India gives Hong Kong a golden opportunity
A recent administrative event in Delhi may have profound implications for the ongoing rivalry between Singapore and Hong Kong as Asia’s arbitration hubs of choice.
On 19 March 2012 India confirmed that it will add the Peoples’ Republic of China (including the Special Administrative Regions of Hong Kong and Macao) to the list of so-called “gazetted” states. Only arbitral awards rendered in states notified via the Government of India Official Gazette will be recognised and enforced in India under the New York Convention. This condition flows from s.44 of the Indian Arbitration and Conciliation Act 1995. The list of 45 or so gazetted states (out of 144 ratifying New York Convention s [...]
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 [...]
Possible Enforcement of Worldwide Freezing Orders in Switzerland
By Matthias Scherer and Simone Nadelhofer, LALIVE, Geneva and Zurich
The Swiss Federal Supreme Court recently published a decision rendered last addressing the enforceability of an English Worldwide Freezing Order (“WFO”) in Switzerland. Of particular interest was the question whether a party can apply for a mere declaration of enforceability without actually seeking to enforce the WFO against specific assets (ATF 4A_366/2011, decision of 31 October 2011). The decision in German can be downloaded on http://jumpcgi.bger.ch/cgi-bin/JumpCGI?id=31.10.2011_4A_366/2011.
A WFO, a preliminary injunction preventing a defendant from disposing of assets pending the resolution of the underlying subs [...]
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 [...]
