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German Federal Supreme Court Underlines Non-Intervenistic and International Approach of German Arbitration Law

In an order dated 28 January 2014 (file number III ZB 40/13), the German Federal Supreme Court (Bundesgerichtshof, the “Court”) clarified that an arbitral award can only be set aside in recognition or enforcement proceedings by a state court in “extremely exceptional cases”, i.e. if an award breaches the fundamental principles of the German legal system in a manifest way.

The Court considered this clarification was necessary because by its wording, the relevant provision of the German arbitration law, Sect. 1059 para. 2 no. 2 b) of the code of civil procedure (Zivilprozessordnung – “ZPO”), does not require such “manifest” breach of the fundamental legal principles. The wording of the prior [...]

Five Facts About Recognition and Enforcement of Foreign Awards in Central and Eastern Europe

Dr. Ileana M. Smeureanu 1

The views expressed in this article are those of the author alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or the author’s law firm.

Arbitration has become an accepted dispute resolution mechanism in Central and Eastern Europe (“CEE”) over the last two decades. Over the years, the number of arbitral cases has increased steadily, and local courts have assumed a more favorable attitude to the arbitration process as a whole. Given the diversity of the countries in CEE, arbitral practice in the region is not entirely uniform despite the fact that most CEE countries are parties to international instruments meant to harmoni [...]

National Mandatory Rules and International Public Policy: The Status of the Agent’s Goodwill Compensation in Portugal

I. The Court of Appeal of Lisbon recently granted recognition of an arbitral award made in Paris, under the Rules of Arbitration of the ICC, holding that the Portuguese law applicable to the Agency Agreement, in spite of being of mandatory nature, do not constitute part of the international public policy of the Portuguese state and, therefore, do no constitute grounds to refuse the recognition of a foreign arbitral award.

This decision, made on 16 January 2014, is available online and full translation will be published in the 2014 Yearbook Commercial Arbitration (out in January 2015).

In the meantime, it will be interesting to read the following particulars of the case and discuss the deci [...]

ICCA 2014: Pleading and Proof of Fraud and Comparable Forms of Abuse

Chair: Klaus Reichert SC (London)
Main Speakers: Dr. Aloysius Llamzon (The Hague), Anthony Sinclair (London)
Commentators: Utku Cosar (Istanbul), Carolyn B. Lamm (Washington, DC)
Rapporteur: Elizabeth Karanja (Nairobi)

No one would seriously challenge the proposition that investor wrongdoing is a systemic threat to international investment arbitration. But what constitutes investor wrongdoing? What are the standards that govern pleading and proving issues of corruption, fraud, misrepresentation and similar serious allegations of misconduct? How are arbitral tribunals addressing these issues? The Precision Stream on ‘Pleading and Proof of Fraud and Comparable Forms of Abuse’ addressed the [...]

Second Look At The Foreign Award Forbidden On Enforcement – Indian Supreme Court

The Supreme Court of India handed down a judgment earlier this month that restates Indian position on the enforcement of foreign arbitral awards in line with the international standards. In the case of Shri Lal Mahal Ltd. v. Progetto Grano Spa, a three judge bench of the apex court held that review of a foreign arbitral award on its merits is untenable as it is not permitted under the New York Convention. The judgement clearly exposes the difference in the scope of inquiry during the annulment of a domestic award and the enforcement of a foreign award. It stated that the expression ‘public policy of India’ under section 48 of the Arbitration & Conciliation Act, 1996 (the Act) should be [...]

Public Policy in the UAE: Has the Unruly Horse Turned into a Camel?

A recent ruling of the Dubai Court of Cassation (the highest Court in the Emirate, against whose rulings there lies no further appeal) raises serious concerns as to whether the unruly horse of public policy that became infamous in the early nineteenth century in the common law world and in particular along the shorelines of the British Isles has now bridged the gulf between the common and civil law world, made its way across the Persian Gulf and – washed ashore in the Emirate of Dubai – has turned into a camel. By way of reminder, the unruly horse was borne to English law with the valiant assistance of Mr Justice Burrough in 1824, when he described the doctrine of public policy in the foll [...]

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