When is an arbitral panel an international tribunal for purposes of Section 1782? Section 1782, of course, is the U.S. statute that authorizes federal courts to order discovery in aid of proceedings before foreign courts and international tribunals. As discussed in a forthcoming article in the Virginia Journal of International Law entitled, Ancillary Discovery to…
The concept of good faith has been a subject of perennial controversy since it was derived from the Roman legal equivalent ‘bonas fides’. Juristic views on and the legal conceptualization of the idea of good faith may often vary across the cultural divides and legal traditions. At a higher level of abstraction there may be…
In recent years, Korea has become an object of some attention in the international arbitration field. But less than 15 years ago, there was no “arbitration field” in Korea to speak of. I, myself, was a maritime lawyer and it was only a twist of fate – the request of a client – that put…
The views of lawyers involved in international commercial and investment arbitration are being sought for a new international arbitration survey from Queen Mary, University of London (QMUL). Conducted by QMUL’s School of International Arbitration and sponsored by White & Case LLP, the 2012 survey aims to examine whether a “harmonised international arbitration procedure is emerging,…
This is the time of year when law students and young lawyers begin to apply for their summer internships or jobs in international dispute resolution. Many – probably most – will carefully draft their curriculum vitae to show their serious commitment to relevant academic studies, experience in international disputes or with law firms, and participation…
By Matthias Scherer and Sam Moss In a recent decision issued on 7 November 2011 on a request for annulment of a partial award on jurisdiction rendered by the Court of Arbitration for Sport (“TAS”), the Swiss Supreme Court recalled and applied its previous jurisprudence on the interpretation of pathological arbitration clauses (Case 4A_246/2011). The…
Following the path of the hotly debated West Tankers decision, in African Fertilizers v BD Shipsnavo, the English Commercial Court held that a declaratory award is enforceable, allowing judgment to be entered on the same terms as the arbitral award. Such an order enables a party to obtain the material benefit of the award and…
On 7 October 2011 the Svea Court of Appeal ruled on whether an arbitral award should be declared invalid or annulled because the dispute – as alleged by the plaintiff – was not arbitrable under the Swedish Arbitration Act.1)Case no. T 6798-10. In finding that the dispute was arbitrable, the Svea Court considered several interesting…
Two things are currently unfolding in Africa: significant economic progress and profound political transformation. On the economic front, in the last decade, Africa has been one of the fastest growing continents in the world. Indeed, according to the International Monetary Fund, in the next five years, Africa is expected to be the fastest growing continent,…
Even when I think I know what I’m doing (be it self-confidence or self-deception), I still find checklists can be useful. Sometimes they can help validate or compare processes with others, but mostly they are good at making sure I haven’t forgotten some critical step. Below is a checklist for when someone – a business…
The escalation of costs and delays in international arbitration and the consequent dissatisfaction of the system’s users have become prime subjects for users of and commentators on international arbitration.1)See, for example, Jean-Claude Najar, ‘Inside Out: A User’s Perspective on Challenges in International Arbitration’, Arbitration International, 25 (2009) 515, 517. An informal study by the Corporate…
In a decision dated 14 June 2011 and published on 7 July 2011, the Swiss Federal Supreme Court dismissed an appeal to set aside an arbitral award holding that the right to the appointment of an expert by the tribunal is not violated where the respective request was not made in a timely manner and…
On March 22, the United States Court of Appeals for the Second Circuit held in Bechtel do Brasil Construções Ltda. v. UEG Araucária Ltda., 638 F.3d 150, that the question whether a claim subject to arbitration was time-barred was for the arbitrator, not the district court, to decide, notwithstanding a New York state law that…
The Court of Appeal of England and Wales ruled last month that where parties have entered into an arbitration agreement, one party can obtain an anti-suit injunction to prevent the other party from initiating proceedings in a foreign court, even where no arbitration is underway or indeed even contemplated. In AES Ust-Kamenogorsk Hydropower Plant LLP…
There was no shortage of coverage of the recent English Supreme Court case Jivraj v Hashwani, the case concerning whether an arbitration clause was contrary to anti-discrimination legislation applicable to employees. But there was one issue which received little attention before the Supreme Court – whether or not the nature of the relationship between the…
I write this post on a train on the way home from a seminar held by the Milan Chamber of Arbitration (CAM) to introduce a new rule and guidelines that could be seen as a necessary next step in the trend towards greater efficiency in arbitration. Before commenting on where these new developments might take…
One of the key issues that now awaits the decision of the U.K. Supreme Court in Jivraj v. Hashwani is whether there is a contract between the parties and the arbitrators, such that the arbitrators may be considered “employees” of the parties (and thereby subject to the law prohibiting discrimination by employers)? If there is…
[Editor’s Note: Upon hearing the results of the Vis competition, I invited members of the winning team to do a blog post about their experience. Below are the reflections of the members of the University of Ottawa Vis team on winning the competition.] It’s nice when hard work pays off. It’s even nicer when five…
According to article 7 of the Swiss Private International Law (PILA), if the parties have entered into an arbitration agreement, the Swiss Court before which the action is brought shall decline its jurisdiction unless it finds that the agreement is null and void, inoperative or incapable of being performed. An initiative to amend article 7…
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…
The new French arbitration law, published on 14 January 2011, further reinforces Paris’ position as a leading arbitration centre. The new law, which comes thirty years after the previous 1980 law regarding domestic arbitration and the 1981 law dealing with international arbitration, maintains the distinction between domestic and international arbitration. It clarifies and enhances an…
In a landmark decision dated 29 October 2010, published on 19 November 2010 (case 4A_234/2010), the Swiss Federal Tribunal dismissed a motion to set aside a Court of Arbitration for Sport (“CAS”) award based on the alleged impartiality of one of the co-arbitrators. The Court firstly clarified that the independence and impartiality expected from any…
Certain practices are as unwholesome as they are repeated with hard-headed stubbornness that they merit the denomination “worst practice”. A good New Year’s resolution for those engaging in international arbitration would be to pledge to stop engaging in them. I’ll limit myself to throwing stones at my own glass house: the worst practices committed by in-house counsel like myself and the lawyers we appoint.
In two recent decisions, the Singapore High Court reaffirmed its stance on minimal intervention in arbitration proceedings. The two decisions were made against different sets of circumstances but the Court nonetheless abided by its policy of minimal intervention. This posting examines the two recent decisions, in particular, the approach taken by the High Court. In…
