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 [...]
Canadian Supreme Court Sends Dispute to Arbitration Despite the Filing of a Defence in Court Litigation
Canada’s highest court, the Supreme Court of Canada, recently considered whether a party had waived its right to rely on arbitration and forum selection clauses by submitting a statement of defence on the merits in an Ontario court litigation in which it also pleaded the clauses. The Court ruled that there had been no waiver.
In Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd., 2012 SCC 9, the Supreme Court unanimously upheld the decision of the Ontario Court of Appeal and dismissed the appeal in a short decision.
The Supreme Court said that “when another forum – an arbitration panel, a tribunal or another court – has the exclusive jurisdiction to d [...]
Arbitrating Competition Law Disputes: a matter of policy?
- By Francesca Richmond, Baker & McKenzie,
for YIAG
A commentary on the OECD Competition Commission conclusions on using arbitration to effectively resolve competition law disputes
By Francesca Richmond and Sarah West
There has been increasing use of arbitration to resolve disputes involving competition law issues in recent years. However, it is surprising that the number is not even greater given that arbitral processes are particularly suited to this type of complex, multi-jurisdictional dispute. Claimants can be nervous that the validity of such awards might be challenged on public policy grounds, however, in practice there are only limited circumstances in which a civil claim based upon competition law is likely to also engage public p [...]
Major Pitfalls for Foreign Investors in Russia: What Are Russian BITs Worth?
Over the past few months, Russia’s outgoing Prime Minister Vladimir Putin has been busy campaigning for foreign investment into various industries of the Russian economy. In a nutshell, the thinking behind the new plan for improving the investment climate in Russia is that easing access to strategic industries for foreign investors will do the trick. However, no proposals have been made to increase the level of investor protection in case a deal falls apart.
While it is dubious that better access to the mousetrap gives much comfort to the unlucky mouse caught in it, bilateral investment protection treaties (BITs) provide arguably the only tools “to open the mousetrap” in the context o [...]
Cargill – Another Chapter in the Legacy of Dallah
As we approach the first anniversary of the UK Supreme Court’s landmark decision in the case of Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan, it is only fitting that we would encounter a case which would cause us to revisit the issue of the proper standard of review for international arbitration awards and that such case would involve a non-English court looking to Dallah for instructive value. Earlier this month in the case of The United Mexican States v Cargill Incorporated, the Ontario Court of Appeal considered Dallah in determining whether to grant Mexico’s application to set aside an ICSID arbitration award granting an American [...]
