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Clyde & Co.

The Jurisdiction of Indian Courts over Arbitrations Seated Outside India. An Outsider’s Perspective.

The potential intervention of Indian courts over foreign seated arbitrations is a hot topic in international arbitration. On 28 May 2014, the Supreme Court of India (“SCI”) heated up the debate by handing down a judgment in Reliance Industries Limited & Anr v Union of India. The SCI found that Indian courts had no jurisdiction to set aside an award made in London – which is undoubtedly correct. But can this recent SCI decision be considered a development in Indian arbitration-related case law?

Facts

The disputes between Union of India and Reliance arose from two oil and gas production-sharing contracts. These contracts were governed by Indian substantive law, and provided for UNCITRAL ar [...]

HOW FAR DO THE NEW LCIA GUIDELINES FOR PARTIES’ LEGAL REPRESENTATIVES AND THE IBA GUIDELINES ON PARTY REPRESENTATION GO?

By Sapna Jhangiani and Khaled Moyeed, Clyde & Co LLP

To the question: What are the professional rules applicable to an Indian lawyer in a Hong Kong arbitration between a Bahraini claimant and a Japanese defendant represented by New York lawyers, the answer is no more obvious than it would be in London, Paris, Geneva and Stockholm. There is no clear answer …

The conundrum identified above by Johnny Veeder QC in the 2001 Goff lecture has remained unanswered for many years. This blog examines two solutions which have recently presented themselves: firstly, proposed amendments to the LCIA Rules – which are expected to be promulgated shortly – such that counsel engaged in LCIA arbitrations [...]

Would Reference to the Decisions of Investment Treaty Tribunals be of Assistance in the Interpretation of Political Risk Insurance Policies?

Readers of this blog are likely to be familiar with the existence of Bilateral Investment Treaties (“BITs”) and the wealth of arbitral awards made publicly available through the International Centre for the Settlement of Investment Disputes (“ICSID”). Given the publicity afforded to proceedings under BITs, or multilateral investment treaties such as NAFTA, one might be led to believe that recourse to investment treaty arbitration is the sole remedy for a seemingly wronged investor. This is incorrect. While it is true that recompense for a State’s breach of its treaty obligations on account of a failure to provide full protection and security to the investor, or for treatment that was not con [...]

To Forfeit or not to Forfeit? – Enforceability of Forfeiture Clauses in Oil and Gas Joint Operating Agreements (JOA)

By Ben Knowles and Khaled Moyeed at Clyde & Co LLP

A recent arbitration award has highlighted the question of the enforceability of forfeiture provisions in oil and gas JOAs. The effect of such provisions is that a defaulting party forfeits its participating interest (“PI“) in a project on account of a default, such as a failure to pay a cash call. We look at some of the practical considerations for parties to existing JOAs and those entering into new JOAs, as well as their advisers.

Background

In December 2013, an ICC tribunal handed down an award in an arbitration between RSM Production Corporation (“RSM”) as the claimants and Victoria Oil and Gas (“VOG”) and Rodeo Development Limited (“R [...]

Potential Investor-State Dispute Settlement Provisions in Trans-Pacific Partnership Agreement – A Change in Policy for Australia?

By Beth Cubitt and Tom French

The proposed Trans-Pacific Partnership Agreement (TPPA) – a multi-lateral agreement proposed between a number of countries, currently including Australia, Canada, Japan, Malaysia, Mexico, Peru, the United States and Vietnam (although it is hoped to be an open platform welcoming other countries to participate) – is currently the subject of much debate. TPPA countries will potentially account for approximately 39% of the world’s GDP, with Australia’s portion of trade representing AUD215 million. By 2025, the TPPA is expected to account for USD233 billion in trade per year, and is said to set the “economic architecture” for the region.
But will the TPPA contain i [...]

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 [...]

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