takes too long’ and ‘costs too much’.2
It has also been correctly stated that “[w]hether or not concerns about international arbitral efficiency are exaggerated, the international arbitration community must face this discontent and, more importantly, take steps to maintain its legitimacy with its use [...]
The right to a tribunal appointed expert
In a decision dated 14 June 2011 and published on 7 July 2011, the Swiss Federal Supreme Court dismissed an appeal to set aside an arbitral award holding that the right to the appointment of an expert by the tribunal is not violated where the respective request was not made in a timely manner and in proper form (4A_617/2010).
Decision
X (a Turkish company) and Y (a Polish company) were in dispute over the question of which party was responsible for the delays in the execution of the contractual work. The dispute was brought before an ICC tribunal seated in Zurich. With respect to the disputed question, each party submitted to the arbitral tribunal a technical expert report.
In an award of 30 [...]
