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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 [...]

Enforcement of New York Convention Awards in the UAE (Part II): THE DIFC as “host” jurisdiction?

As explored in some detail in Part I of this blog post, recent UAE supervisory court case law has heralded a new era of enforcement of international awards in strict compliance with the 1958 New York Convention on the Recognition and Enforcement of Foreign Awards (the “New York Convention”).

To recap, the Maxtel line of case law (see in particular Commercial Action No. 268/2010 – Maxtel International FZE v. Airmec Dubai LLC, ruling of the Dubai Court of First Instance, dated 12 January 2011, most recently affirmed by the Dubai Court of Appeal in Airmec Dubai LLC v. Maxtel International LLC, ruling dated 22nd February 2012), which originated a year earlier in the Fujairah Courts (see Case [...]

Public Policy in the UAE as a Ground for Refusing Recognition and Enforcement of Awards

As in most other jurisdictions, the violation of public policy in the UAE constitutes a ground for refusing the recognition of an arbitral award. Public policy is defined in Article 3 of the UAE Civil Code [Federal Law No. (5) of 1985] as follows:

“Are considered of Public Policy, rules relating to personal status such as marriage, inheritance, descent, and rules concerning governance, freedom of commerce, trading in wealth, rules of personal property and provisions and foundations on which the society is based in a way that do not violate final decisions and major principles of Islamic Shari’a”.

A striking feature of this definition is that it is wide enough to encompass almost anything t [...]

Sealing of Court Documents Relating to an Arbitration

Confidentiality is often a distinguishing reason why users choose arbitration over court litigation. In a 2010 International Arbitration Survey on Choices in International Arbitration, 62% of respondents said confidentiality was very important to them. Last month, a contributor to this blog observed anecdotally that in-house counsel want confidentiality especially in industries in which a dispute may arise in one part of the world between businesses while in another part of the world amiable and profitable projects are still ongoing.

The confidentiality of arbitration refers to the extent to which parties are prohibited from disclosing the existence, nature and content of the arbitration [...]

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