The Brazilian Superior Court of Justice (“STJ”) has issued, on 19 June 2013, a landmark decision addressing the principle of Kompetenz-Kompetenz (Resp. no. 1,278,852-MG Samarco Mineração S/A v Jerson Valadares da Cruz). The decision deals with the allocation of competence between arbitral tribunals and national courts to decide on the validity of an arbitration agreement. The STJ reasoned, for the first time, that court review on this issue is only permitted at two procedural stages: (i) in proceedings to set aside an arbitral award; or, (ii) in proceeding to resist the recognition and enforcement of an arbitral award.
Samarco Mineração S.A. (“Mineração”) entered into an agre [...]
and Benjamin Ainsley Gill
When seeking to extend an arbitration clause to a third party who is not a signatory to the clause, common law practitioners will often have resort to an argument that the corporate veil should be pierced – in other words, that the court or tribunal should disregard the separate legal identity of a company on the grounds that it is a façade or sham. Most often, the argument will be that the separate corporate identity of the company that signed the arbitration clause should be disregarded and the arbitration clause thereby extended to its parent company, or to an individual who owns or controls the signatory.
Two recent decisions of the English Supreme Court have [...]
In a recent decision, the Mauritian Supreme Court has roundly rejected a challenge to an arbitrator’s jurisdiction brought under section 20 of the Mauritian International Arbitration Act 2008, and in doing so touched upon the interesting question of the standard of review in such cases.
Section 20 of the International Arbitration Act 2008 (“IAA”) allows an arbitral tribunal to hear a challenge to its jurisdiction as a preliminary issue. If the challenge is rejected, the applicant may make an application to the Supreme Court to decide the challenge. The Supreme Court will be constituted as a panel of three judges, as with all substantive hearings under the IAA, and an appeal lies from t [...]
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 [...]