CAS Decision sanctioning a ban by FIFA of a football player violates public policy
With its decision of 27 March 2012, the Swiss Federal Supreme Court held unlawful a disciplinary sanction by which FIFA threatened the football player Matuzalem with a lifetime ban in case he failed to pay a damage claim of his former club and employer.
By an earlier decision of the CAS, Francelino da Silva Matuzalem, together with the football club Real Saragossa SAD, were ordered to pay an amount of over EUR 11 million plus interest as damage after Matuzalem had left his former football club Shakhtar Donetsk to join Real Saragossa without a reason and without giving notice. As both Matuzalem and Real Saragossa did not pay the damage, FIFA set a final deadline for payment and, failing payme [...]
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 [...]
Arb-med procedures and enforcement in Hong Kong: The crest of the waiver?
Last month’s judgment of the Hong Kong Court of Appeal (“CA“) in Gao Haiyan and Xie Heping v. Keeneye Holdings and another CACV 79/2011, is the latest in a long line of cases demonstrating the pro-enforcement approach of the Hong Kong courts. The decision makes clear that it is not the place of the Hong Kong courts to comment on the merits of an arbitral award. Rather, the courts’ role in enforcing arbitral awards should be as mechanistic as possible. This is consistent with existing caselaw on enforcement and reinforces the respect of the Hong Kong courts for the finality of arbitral awards.
The CA in Keeneye reversed the much-discussed decision of the Hong Kong Court of First Instance [...]
Investments in the deep freeze? Stabilization clauses in investment contracts
A few years ago, stabilization clauses in investment contracts became the subject of increased attention by human rights and development groups. A report on Stabilization Clauses and Human Rights, issued by the UN Secretary-General’s Special Representative for Business and Human Rights, John Ruggie, was the first comprehensive study to draw on a range of heretofore confidential transactions covering a range of investment projects around the world.
For contract negotiators, these clauses continue to pose some perplexing questions on the proper allocation of transaction’s risk between an investor and a host state. For the arbitration community, it’s worth considering how these clause [...]
Mass Claims and the distinction between jurisdiction and admissibility
In its 4 August 2011 Decision on Jurisdiction and Admissibility, the majority of the Tribunal in Abaclat and Others (Case formerly known as Giovanna a Beccara and Others) v. Argentine Republic affirmed that it had jurisdiction to hear the claims of over 60,000 Italian investors against Argentina arising out of Argentina’s default on various sovereign bonds. The Decision is historic in its holding that there is no impediment to mass claims under the ICSID Convention and Arbitration Rules and that ICSID tribunals have the power under ICSID Arbitration Rule 19 to adopt procedures to handle mass claims.
Although the Tribunal’s finding that it can hear mass claim has garnered the [...]
The Public Policy Exception – Is the Unruly Horse Being Tamed in the Most Unlikely of Places?
The public policy exception under Article V(2)(b) of the New York Convention is well recognised as the amorphous exception. To the extent it has been capable of definition, it has been found to embrace nebulous concepts such as a state’s most basic notions of morality and justice. No doubt it is for this reason that it was described by an English judge almost two centuries ago as an unruly horse which carries its rider to unpredictable destinations. While more established arbitration friendly jurisdictions have developed a restrictive approach to the public policy, elsewhere it has remained the refuge of last resort for the dissatisfied party to an arbitral award. This concern was succin [...]
