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“Between Iraq and a Hard Place”: The problem of non-ratification of the New York Convention in Baghdad

Setting the scene

Iraq currently ranks with Libya and Yemen amongst those recalcitrant Arab states that have thus far failed to ratify the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention or Convention). This state of affairs and the inadequacy of the country’s domestic and international arbitration legal regime have been addressed numerous times by academics, politicians and lawyers over the last thirty years.

However, the subject of Iraq’s non-ratification of the Convention has recently achieved a heightened significance, for two reasons:

(1) This month, it is understood that on-site workshops to train senior members o [...]

Courts of International Arbitration: The Arbitrationization of Litigation?

As leading jurisdictions around the world continue to establish national courts dedicated to the oversight of international arbitration issues, one wonders whether this is an idea whose time has come. This issue was previously discussed on this blog in September 2010. Much progress has been made in the intervening years.

The most recent jurisdiction to adopt this reform is one that will continue to be in the spotlight during 2014 as the host of the upcoming ICCA Congress: Miami. Joining New York City as only the second jurisdiction in the United States to do so, the Miami-based Eleventh Judicial Circuit of Florida adopted this reform on December 3, 2013.

New York formally created its court o [...]

Kompetenz-Kompetenz in Brazil: alive and kicking

The Brazilian Superior Court of Justice (“STJ”) has issued, on 19 June 2013, a landmark decision addressing the principle of Kompetenz-Kompetenz (Resp. no. 1,278,852-MG Samarco Mineração S/A v Jerson Valadares da Cruz). The decision deals with the allocation of competence between arbitral tribunals and national courts to decide on the validity of an arbitration agreement. The STJ reasoned, for the first time, that court review on this issue is only permitted at two procedural stages: (i) in proceedings to set aside an arbitral award; or, (ii) in proceeding to resist the recognition and enforcement of an arbitral award.

Facts

Samarco Mineração S.A. (“Mineração”) entered into an agre [...]

ACHMEA II – Seizing Arbitral Tribunals to Prevent Likely Future Expropriations: Is it an Option?

On February 6, 2013, Achmea (a Dutch insurer, better known by its former name, Eureko) initiated UNCITRAL arbitration proceedings against the Slovak Republic on the basis of the Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federal Republic (the “Netherlands-Slovakia BIT“) [The Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federal Republic was signed on 29 April 1991 and came into force on 1 October 1992.] These proceedings appear to be of a new kind: aimed at preventing a likely expropriation [Achmea press release "Achmea [...]

Brazilian Court Clarifies Jurisdiction for Interim Measures

A recent decision of the Brazilian Superior Court of Justice (“STJ”) has ruled, for the first time, on the issue of the concurrent jurisdiction of national courts and arbitral tribunals with respect to the making of interim measures (Itarumã Participações S.A. v Participações em Complexos Bioenergéticos S.A. – PCBIOS, Resp no. 1,297,974-RJ). The decision is significant in shedding light on a topic not addressed by the Brazilian Arbitration Act, and reassures the view that, where there is an arbitration agreement, the national courts may only intervene to support arbitration and in exceptional circumstances.

Facts

Itamurã Participações S.A. (“Itarumã”) entered into a join [...]

The Brazilian dispute with the ‘close’ connection to England & Wales

On 16 May 2012, the Court of Appeal of England & Wales (“CA”) dismissed an appeal against an anti-suit injunction restraining three insured entities from pursuing proceedings in the Brazilian courts against their insurers (Sulamerica CIA Nacional De Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638). This is the latest in a series of decisions in Brazil and in England & Wales testing the approach of the courts in both jurisdictions to the enforcement of arbitration agreements in circumstances where there are contradictory provisions in the contract.

A consortium of Brazilian construction companies (the “Insureds”), working as the contractor for the construction of one of the world [...]

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