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 [...]
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 [...]
Waiver of an Arbitration Agreement Resulting from a Party’s Failure to Pay the Advance on the Costs of the Arbitration
According to the rules governing domestic arbitration (Art 30 of the Concordat on Arbitration, and, as of 1 January 2011, Art. 378 of the Swiss Federal Code on Civil Procedure), a party that does not pay its share of the advance on the arbitration costs requested by the arbitral tribunal risks to lose the benefit of the arbitration clause. The other party has indeed the option to pay the entire advance or to waive the arbitration clause with regard to the matter in dispute.
In its decision 4A_574/2010 of 21 March 2011 the Swiss Federal Supreme Court dealt with a dispute that had arisen among the former members of a disintegrated law firm. One of the lawyers initiated the contractually agreed [...]
Swiss Embargos and their Impact on Contracts Governed by Swiss Law Illustrated by the Swiss Sanctions against Iran
Introduction: Many international commercial contracts (such as e.g., construction, distribution, sale and purchase) are governed by Swiss (substantive) law as per a choice of law provision. Often the choice of law is made in combination with an arbitration clause referring disputes to arbitration in Switzerland. The effect of international sanctions on commercial contracts has become a burning issue once more due to the sanctions adopted by the international community against Iran. The present note briefly analyses the Swiss regime of sanctions against Iran, and some contractual issues that might arise from contracts governed by Swiss substantive law. In 2010, the trade volume between Iran a [...]
Sports Arbitration and Due Process
Sports arbitration is becoming an increasingly important field. In Switzerland, where the Court for Arbitration for Sports is located, the Swiss Supreme Court is seeing lately nearly half of its cases coming from the CAS.
Sports arbitration, however, gives rise to a specific concern with respect to the issue of consent. Often, athletes find themselves before arbitral tribunals whose jurisdiction was not directly chosen by them, but to which they are attracted for the sole reason that they signed an agreement with a federation which submits its disputes to arbitration. Courts, and in particular the Swiss Supreme Court, have seldom held arbitration agreements by reference in the sport con [...]
New French Arbitration Law Clarifies Role of National Courts and Reinforces Recognition and Enforcement of Arbitration Awards
The new French arbitration law, published on 14 January 2011, further reinforces Paris’ position as a leading arbitration centre. The new law, which comes thirty years after the previous 1980 law regarding domestic arbitration and the 1981 law dealing with international arbitration, maintains the distinction between domestic and international arbitration. It clarifies and enhances an already arbitration-friendly law by codifying case-law and including innovative provisions in the Code of Civil Procedure (Articles 1442 to 1527). This is apparent, in particular, in the new provisions governing the role of French courts in supporting arbitration and those regarding the recognition and enforce [...]
