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 [...]
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 [...]
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 [...]