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 [...]
Portuguese Arbitration Law: A Gateway to Portuguese-Speaking Countries?
The new Portuguese arbitration law that shall enter into force on 14 March 2012 represents a remarkable evolution in the arbitration framework in Portugal.
The former Portuguese arbitration law was published in 1986 (not following the UNCITRAL Model Law) and despite being considered a progressive law at the time it was clear that it lacked the ability to respond to some of the issues that have been raised in more recent times. On this point, it should be noted that the 1986 law was amended in 2003, but only a few changes were introduced (dealing with very specific procedural aspects in the context of arbitration proceedings).
For a long time the legal community demanded a new arbitration l [...]
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 [...]
