Tecnimont, the saga continues but is not yet over
- By Laurence Franc-Menget, Herbert Smith LLP,
for YIAG
In a decision rendered on 2 November 2011, the Reims Court of Appeal annulled an ICC Award for failure to disclose conflict of interest during proceedings, irrespective of the ICC Rules on challenging arbitrators in the case Avax v. Technimont.1 This post considers the latest instalment, the Reims Court of Appeal decision, and its two key findings: the inapplicability of the ICC Rules for challenging an arbitrator post-award, and the broad scope of an arbitrator’s continuing disclosure obligations.
For those who may have missed the previous blog posts,2 these proceedings occurred further to an application to set aside a partial arbitral award rendered under the auspices of the International [...]
The Swedish Supreme Court Emphasizes International Arbitration Law Principles
- By Anders Relden, White & Case LLP,
for White & Case
Clear tendencies towards an arbitration-friendly approach have been demonstrated by the Swedish Supreme Court during the latter part of 2010. During this term the Supreme Court has repeatedly taken an arbitration-friendly stance and emphasized that Swedish arbitration law and practice ought to be in line with international best practice in arbitration.
Sweden has a long-standing tradition as a seat for international arbitration and the Swedish legal framework has generally been perceived as arbitration friendly. In 2005 that perception was somewhat damaged when the Svea Court of Appeal, in Case No. RH 2005:1 (The Titan Corporation v. Alcatel CIT SA), held that the arbitral award in question [...]
In re Caratube: Section 1782 Under the Arbitral Tribunal’s Control
In an important contribution to the ongoing debate among courts and commentators regarding the scope of 28 U.S.C. § 1782 – and the first such case related to ICSID proceedings – the D.C. district court recently exercised its discretion to decline a discovery request by Caratube International against the Republic of Kazakhstan. In re Caratube Int’l Oil Co., No. 10-0285, 2010 WL 3155822 (D.D.C. Aug. 11, 2010). Though the court assumed arguendo that ICSID arbitration is “a proceeding in a foreign or international tribunal” for purposes of Section 1782, it considered three factors in deciding whether to grant the petition for discovery.
First, the court considered whether the person [...]
Can Discovery Costs be treated as Arbitration Costs?
As is well known, Section 1782(a) provides that a “the district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal”.
The applicability of 28 U.S.C. § 1782 to international arbitration has generated an interesting debate, especially on this blog (see lastly G. Born’s post, L. Reed’s post, E. Triantafilou’s post, adde, Y. Lahlou, l’applicabilité de l’article 28 USC 1782 à l’arbitrage commercial international, Gaz. Pal., 2009-3). The debate is essentially concerned with the question whether an international arbitral [...]
Availability of Arbitrators: What About the Other Objective Data?
When it comes time to identify an arbitrator candidate, be it in the investor-state context or in an international commercial arbitration, there are many factors to consider. One such factor, however, that has been the focus of much attention recently by arbitration institutions, practitioners and commentators alike, is arbitrator availability. It is clearly a sore subject.
In August 2009 the ICC took a major step towards transparency with respect to arbitrators’ availability and workload. As a result of these measures, the ICC now requires ICC arbitrators to complete an ICC Arbitrator Statement of Acceptance, Availability and Independence listing their “currently pending” cases, an [...]
Russia: Impartiality Test for Arbitrators
In 2007, the Russian Supreme Arbitrazh (State Commercial) Court in OAO NK Rosneft v. Yukos Capital S.a.r.l ruled that arbitrators must disclose their connection to the legal counsel of the other party at the time of their appointment. The facts of the case suggested that one of the arbitrators spoke at a conference organized and sponsored by the law firm representing Yukos Capital S.a.r.l. in the arbitral proceedings.
Russian law stipulates that an arbitrator must disclose any circumstances which may give rise to justifiable doubts as to his impartiality or independence. Based on such disclosure, a party to the arbitration may decide whether to challenge the arbitrator. The arbitrator’s f [...]
