Nathalie Voser and Anya George
Few Swiss cases have sparked as much debate in the arbitration community as the Swiss Supreme Court’s 2009 decision in Vivendi vs. Elektrim. In that decision, the Supreme Court upheld the award of an arbitral tribunal seated in Switzerland which had declined jurisdiction over one of the respondents, Elektrim, after the latter was declared insolvent in Poland.
In a recently published decision dated 16 October 2012 (case reference 4A_50/2012), the Supreme Court was once again faced with the question of the effect that foreign insolvency proceedings have on an arbitration seated in Switzerland. The Supreme Court examined the issue in depth, revisiting its decision [...]
A recent decision of the Brazilian Superior Court of Justice (“STJ”) has ruled, for the first time, on the issue of the concurrent jurisdiction of national courts and arbitral tribunals with respect to the making of interim measures (Itarumã Participações S.A. v Participações em Complexos Bioenergéticos S.A. – PCBIOS, Resp no. 1,297,974-RJ). The decision is significant in shedding light on a topic not addressed by the Brazilian Arbitration Act, and reassures the view that, where there is an arbitration agreement, the national courts may only intervene to support arbitration and in exceptional circumstances.
Itamurã Participações S.A. (“Itarumã”) entered into a join [...]
Investment arbitration under intra-EU investment treaties has been a controversial topic for years. The European Commission has repeatedly expressed the view that arbitration clauses in bilateral investment treaties between EU Member States are in conflict with EU law and therefore inoperative, while arbitral tribunals have, on several occasions, assumed jurisdiction on the basis of such treaties. The question has now been addressed – apparently for the first time – by a state court of an EU Member State: on 10 May 2012, the Frankfurt Court of Appeals handed down its decision in Eureko v. Slovakia (case no. 26 SchH 11/10; the decision is available (in its original German version) online [...]
Following a previous round of amendments in 2009 that came into effect on 1 January 2010, the Singapore Ministry of Law published further proposed amendments to Singapore’s International Arbitration Act (“the IAA”) on 8 March 2012. The proposals took into account views garnered from a public consultation process. There are four key proposals in this round of amendments summarized below. This note also briefly compares the proposals against Hong Kong’s Arbitration Ordinance (“the AO”) that came into force on 1 June 2011.
I. The Writing Requirement
As a result of amendments in 2009, an arbitration agreement under the IAA currently includes “an agreement made by electronic commu [...]
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 [...]
It has become fashionable in recent years, each time an ICSID annulment decision is released that takes issue with the procedures or reasoning of an ICSID tribunal, for commentators to bemoan the lack of certainty, predictability and finality that this reflects in the ICSID system for adjudicating investment treaty disputes between investors and host States. Some commentators urge a return to greater use of ad hoc UNCITRAL arbitration, or arbitration before institutions other than ICSID, to avoid the perceived vagaries of the ICSID annulment process. Yet commentators often forget that these alternatives carry their own risks of uncertainty, inherent in the national court review process tha [...]