An unlikely mix – the Russian courts, a French cement company, and the 1961 European Convention on International Commercial Arbitration
In 1961, three years after the adoption of the New York Convention, the European Convention on International Commercial Arbitration was adopted in Geneva (the Geneva Convention). At the time, the Geneva Convention was noteworthy as being the first international instrument to refer to “international commercial arbitration” by name. Today, however, many practitioners give little consideration to the Geneva Convention and consider it to be of no more than academic interest. The likely explanation for this position is the Geneva Convention’s limited scope of application, in particular the fact that its application depends not only on both the state of the award’s origin and the state of e [...]
Arbitration in Hong Kong: Immune from immunity?
In a landmark provisional judgment in Democratic Republic of the Congo v. FG Hemisphere Associates FACV Nos. 5, 6 & 7 of 2010, the Hong Kong Court of Final Appeal (CFA) has held by a majority of 3:2 that absolute sovereign immunity applies in Hong Kong, with no exception for purely commercial transactions or assets. Taken with the judgment of the Hong Kong Court of First Instance (CFI) in Intraline Resources SDN BHD v. The Owners of the Ship or Vessel “Hua Tian Long” HCAJ 59 of 2008 in relation to crown immunity in April 2010, the CFA’s judgment means that both sovereign immunity and crown immunity are absolute under the law of Hong Kong. The CFA also confirmed that immunity cannot be waived [...]
New Hong Kong Arbitration Ordinance comes into effect
The new Hong Kong Arbitration Ordinance (Cap. 609) (the “Ordinance”) comes into effect today, having been approved by the Hong Kong Legislative Council at the end of last year. The Ordinance represents the culmination of many years of discussion and consultation and marks a significant milestone in the development of Hong Kong as a world-class international arbitration centre. Its stated intention is to facilitate the “fair and speedy” resolution of disputes, providing for maximum party autonomy and minimal court intervention (Section 3). In that respect, the Ordinance draws heavily on the internationally-recognised and accepted framework of the UNCITRAL Model Law (the “Model Law”), with [...]
The Swedish Supreme Court Emphasizes International Arbitration Law Principles
- By Anders Relden, White & Case LLP,
for White & Case
Clear tendencies towards an arbitration-friendly approach have been demonstrated by the Swedish Supreme Court during the latter part of 2010. During this term the Supreme Court has repeatedly taken an arbitration-friendly stance and emphasized that Swedish arbitration law and practice ought to be in line with international best practice in arbitration.
Sweden has a long-standing tradition as a seat for international arbitration and the Swedish legal framework has generally been perceived as arbitration friendly. In 2005 that perception was somewhat damaged when the Svea Court of Appeal, in Case No. RH 2005:1 (The Titan Corporation v. Alcatel CIT SA), held that the arbitral award in question [...]
Impartial: Yes. Neutral: Maybe Not
In arbitration, as in other aspects of business life, parties often feel most comfortable when they are (literally) on familiar ground. If things go wrong, a European or American company might understandably prefer arbitration seated in Europe or New York. On the other hand, parties from the PRC, for example, are increasingly, and equally understandably, inclined to resist arbitration outside Asia (and sometimes even mainland China itself).
Parties may therefore find themselves in a tug-of-war between their preferred, compromise and worst-case seats. Which seat is ultimately selected will depend upon how big an issue the seat is for each party, how great a desire they have to get the deal [...]
Some additional comments on the (now amended) Heidelberg Report: A reply to Professor Hess
I am grateful to Professor Hess for his comments on my 3 March 2010 blog. It greatly contributes to advancing the debate. However, it also perfectly illustrates the difficulties of a proposition – the total or partial deletion of the arbitration exception in Regulation 44/2001 – that has not been sufficiently thought through.
1. Professor Hess now introduces a very significant change in the Heidelberg proposal.
In his 14 February post on ConflictsofLaw.net, he had acknowledged that “the proposal of the Heidelberg Report to delete the arbitration exception entirely maybe goes too far”.
Professor Hess now proposes for the first time an alternative to the Heidelberg proposal by drafting [...]
