In the last fifteen years, the use of arbitration as an alternative dispute resolution method has grown in Brazil. Not only has the arbitration law been declared constitutional, but also parties have continuously provided arbitration clauses in their contracts, and national courts have issued rulings recognizing the jurisdiction of arbitrators and their power to “state”…

Drafted by HSF Partner, Mathias Wittinghofer, and Associates, Tilmann Hertel and Nils Kupka, from HSF’s Frankfurt office In 1999 Germany adopted the UNCITRAL Model law on International Commercial Arbitration (“ML”), but with a material addition: German law stipulates that prior to the constitution of the arbitral tribunal an application can be made to a German…

and Vyapak Desai, Nishith Desai Associates The Delhi High Court, in the case of PCP International Limited (“Petitioner”) v. Lanco Infratech Limited (“Respondent”), OMP (I) No. 350/2015, recently had occasion to decide which Indian court would have territorial jurisdiction in a domestic arbitration. The court, distinguishing the venue of arbitration from the seat, held that…

Longlide, Shenhua Coal and the issue ahead In a case regarded by many as a “milestone” for arbitration in China, Longlide Packing and Printing Co. Ltd. v. BP Agnati S.r.l (hereinafter “Longlide”) (Reply of the Supreme People’s Court to the Request for Instructions on Application for Confirming the Validity of an Arbitration Agreement in the…

The enforcement of awards following a decision at the seat remains a controversial issue in international arbitration. Should an enforcement court follow the decision of the seat court, or can the enforcement court reach a different conclusion? US courts and French courts continue to take different approaches to this issue. US courts will defer to…

In an ambitious stride to become the leading maritime hub in the Middle East, the Emirate of Dubai is set to establish the Emirates Maritime Arbitration Centre, which in shorthand will be known as “EMAC”. Plans for the anticipated establishment of the Centre have recently been announced by Sheikh Hamdan bin Rashid Al Maktoum, the…

A few days ago, this blog published an outsider’s perspective on the decision of the Supreme Court of India (SCI) in Reliance v Union of India (Reliance v Union of India, Civ App No. 5675 of 2014 (Supreme Court of India)) which has been applauded by international practitioners around the world since it curbed the…

and Niyati Gandhi On 14 February 2014, the Supreme Court of India (SCI) in Enercon India v. Enercon GMBH [Civ. App. 2086/7 of 2014] (Enercon) found occasion to revisit issues in connection with potential laws that govern an arbitration agreement. The impugned arbitration agreement contained the following clause: 18. DISPUTES AND ARBITRATION 18.1 * *…

A recent ruling of the Dubai Court of Appeal (see Case No. 1/2013 – Commercial Appeal, ruling of the Dubai Court of Appeal of 9 July 2013) gives new hope that despite the Dubai Court of Cassation’s disappointing approach in Case No. 156/2013 (see my blog of 21st October 2013), the UAE courts are, in…

One of the most important elements to consider when participating in arbitration proceedings is the available mechanisms to challenge the award of the arbitral tribunal. This element acquires an added significance when it comes to international arbitration where the award may be enforced in several jurisdictions. With that in mind, it is pertinent to refer…

As reported yesterday, the recent tragedies in Bangladesh factories have resulted in a major breakthrough with the signing of the Accord on Fire and Building Safety in Bangladesh. Thus far, leading retailers such as H&M, Marks & Spencer, Tesco, Sainsbury’s, Benetton, and Calvin Klein are on board. Notably absent from the list are leading U.S….

On 14 October 2012, Justice David Williams of the DIFC Court of First Instance (Dubai International Financial Centre) applied a course correction by issuing a decision confirming the jurisdiction of the DIFC Courts to grant a stay in the presence of a valid arbitration agreement providing for a seat of arbitration outside the DIFC. Justice…

On 6 September 2012, the Indian Supreme Court delivered its much-awaited judgment in Bharat Aluminium Co v. Kaiser Aluminium Technical Services (‘BALCO’). For the reasons discussed in detail below, the 190-page long BALCO decision is likely to go down in the annals of arbitration reports as the watershed decision that heralded a new dawn for…

The English Court of Appeal’s recent decision in Sulamerica CIA Nacional De Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638, which is discussed in a recent post by Guy Pendell, underscores an important weakness in the international arbitration system’s legal framework. While everyone accepts that the arbitration agreement is the foundation of an…

The Supreme Court of India has finally spoken to deliver a definitive ruling on the role of Indian courts in international arbitrations seated outside India. Overruling the controversial decision of Bhatia International v Bulk Trading (2002), the Supreme Court held that Indian courts do not have supervisory authority over international arbitrations taking place outside India….

One of the oft quoted advantages of arbitration is the perceived certainty that the national courts of New York Convention states should enforce an arbitral award unless one of the limited grounds for refusal is met. However, the relationship between national courts and arbitration is far from straightforward. In particular, one notable area where there…

The China International Economic and Trade Arbitration Commission (“CIETAC“) has recently published its revised Arbitration Rules, which will come into force on 1 May 2012 (the “2012 Rules“). This is the seventh revision of the CIETAC Rules since they were first published in 1956. Whilst the majority of the changes in the 2012 Rules are…

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…

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….

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…

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…

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,…

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…

Professor Hess is the author of the chapter of the Heidelberg Report on the interplay between arbitration and the Regulation 44/2001 (“the Regulation”). As such, and quite understandably, he actively promotes the suggestion that the arbitration exception should be deleted from the Regulation. The Heidelberg proposal has been followed by a Green Paper of the…