On the ground that arbitration is a consensual and neutral means of dispute resolution, it has been suggested that arbitrators ought to be wholly and exclusively at the service of the parties and that they are not entrusted with a mission to defend public interests.
There may be reasons to call this view into question.
It is true that the selection of arbitration instead of court litigation has an impact on the manner in which the applicable law is identified in the absence of choice of law by the parties: the seat of the arbitration is no forum and reliance on conflict-of-laws rules of the seat is therefore not mandatory. This does not imply, however, that arbitrators are bound to disregar [...]
The new Slovak Arbitration Act (“SAA”) was adopted by the Parliament (Act. No. 336/2014 Coll.), and is in force as of January 1, 2015. In order to see whether the SAA will promote Slovakia as an arbitration venue, main novelties and amendments brought by this new act are analysed in this blog entry.
Arbitrability: Under the old law, parties were allowed to arbitrate disputes, which were subject to settlement in courts under art. 99 of the Slovak Code on Civil Procedure. The amendment provides under art. 1(2) that arbitrable disputes are those, which are related to legal relations and “can be settled by an agreement of the parties [under art. 585 of the Slovak Civil Code (“SCC”)] in [...]
The terms ‘variable interest entity’ (‘VIE’), ‘valuation adjustment mechanism’ (‘VAM’) and ‘public (social) interest of China’ (otherwise, Chinese ‘public policy’) each entail complex legal issues. They have in the past caused heated debate in China as to their legality (in the cases of VIE and VAM) and their boundaries in the context of enforcement of foreign arbitral awards (in the case of public policy). Thus, when a recent PRC court ruling linked all three topics, it instantly became a leading judicial precedent.
On 5 November 2014, the Fuzhou Intermediate People’s Court (‘the Fuzhou Court’ or ‘the Court’) handed down a civil ruling in Fuj [...]
Recently, the Indian courts have seen a heartening change with respect to the court adopting a pro-arbitration approach. However, for arbitrations seated in India, the decision of ONGC v Western GECO marks a regressive step in the non-interference trend. The Court assumed power to modify the subject matter of an award for violation of the ground of fundamental policy of the Indian State under Section 34(2)(b)(ii) of the Indian Arbitration and Conciliation Act 1996.
In Renusagar Power Plant Ltd. v. General Electric co. (1994) the Supreme Court of India noted that public policy was a ground for refusal of enforcement of an award. It laid down three grounds for the same, namely: fundamental pol [...]
In one of the very rare decisions issued by courts in the Arab world applying the provisions of the Unified Agreement for the Investment of Arab Capital in the Arab States (the “UAIAC”), the Cairo Court of Appeal has revived in its decision dated February 5, 2014, the principle of finality of arbitration awards, by which it rejected a claim for annulment of a UAIAC award, filed by the State of Libya (first claimant to annulment), the Libyan ministries of Economy and Finance (second and third claimants) and the General Authority for encouraging investments (fourth claimant), against a kuwaiti investor, Al-Kharafi & Sons Co. (case n° 39, judicial year 130/2014). The ratio decidendi of the cou [...]
In a recent ruling of the DIFC Court of Appeal (see Case CA-005-2-14, ruling of the DIFC Court of Appeal of 3rd November 2014), Justice Sir David Steel affirmed the previous ruling of the DIFC Court of First Instance in Banyan Tree v. Meydan Group LLC (see Case No. ARB 003/2013 – Banyan Tree Corporate PTE LTD v. Meydan Group LLC, ruling of the DIFC Court of First Instance of 27 May 2014 and my previous blog). As a result, it can now be taken as established (at least pending onward enforcement before the Dubai Courts) that the (offshore) DIFC Courts do have competence to hear actions for the ratification of domestic (onshore) Dubai awards (in the present case an award rendered under the au [...]