Arbitration

An "Ask the Team" concerning whether there is a difference between obtaining permission to enforce an award and entering judgment in terms of an award.

An update on Pantechniki v Albania (ICSID Case No ARB/07/21), which concerned a fork in the road provision in a bilateral investment treaty.

The Arbitration and Mediation Services (Equality) Bill had its first reading in the House of Lords on 10 May 2012. The Bill proposes amendments to various statutes, including the Arbitration Act 1996 and the Equality Act 2010, regarding the application of equality legislation to arbitration and mediation services.

The US government has released the 2012 US Model Bilateral Investment Treaty (BIT).

As we have previously reported, the UNCITRAL Working Group II is considering proposed amendments to the UNCITRAL arbitration rules (see Legal updates, Discussions continue on proposed amendments to UNCITRAL rules and Revisions to the UNCITRAL Arbitration Rules). The working group met for the 49th session in Vienna on 15-19 September 2008. At the session the group considered: a model arbitration clause; a proposed model declaration of independence for arbitrators; provision for joinder of third parties; the appointment of substitute arbitrators; truncated tribunals; and the default number of arbitrators (currently three).The report of the working group is not yet available but the group has evidently agreed that the rules should provide for the joinder of third parties. The other issues will continue to be discussed at the next session, scheduled for 9-13 February 2009 in New York. The final draft of the proposed revisions is due to be submitted to the UNCITRAL Commission in 2009. We will continue to report on any future developments. Please click here for the Working Group II page on UNCITRAL's website. Source: Global Arbitration Review

The AAA has announced the appointment of a new President.

An update on a new AAA/ICDR arbitration and mediation centre in the Kingdom of Bahrain.

An update on the American Bar Association's latest draft paper on arbitrator disclosures.

Jide Adesokan (Assistant Legal Counsel), Permanent Court of Arbitration On 22 July 2009, the tribunal in the PCA arbitration between the Government of Sudan (GOS) and the Sudan People's Liberation Movement/Army (SPLM/A) on Delimiting the Abyei Area, rendered its final decision.

We have updated our collection of ad hoc arbitration clauses to include a sample clause for France, with integrated drafting notes. (Free access).

PLC Arbitration has published a collection of multi-jurisdictional ad hoc arbitration clauses authored by experts from key jurisdictions. The resource provides sample arbitration clauses with accompanying drafting notes. (Free access)

An update on RSM Production Corporation v Grenada (ICSID Case No ARB/05/14 (Annulment proceeding)), which concerned the scope of an ICSID ad hoc committee's jurisdiction. 

An update on Thermal Energy Construction Ltd v AE & E Lentjes UK Ltd [2009] EWHC 408 (TCC), in which the Technology and Construction Court (TCC) refused to enforce an adjudicator's decision because the adjudicator had failed to give reasons for rejecting the responding party's defence.

Kamal Shah (Partner), Stephenson Harwood A look ahead to the expected arbitration related developments in Africa in 2010.

Natalia Belomestnova (Senior Associate) and Tatiana Zakharova (Associate), Goltsblat BLP The Head of the Supreme Commercial Court of the Russian Federation recently made a speech, at the II International Legal Forum on "Unfair competition among legal systems", in which he criticised foreign arbitration and litigation proceedings. The speech has raised concerns among arbitration and dispute resolution practitioners about the implications for future court practice in Russia.

We have previously reported on the four judgments of Lightman J in these proceedings (see Legal updates, Court gives guidance on CPR 6.20(5): claims made "in respect of a contract", Court gives guidance on CPR Part 6.8: Alternative Service Orders, Arbitration: no inherent jurisdiction stay granted, Anti-arbitration injunction granted to restrain foreign seat arbitration) and the Court of Appeal judgment upholding the fourth judgment (see Legal update, Anti-arbitration injunction upheld by Court of Appeal). Lightman J has now dismissed the defendant's Barrell application (namely, an application seeking to set aside the first three judgments before the orders giving effect to the judgments have been entered). The defendant had sought a late adjournment, indicating that, were the adjournment refused, the Barrell application would be abandoned. Refusing an adjournment, Lightman J concluded that the application would have failed in any event, and dismissed it. Case: Albon (t/a NA Carriage Co) v Naza Motor Trading SDN BHD [2007] EWHC 2613 (Ch)

In E D & F Man Sugar Limited v Kryton Lendoudis [2007] EWHC 2268, Christopher Clarke J refused to allow the claimant to amend an arbitration claim form seeking enforcement of an arbitration award in England and Wales. He also refused retrospectively to grant permission to serve the amended claim form out of the jurisdiction. The original basis of the claimant's application to enforce the award had been defective, and to allow him to amend it so as to plead a new and different basis for enforcement (in this case a fresh action on the award) would have the effect of allowing the claimant to introduce a new cause of action and a new basis of claim. To allow such amendment in practice meant that the court would be helping the claimant to circumvent the procedure for obtaining permission to serve proceedings out of the jurisdiction. This principle had been established pre-CPR but the judge considered it would also apply post-CPR.The rules governing service changed on 1 October 2008, under the Civil Procedure (Amendment) Rules 2008 (SI 2008/2178) which include a new Part 6 (Service of documents) and consequential amendments to other rules. All references to CPR 6 in this update are to the rules which were in force prior to 1 October 2008.

An update on recent amendments made to the Stockholm Chamber of Commerce (SCC) arbitration rules.

The disclosure subcommittee for arbitration of the American Bar Association's (ABA) Dispute Resolution Section has issued a revised draft of its paper about arbitrator disclosures with respect to potential conflicts of interest. The draft sets out recommended "best practice" disclosure guidelines to be used by arbitrators, and includes a disclosure checklist and commentary for arbitrators to use to identify and disclose relationships and circumstances that may pose partiality issues. The subcommittee has asked for comments by 29 February 2008. It aims to present the revised draft to the ABA Dispute Resolution Section Council on 2 April 2008. See here for a copy of the draft. Source: Transnational Dispute Management

PD Dr. Nathalie Voser (Partner) and Hannah Boehm (Associate), Schellenberg Wittmer (Zurich) In a German-language decision of 20 July 2011, published on 2 September 2011, the Swiss Supreme Court upheld an award rendered by a tribunal of the Court of Arbitration for Sport (CAS). The Supreme Court came to the conclusion that the CAS had not violated the petitioner's right to be heard by dismissing his delayed request to hear a new witness.

An update on MCI Power Group LC and New Turbine Inc v Republic of Ecuador (ICSID Case No ARB/03/6) (Annulment Proceeding), in which the tribunal rejected MCI Power Group's and New Turbine's application for annulment of the award.

The case of Markel International Co Ltd v Craft and Others [2006] EWHC 3150 (Comm) concerned the circumstances in which the English courts will be prepared to grant an anti-suit injunction to restrain foreign proceedings where the underlying contract relating to the dispute contains an arbitration agreement. The interesting issue that arose in this case was whether an anti-suit injunction should be granted against a third party to restrain him from pursuing foreign court proceedings which were arguably in breach of an arbitration agreement which may, prima facie, be binding on him. This, in turn, raised the question of whether the stautory right which the third party was pursuing in the foreign proceedings existed independently of the contract containing the arbitration agreement or whether the third party was, in reality, seeking to enforce an obligation contained in the underlying contract and was therefore bound by the arbitration clause contained in it.

Natalia Belomestnova (Senior Associate), Goltsblat BLP On 15 August 2012, the Moscow Commercial Court considered an application for an anti-suit injunction. Even though the court dismissed the application on formal grounds, it did not rule out the possibility of such injunctions being granted by the Russian court.

Eduardo Damião Gonçalves (Partner) and Flavia Mange (Associate), Barretto Ferreira, Kujawski, Brancher and Gonçalves (BKBG) Case SEC N. º 831 was the first case in which an extraordinary appeal (on constitutional grounds) from a decision granting enforcement of an arbitration award by the Brazilian Superior Court of Justice was admitted. However, the Brazilian Supreme Court has now denied the admissibility of that appeal. This decision illustrates that, in most cases, it will be very difficult to avoid enforcement by means of an extraordinary appeal on constitutional grounds.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP In Republic of Ecuador v. Chevron Corp., 2011 US App LEXIS 5351 (2d Cir Mar. 17, 2011), the US Court of Appeals for the Second Circuit considered applications to stay an investment treaty arbitration that had been commenced pursuant to the bilateral investment treaty between the US and the Republic of Ecuador concerning the Encouragement and Reciprocal Protection of Investments dated 27 August 1993 (the US-Ecuador BIT).

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore High Court has considered for the first time whether an action brought to avoid transactions that allegedly violated insolvency laws should be stayed in favour of arbitration. The court held that such disputes are not suitable for arbitration due to the public interest angle.

Nishit Dhruva (Partner), J. Sagar Associates On 3 September 2009, the Gujarat High Court observed that when an award is challenged by an aggrieved party under the Indian Arbitration Act, that award cannot be enforced during the pendency of those challenge proceedings.

PD Dr. Nathalie Voser (Partner) and Hannah Boehm (Associate), Schellenberg Wittmer (Zurich) In a German language decision dated 31 May 2012 and published on 21 June 2012, the Swiss Supreme Court emphasised that an arbitral tribunal is not obliged to consider further evidence if it anticipates that the additional evidence could not affect its findings or if the evidence is clearly irrelevant or unsuitable to prove the facts in question.

Alvin Yeo, Senior Counsel (Senior Partner) and Andre Maniam (Head of Litigation & Dispute Resolution Department), WongPartnership LLP The High Court in Singapore has ruled that the owner of a ship that was the subject of a dispute between parties to an arbitration agreement could not be prevented from seeking protection from the courts of its interests in the vessel. The ship owner, Capital Gate Holdings Pte Ltd (Capital Gate) was successful in its application to overturn the decision to stay the proceedings in favour of arbitration, which would ultimately have prevented Capital Gate from defending its interest in the ship given that it was not a party to the arbitration agreement.

Publication of a report presented to a workshop of the European Parliament's Committee on Legal Affairs on the review of the Brussels Regulation on 4 October 2011, which calls for amendments to various proposals, including the arbitration exception.

In The Republic of Kazakhstan v Istil Group Ltd [2007] EWCA Civ 471, the Court of Appeal has refused permission to appeal from a first instance judgment made under section 67 of the Arbitration Act 1996, holding that under the Act, only the first instance judge had the power to grant such permission. The Court of Appeal's judgment confirms that section 67 complies with article 6 of the European Human Rights Convention, and emphasises the extremely narrow ambit of the Court of Appeal's residual power to intervene on the basis of procedural unfairness. The following Practice notes have been updated to take account of this decision: Arbitration claims: applications to the English court. Arbitration claims: obtaining permission to appeal to the English Court of Appeal. Challenging the award under s67 of the English Arbitration Act 1996: jurisdiction.

Liina Naaber-Kivisoo (Associate), Lawin A new institutional arbitration court, the Arbitration Court of the Chamber of Notaries (ACCN), has opened in Estonia. The ACCN can offer some advantages over its competitor and the courts, in the form of lower costs and shorter length of proceedings.

The 2012 edition of the Arbitration multi-jurisdictional guide has been published, answering key questions on arbitration law and practice from the perspective of practitioners in 26 jurisdictions.

Two recent cases have highlighted the issue of the confidentiality of documents generated in arbitration proceedings.

The House of Lords has asked the European Court of Justice to consider whether it is consistent with the Brussels Regulation for an EU member state's court to restrain parties from commencing or continuing proceedings in another member state on the ground that such proceedings are in breach of an arbitration agreement.

The draft UAE Federal Law on Arbitration and the Enforcement of Arbitration Awards has been published. The new law incorporates the UNCITRAL Model Law, with additional provisions reflecting modern arbitration practice. The draft further provides for the enforcement of arbitral awards in accordance with the New York Convention, to which the UAE acceded in 2006. Under the draft law, courts and tribunals are specifically empowered to have recourse to international authorities on applying UNCITRAL decisions. The draft law also establishes an arbitration office within the ministry of the economy to monitor international developments in arbitration and consider future changes to the law. Once ratified, the law will apply to all arbitrations in the UAE, except in the Dubai International Financial Centre (DIFC), which has its own arbitration law. The draft law is available on the UAE Ministry of Economy website. Separately, the LCIA has this week signed a joint venture with the DIFC. The LCIA DIFC Arbitration Centre will have access to the LCIA database of arbitrators, and will closely follow the LCIA rules. Sources: Global Arbitration Review, Legal Week

In Suez and others v Argentina (Case Nos ARB/03/19 and ARB/03/17) Argentina challenged the independence and impartiality of one of the arbitrators, on the basis that she was a non-executive director of a bank, which was a shareholder in two of the claimant companies, and had failed to disclose this information.The challenge, which followed an earlier failed challenge against the same arbitrator, also failed. In giving their decision, the Tribunal provide a helpful summary of the standard required to succeed in a challenge to impartiality or independence. The Tribunal confirmed that a connection between the arbitrator and the bank in question was not, of itself, sufficient to establish manifest impairment of the arbitrator's independence and impartiality. The alleged connection must be evaluated qualitatively, and the Tribunal set out four criteria they considered necessary to evaluate the effect of an alleged connection on an arbitrator's independence and impartiality. Whilst challenges to an arbitrator's independence and impartiality are relatively rare, parties should be aware of the possibility of opportunistic challenges by parties trying to delay the proceedings. Given the number of connections a well established arbitrator, operating in an international arena is likely to have, such challenges may be relatively easy to formulate. However, this case contains useful guidance in ICSID arbitration as to how such connections should be evaluated and confirms that

Natalia Belomestnova (Associate), Goltsblat BLP In a recently published decision of 20 May 2010, the Supreme Commercial Court of Russia ruled that an arbitral award cannot be enforced if the principle of equal treatment of the parties is violated by the arbitrators during the proceedings.

An ICSID tribunal has concluded that the measures taken by Argentina during the economic crisis of 2001-2002 did not have any adverse impact on the Chilean claimants' bus manufacturing and finance business. In Metalpar SA and Buen Aire SA v The Argentine Republic (ICSID Case No ARB/03/5), the claimants failed to establish any breach of the protections afforded to them under the Argentina-Chile BIT. The tribunal held that the claims should be dismissed in any event, because there was no evidence that the claimants' investments were adversely affected by the economic measures. The claimants were aware of the economic and political problems which Argentina had experienced in the past and, with a little diligence, could have discovered that a further crisis may ensue. After the economic crisis, the performance of the claimants' business had improved significantly. Whilst this may have been due to various factors, there was no doubt that steps taken by Argentina constituted a beneficial environment for the claimants' business to make a speedy recovery. The case is interesting in view of the distinction drawn by the tribunal regarding other ICSID claims against Argentina. In other claims, the contractual relationship between investor and host state engendered a higher degree of "legitimate expectation" that the political, legal and economic framework would be maintained. Here, the claimants' representatives were international business people, with knowledge and experienc

Francisco M. Gutiérrez (Partner) and Federico Campolieti (Senior Associate), M. & M. Bomchil In a decision rendered on 25 October 2011, and published on 26 April 2012, the Federal Contentious-Administrative Court of Appeals, Chamber II, seated in Buenos Aires, declared its lack of jurisdiction to decide on a request for annulment against an arbitral tribunal's decision on jurisdiction. However, the Court of Appeals redirected the annulment application to the lower court (federal judge).

Francisco M. Gutiérrez (Partner) and Federico Campolieti (Senior Associate), M. & M. Bomchil In a decision rendered on 5 October 2010 and published on 28 February 2011, the National Commercial Court of Appeals, chamber C, seated in the City of Buenos Aires, declared that a dispute between two mining companies which required the interpretation and application of the Argentine Code of Mining cannot be submitted to arbitration.

We have published an article on the UK Supreme Court's decision in SerVaas Incorporated v Rafidain Bank and others [2012] UKSC 40, which gives guidance on the scope of the "commercial purposes" exception to immunity from execution.

We have published an article on the decision in La Générale des Carrières et des Mines v FG Hemisphere Associates LLC [2012] UKPC 27 in which the Privy Council ruled on the liability of state-owned corporations for debts of the state. (Free access).

This article summarises the results of the QMUL 2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process.

Publication of Article, Dallah: the Supreme Court decides. (Free access.)

We have published an article on the US District Court for the District of Columbia's decision in Commissions Import Export SA v Republic of the Congo of 8 January 2013. (Free access).

On 28 September 2012, the Swiss Arbitration Association (ASA) held a conference on whether Swiss international arbitration law, 12th Chapter of the Private International Law Act (PILA), is in need of reform. (Free access).

An Ask the team article on whether a successful party may apply to enforce an arbitration award as soon as it has obtained the court's permission to enforce.

An Ask the team article about the law which governs an arbitration agreement in the absence of an express choice of law.

Andrew Robertson (Partner), Piper Alderman   Australia's steps to promote itself as an arbitration venue of choice are continuing.  The amendments to the International Arbitration Act 1974 passed through both Houses of Parliament in June and received Royal Assent on 6 July 2010 (ahead of the calling of the Federal election). The amendments to domestic arbitration legislation are also proceeding apace. 

Andrew Robertson (Partner), Piper Alderman On 7 May 2010, the Standing Committee of Attorneys-General in Australia announced that ministers have agreed to implement a model Commercial Arbitration Bill 2010. The Bill, which will be based on the UNCITRAL Model Law as previously proposed, will eventually replace the current domestic arbitration regime in Australia.

Andrew Robertson (Partner), Piper Alderman A report highlighting the most significant arbitration related developments in Australia in 2009.

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman In April 2012, Australian domestic arbitration legislation has continued to advance through a number of States and Territories, with the purpose of modernising and reforming domestic arbitration legislation, by adopting legislation based on the UNCITRAL Model Law. The result will be broadly to align domestic and international legislation.

Andrew Robertson (Partner), Piper Alderman Further to previous reports regarding Australia's moves to modernise and harmonise its domestic and international arbitration legislation, the adoption of the new legislation continues.

Andrew Robertson (Partner), Piper Alderman As reported last month, Australia continues to advance the process of modernisation and reform of its domestic arbitration legislation by adopting legislation based on the UNCITRAL Model Law. The result will be broadly to align domestic and international legislation.

Andrew Robertson (Partner), Piper Alderman The Australian High Court has heard arguments in the Gordian Runoff case which will involve consideration of the effect of the controversial ruling in Oil Basins. The Oil Basins case considered the standard of reasons required in an arbitral award, and, in particular, has been understood to require a standard required in a complex arbitration that is comparable to that required from a judge in litigation.

Bree Farrugia (Solicitor Advocate), Herbert Smith LLP In Liquidators of La Société Viva Chemical (Europe) NV v La Société Allied Petrochemical Trading and Distribution, Case no. 07/2805, the Paris Court of Appeal refused to enforce an award which had been procured in the absence of any real dispute between the parties, holding that it had been obtained fraudulently.

An update on Azurix Corp. v The Argentine Republic (ICSID Case No ARB/01/12) (Annulment proceeding), in which an ad hoc committee considered Argentina's application for annulment of the award.

An update on Phoenix Action Ltd v The Czech Republic (ICSID Case No ARB/06/5), which concerned the meaning of "investment" for the purposes of ICSID jurisdiction.

Marinn F. Carlson (Partner) and Joshua M. Robbins (Associate), Sidley Austin LLP In Saipem v. Bangladesh, ICSID Case No. ARB/05/7, 30 June 2009, the tribunal awarded damages to compensate Saipem, an Italian oil and gas construction company, based on a finding that the Bangladeshi courts illegally expropriated Saipem's right to have an ICC arbitral tribunal determine the residual value of its contract.

An update on the BIICL 13th annual practitioner workshop review of the Arbitration Act 1996, held on 8 February 2010.

On 4 October 2012, the Employment, Social Policy, Health and Consumer Affairs Council adopted its position at first reading on a draft Regulation establishing transitional arrangements for bilateral investment agreements between member states and third countries.

The Council, on 16 March 2012, took stock of negotiations with the European Parliament on a draft Regulation establishing transitional arrangements for bilateral investment agreements between member states and third countries. The draft Regulation is awaiting the Council's first reading under the ordinary legislative procedure.

On 20 December 2012, Regulation (EU) 1219/2012 of the European Parliament and of the Council of 12 December 2012 establishing transitional arrangements for bilateral investment agreements between member states and third countries was published in the Official Journal.

On 23 May 2013, the European Commission adopted a draft negotiating mandate for an investment agreement with China. This is the first proposal for a stand-alone investment agreement since foreign direct investment became the exclusive competence of the EU under the Lisbon Treaty. (free access)

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP Bolivia has requested that the District Court for the District of Columbia permanently enjoin an UNCITRAL arbitration brought by a Dutch foreign investor. 

Priyanka Gandhi (Associate) and Sreyash Basu Dasgupta (Associate), Juris Corp On 16 June 2011, the Bombay High Court held that when a finding recorded by an arbitrator is correct, the court should not interfere with the award under section 34 of the Arbitration and Conciliation Act 1996.

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate) and Marcel Alberge Ribas (Associate), Mattos Filho Advogados An international legal battle of anti-suit and anti-arbitration injunctions arose from diverging interpretations of the applicable law and scope of an arbitration clause in an insurance policy. The express provision indicating Brazilian law raised the debate over specific rules applicable to adhesion contracts in Brazil, as well as the law governing the arbitration agreement where the parties had chosen London as the seat of arbitration.

Eduardo Damião Gonçalves (Partner) at Mattos Filho Advogados and Flavia Foz Mange (Associate), Mattos Filho Advogados In a decision dated 2 September 2010 but only recently published, the Superior Court of Justice reaffirmed that the Brazilian Arbitration Law (Law. N. 9.306/97) applies to contracts signed before its enactment. In doing so, and applying the Geneva Protocol on Arbitration Clauses to international agreements, the Superior Court of Justice overruled a lower court decision and dismissed court proceedings based on the existence of an arbitration agreement.

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate), Natalia Bacelar de Rezende Belliboni (Associate), Mattos Filho Advogados On 29 August 2012, the Brazilian Senate approved the creation of a special commission to present a first draft of a new bill to renew the Brazilian Arbitration Act (Law. N. 9.307) within 180 days. The Commission consists of six jurists, chaired by Minister Luís Felipe Salomão, Justice of the Superior Court of Justice.

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate) and Diego Nocetti (Associate), Mattos Filho Advogados In a decision published on 2 February 2012, the Brazilian Superior Court of Justice (STJ) acknowledged that an arbitration clause inserted in an umbrella agreement is valid for all connected agreements, even if these do not contain any such provision. Additionally, the STJ has, for the first time, partially recognised a foreign arbitral award, on the grounds of res judicata, as some issues addressed by the arbitrators had already been finally settled in judicial proceedings before Brazilian courts.

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate) and Débora Auler de Almeida Prado (Associate), Mattos Filho Advogados In a decision dated 16 February 2011, the Superior Court of Justice overruled a preliminary injunction suspending the recognition of a foreign judgment that acknowledged the validity of an arbitration clause. This was on the ground that an ongoing lawsuit in Brazil challenging the validity of the same arbitration clause is not enough to prevent the recognition and enforcement of the foreign judgment.

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate) and Diego Nocetti (Associate), Mattos Filho Advogados In a preliminary decision rendered on 13 October 2011, the Brazilian Supreme Federal Court (STF) re-affirmed that Judicial Decree No. 779/2009 was invalid. The Decree was issued by the Court of Appeals of Goiás (TJGO), as had already been acknowledged by Brazil’s National Council of Justice (CNJ). The Decree created partnerships between the TJGO and professional associations for the establishment of arbitration "courts", which were to be monitored by the TJGO.

The Economic and Monetary Affairs Council adopted the revised text of the Brussels Regulation at first reading on 6 December 2012. The amendments include clarification of the extent of the arbitration exception in the Regulation.  Note: The recast Regulation was published in the Official Journal on 20 December 2012, see Legal update, Recast Brussels Regulation published in Official Journal.

The European Parliament's Legal Affairs Committee has published an amended report on the European Commission's proposal to reform the Brussels Regulation. The amendments include changes to the proposed treatment of the arbitration exception in the Regulation. Note: the Legal Affairs Committee adopted the report on 11 October 2012 (see Europa: Press Releases: European Parliament Committee backs rules to cut red tape for business and consumers in cross-border court cases (11 October 2012)).

An update on the establishment by the European Commission of a group of experts who may be consulted by the Commission on the interface between arbitration and the Brussels Regulation, and an invitation for individuals to apply by 17 May 2010.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Paul, Weiss, Rifkind, Wharton & Garrison LLP The California Fourth District Court of Appeal has held that an arbitration clause in contracts between an investment company and its customers requiring a three-arbitrator panel was unconscionable and therefore unenforceable where the company failed to justify it. 

An update on a new arbitration centre in Cambodia.

Publication of a case study on commencing an arbitration under the HKIAC Administered Arbitration Rules.

CEDR has launched a Commission on Settlement in International Arbitration, which held its inaugural meeting on 10 July 2007 attended by representatives from over 25 jurisdictions. The Commission has been launched to investigate the different approaches to settlement within the framework of international arbitration, against a backdrop of criticisms that the procedures can be slow and expensive, with settlement rates said to be lower than those achieved in most commercial state court proceedings. The Commission is expected to hold a number of meetings during 2007 and early 2008, with a view to publishing its findings in a white paper next year. Source: The Lawyer

Andrew Walsh (Partner), Elaine Punch (Solicitor), A&L Goodbody On 27 March 2012, the Irish High Court used its discretion to refuse an application to set aside an arbitrator's award, under section 36 of the Arbitration Act 1954.  This decision highlights the Irish High Court's support for the arbitration process in Ireland. It also endorses the Irish High Court’s reluctance to intervene in arbitration proceedings.  The case also demonstrates the exceptionally high standard that must be met before an Irish court will set aside or remit an arbitration award on the ground that there is a fundamental error of law on the face of the award. 

Publication of Practice note, Challenges to arbitrators. (Free access.)

Publication of a skeleton argument in support of an application for permission to appeal under section 69 of the Arbitration Act 1996.

An internationally constituted committee of the CIArb has just published its "Guideline on the Interviewing of Prospective Arbitrators" following a wide international consultation. Hew E Dundas, President of the CIArb, comments: "... By following a recognised Guideline, the risk of failure or challenge is significantly reduced and parties can exercise due autonomy in choosing their arbitrator ... " The Guideline forms part of a set of Guidelines dealing with issues such as multi-party cases, jurisdictional issues and security for costs. The Guidelines are international in scope and cover a selected number of jurisdictions, both common and civil law and including Model Law jurisdictions. They are intended to be extremely practical and identify key areas where there may be a difference in approach between arbitrators in different jurisdictions. For further information see Practice note, selection of party-nominated arbitrators. Source: CIArb website

John Choong (Senior Associate), Freshfields Bruckhaus Deringer The Supreme People's Court (SPC), the highest court in China, has recently issued a notice which reaffirms the enforceability in China of ad hoc and ICC awards made in Hong Kong.  

Lucy Reed (Partner) and Adam Silverman (Associate), Freshfields Bruckhaus Deringer China is an active participant in the modern system of investment and trade treaties, as a signatory to over 130 bilateral investment treaties (BITs) and free trade agreements (FTAs).  Such treaties typically grant foreign investors the right to conduct arbitration directly against the state hosting their investment, for violations of the substantive protections of the BIT or FTA. Three recent developments underscore China’s continuing interest in BITs and FTAs: The likely resumption of negotiations for a China-US BIT. A trilateral investment agreement with Japan and South Korea. An agreement with Japan and South Korea to commence free-trade area negotiations.  

The Chartered Institute of Arbitrators has launched a major survey into the costs incurred in international arbitration proceedings.

An update on the Chartered Institute of Arbitrators new branch in New Delhi.

The China International Economic and Trade Arbitration Commission (CIETAC) and the Shanghai sub-commission have reportedly parted ways.

The China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules 2012 have come into force.

John Choong (Senior Associate) and Yu Bing (Associate), Freshfields Bruckhaus Deringer LLP The China International Economic and Trade Arbitration Commission (CIETAC) Construction Dispute Review Rules (Trial) (the Rules), which were issued earlier this year, have been implemented on a trial basis with effect from 1 May 2010.

John Choong (Associate), Freshfields Bruckhaus Deringer LLP On 1 May 2009, CIETAC's Online Arbitration Rules came into force with the stated aim of providing parties with an effective and economical arbitration service. Notable features include provision for documents-only arbitrations, electronic communications and hearings by video conference, and also varying time frames to allow for the speedier resolution of disputes.

The China International Economic and Trade Arbitration Commission (CIETAC) Shanghai Commission and the South China International Economic and Trade Arbitration Commission (SCIA) have issued a joint announcment.

In Teinver SA and others v Argentine Republic (ICSID Case No. ARB/09/1), an ICSID tribunal considered several jurisdictional objections by the respondent, including that the claimants had not complied with the dispute settlement provisions in the bilateral investment treaty (BIT) between Spain and Argentina and that the claimants had no legal standing to bring the claims.

On 18 April 2012, Hagit Elul of Hughes Hubbard & Reed LLP spoke in a PLC US webinar about prohibiting class arbitration in the US. The webinar is now available on demand, and we have also published a standard clause on prohibiting class arbitration in the US, authored by Hagit Elul. (Free access.)

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Christopher P. DeNicola (Law Clerk), Paul, Weiss, Rifkind, Wharton & Garrison LLP The Colorado Supreme Court has held that a person possessing a power of attorney may lawfully sign an arbitration agreement on behalf of an incapacitated patient.  

Natalia Belomestnova (Associate), Goltsblat BLP The Federal Arbitrazh Court of Moscow region, in its decision of 21 January 2010 (which became available in February 2010), rejected an application for interim measures in support of an LCIA arbitration in London.

An update on the Q&A tool contained in the PLC Dispute Resolution and Arbitration Handbooks 2009/10.

An update on Continental Transfert Technique Ltd v The Federal Government of Nigeria and others [2010] EWHC 780 (Comm), which concerned an application to stay the enforcement of an arbitration award.

An update on Giovanna a Beccara and others v Argentina (ICSID Case No ARB/07/05) - Procedural Order No 3 (Confidentiality Order) of 27 January 2010, which considered confidentiality orders in an ICSID arbitration.

An update on a new ADR networking group for young lawyers launched by the International Institute for Conflict Prevention & Resolution (CPR).

Irina Nazarova (Managing Partner), EnGarde Attorneys at Law On 17 May 2010, the Pecherskiy District Court of Ukraine held that corporate rights, as defined in Article 167 of the Commercial Code of Ukraine, are intangible rights and not "property" for the purpose of enforcement of awards in Ukraine.

An update on Norwich Union v Whealing Horton and Toms [2008] EWHC 370 (TCC), which was concerned with costs incurred in connection with an application under section 57 of the Arbitration Act 1996.

James Clark (Associate), Herbert Smith LLP In a decision dated 29 June 2011, the French Cour de Cassation upheld the setting aside of an arbitral award, agreeing with the Paris Court of Appeal that the arbitrators' failure "to invite the parties to express their views" on loss of chance violated the adversarial principle.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP In a decision dated 22 April 2010 but only recently published, the Singapore High Court has held that it has no power to grant discovery prior to the commencement of arbitration.

Ruth Byrne (Solicitor Advocate), Herbert Smith LLP In National Navigation Co v Endesa Generacion SA [2009] EWHC 196 (Comm), Gloster J held that a dispute was referable to arbitration in London notwithstanding the existence of a Spanish court decision to the contrary. The decision contains a detailed analysis of the impact of the ECJ ruling in the West Tankers case.

Alejandro López Ortiz (Counsel), Hogan Lovells International LLP In a recently published judgment of 26 November 2010, the Court of Appeal of Madrid ruled that the opening of criminal proceedings for forgery of documents produced in arbitration does not allow for a stay of the proceedings to set aside an arbitral award and does not constitute a reason to set aside the award on the grounds of a breach of public policy.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP The Eleventh Circuit Court of Appeals has upheld a district court’s grant of an application to obtain discovery under 28 U.S.C. § 1782 for arbitral proceedings in Ecuador, holding that the arbitral tribunal at issue is a foreign tribunal within the scope of section 1782.

John Choong (Senior Associate), Freshfields Bruckhaus Deringer In a decision rendered on 8 June 2011, the Hong Kong Court of Final Appeal provisionally decided that absolute state immunity applies in Hong Kong. However, the court referred certain questions of state immunity to the Standing Committee of the National People’s Congress, on the basis that a Hong Kong court does not have jurisdiction over foreign affairs, which fall within the responsibility of the Central People’s Government. The Standing Committee issued its response on 26 August 2011.

Andrew Robertson (Partner), Piper Alderman In a decision handed down on 1 December 2009, Justice Judd of the Supreme Court of Victoria has held that a dispute relating to a taxation indemnity was arbitrable. The quantum of the taxation liability outstanding was in dispute. The court held that the taxation element of the dispute did not mean that the dispute was not capable of being resolved in arbitration. However, the court refused a stay, holding that the dispute did not fall within the particular provisions of the arbitration agreement.

The Paris Court of Appeal has upheld the ICC award in the dispute between Dallah Real Estate and Tourism Holding Co and the Government of Pakistan.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The US Court of Appeals for the District of Columbia Circuit (DC Circuit) has ruled that a court may not grant a motion relying on the Federal Rules of Civil Procedure (FRCP) to extend the statutory time limit to file a motion to vacate or modify an arbitral award.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP The District Court for the District of Columbia has declined to order discovery in an ICSID arbitration pursuant to 28 U.S.C. § 1782, which allows a court to order discovery "for use in a proceeding in a foreign or international tribunal."

Joe Kelly (Partner) and Siobhán Kirrane (Associate), A&L Goodbody In one of its first decisions under the Irish Arbitration Act 2010 (2010 Act), the Irish High Court has refused to grant an application which sought to stay High Court proceedings on the basis that a dispute was subject to an arbitration agreement. 

An update on a new Delaware law amending the Delaware Code relating to the resolution of disputes in the Court of Chancery.

An update on a bill proposed by the Delaware General Assembly to amend the code relating to the resolution of disputes in the Court of Chancery.

Ms. Priyanka Gandhi (Consultant) and Neha Samant (Trainee), Juris Corp   In a recent decision, the Delhi High Court refused to set aside an award passed against Steel Authority of India in view of the court’s limited scope for judicial interference under section 34 of the Indian Arbitration and Conciliation Act 1996. The decision paves the way for the award to be enforced. The court also re-iterated that it cannot, on appeal, re-assess the evidence before the tribunal.

Priyanka Gandhi (Associate) and Ankur Kashyap (Associate), Juris Corp In a recent decision, the Delhi High Court rejected a challenge to the enforcement of an ICC award, holding that the award was not contrary to public policy of India. The court, distinguishing between the ground of public policy as applicable to challenging an award on the one hand and resisting enforcement of a foreign award on the other hand, held that the ground of public policy must be narrowly interpreted for refusing the enforcement of foreign awards.

The US Department of Justice has submitted an amicus curiae brief to the US Supreme Court in the In re American Express Merchants' Litigation dispute. The Department of Justice argues that a class action arbitration waiver should be deemed unenforceable because its practical effect is to foreclose the effective vindication of federal statutory rights.

The International Centre for Settlement of Investment Disputes (ICSID) is now publishing on its website extensive details on procedural developments in ongoing ICSID proceedings. The information published includes the names of the parties, the subject matter of the dispute, the composition of the tribunal and, for each concluded case, the date and method of termination. The tribunal's reports of conciliation commissions or awards are also published where the parties have given their consent. Where consent has not been given, ICSID publishes excerpts of the tribunal's legal reasoning.These details were previously published only in hard-copy format. This new feature is part of the Centre's continuous efforts to make its case management activities more transparent. Source: ICSID

The Dubai International Financial Centre (DIFC) Court has confirmed that it has the inherent jurisdiction to grant a stay of proceedings in favour of a Dubai International Arbitration Centre (DIAC) arbitration. In so holding, the court did not follow its previous decision on this issue in the recent Injazat case. However, the court did support the finding in Injazat that the DIFC Arbitration Law, as presently drafted, fails to implement the New York Convention.

Ruth Byrne (Solicitor Advocate), Herbert Smith LLP In May 2009, the German arbitration institute (DIS) launched a regional group in London. At the inaugural meeting of the group, guest speakers Karl-Heinz Boeckstiegel, chair of the DIS board, and Siegfried Elsing, spoke about the history of the DIS and its aspirations in establishing itself in London.

As we have previously reported, an UNCITRAL working group is considering proposals to amend the UNCITRAL arbitration rules in order to introduce greater transparency in investor/state disputes (see Legal updates, UNCITRAL working group - report of September meeting, Revisions to the UNCITRAL Arbitration Rules, UNCITRAL investor/state revisions put on hold). The last meeting of the working group took place in early February. There was broad support for the principle of introducing greater transparency. However, views differed as to how this might best be achieved, with some delegates favouring amendments to the existing rules and others preferring the creation of a new set of rules, aimed specifically at investor-state disputes. The possibility of establishing a special working group to take this project forward is under consideration. The final draft of the proposed revisions is to be submitted to the UNCITRAL Commission in 2009. We will continue to report on any future developments. Source: Global Arbitration Review

Ms. Neha Vijayvargiya (Associate) and Ms. Priyanka Gandhi (Associate), Juris Corp The Delhi High Court recently set aside an arbitration award in which it was held that, since there had been "accord and satisfaction" between the parties, there was no issue left to be determined by arbitration. The award was set aside on the basis that the arbitrator failed to call for any evidence on the issues of whether or not there was accord and satisfaction and whether there was economic duress on the petitioner to reach a settlement.

An update on The Lawyer conference on 21-23 October 2008, Dispute Resolution: Making Arbitration Deliver, co-sponsored by PLC and attended by PLC Arbitration editors.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The United States District Court for the Eastern District of Missouri granted a party’s motion to confirm an arbitral award where the arbitral panel issued injunctive relief, because the court found that the arbitral panel’s order was a final order that could be confirmed.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP On 3 March 2010, the District Court for the Northern District of Texas ruled that an arbitrator may not order document production from a non-party apart from doing so in connection with the attendance of the non-party at an arbitration hearing. 

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The United States District Court for the District of Columbia has denied a request for assistance in producing documents for a French proceeding, where the party from whom the documents were requested could not be found in the District of Columbia and there were more efficient ways to obtain the documents.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel) and Daniel J. Hickman (Associate), White & Case LLP The United States District Court for the District of Columbia has denied a request for remand of an ICSID arbitral award, holding that the terms of the award were unambiguous.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP The United States District Court for the Southern District of New York has granted a motion to compel arbitration, finding that an arbitration clause was part of a revised offer made during contract negotiations and accepted by both parties.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), Leah Witters (Associate), White & Case LLP The District Court for the Western District of New York has issued preliminary injunctions to preserve the status quo pending arbitration, endorsing the Ninth Circuit’s approach.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP On 5 February 2010, the District Court for the Southern District of Illinois ruled that the preclusive effect of a previous arbitral award was a substantive issue that must be decided by the arbitrator and not the court.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), Leah Witters (Associate) ,White & Case LLP The Southern District of Texas has held that a third-party defendant cannot remove an action to a federal court based on a contract with a mandatory foreign arbitration clause subject to the New York Convention. 

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The District Court for the District of Columbia has granted a motion for summary judgment in an action to enforce an arbitral award, finding that the party challenging enforcement presented no reason to refuse to enforce the award.

Alejandro López Ortiz (Associate) and Sonia Pérez (Associate), Lovells LLP In a decision published in June 2009, the Spanish Supreme Court ruled that breach of a choice of court clause contained in a contract may give right to damages in favour of the non-breaching party. The judgment reversed a previous ruling of the Court of Appeal of Barcelona, which rejected the claim for damages.

Dubai's highest court has delivered a powerful message to arbitration users and practitioners across the world that it will enforce foreign arbitral awards in accordance with the UAE's treaty obligations under the New York Convention. Although there is no system of binding precedent in Dubai, the Dubai Court of Cassation's recent decision, in which it enforced a DIFC-LCIA award rendered by a tribunal seated in London, is being hailed as a watershed moment in its development as a major regional and global centre for international arbitration.

An update on Dubai World's Special Tribunal, which has issued its first practice direction.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Paul, Weiss, Rifkind, Wharton & Garrison LLP The United States District Court for the Eastern District of Pennsylvania has vacated an arbitration panel's award, holding that the panel had exceeded its powers under a reinsurance agreement's "honorable engagement" clause.  

ICSID has announced receipt of notification, under article 25(4) of the ICSID Convention, that Ecuador will no longer refer to ICSID any disputes relating to investments in natural resources (including petroleum, gas and minerals). The notification, which has been widely flagged, takes place against the background of the nationalisation, earlier this year, of oil, gas and mining production contracts; and also the existence of several pending ICSID arbitrations against Ecuador. However, the legal effect of such notification is the subject of some uncertainty, some experts arguing that states would in any event be bound by arbitration provisions referring disputes to ICSID arbitration in BITs or contracts, regardless of any unilateral declarations made to ICSID. The notification can be viewed on the ICSID website

An update on the decision to challenge an arbitrator in Perenco Ecuador Limited v The Republic of Ecuador & Empresa Estatal Petroleos del Ecuador (PCA Case No IR-2009/1).

In Eastern Sugar BV (Netherlands) v The Czech Republic (UNCITRAL ad hoc arbitration SCC no 088/2004) an ad-hoc tribunal has rejected an argument that obligations undertaken by the Czech Republic pursuant to a bilateral investment treaty were superseded or affected by that country's accession to the EU. The tribunal's approach to the question of the compatibility of the two regimes was extremely robust. It appears that there are several other arbitrations involving the Czech Republic which may potentially raise similar issues.

PD Dr. Nathalie Voser (Partner) and Dr. Petra Rihar (Associate), Schellenberg Wittmer (Zurich) In a decision dated 25 August 2009, published on 22 September 2009, the Swiss Federal Supreme Court held that conduct which would justify the piercing of the corporate veil would, in principle, fall within the scope of an applicable arbitration provision and thus would preclude the jurisdiction of the Swiss court. However, in view of the specific circumstances the court did not confirm the lower court's decision but sent the case back for further consideration.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Paul, Weiss, Rifkind, Wharton & Garrison LLP On 1 July 2009, the United States Court of Appeals for the Eighth Circuit held that an employer did not waive its right to arbitrate by failing to seek arbitration when its employee initially filed a complaint with the Equal Employment Opportunity Commission (EEOC).

In GGNSC Omaha Oak Grove, LLC v Payich, 2013 WL 776811 (8th Cir. Mar. 4, 2013), the US Court of Appeals for the Eighth Circuit considered whether a third party beneficiary was bound by an arbitration agreement.

The United States Court of Appeals for the Eighth Circuit has granted a motion to compel arbitration of a Fair Labor Standards Act claim by upholding a class action waiver in the arbitration agreement.

The United States Court of Appeals for the Eleventh Circuit has affirmed a District Court decision applying collateral estoppel to bar re-litigation of certain factual allegations that had been resolved in prior arbitration proceedings.

An update on proceedings in the Permanent Court of Arbitration between shareholders in the Yukos Oil Company and the Russian Federation, which considered whether Russia was bound by the provisions of the Energy Charter Treaty.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Paul, Weiss, Rifkind, Wharton & Garrison LLP On 19 June 2009, the US District Court for the Southern District of New York issued an order to enforce an ICSID award in Siag v. Egypt, ICSID Case No. ARB/05/15 in which the tribunal awarded the claimants almost US$75 million, plus interest and expenses, totalling approximately US$133million. The award is the largest ever granted to individual claimants by the ICSID.

Christopher Mainwaring-Taylor (Counsel), Allen & Overy LLP (Dubai) Two courts in the United Arab Emirates have recently, and for the first time, enforced two New York Convention awards.

Ania Farren (Associate) and Sara Nadeau-Seguin (Intern), Baker Botts LLP In an unpublished decision, the Warsaw Court of Appeal recently enforced the LCIA award in Elektrim v Vivendi, overturning a prior District Court decision that had denied enforcement.

An ICSID tribunal has decided that Argentina breached the US-Argentina bilateral investment treaty as a result of various emergency regulatory measures put in place during the economic crisis in Argentina. The principal points of interest of the award lie in its treatment of the defence of necessity (which the tribunal rejected) and also in its findings with regard to fair and equitable treatment and the umbrella clause contained in the treaty.

The Council of the EU has discussed the proposed Regulation on transitional arrangements for bilateral investment agreements between member states and third countries, on which the European Parliament adopted a position at first reading on 10 May 2011.

An update on the publication of a draft EU regulation governing bilateral investment treaties.

The International Trade Committee of the European Parliament will hold a hearing on "Foreign Direct Investment - transitional arrangements and future European international investment policy" on 9 November 2010.

An update on the European Parliament's Committee on Legal Affairs' report on the proposed reform of the Brussels Regulation, which rejects the proposal to abolish the arbitration exclusion in the Regulation.

Freshfields Bruckhaus Deringer LLP On 19 September 2009, the Higher People's Court in Tianjin released Dr. Wang Shengchang, the former Secretary-General of the China International Economic and Trade Arbitration Commission (CIETAC), from prison, after hearing his appeal. The court took the view that his initial sentence was too long, and reduced it from approximately 5 years to 3½ years. 

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz The Federal Court of Justice, the highest German court dealing with arbitration matters, ruled in a decision dated 16 December 2010, that a party can rely on the objection of lack of a valid arbitration agreement in enforcement proceedings in Germany even if it did not initiate setting aside proceedings at the seat of arbitration within the relevant time limits.

Natalia Belomestnova (Associate), Goltsblat BLP The Russian Federation's Supreme Commercial Court has extended an earlier decision to grant interim measures in support of foreign arbitrations to include foreign court proceedings.

Natalia Belomestnova (Senior Associate) and Tatiana Zakharova (Paralegal), Goltsblat BLP In a recently published decision of 13 March 2012, the Federal Commercial Court of Moscow region took a formalistic approach to the wording of an arbitration clause and confirmed the annulment of an ICAC award because ICAC was not competent to consider the dispute. The court’s conclusion is based on the fact that the arbitration clause in question referred disputes to settlement under the ICAC rules, not to ICAC as an institution.

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman The Federal Court of Australia has ordered court proceedings to be stayed and the matter to be referred to arbitration in Milan in accordance with an agreement between the third applicant and the first respondent in a dealership agreement. All related proceedings were stayed pending the outcome of the arbitration.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Paul, Weiss, Rifkind, Wharton & Garrison LLP In Arthur Andersen LLP v. Carlisle, 129 S.Ct. 1896 (2009), the U.S. Supreme Court held (6-3) that the federal Courts of Appeal have jurisdiction to consider an appeal from a district court's denial of a motion to stay litigation in favour of arbitration. The decision will extend the process of litigating stay motions in the circuits that has previously disallowed appeals.

PD Dr. Nathalie Voser (Partner) and James Menz, J.D. (Associate), Schellenberg Wittmer (Zurich) In a decision dated 15 February 2010 and published on 11 March 2010, the Swiss Federal Tribunal rejected a petition to set aside an award by a sole arbitrator appointed by the Geneva Chamber of Commerce (Chambre de commerce, d'industrie et des services de Genève - CCIG) as incompatible with public policy. The Federal Tribunal expressly defined the prerequisites for claiming that a breach of the principles of pacta sunt servanda and good faith violates substantive public policy.

PD Dr. Nathalie Voser (Partner) and James Menz, J.D. (Associate), Schellenberg Wittmer (Zurich) In a decision dated 6 October 2009 and published on 16 October 2009, the Swiss Federal Tribunal granted an order for the revision of a thirteen year-old international arbitral award that was influenced by fraud. Criminal proceedings in France had established that the arbitral award had been directly influenced by false testimony designed to mislead the arbitrators. The Federal Tribunal rendered a judicium rescindens annulling the arbitral award, and remanded the case either to the original tribunal or a new tribunal to be constituted in accordance with the ICC Arbitration Rules.

The United States Court of Appeals for the Fifth Circuit has affirmed a District Court ruling dismissing a petition to confirm a foreign arbitration award for lack of personal jurisdiction and subject matter jurisdiction.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel) and Daniel J. Hickman (Associate), White & Case LLP The United States Court of Appeals for the Fifth Circuit has held that a petitioner waived the evident partiality objection to vacate an arbitral award by failing to raise potential arbitrator bias concerns during the arbitration proceedings.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Christopher P. DeNicola (Law Clerk), Paul, Weiss, Rifkind, Wharton & Garrison LLP The Fifth Circuit has held that state insurance law does not reverse pre-empt the New York Convention and its implementing legislation.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP The United States Court of Appeals for the Fifth Circuit has denied a motion to vacate an arbitral award based on allegations of an arbitrator exceeding his powers, concluding that a clerical error did not constitute a violation of the agreed system of arbitration and that the arbitrator’s award included adequate reasoning.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Christopher P. DeNicola (Law Clerk), Paul, Weiss, Rifkind, Wharton & Garrison LLP FINRA has reported that arbitration case filings, year-to-date through September 30th are up around 60% from the same period last year and 2010 may see a record number of cases.

In Fiona Trust v Privalov [2006] EWHC 2583 (Comm), the claimant shipowners alleged that charterparties had been procured by bribery, and commenced proceedings in the commercial court seeking a declaration that the charterparties had been validly rescinded. The charterparties contained arbitration clauses, and the defendant charterers accordingly applied for a stay of proceedings pursuant to section 9 of the Arbitration Act 1996. The Court of Appeal, overturning the first instance decision of Morison J, granted a stay. (For our report of the Court of Appeal decision, see Bribery and arbitration agreements: new Court of Appeal guidance.) The House of Lords has unanimously dismissed the shipowners' appeal from the Court of Appeal decision. (The judgment is reported as Premium Nafta Products Ltd v Fili Shipping Company Ltd [2007] UKHL 40). Delivering the leading opinion, Lord Hoffman held that, as a matter of construction, the owners' claims fell within the terms of the charterparty arbitration clauses. Furthermore, the allegation of bribery did not directly impeach the arbitration clause (as opposed to the underlying charterparty), which was to be regarded as separate as required by section 7 of the Arbitration Act 1996. The Lords' reasoning is substantially the same as that of the Court of Appeal. In particular, the Lords endorsed the Court of Appeal's view that English courts should make a "fresh start" with regard to issues of construction. Older English authoriti

In the latest episode in the Fiona Trust saga (Fiona Trust Holding Corp v Privalov and ors [2007] EWHC 1217 (Comm)), David Steel J has granted the claimants permission to advance two new claims, and has ordered freezing injunctions against two individual defendants. The disputes in these proceedings relate to charterparties concluded by ship-owning companies in the Russian Sovcomflot fleet (Owners). The Owners' principal claim is that the charterparties were concluded, on disadvantageous terms, as a result of bribes made to Sovcomflot directors and employees. The Court of Appeal has held that these claims fall to be arbitrated pursuant to the charterparty arbitration clauses (see Legal update, Bribery and arbitration agreements: new Court of Appeal guidance ). That decision is now being appealed to the Lords (see Legal update, Fiona Trust: injunction refused pending appeal to Lords). David Steel J has now granted the claimants permission to advance two new claims. The new claims allege that two individual defendants, Mr Nikitin and Mr Skarga, were involved in the "skimming off" of brokerage commission (the Clarkson commission claim) and also in the purchase, by the claimants, of loans at inflated prices (the RCB claim). Notwithstanding the lateness of the application, a freezing injunction was also granted against both individual defendants.

Silvia Martínez (Associate), Hogan Lovells International LLP A few months after the passing of the amendments to the Spanish Arbitration Act, the first published decisions of the Superior Courts of Justice (the new courts competent over arbitration issues) demonstrate a pro-arbitration approach and a strong knowledge of arbitration, and prove that the duration of judicial proceedings in support of arbitration is being reduced.

Kamal Shah (Partner), Stephenson Harwood In January 2012, Canadian mining company, First Quantum Minerals (FQM), reached a global settlement with London-based Kazakhstan mining company, Eurasian Natural Resources Corporation Limited (ENRC), over the US$2 billion legal dispute involving Kolwezi copper project in the Democratic Republic of Congo (DRC). FQM agreed to a US$1.25 billion settlement. In exchange, ENRC will acquire the Kolwezi projects, including the Frontier and Loshi mines in the Katanga province.

PLC Arbitration has published a new flowchart on applying for a stay of court proceedings in England and Wales. (Free access).

Mr. Mustafa Motiwala (Partner, Juris Corp) and Ms. Priyanka Gandhi (Associate, Juris Corp)   The Madras High Court has held that foreign law firms and lawyers cannot practise in India, either on the litigation or non-litigation side, without enrolling with the Bar Council of India under the Advocates Act 1961. However, foreign lawyers can visit India for a temporary period, on a "fly in and fly out" basis, to advise their clients on foreign law.

In Mabey and Johnson Ltd v Danos and others [2007] EWHC 1094 (Ch), Henderson J considered whether England or Jamaica was the appropriate forum for the resolution of a dispute between the claimant and the fourth defendant. Having held that England was the appropriate forum because this was a case which at heart involved the alleged deception of an English company in England in the context of an English law governed contract, with the majority of the witnesses and documents in England, he then went on to consider whether the proceedings should be stayed under the inherent jurisdiction of the court because of an arbitration clause between the claimant and the third defendant. Henderson J refused a stay on the grounds that the circumstances of the case came nowhere near the "rare and compelling circumstances" to justify a stay. This case is a helpful example of the application of form non conveniens principles and a valuable reminder of the importance of submitting detailed evidence to back up arguments. It also illustrates what will not constitute "rare and compelling" circumstances to justify a stay in cases where court proceedings are brought against several parties but only one is entitled to a stay in favour of arbitration. The rules governing service changed on 1 October 2008, under the Civil Procedure (Amendment) Rules 2008 (SI 2008/2178) which include a new Part 6 (Service of documents) and consequential amendments to other rules. All references to CPR 6 in thi

The US Court of Appeals for the Fourth Circuit ruled that the US Supreme Court's Concepcion decision, holding that the Federal Arbitration Act (FAA) preempted a state law dealing with arbitration, does not extend so far as to preempt a Maryland law that requires arbitration clauses in contracts to be supported by consideration. 

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Christopher P. DeNicola (Law Clerk), Paul, Weiss, Rifkind, Wharton & Garrison LLP The Fourth Circuit has reversed the district court's vacatur of an arbitration award. 

James Clark (Associate), Herbert Smith LLP A report highlighting the most significant arbitration related developments in France in 2009.

On 1 May 2011, a new arbitration law in France came into force. The new law is intended to strengthen French arbitration law and to keep it in step with the changes in arbitration over the last 30 years.

Brendan Green (Associate), Herbert Smith LLP The French Supreme Court (Cour de Cassation) has set aside a decision of the Paris Court of Appeal in a case that may raise interesting issues related to multi-tiered arbitration clauses and so-called "med/arb" proceedings that combine mediation and arbitration.

James Clark (Associate), Herbert Smith LLP The French Supreme Court has reversed a Paris Court of Appeal decision setting aside a partial ICC award delivered in December 2007 on the ground that the tribunal had not been properly constituted.

On 31 January 2013, Slovakia requested the Higher Regional Court of Frankfurt to set aside a €22 million award in favour of Dutch health insurer Achmea (formerly Eureko), as Germany’s Federal Court of Justice is considering a challenge to the arbitral tribunal’s earlier award on jurisdiction.

We have previously reported the Court of Appeal's decision in these proceedings (see Legal update, No security for costs against New York Convention award holder.)Tomlinson J has now dismissed the substantive application to set aside the order of Colman J granting permission to enforce a Russian award. The facts of the case were unusual. The "Brotherhood" gas pipeline, through which Russia supplies gas to other countries, passes through the Ukraine. In return, the defendant's Ukrainian predecessor, U, was permitted to withdraw specified quantities of gas. U was accused of exceeding its contractual entitlement. It was felt to be politically embarrassing for the Russian supplier to pursue claims in its own name, and so an insurance/reinsurance structure was established whereby title to sue vested in a subrogated non-Russian reinsurer. Neither the insurer nor reinsurer bore any risk, as the premiums were equal to the insured loss. The subrogated reinsurer commenced arbitration against U in Russia, and obtained an award in its favour. The benefit of the award was then assigned to the claimant, who obtained an order from the English court granting permission to enforce it.The defendant applied to set aside the order, arguing that the award had been obtained by fraud, or that enforcement was contrary to public policy, because the reinsurer had concealed the true nature of the reinsurance arrangements from the tribunal. Tomlinson J rejected the application, holding that t

Stephan Wilske (Partner) and Christian Leisinger (Associate), Gleiss Lutz In a decision by the Higher Regional Court of Karlsruhe dated 4 January 2012, and only recently published, the court commented, among other things, on the issue of a sleeping arbitrator. The decision concerned the enforcement in Germany of a foreign arbitral award that was subject to the provisions of the New York Convention, which is part of German law (section 1061 of the German Code of Civil Procedure).

The European Commission has adopted a report and green paper on Council Regulation (EC) No 44/2001 on jurisdiction, recognition and enforcement of judgments in civil and commercial matters (the Brussels Regulation).

In Meritz Fire and Marine Insurance Co Ltd v Jan de Nul NV and another [2010] EWHC 3362 (Comm) (21 December 2010) the High Court ruled on whether advance payment guarantees were performance bonds or contracts of surety.

Irina Nazarova (Partner), ENGARDE Attorneys at Law, (Ukraine) On 18 June 2009, the Higher Commercial Court of Ukraine amended its recommendations on disputes arising out of corporate relations. The original recommendations (2007) prohibit parties to shareholder agreements from referring their disputes to international arbitration and require the commercial courts to treat as void and contrary to public order any shareholder agreements that submit disputes arising out of corporate relations in joint-stock companies registered in Ukraine to foreign law.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In a decision dated 4 April 2011, but only recently published, the Higher Regional Court of Frankfurt am Main held that a party who, in court proceedings, raises the objection of a valid arbitration agreement is barred from objecting to the jurisdiction of the arbitral tribunal in arbitration proceedings. This behaviour is contradictory and is in violation of the principle of good faith.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In a decision dated 11 July 2011, but only recently published, the Higher Regional Court of Munich held that the burden of proof to show that an arbitration agreement constitutes collusion and is therefore invalid lies with the party resisting enforcement of an arbitral award.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In a decision by the Higher Regional Court of Munich dated 14 November 2011, but only recently published, the court held that an arbitral tribunal does not violate the right to be heard if it relies on evidence by a party-appointed expert without appointing a tribunal-appointed expert. As long as the reasoning in the award shows that the arbitral tribunal evaluated the evidence of both party-appointed experts, and gives reasons for why it decided to rely on the evidence of one of the party-appointed experts, the right to be heard will not be violated.

John Choong (Senior Associate), Freshfields Bruckhaus Deringer LLP The Hong Kong International Arbitration Centre (HKIAC) has appointed a new Chairman, Huen Wong, to take over the role from Michael Moser, who held the position for an extended period of four years.

John Choong (Senior Associate) and Yu Bing (Associate), Freshfields Bruckhaus Deringer LLP The Hong Kong International Arbitration Centre (HKIAC) has appointed Ms Chiann Bao as its new Secretary-General, with effect from 1 May 2010.  Ms Bao takes over from the previous Secretary-General, Mr Gary Soo, who will be returning to the Bar.

John Choong (Senior Associate), Freshfields Bruckhaus Deringer LLP The Hong Kong International Arbitration Centre (HKIAC) has recently launched an enhanced website.

As we have previously reported (see Legal update, Hong Kong: reform of the law of arbitration), the government of Hong Kong is presently consulting on proposed reforms of the arbitration law. The Hong Kong Department of Justice has published a Corrigenda which makes minor amendments to the December 2007 Consultation Paper. We will report on any further developments.

John Choong (Counsel), Freshfields Bruckhaus Deringer The Hong Kong Court of Appeal has upheld an appeal against a decision of the Court of First Instance to set aside an ICC award.  The Court of Appeal confirmed that, even if there are grounds for setting aside an award under Article 34(2) of the UNCITRAL Model Law, the court still has a residual discretion to refuse to set aside an award, if it is satisfied that the outcome could not have been different. 

John Choong (Senior Associate), Freshfields Bruckhaus Deringer LLP On 1 June 2011, Hong Kong’s long awaited new Arbitration Ordinance (Cap. 609) came into effect.

The Law Reform Commission of Hong Kong has recommended the introduction of a class action regime in Hong Kong.

An update on the House of Lords EU Committee and Law Society responses to the European Commission's Report and Green Paper on the application of the Brussels Regulation.

Maxim Kulkov (Partner), Goltsblat BLP The 9th Appellate Court in Moscow has recently given three interesting rulings on the validity of so-called "hybrid" dispute resolution clauses.

An update on the International Bar Association's revised Rules on the Taking of Evidence in International Arbitration.

An update on a revised draft of the IBA rules on the taking of evidence.

The International Bar Association (IBA) has adopted new rules for investor-state mediation, drafted by the IBA state mediation sub-committee.

An update on the publication of a Chinese version of the IBA Rules on the Taking of Evidence in International Commercial Arbitration.

UNCITRAL and the IBA have published a report collating and summarising the results of their investigations into the implementation and interpretation of the New York Convention. Work on the survey started in 1995 with the formulation of a questionnaire which was circulated to states which are party to the Convention. It is recognised that some of the responses may now be out of date. Nevertheless, the report identifies areas where harmonisation is required, including: Methods of implementation of the Convention: in particular, whether states have simply ratified it at an international level, or have adopted internally-binding implementing legislation. Uncertainties as to the date at which the Convention became binding in states, and possible inconsistencies between the Convention and implementing legislation. The effect of reservations under article 1(3) of the Convention, and in particular the fact that official information does not fully reflect states' practices. Interpretation of the Convention by national courts; in particular article II (arbitration agreements). Procedures for enforcement, including the imposition of fees, time limits, and the documentation required to be submitted. The competence of national courts, in particular the availability of appeals from decisions on enforcement. The report and its proposals will be considered at the 41st Session of the Commission (held in New York between 16 June and 3 July). We will report further on the outcome

The ICC has published its 2012 Commission report on arbitration involving states and state entities under the ICC Rules of Arbitration.

An update on the appointment of new vice presidents and members to the ICC Court.

The ICC has announced the opening, in October, of a hearing centre in Paris. The centre will be available for all ad hoc or institutional arbitrations, or for the conduct of ADR. Further details are available on the ICC hearing centre website.

An update on the opening of the ICC Secretariat office in Hong Kong.

The ICC has reported a small increase in the number of new cases received in 2011. (Free access.)

PLC Arbitration has reviewed and amended its materials to reflect the recent launch of the International Chamber of Commerce revised Rules of Arbitration 2012, which will come into force on 1 January 2012. (Free Access.)

An update on an increase in the ICC's arbitration costs and fees.

The ICC is to open a hearing centre in Paris on 20 October 2008. The hearing centre will be available for any kind of institutional or ad hoc arbitration hearings, as well as for the conduct of ADR procedures. It will be the first such facility in Paris. The centre will have three large rooms designed for hearings and meetings that can seat up to 40 people. There will be seven rooms for breakout sessions and smaller meetings of up to 18 people. Other facilities include: Photocopying/printing. Telephone/fax. Wifi/ISDN connections. TV/video. Simultaneous translation equipment. Video conferencing equipment. On-site catering. On-site technical support. Source: ICC Website.

ICC UK held its annual arbitration seminar on 6 November 2007 on the subject of Regional Perspectives in International Commercial Arbitration. The event was chaired by Laurence Shore and Dr Julian Lew QC, and was sponsored by Herbert Smith. The conference was divided into a number of sessions which focussed on the following regions: Middle East and Southern Europe. North America. An Overview of ICC arbitration in different regions. Latin America. Asia Pacific.

The ICCA Conference 2008 took place in Dublin on 8 to 10 June, on the 50th anniversary of the New York Convention on the Recognition and Enforcement of Foreign Arbitration Awards.Highlights of the conference, which was attended by two PLC Dispute Resolution editors, included:The New York Convention at 50: Albert Jan van den Berg's keynote address proposed a revised New York Convention (the draft "Dublin Convention") which would strengthen the enforcement regime, for example by clarifying the discretion to refuse enforcement in Article V. The proposals gained some support, whilst others cautioned against embarking on a process which would not resolve the problem of differing interpretations, and others called for judicial training on its implementation. The UNCITRAL Rules Revision - an assessment. The discussion highlighted the difficulty in agreeing upon a set of rules (currently undergoing their second reading) which are sufficiently generic to operate effectively across the globe without the oversight of an institution, but which are also workable alongside the Model Law and take account of their possible use in investment treaty arbitration. The final draft of the proposed revisions is to be submitted to the UNCITRAL Commission in 2009.Recent developments in international arbitration. Delegates raised the increasingly normative approach to international arbitration and the promulgation of a "soft law", which may gradually ossify, thereby losing the advantage of

Nassib Ziadé, a Lebanese and Chilean national, has been appointed chief counsel of the International Centre for Settlement of Investment Disputes (ICSID). Ziadé, who has extensive experience in the administration of international legal proceedings, and in the management and development of international tribunals was due to take up his new position on 1 July 2007. He has been executive secretary of the World Bank Administrative Tribunal for the past ten years. In 1998 Ziadé was a member of the Grievance Process Review Committee, which reviewed and reformed the World Bank's Internal Conflict Resolution System, and has since been involved in all subsequent reviews of the system. He is also a former counsel at ICSID. He has commented that the chief counsel role has three elements - to develop policies and strategies for the performance of ICSID's mandate, to provide advice and leadership in alternative dispute resolution, and to lead and manage the ICSID Secretariat. Source: ICSID website For further information, see Global Arbitration Review

The ICSID Secretariat has published a new issue of the ICSID Caseload Statistics.

The International Centre for Settlement of Investment Disputes (ICSID) Secretariat has published a new issue of the ICSID Caseload Statistics. (Free access.)

In AES Summit Generation Ltd and AES-Tisza Erömü Kft v Republic of Hungary (ICSID Case No ARB/07/22), the tribunal clarified the relationship between the Energy Charter Treaty and EU law.

The International Center for Settlement of Investment Disputes (ICSID) has published a report on annulment proceedings at ICSID.

An update on the publication of ICSID decisions and awards.

An ICSID tribunal has rejected all but one of the claims made by Continental Casualty Company (Continental) against Argentina, largely on the basis that the measures taken by Argentina were justified by "necessity". Continental, a US investor, held a number of assets which were denominated largely in pesos, and fully convertible to US dollars. It alleged that various measures taken during the Argentinian economic crisis in 2001-2002 destroyed the legal security of those assets and prevented it from hedging against the risk of devaluation of the peso. Argentina successfully argued that it was entitled to rely on the defence of necessity in the US-Argentina BIT, except in relation to certain treasury bills. The tribunal concluded that Argentina's conduct, in the face of economic and social crisis, conformed "by and large" with the conditions for derogating from its obligations under the BIT. The case is interesting in light of the divergent views on the necessity defence expressed CMS v Argentina and LG&E v Argentina (in the latter, certain measures were found to be justified by the severe economic crisis). The tribunal in this case also indicated the factors that may be relevant in evaluating a breach of the obligation to accord fair and equitable treatment. In particular, general legislative statements by a state directed at a wider range of investors (particularly competent, major international investors involved in high political risk scenarios) would engender a

Marinn F. Carlson (Partner) and Joshua M. Robbins (Associate), Sidley Austin LLP The recently-released jurisdictional decision in Tza Yap Shum v. Peru, ICSID Case No. ARB/07/6, constitutes the first published tribunal decision interpreting an investment treaty entered into by China. Notably, the decision adopts a relatively broad reading of a key dispute settlement provision in the treaty, suggesting that similar Chinese treaties may afford more extensive protection to foreign investments in China than many had previously assumed. Accordingly, the decision should be of interest to individuals and companies who have invested or are considering investing in China, as well as Chinese investors with actual or prospective investments abroad.

An update on Railroad Development Corporation (RDC) v Republic of Guatemala (ICSID Case No ARB/07/23), in which an ICSID tribunal considered challenges to jurisdiction based on rationae temporis and rationae materiae.

Marinn F. Carlson (Partner) and Aaron J. Wredberg (Associate), Sidley Austin LLP In Europe Cement Investment & Trade S.A. v. Republic of Turkey, ICSID Case No. ARB(AF)/07/2 (ECT), an ICSID tribunal declined jurisdiction over a claim brought by a Polish company against the Republic of Turkey. The case presented the "unusual circumstance" in which both parties argued that the case should be dismissed for lack of jurisdiction, although the parties disagreed on the precise basis for the lack of jurisdiction and the effects of dismissal. The tribunal determined that Europe Cement had abused the arbitral process with an apparently fraudulent claim to ownership of two Turkish electricity companies. The tribunal dismissed the case and ordered Europe Cement to pay Turkey's full costs of the arbitration, although it declined to award moral damages to Turkey.

In Desert Line Projects LLC v The Republic of Yemen (ICSID Case No ARB/05/17) an ICSID tribunal found Yemen (R) in breach of the Yemen-Oman BIT in respect of a dispute with an Omani construction company (C). C had agreed to undertake a road construction project in the Yemen but following non payment by R, the parties agreed to an arbitration in Yemen pursuant to which C was awarded a substantial sum. However, R failed to pay the sums due, and effectively coerced C through physical duress into signing a settlement agreement for a much lower sum. The ICSID tribunal found that it had jurisdiction over the dispute, despite the fact C did not have an "investment certificate" - a jurisdictional requirement under the BIT, and notwithstanding the "fork in the road" provisions contained in the BIT. It held that the Yemen arbitral award should stand and was final and binding on the parties. In addition, it awarded moral damages to C of $1 million. The case demonstrates that countries will not be able to escape the requirements laid down in their BITs by using excuses relating to formalistic requirements to challenge jurisdiction. In addition, attempts by a country to subvert a party's rights by using coercion may well be met with an award against them for moral damages.

In Ambiente Ufficio SpA and others (formerly known as Giordano Alpi and others) v The Argentine Republic (ICSID Case No ARB/08/09), an ICSID tribunal considered whether it had jurisdiction over a claim with multiple claimants.

In the long-running case of Vivendi v Argentina, an ICSID tribunal has held that Argentina breached BIT obligations relating to fair and equitable treatment and the provision of protection and full security, and that it expropriated the claimants' investment in water utilities in the province of Tucuman. The tribunal found that, in breach of the Argentina/France BIT, the provincial government had mounted an illegitimate campaign against the claimants, aimed at forcing a renegotiation of the governing concession agreement. Elements of the campaign included the wrongful use of regulatory powers to force tariff reductions and to impose various fines and charges, the stirring up of local feeling against the "foreign investor", encouraging customers not to pay their bills, and the passing of enactments prohibiting the claimants from pursuing those customers. In a strongly worded award, the conduct of the provincial government was described as "vindictive" and "politically driven arm twisting". The award contains some interesting discussion of the proper meaning and scope of the "fair and equitable" standard, the tribunal taking the view that this is not equivalent to, and may go beyond, the minimum standard recognised by international law. The tribunal also confirmed that the related "protection and full security" provision of the BIT is not limited to physical security - any measure depriving a claimant of security may involve a breach of such a provision. Note, howeve

An update on the award on jurisdiction in Saba Fakes v Republic of Turkey (ICSID Case No ARB/07/20), which considered the test for whether an investment has been made and the nationality requirement.

The International Federation of Commercial Arbitration Institutions is studying the enforcement of arbitration awards rendered under some of the key institutional rules of arbitration.

A group of in-house counsel have recently formed the Corporate Counsel International Arbitration Group (CCIAG) which will provide a forum for discussion of policy and practices in international commercial arbitration. The initiative was spearheaded by Jean-Claude Najar, senior counsel and chief compliance officer for GE Commercial Finance. The group will be exclusively composed of corporate counsel and held its inaugural meeting in November 2006, attended by representatives from 23 leading organisations. CCIAG is expected to formulate its by-laws, membership rules and operational guidelines by the end of February 2007. For further information see Global Arbitration Review.

CIETEC (China International Economic and Trade Arbitration Commission) and the Hong Kong International Arbitration Centre have signed a mutual co-operation agreement. The agreement will allow the two institutions to conduct arbitrations or examine witnesses at each other's premises. In addition, the host institution will provide administrative support, including recommending arbitrators, exchanging secretariat members, and allowing for the joint administration of arbitrations. It is hoped that the agreement will benefit Chinese parties who choose to arbitrate their disputes through the Hong Kong International Arbitration Centre by enabling arbitrations to be conducted at CIETAC premises, thereby saving costs. Source: Global Arbitration Review

Devan Parikh, Senior Advocate and Arbitrator, India A levied service tax of 10.3% for services provided "to any business entity, by an arbitral tribunal, in respect of arbitration", was announced in the Indian Budget 2011-2012. The tax is likely to come into force sometime in May or the beginning of June 2011.

A new Indian arbitration centre in Bangalore has been set up by the High Court of Karnataka and is expected to open in December 2013.

Mustafa Motiwala (Senior Partner) and Priyanka Gandhi (Associate), Juris Corp In a recent decision, the Supreme Court of India (Supreme Court) allowed the enforcement of a Russian arbitral award against an Indian export company and held that "patent illegality" under the term "public policy of India" must be considered when enforcing or setting aside foreign awards, as well as domestic awards.

On 5 January 2010, the Honourable Supreme Court of India reaffirmed that a pending application in the courts regarding the existence of an arbitration agreement does not affect the continuance of the arbitration.

Kamal Shah (Partner) and Jonathan Morton (Trainee), Stephenson Harwood In a decision dated 28 July 2010, but not reported until August 2010, the Supreme Court of India upheld an arbitration award in a dispute between Sumitomo Heavy Industries Limited (SHIL) and the Oil and Natural Gas Commission of India (ONGC) over income tax liability.  SHIL had appealed a judgment of the Bombay High court in 2001 that confirmed a 1999 decision to set aside the original award made in June 1995.  In its decision, the  Supreme Court outlined when it would be appropriate to set aside an award, and what amounted to a "perverse" ruling by an arbitrator.

PLC Arbitration has updated its arbitral institutional statistics table to include the 2010 figures that are currently available from a number of arbitral institutions.

An ICSID tribunal has refused the claimants' request for provisional measures in arbitration proceedings between Occidental Petroleum Corporation and Occidental Exploration and Production Company v The Republic of Ecuador (ICSID Case No ARB/06/11). The claimants alleged various breaches of domestic and international law, and under the US/Ecuador BIT, in respect of the oil concession granted to them by Ecuador in 1999. The claimants issued a request for provisional measures which was, in essence, intended to preserve their alleged right to specific performance of the underlying contract. The tribunal rejected the application, finding unanimously that the claimants had failed to demonstrate that an order for provisional measures was justified in the circumstances. The claimants had to establish a right to be protected, which in this case would be the right to specific performance of the underlying contract and the right to non-aggravation of the dispute. However, they failed to establish a "strongly arguable" case that a right to specific performance exists where a natural resources concession agreement has been terminated by a State. The tribunal proceeded on the basis that "full reparation", rather than restitution, is the appropriate remedy where a party is injured by an alleged illegal act. This can be achieved by restitution in kind (synonymous with specific performance) but where that is not possible, monetary compensation is the remedy. Specific performance is

Publication of a new section on international arbitration legislation added to external resources page.

An update on the International Institute for Conflict Prevention & Resolution's new online rating system for arbitrators and mediators.

An update on Renta 4 SVSA v Russian Federation (Arbitration V 024/2007), which concerned the scope of an arbitration provision, and the interplay between the most favoured nation and fair and equitable treatment provisions in the Spain-Russia BIT.

We have published a tracker outlining developments on issues relating to intra-EU bilateral investment treaties (intra-EU BITs). (Free access).

In Fraport AG Frankfurt Airport Services Worldwide v Republic of Philippines, ICSID Case No. ARB/03/25, an ICSID tribunal has decided that transactions which were illegal under the domestic laws of the Philippines did not qualify as "investments" under the Philippines/Germany BIT, which applies to investments "accepted in accordance with the respective laws and regulations of either Contracting State". It followed that the tribunal had no jurisdiction to determine Fraport's claims. The tribunal held that Fraport had knowingly attempted to structure its investment in a manner which breached the Philippine Anti-Dummy Law, by means of secret shareholder agreements. Referring to the provisions of the BIT and the Instrument of Ratification, the tribunal decided that the transaction therefore did not qualify as an "investment". The relevant point at which to assess the nature of the transaction was the moment when the investment was concluded, and it was not necessary to consider the further argument that, even if lawful at the time it was concluded, any transaction would also have to be performed lawfully in order to qualify as an "investment". The tribunal indicated, however, that on the wording of this BIT such an argument would be unlikely to succeed. Note, further, the tribunal's view that, even though the Anti-Dummy Law was a criminal statute, the standard of proof on this issue was the civil "preponderance of evidence" test and not the criminal "beyond reasonable

PLC Arbitration A report highlighting the most significant developments in investment treaty arbitration in 2009.

PLC Arbitration  A look ahead to the expected arbitration related developments in Ireland in 2010.

Andrew Walsh (Partner), Elaine Punch (Solicitor), A&L Goodbody On 24 May 2012, the Irish High Court refused an application to set aside an arbitrator’s award, pursuant to section 6 of the Arbitration Act 2010. The decision reinforces the Irish High Court’s support for the arbitration process in Ireland, and in particular the decision-making power of the arbitrator. It also re-affirms the exceptionally high standard that must be met before an Irish court will set aside or remit an arbitration award. 

Andrew Walsh (Partner), Elaine Punch (Solicitor), A&L Goodbody In a decision issued on 21 June 2012, the Irish Supreme Court considered the issue of what constitutes taking a "step" in proceedings, such as to prevent a party from relying on an arbitration clause. The case centred on the ability of one contracting party to rely on an arbitration clause to stay court proceedings pending arbitration, in circumstances where the court proceedings between the parties had progressed to some extent. The decision in this case highlights the importance of ensuring at a very early stage in negotiations that all disputes are resolved using the same forum. 

The International Swaps and Derivatives Association (ISDA) has issued a memorandum, seeking members' views on steps that ISDA could take to assist in their use of arbitration. (Free access.)

An update on the Japan Commercial Arbitration Association's International Commercial Mediation Rules.

Sverker Bonde (Advokat and Senior Associate), Delphi On 12-14 February 2010, the Swiss Arbitration Association (ASA) and the Swedish Arbitration Association (SAA) held a joint practice building seminar in Skokloster, Sweden.  The seminar took the form of a series of discussions which were jointly led by two discussion leaders from different jurisdictions – one from a common law and the other from a civil law background.

In PEC Ltd v Asia Golden Rice Co Ltd [2012] EWHC 846 (Comm), the court considered the time limit for jurisdictional challenges to first tier GAFTA arbitration awards. 

The KLRCA has adopted the UNCITRAL Arbitration Rules 2010.

The Kuala Lumpur Regional Centre for Arbitration has issued a new version of its fast track arbitration rules.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a German-language decision of 27 March 2012, the Swiss Supreme Court handed down a landmark ruling in favour of Brazilian football player, Francelino da Silva Matuzalem. The decision set aside an award of the Court of Arbitration for Sport, finding that the threat of a playing ban against Matuzalem was contrary to public policy.

An update on discussions regarding proposed revisions to the UNCITRAL Arbitration Rules.

The Court of Appeal has upheld the decision of Cooke J (see Legal update, Interplay of substantive and curial law in international arbitration) and ordered the continuation of a final injunction preventing the defendant insurers from bringing proceedings in New York to challenge an award. In C v D [2007] EWCA Civ 1282, the underlying contract was a "Bermuda Form" insurance policy in the usual terms, referring disputes to arbitration in London, and applying New York law to issues arising under the policy. On appeal, the defendant argued that as the arbitration agreement was silent as to its proper law, it should not follow the seat of the arbitration (namely London) but should follow the proper law of the contract (namely New York law) thus allowing challenges to the award in the New York courts. The Court of Appeal dismissed the appeal and continued the injunction. By chosing London as the seat of arbitration, the parties must be taken as having agreed that proceedings on the award should only be those permitted by English law. To allow the remedies available under New York law would be a recipe for litigation. Even where there is no express law of the arbitration agreement, it will rarely be the case that the law of the (separable) arbitration agreement will be different from the law of the seat of the arbitration. It is more likely that the law with which the arbitration agreement has its most close and real connection will be the law of the seat of arbitration,

Ruth Byrne (Solicitor Advocate), Herbert Smith LLP As Jan Paulsson's second three-year term as President of the LCIA draws to a close, it has been announced that Professor William ("Rusty") W Park will succeed him to the post in July 2010.

The London Court of International Arbitration (LCIA) has amended its administration fees.

Kamal Shah (Partner), Stephenson Harwood The LCIA's India branch opened in New Delhi in April 2009. India's increasing prominence as a major economic power, together with the widespread dissatisfaction with both the Indian court system and ad hoc arbitration in India, mean that the establishment of LCIA India was timely and has many factors in its favour.

An update on the opening of a London Court of International Arbitration (LCIA) branch in New Delhi.

Lord Justice Leveson has recommended the use of arbitration to resolve civil law claims against newspapers and magazines.

On 7 July 2011, Liechtenstein acceded to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention).

The LMAA (London Maritime Arbitrators Association) has published increases to some of its fees which will take effect from 1 March 2007. In particular, the "arbitration appointment fee", which is payable to an arbitrator on his appointment and covers his charges for accepting the appointment and opening the file, has increased from £125 to £150. The "booking fee" which is payable before firm dates will be booked for a hearing, will increase from £425 per day to £500. Certain other fees remain unchanged, for example the fee for certifying documents and the LMMA Mediation appointment fees. For a full list of the changes, see the LMAA website.

An update on arbitration related developments expected in the second half of 2009.

PLC Arbitration has published an Article, Looking ahead to the second half of 2011: arbitration. (Free access).

PLC Arbitration has published Article, Looking ahead: anticipated developments in 2011: arbitration. (Free access).

PLC Arbitration has published an article highlighting the key arbitration related developments expected in 2013 and beyond. (Free access.)

Alejandro López Ortiz (Senior Associate) and Pablo Martínez (Junior Associate), Lovells LLP Madrid will host this years' IBA Annual Conference between 4 – 9 October. The program includes a number of sessions and events organised by the IBA's Arbitration Committee. In addition, other arbitration events will take place in Madrid during or around these dates. The most important names in international arbitration will be attending, and it will be a unique opportunity to share new ideas and points of view.

Holger Tilk (Associate), Lawin In May 2010, the launch of The International Court for Commercial Mediation, Conciliation and Arbitration (ICCMCA) took place in Estonia. Although this is the fouth new arbitral institution to be launched this year, the ICCMCA aims not only to administer arbitration proceedings, but also to provide parties with the option of mediation and conciliation, giving it a unique position in Estonia.

In Tidewater Inc and others v Venezuela (ICSID Case No ARB/10/5) (decision dated 23 December 2010 but only just published), an application to disqualify Professor Brigitte Stern, the arbitrator appointed by the respondent, was rejected by the two other arbitrators.

An update on the ICSID award on jurisdiction in Mr Tza Yap Shum v The Republic of Peru (ICSID Case No ARB/07/6).

PD Dr. Nathalie Voser (Partner) and Dr. Petra Rihar (Associate), Schellenberg Wittmer (Zurich) On 25 September 2009, the Swiss Arbitration Association (ASA) held its annual General Assembly in Berne, Switzerland, followed by a conference on "The Swiss Federal Tribunal's International Arbitration Rulings". The General Assembly unanimously elected Michael Schneider (Lalive), long time member of the ASA executive board and a Vice-President since 2005, as the new President of the ASA.

Irina Nazarova (Partner), ENGARDE Attorneys at Law, (Ukraine) The International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry found partly in favour of Everfield Capital LLP (UK) (Everfield) in its dispute with the Miratech, one of the largest software companies in Ukraine.

The Ministry of Justice has published a consultation seeking views on proposed revisions to Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of civil and commercial matters (Brussels Regulation), including the amendment of the arbitration exception in the Regulation.

Moldova has ratified the ICSID Convention.

Natalia Belomestnova (Associate), Goltsblat BLP The ABA conference "Resolution of Russia-Related Business Disputes: The Next Wave" took place in Moscow on 21 September 2009, and featured an impressive number of prominent Russian and foreign lawyers debating mainly one question: are arbitrating and litigating in Russia as black as they have been painted?

Stephan Wilske (Partner) and Stephan T. Meyer (Associated Partner), Gleiss Lutz In a decision dated 29 March 2012, but only recently published, the Higher Regional Court of Munich considered the validity and enforcement of an arbitration agreement contained in general trade terms and conditions which the parties had modified in a convoluted manner. Ultimately, the court was able to determine the parties’ intention and correctly decided to implement the clause even though one party alleged a lack of transparency.  

An update on Merrill & Ring Forestry LP v Canada (UNCITRAL, ICSID Administered Case (NAFTA)), in which a NAFTA tribunal considered the ambit of the fair and equitable treatment standard.

Ruth Byrne (Solicitor Advocate) and  Joanne Greenaway (Professional Support Lawyer), Herbert Smith LLP The English Court of Appeal has considered whether a judgment to which the Brussels Regulation applied gave rise to an issue estoppel in proceedings in the Commercial Court.

An update on plans for a new arbitration centre in Sydney.

The Singapore Ministry of Law has been embarking on various initiatives to grow the arbitration industry in Singapore. They include the development of an integrated dispute resolution complex and the establishment of international arbitral institutions in Singapore, such as the American Arbitration Association and the Permanent Court of Arbitration. Two further initiatives have now been announced. These are:A tax incentive for law practices carrying out international arbitration work with hearings in Singapore.A work pass exemption for those entering Singapore for arbitration and mediation services.Arbitration and mediation work can now be performed whilst holding a Social Visit Pass which does not require any application in advance and will be granted on entry at immigration. An online form must also be completed once in Singapore.For more information on the incentive, contact EuniceTan@MLAW.GOV.SG or YeeKwang@EDB.GOV.SG. For more information on the work pass exemption, see the Ministry of Manpower website. Source: SIAC

An update on the new rules of arbitration of the Court of Arbitration of Madrid.

Publication of an Article, The reform of the Brussels Regulation: a crossroads for arbitration in Europe, by Andrew Pullen, Senior Associate, Allen & Overy LLP.

Publication of a case study on commencing LCIA arbitration.

A new Chinese European Arbitration Centre (CEAC) was inaugurated on 18th September 2008 in Hamburg. The centre will administer China-European trade disputes and offers the services of an institutional arbitration centre. CEAC has been tailor-made to the needs of trade with China and grants equal power to Chinese, European and worldwide participants in the market. The centre aims to provide a neutral dispute resolution process to enhance and facilitate China-related trade and investment matters for the international business and legal community worldwide. Click here to access CEAC's website which provides further information on their services, including arbitration rules, arbitration clause and choice of law clause, costs and information on arbitrators.

Publication of new country chapters in the PLC Cross-Border Arbitration Handbook.

Kamal Shah (Partner) and Jo Livermore (Trainee Solicitor), Stephenson Harwood. In November 2009, the New Delhi High Court opened an arbitration centre aimed at reducing the number of pending arbitration cases in India, as well as bringing more transparency and reliability to arbitration in the country.

John Choong (Senior Associate), Freshfields Bruckhaus Deringer LLP The new Hong Kong Arbitration Ordinance will come into effect on 1 June 2011, according to a government gazette notice of 22 February 2011. It is anticipated that the new Arbitration Ordinance will make Hong Kong an even more attractive venue to parties looking for efficiency and certainty in the resolution of their disputes.

A sample provisional timetable in an international arbitration conducted under the ICC Rules of Arbitration.

Publication of an ICSID arbitration flowchart.

On 27 March 2013, the Jerusalem Arbitration Center (JAC), founded by the International Chamber of Commerce (ICC), was inaugurated.

The London Court of International Arbitration has appointed new court members.

An update on the announcement of the new President of the LCIA.

On 14 January 2013, the president of Kenya assented to new legislation entitled the "Nairobi Centre for Arbitration Act 2012".

PLC Arbitration has published a new practice note on non-damages remedies in international arbitration. (Free access.)

A new Portuguese Arbitration Act entered into force on 14 March 2012.

Publication of a new Practice note, AAA arbitration: a step-by-step guide.

Publication of Practice note, Arbitrating under the UNCITRAL Rules.

Publication of a new Practice note, Choosing an arbitral seat in the US.

Publication of Practice note, Expropriation in international investment law.

Publication of Practice note, Interim remedies: a quick guide.

The Hong Kong International Arbitration Centre (HKIAC) is reforming its rules. The new HKIAC rules are not yet in the public domain, but they are scheduled to come into force by 1 March 2008. We will report any further developments in due course.

The International Chamber of Commerce (ICC) has announced the appointment of a new Secretary General at the ICC International Court of Arbitration.

Practice note, Interim remedies: a quick guide has been updated to include Spain.

The Singapore International Arbitration Centre has published new arbitration rules, which will come into force on 1 July 2007. A new Schedule of Fees and supplementary Practice Notes for Ad Hoc and Administered Cases will also come into force on the same date. Note that the SIAC Domestic Arbitration Rules are to be repealed and will no longer apply to any arbitrations administered by the Centre (see Schedule 1 of the new Rules). The Rules are available on the SIAC website.

We have published a new case study illustrating an application for interim measures under the Arbitration Rules of the Singapore International Arbitration Centre.

Andrew Robertson (Partner), Piper Alderman In a decision dated 21 June 2011, the New South Wales Supreme Court took a matter-of-fact approach to the enforcement of an arbitral award.

Andrew Robertson (Partner), Piper Alderman Although New South Wales has passed the new Australian domestic Commercial Arbitration Act, arbitrations commenced prior to the passing of the Act are still governed by the Commercial Arbitration Act 1984.  In this case, the New South Wales Supreme Court considered an appeal against a final award handed down in a domestic arbitration.

Publication of a new table of institutional statistics.

Publication of a Standard document, Appointment of Party-nominated Arbitrator: US Notice.

An update on the ICC Commission Task Force's report on the national rules of procedure for the recognition and enforcement of foreign awards pursuant to the New York Convention.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Christopher P. DeNicola (Law Clerk), Paul, Weiss, Rifkind, Wharton & Garrison LLP The New York Court of Appeals has ruled that after issuance of an arbitration award, a party may not seek to reopen the arbitration proceeding to request that the arbitrators consider an issue that was not previously presented to the panel. 

Funke Adekoya (Partner), AELEX The Lagos State of Nigeria has enacted two new arbitration laws, with the hope of enabling Lagos to emerge as the hub of commercial arbitration in the West African region. The Lagos Arbitration Law, which is the result of academic debate as to the legality of the previously applicable federal legislation, applies to all arbitration with Lagos as the seat, unless the parties have expressly agreed otherwise, and the Lagos Court of Arbitration Law establishes the Lagos Court of Arbitration.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP The Ninth Circuit Court of Appeals has ruled that the court must decide the validity of an arbitration agreement (as distinguished from the validity of the contract as a whole) whenever the plaintiff raises the issue, even if the argument is not presented in the complaint.

In Brandes Investment Partners LP v Bolivarian Republic of Venezuela (ICSID Case No ARB/08/3), an ICSID tribunal considered whether it had jurisdiction to hear a claim based on an article in Venezuelan investment legislation.

PD Dr. Nathalie Voser (Partner) and Eliane Fischer (Associate), Schellenberg Wittmer (Zurich) In a German-language decision of 8 March 2012, published on 20 April 2012, the Swiss Supreme Court set aside an award in which an arbitral tribunal of the Court of Arbitration for Sports (CAS) had found that it had jurisdiction to hear a case opposing a third party beneficiary of a contract to one of the parties to the contract.

In Apotex Inc v United States, UNCITRAL (NAFTA) Procedural Order No 2, a decision dated 11 October 2011, but only recently published, the tribunal considered whether to permit a non-disputing party to make submissions.

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman The New South Wales Supreme Court has allowed the enforcement and recognition of an arbitral award against a company in administration.

PD Dr. Nathalie Voser (Partner) and Dr. Petra Rihar (Associate), Schellenberg Wittmer (Zurich) On 31 March 2009, the Swiss Federal Supreme Court, in a 3 to 2 decision (published on 29 May 2009) refused to set aside an interim award of an ICC arbitral tribunal with its seat in Geneva, declaring that an ongoing international arbitration was discontinued vis-a-vis the co-respondent Elektrim SA, a Polish company which became insolvent during the arbitration proceedings.

On 15 April 2013, Paris, the Home of International Arbitration (Paris Place d'arbitrage) unveiled its newly drafted Paris Arbitration Rules at the group's annual conference in Paris.

James Clark (Associate), Herbert Smith LLP The Paris Court of Appeal has refused to set aside the award in the arbitration between Dallah Real Estate & Tourism Holding Co and the Government of Pakistan. The French court found that the arbitral tribunal was right in finding that it had jurisdiction over the matter because the government was a party to the arbitration agreement. The French court’s finding on jurisdiction contradicts that of the UK Supreme Court, which came to the opposite conclusion in Dallah Real Estate & Tourism Holding Co v Pakistan [2010] UKSC 46 and refused enforcement of the award on that basis.

In a French-language decision dated 11 December 2012, the Swiss Supreme Court confirmed that the capacity of a party to participate in arbitration relates to the jurisdiction of the arbitral tribunal. The Supreme Court also found that the requirement of legal capacity, which is required for the admissibility of the claim, must be met when a decision on the merits is rendered and not at the time of the interim award.

The Permanent Court of Arbitration (PCA) in The Hague and the Hong Kong International Arbitration Centre (HKIAC) have signed a co-operation agreement.

The Permanent Court of Arbitration is to open a regional facility in New Delhi. The Union Cabinet of India has given its approval to the Host Country Agreement between the Republic of India and the PCA. The regional facility will provide a forum for PCA administered international arbitrations in India for disputes arising in India and in the region, both between States and between a State and a non-State entity, such as foreign companies that have made investments in the region. Source: The Hindu

The Permanent Court of Arbitration has adopted new rules, which came into force on 17 December 2012.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP A petition for certiorari filed on the 4 February 2010 has raised the question of whether the Federal Arbitration Act preempts state law.

Publication of a Case report list on PLC Arbitration.

An update on PLC Arbitration's new monthly multi-jurisdictional e-mail.

A reminder about using PLC Arbitration's materials to help train those new to arbitration law.

PLC Cross-Border Arbitration Handbook 2011-12 has been published and consequential amendments made to PLC Arbitration quick guides on enforcing arbitration awards and interim remedies. (Free access).

PLC Dispute Resolution has published its report on the 9th BIICL Investment Treaty Forum Public Conference which took place last month on the topic of "Emerging Jurisprudence in International Investment Law". To read the full report, click here. The report has been added to the collection of Arbitration events reports.

PLC Magazine has published an article on the Court of Appeal's recent decision in West Tankers Inc v Allianz SPA & Generali Assicurazione Generali SPA, written by Kieron O'Callaghan and Julianne Hughes-Jennett, Hogan Lovells International LLP.

PLC Magazine has published an article on the International Chamber of Commerce revised Rules of Arbitration 2012, which will come into force on 1 January 2012. The article is written by Julianne Hughes-Jennett and Michael Davison of Hogan Lovells International LLP.

PLC has recently undertaken a review of all its general contract and boilerplate clauses, and the accompanying drafting notes. Those clauses which may be of particular interest to Dispute Resolution lawyers are: Governing law and jurisdiction Governing law and jurisdiction Governing law and jurisdiction (reciprocal: exclusive or non-exclusive) Governing law and jurisdiction (reciprocal: defendant's home country) Governing law and jurisdiction (for the benefit of one party - EU and Lugano Convention countries (Iceland, Norway and Switzerland)) Governing law and jurisdiction: drafting note International arbitration International arbitration: ad hoc International arbitration: LICA administered International arbitration: drafting note Alternative Dispute Resolution Alternative Dispute Resolution Alternative Dispute Resolution: drafting note All general contract and boiler plate clauses can be easily accessed through the Dispute Resolution home page, via the link entitled "General contract and boilerplate clauses" which can be found after the ADR topics on the lower right hand side of the "Core topics" box.

Wojciech Sadowski (Of Counsel), K&L Gates LLP On 13 and 14 May 2010, Warsaw hosted an international conference on "Dispute resolution in M&A transactions: tactics, challenges and defences". The event was organised by one of Poland’s most significant arbitration courts, Lewiatan, under the auspices of the Ministry of Foreign Affairs of the Republic of Poland, and in co-operation with various partners, including the ICC, ABA and TDM (Transnational Dispute Management).

Agnieszka Wojciechowska (Associate) and Tomasz Sychowicz (Junior Associate), K&L Gates, Warsaw In October 2011, two important arbitration events took place in Poland: a debate on the future of multi-party arbitration and the first FDI Pre-Moot. Both events were co-organised by the Dispute and Conflict Resolution Centre of the University of Warsaw (Faculty of Law and Administration) and the Young Arbitration Practitioners in Poland at the Lewiatan Court of Arbitration.

Agnieszka Wojciechowska (Associate) and Tomasz Sychowicz (Junior Associate), K&L Gates, Warsaw On 10 May 2011, at an arbitration picnic in Warsaw, the two-year project "Promotion of amicable methods of commercial dispute resolution" was officially concluded. On 17 June 2011, the second part of the major international arbitration event "International Commercial Arbitration: Austrian/Polish Twin Conference" was held in Warsaw.

Wojciech Sadowski (Of Counsel), K&L Gates, Warsaw On 26 October 2010, Warsaw hosted a major national conference on investment treaty arbitration. The event was co-organised by the Polish Court of Arbitration (Lewiatan) and the State Treasury Solicitors’ Office - the agency providing and coordinating legal representation for the Polish Government in international commercial and investment disputes, among other things.

Wojciech Sadowski (Of Counsel), K&L Gates, Warsaw In a judgment dated 9 September 2010, the Polish Supreme Court ruled that an arbitral award may be set aside on public policy grounds because of business and social ties between an arbitrator and one of the parties that were not disclosed in the course of the arbitral proceedings.

John Choong (Counsel), Freshfields Bruckhaus Deringer The Hong Kong Court of First Instance has allowed an application to stay court proceedings in favour of an arbitration, and consequently declined to grant an injunction restraining the continuation of the arbitration.  The court also went on to suggest that the Hong Kong courts have jurisdiction, pursuant to the High Court Ordinance, to restrain arbitrations to which the Hong Kong Arbitration Ordinance applies.

Publication of Practice note, Arbitrating under the UNCITRAL Rules 2010.

We have published a practice note on arbitration in Brazil. The note considers the most significant features of the arbitral process in Brazil and sets out the framework for domestic and international arbitrations.  (Free access.)

PLC Arbitration has published a new Practice note, Arbitration in Switzerland, authored by Schellenberg Wittmer. The note considers the framework for domestic and international arbitrations in Switzerland. (Free access.)

We have published a practice note which considers the complex issues that may arise when advancing or defending claims for damages in international and investment treaty arbitration. (Free access).

PLC Arbitration has published a practice note on extending time for commencing arbitration.

PLC Arbitration has published a new Practice note, LCIA India arbitration: a step-by-step guide, authored by Stephenson Harwood and the Registrar of LCIA India. The note sets out the usual steps in an LCIA India arbitration, providing links to relevant rules and practical guidance. (Free access.)

Publication of Practice note, SIAC arbitration: a step-by-step guide.

PLC Arbitration has published a new Practice note, The Brazilian Arbitration Act 1996, authored by Barretto Ferreira Kujawski Brancher e Gonçalves. The note explains how the Brazilian Arbitration Act 1996 has initiated a new era of arbitration in Brazil and provided a solid basis for its development. (free access).

Elena Trusova (Head of group), Goltsblat BLP The Presidium of the High Arbitration Court of the Russian Federation has given an interesting interpretation of an arbitration clause which contained a misdescription of the arbitral institution.

PRIME Finance, a body that aims to facilitate dispute resolution in the global financial markets, has opened.

Natalia Belomestnova (Associate), Goltsblat BLP A recent ruling of the Federal Arbitrazh (Commercial) Court of the Central region (Commercial Court of third level) has drawn attention to the importance of keeping to time limits when seeking enforcement in Russia. This case provides confirmation that winning an arbitration does not always equate to reaching the desired goal.

The procedure for applying for permission to appeal under section 69 of the Arbitration Act 1996 will change from 1 October 2010, as amendments to Practice Direction 62 take effect. (Free access.)

On 16 April 2013, the Minister of Justice presented a draft amendment of the Netherlands Arbitration Act to Parliament.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP On 20 October 2011, the Singapore Ministry of Law published a draft bill proposing amendments to Singapore's International Arbitration Act (IAA) and commenced a month-long public consultation on the amendments.

Alastair Henderson (Partner) and Sean Izor (Associate), Herbert Smith LLP On 8 March 2012, the Government of Singapore introduced an International Arbitration (Amendment) Bill and a Foreign Limitation Periods Bill to Parliament. These Bills reflect Singapore's continuing efforts to fine tune its arbitration laws and maintain its position as one of the world's leading international arbitration forums.

In Tethyan Copper Company Pty Ltd v Pakistan (ICSID Case No ARB/12/1), an ICSID tribunal considered an application for provisional measures under Article 47 of the ICSID Convention.

PriceWaterhouseCoopers, in conjunction with Queen Mary School of International Arbitration (directed by PLC Dispute Resolution Consultation Board member Professor Loukas Mistelis), has published its study on International Arbitration: Corporate Attitudes and Practices, 2008. One of the key findings of the 2006 PWC report, was that international arbitration enabled parties to obtain recognition and enforcement of arbitral awards in most countries of the world. The new report explores whether corporations' perceptions of the effectiveness of enforcement was consistent with their experience. Its key findings include: Corporations are the principal users of international arbitration, which remains their preferred dispute resolution mechanism. This is particularly so in certain industries, such as insurance, energy, oil and gas and shipping, where arbitration is the default dispute resolution mechanism. Corporations tend to prefer institutional to ad hoc arbitration. The most popular institution is the ICC.Overall, 92% of arbitration disputes are successfully resolved at some stage through the arbitration proceedings. Enforcement of arbitration awards is effective, though there is a high degree of voluntary compliance with awards. The most commonly arising problem is lack of assets against which an award can be enforced, but corporations usually recover more than 75% of the value of the award. Settlement usually occurs before the first hearing, though companies often s

The School of International Arbitration at Queen Mary, University of London has invited responses to its 2013 International Arbitration Survey.

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman The Queensland Supreme Court has held that a claimant which had failed to argue or adduce evidence in respect of its breach of contract claims was estopped from pursuing those claims after the tribunal had made its interim arbitral award, as they were res judicata.

Publication of a quick guide on document production in international arbitration.

In Frontier Petroleum Services Ltd v Czech Republic (Final award, PCA, UNCITRAL Arbitration Rules, 12 November 2010), the tribunal considered whether the Czech Republic was in breach of its obligations under a bilateral investment treaty as a result of the Czech courts' refusal to recognise and enforce an international arbitration award on grounds of public policy under the New York Convention.

Brendan Green (Associate), Herbert Smith LLP In a decision of 2 November 2011, the Reims Court of Appeal has set aside an ICC award originally rendered in December 2007. The same award had previously been set aside by the Paris Court of Appeal. However, the Paris Court of Appeal's decision was then quashed by the French Supreme Court, which referred the matter to the Reims Court of Appeal. The latter found that the chairman's failure to fully disclose dealings between the firm in which he was "of counsel" and the consortium to which one of the parties belonged, raised reasonable doubts as to his independence.

Anne Freeman (Partner), Piper Alderman In a decision dated 30 July 2010, the Supreme Court of New South Wales provided a valuable summary of the "slip rule" power.

As we have previously reported (Legal update, Discussions continue on proposed amendments to UNCITRAL rules ), the UNCITRAL Working Party met in February to continue their discussions of various proposed amendments to the UNCITRAL arbitration rules, including new provisions aimed at introducing greater transparency in investor-state arbitrations. A detailed report of the February discussions, drafted by the Asia Pacific Regional Arbitration Group's representative at the discussions, has now been published on the APRAG website .

Ruth Byrne (Solicitor Advocate), Herbert Smith LLP In a recent judgment,  the English High Court dismissed an application by Serbia to challenge an arbitral award for lack of substantive jurisdiction under section 67 of the Arbitration Act 1996 on the ground that Serbia had conferred substantive jurisdiction on the arbitrator by virtue of the Terms of Reference.

James Clark (Associate), Herbert Smith LLP The Paris Court of Appeal has rejected an application for the annulment of an arbitral award and held that res judicata is a question of admissibility that can only be assessed by an arbitral tribunal. The fact that an arbitral tribunal proceeds to hear and determine claims that are arguably res judicata cannot therefore constitute a ground for the annulment of an award before the French courts.

Therese Villard (Associate) and Polina Permyakova (Associate), Delphi The revised SCC Arbitration Rules entered into force on 1 January 2010. The new Rules introduce a number of changes, the most significant being the provision for an emergency arbitrator to order interim measures.

PD Dr. Nathalie Voser (Partner) and Aileen Truttmann (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 30 April 2012 and published on 16 May 2012, the Swiss Supreme Court confirmed that a party cannot request the revision of an award on the basis of facts discovered after the award was rendered, if the failure to discover the evidence was due to the party's own negligence.

An update on discussions regarding proposed revisions to the UNCITRAL arbitration rules.

Eduardo Damião Gonçalves (Partner), Débora Auler Almeida Prado (Associate) and Diego Nocetti (Associate), Mattos Filho Advogados In a decision rendered on 18 August 2011, the Court of Appeal of the State of Rio de Janeiro (TJRJ) reaffirmed the negative effect of arbitration agreements. The TJRJ upheld the lower court’s decision, dismissing the lawsuit filed by the claimant, in which the latter alleged the abusive nature of the arbitration agreement contained in an adhesion contract (standard form contract) entered into with the respondent. The TJRJ confirmed the legality of arbitration agreements in adhesion contracts, provided that the applicable legal conditions were met.

Maxim Kulkov (Partner), Goltsblat BLP On 20 July 2011, a Russian Commercial Court recognised an arbitral award issued in Turkey under the ICC Rules.

Maxim Kulkov (Partner), Goltsblat BLP On 10 March 2011 the Federal Arbitrazh Court of the North-West District confirmed the enforcement of a Stockholm Chamber of Commerce (SCC) award in a Norwegian-Russian dispute.

Natalia Belomestnova (Senior associate), Goltsblat BLP On 30 January 2012, the Supreme Commercial Court of the Russian Federation supported the conclusions of the lower courts in Novolipetsky Steel Mill v Maximov (case No. A40-35844/2011-69-311) that corporate disputes are not arbitrable in Russia.

Elena Trusova (Partner), Goltsblat BLP This summer, the National Arbitration Chamber was created in Russia, with the main goal of developing and supporting commercial arbitration in different regions of Russia. At present, nine regional arbitration courts and institutions are members of the Chamber. The future plan is that all regions of Russia will have representatives in the Chamber.

Natalia Belomestnova (Senior Associate), Goltsblat BLP On 13 September 2011, in Stena RoRo AB v Baltic Plant JSC, the Russian Supreme Commercial Court annulled the decisions of the lower courts and enforced an SCC award for liquidated damages.

Leonie Parkin (Associate) and Jide Adesokan (Legal Assistant) Stephenson Harwood The Rwandan Private Sector Federation (PSF) is set to open an international arbitration centre in its capital, Kigali, called the Kigali International Arbitration Centre (KIAC).  KIAC was established by statute in 2011 and one of its key purposes is to promote the resolution of commercial disputes by arbitration and alternative dispute resolution. 

Kamal Shah (Partner) and Jonathan Morton (Trainee), Stephenson Harwood In a decision of the Supreme Court of India on 11 August 2010, in an appeal concerning the long running dispute between Satyam Computer Services Ltd (SCS) and Venture Global Engineering (VGE), the court held that "concealment of relevant material facts" from an arbitrator can amount to fraud.   

The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) and the Hong Kong International Arbitration Centre have signed a co-operation agreement for the efficient resolving of international commercial disputes. They will: Jointly promote the use of arbitration, mediation, conciliation and other appropriate procedures by seminars, conferences and other programmes. Recommend to each other arbitrators, mediators, experts or assessors and share information on arbitration in their respective jurisdictions. Arrange for each other facilities and support for the conduct of hearings or meetings. Explore ways in which they may jointly assist in the administration of investor-state arbitrations relating to Chinese parties. Source: SCC Institute

Olof Ragmark (Partner), Delphi A survey, conducted by Taylor Wessing LLP, has confirmed, amongst other things, that arbitration is the overall preferred method of dispute resolution and that the SCC is the most keenly supported arbitration institution amongst its users, followed by the LCIA.

An update on the publication of a proposal by the SCC to amend its arbitration rules by providing for an emergency arbitrator to deal with interim measures.

Sverker Bonde (Partner), Delphi, Sweden The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) has had a total of 27 investment disputes filed under its rules in the last ten years.

Olof Rågmark, Partner, Advokatfirman Delphi, Stockholm The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) has announced its 2011 caseload statistics and launched a new Swedish Arbitration Portal which provides free access to English translations of Swedish court decisions on arbitration issues.

Sverker Bonde, (Advokat and Senior Associate), Advokatfirman Delphi, Stockholm The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) has released statistics of the number of new cases filed with the SCC during the first four months of 2010, which include the first decision rendered under the new Emergency Arbitrator provision.

An update on the Scottish and Irish Arbitration Acts.

The Scottish Arbitration Centre and the Centre for Energy, Petroleum and Mineral Law and Policy at the University of Dundee (CEPMLP) will work together on an energy arbitration project in Scotland. (Free access.)

Following the implementation of the Arbitration (Scotland) Act 2010, the newly formed Scottish Arbitration Centre has been launched.

The Chartered Institute of Arbitrators have published the Scottish short form arbitration rules.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The District Court for the Southern District of New York has refused a party's petition for the court to appoint a replacement arbitrator when the arbitration agreement was silent on replacement. The court refused because the clear intent of the parties was that each be allowed one party-appointed arbitrator.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP The Second Circuit has affirmed the dismissal of a complaint in a contract dispute on the basis of a forum selection clause referring the matter to arbitration in St. Petersburg, Russia. 

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP The United States Court of Appeals for the Second Circuit has held that a class action arbitration waiver is unenforceable because individual claims to vindicate federal statutory rights, rather than a class action, were shown to be financially unfeasible.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Second Circuit Court of Appeals has reversed a district court’s grant of a motion to permanently stay an arbitration, relying on a broad interpretation of an arbitration clause to find that the court could not decide issues of timeliness.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP The Second Circuit has affirmed a denial of a motion to compel arbitration of a class action in part based on the Supreme Court’s recent decision in Stolt-Nielsen SA, et al. v AnimalFeeds In’l Corp.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Second Circuit Court of Appeals has found that a class action waiver in a commercial arbitration provision cannot be enforced when plaintiffs demonstrate that the waiver precludes them from enforcing statutory rights.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP The Second Circuit has affirmed the denial of a motion to compel arbitration by a purported third-party beneficiary of the contract when the plain language of the arbitration agreement did not contemplate third-party participation.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Christopher P. DeNicola (Law Clerk), Paul, Weiss, Rifkind, Wharton & Garrison LLP On 6 October 2009, an amendment offered by U.S. Senator Al Franken to stop funding defence contractors who commit employees to mandatory binding arbitration in cases involving sexual assault passed the United States Senate by a vote of 68-30.  

The US Court of Appeals for the Seventh Circuit in Johnson Controls, Inc. v. Edman Controls, Inc. refused to vacate an arbitration award and admonished the appellant for pursuing the appeal, warning that challenges to commercial arbitral awards come with a "high risk of sanctions."

PLC Arbitration has published a case study on commencing an international arbitration under the Arbitration Rules of the Singapore International Arbitration Centre. (Free access.)

On 27 April 2013, the Singapore International Arbitration Centre (SIAC) announced the launch of a new office in Mumbai, India.

An update on the publication of a new practice note by SIAC.

The Singapore International Arbitration Centre (SIAC) has released its statistics on the number of cases filed in 2012.

Polina Permyakova (Associate), Delphi New rules concerning VAT on services are expected to enter into force in Sweden on 1 January 2010. The rules will mean that Swedish arbitrators will no longer be obliged to charge VAT on their services to foreign companies based in the EU.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore High Court has dismissed an appeal against an order staying proceedings in favour of foreign arbitration. The High Court rejected the argument that there was no dispute between the parties warranting a stay of proceedings, holding that the courts would readily find that a dispute exists unless the defendant admitted the claim was due and payable. This was regardless of whether the defendant had mistakenly made an admission to the claim previously.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP A recent decision of the Singapore High Court makes clear that special circumstances are required before a stay of execution of an arbitral award pending appeal will be granted.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP In a recent but unpublished decision, the Singapore High Court upheld an ICC award which dismissed the claims of an airport operator against the Philippines on grounds of illegality.

Alvin Yeo, Senior Counsel (Senior Partner) and Andre Maniam (Head of Litigation & Dispute Resolution Department), WongPartnership LLP Singapore's Ministry of Law is proposing to amend and modernise the Singapore International Arbitration Act (IAA) so as to further enhance Singapore's reputation as a well-respected international arbitration centre.

An update on Singapore's International Arbitration (Amendment) Act 2009.

South Sudan has ratified the ICSID Convention.

Alejandro López Ortiz (Senior Associate) and Silvia Martínez (Junior Associate), Hogan Lovells International LLP On 20 – 22 June 2010, the Spanish Arbitration Club (CEA) held its 5th Annual International Congress in Madrid. More than 200 arbitration practitioners from 15 different jurisdictions attended this year's congress which was entitled "The Arbitrators: a Global Approach".

Alejandro López Ortiz (Associate) and Silvia Martinez (Associate), Lovells LLP A number of recent decisions by Spanish First Instance Courts show that Spanish courts are ready to quickly assist the parties with interim measures in international arbitration cases, regardless of the fact that the seat of the arbitration is abroad or that arbitration proceedings may not yet have been initiated. The decisions demonstrate the Spanish courts' increasing understanding and respect for international arbitration, and have enhanced Spain's growing reputation as an arbitration-friendly jurisdiction.

An update on Dubai's Decree No 57 for 2009, Establishing a Tribunal to decide the Disputes Related to the Settlement of the Financial Position of Dubai World and its Subsidiaries.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 11 April 2011 and published on 15 April 2011, the Swiss Supreme Court ruled that the petitioner could still have a legitimate interest in requesting that a CAS award be set aside, even if the sanction for non-payment which was the object of the award had in the meantime been lifted following payment by the petitioner.

An update on Vivendi v Argentina (ICSID Case no ARB /97/3) (Annulment Proceedings), in which an ad hoc tribunal considered whether to continue a stay of enforcement of an ICSID award.

Ms. Priyanka Gandhi (Associate) and Ms. Neha Samant (Trainee), Juris Corp   In a recent decision, the Delhi High Court granted interim relief under Part I of the Indian Arbitration and Conciliation Act 1996 and held that Part I applied because the parties had neither expressly nor impliedly excluded its applicability.

Joanne Greenaway, Professional Support Lawyer, Herbert Smith LLP The English Court of Appeal has provided welcome guidance on determining the proper law of the arbitration agreement where none is expressly stated.

Natalia Belomestnova (Senior Associate), Goltsblat BLP In a decision dated 21 February 2011, but only recently published, the Russian Supreme Commercial Court in Sberbank v Business-Lada LLC, Lada-Forward LLC et al (case N A55-11220/2010) considered arbitration agreements in standard form contracts. The Supreme Court stated that arbitration clauses included in boilerplate contracts are invalid unless the parties confirm their intent to arbitrate after the dispute arises.

PD Dr. Nathalie Voser (Partner) and James Menz, J. D. (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 1 March 2011 and published on 28 March 2011, the Swiss Supreme Court considered, but ultimately did not determine, the issue of independence in connection with the appointment as arbitrator of a close confidante. The petition to set aside was barred by a valid waiver.

The UK Supreme Court has granted permission to appeal in Nurdin Jivraj v Sadruddin Hashwani [2010] EWCA Civ 712. (Free access.)

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), White & Case LLP The Supreme Court has heard oral arguments in a labour arbitration case as to whether the federal district court has jurisdiction to determine whether a collective bargaining agreement containing an arbitration clause was formed, or if that question is for the arbitrator. 

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Paul, Weiss, Rifkind, Wharton & Garrison LLP In 14 Penn Plaza LLC v. Pyett, 129 S.Ct. 1456 (2009), the U.S. Supreme Court held (5-4) that provisions of a collective bargaining agreement under the National Labor Relations Act (NLRA) that clearly require union members to submit age discrimination claims under the Age Discrimination in Employment Act (ADEA) to arbitration are enforceable. The decision reflects the court's increasing comfort with arbitration as a suitable forum for resolving a broad range of disputes traditionally addressed by courts.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP In AT&T Mobility LLC v Concepcion, No. 09-893 (Apr. 27, 2011), the US Supreme Court reversed a Ninth Circuit Court of Appeals decision applying California law to find an arbitration provision waiving class arbitrations unconscionable.

Kamal Shah (Partner) and Jonathan Morton (Trainee), Stephenson Harwood  The Supreme Court of India has held that, once an arbitration clause has been invoked, it does not negate the possibility of future use of the same clause. In its judgment dated 17 February 2010, the court held that neither the onerous financial cost of multiple arbitrations, nor the time involved, would prevent multiple actions being brought through one arbitration clause. The court went on to suggest ways to draft such a clause so as to avoid such "highly expensive and time-consuming" actions.

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman The Supreme Court of Victoria has allowed an appeal, finding that an arbitrator had failed to discharge his mandate under section 22(2) of the Commercial Arbitration Act 1984 which provides for an arbitrator to determine issues by reference to considerations of general justice and fairness.

Therese Villard, Associate, Advokatfirman Delphi, Stockholm The Swedish Supreme Court has held that an obstacle to the recognition and enforcement of a foreign arbitral award may be presumed if it is not clear from the award, or otherwise, that the respondent has been notified of the arbitration or if the respondent in the recognition/enforcement matter can show reasonable doubt that he received proper notice.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The US Supreme Court has vacated a Florida Court of Appeal decision that upheld a trial court’s denial of a motion to compel arbitration because the Court of Appeal found that two of the four claims at issue were non-arbitrable and so failed to address the remaining two claims.

The Supreme Court of the United States has vacated the Oklahoma Supreme Court’s decision declaring a non-competition agreement null and void because, under federal law, the determination should have been left to an arbitrator.

Olof Rågmark, partner, Advokatfirman Delphi, Stockholm The Svea Court of Appeal has dismissed an appeal against an SCC award, upholding the tribunal's finding that the contracts in question (which included arbitration clauses) had been duly entered into.

Sverker Bonde (Advokat and Senior Associate) and Julia Hedbäck (Intern), Delphi On 23 March 2010, the Svea Court of Appeal in Stockholm ordered a company to produce source code files in arbitration proceeding even though they related  to trade secrets. The Court of Appeal considered that there were strong reasons in favour of disclosing the files since the defendant based its claim on the files.

Sverker Bonde (Partner), Delphi In two recent decisions, the Svea Court of Appeal has rejected challenges based on an exceeded mandate and has upheld both arbitral awards in their entirety.

Olof Ragmark (Partner) and Polina Permyakova (Associate), Delphi A report highlighting the most significant arbitration related developments in Sweden in 2009.

Polina Permyakova (Senior Associate), Advokatfirman Delphi The Swedish Supreme Court has considered the issue of repeat appointments in connection with the challenge of an arbitral award.

PD Dr. Nathalie Voser (Partner) and Dr. Petra Rihar (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 11 February 2010, published on 29 March 2010, the Swiss Federal Supreme Court dismissed an appeal against a tribunal's decision that it had jurisdiction over a request for a declaration that damages were due for breach of an arbitration clause. The Court dismissed the appeal because it had not been filed in time. However, it also held that the tribunal's declaration concerning damages for breach of an arbitration clause did not violate Swiss public policy.

PD Dr Nathalie Voser (Partner) and Dr. Petra Rihar (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 14 June 2010, published on 28 June 2010, the Swiss Federal Supreme Court dismissed, without examining the merits (Nichteintreten), an appeal requesting the Supreme Court to set aside a procedural order. The Supreme Court had requested the party filing the appeal to pay an advance on costs in the total amount of CHF110,000 which the appealing party declined to do.

PD Dr. Nathalie Voser (Partner) and Benno Strub (Senior Attorney), Schellenberg Wittmer (Zurich) In an Italian-language decision dated 10 March 2010, published on 31 March 2010, the Swiss Federal Supreme Court confirmed that it will not re-examine the interpretation by an arbitral tribunal of a legal rule or of a contract on an application to set aside an award as contrary to public policy. In particular, the principle of pacta sunt servanda (agreements must be kept), which is part of Swiss public policy, only constitutes a ground for the setting aside of an arbitral award if the arbitral tribunal renders a decision which is incompatible with its own findings, for instance if it does not apply a contractual clause after having admitted its binding nature.

PD Dr. Nathalie Voser (Partner) and James Menz, J.D. (Associate), Schellenberg Wittmer (Zurich) In two recent French-language decisions dated 5 and 18 March 2010, the Swiss Federal Tribunal considered  the allocation of costs in an arbitration under the principle of ordre public, and reaffirmed its restrictive approach to violations of the right to be heard.

PD Dr. Nathalie Voser (Partner), Schellenberg Wittmer (Zurich) In a recent lengthy French-language decision dated 10 June 2010 and published on 14 June 2010, the Swiss Federal Tribunal ruled upon the alleged improper appointment of two arbitrators. The Tribunal rejected an impartiality challenge against the first arbitrator for lack of evidence. In relation to the second arbitrator, the Federal Tribunal confirmed that an arbitrator who has already rendered an award between the same parties and relating to the same matter in dispute may also render the final award, as long as different legal theoretical issues are involved. The Federal Tribunal also refused to set aside the award due to incompatibility with substantive public policy.

PD Dr. Nathalie Voser (Partner) and James Menz, J.D. (Associate), Schellenberg Wittmer (Zurich) In a decision dated 6 January 2010 and published on 3 February 2010, the Swiss Federal Tribunal rejected a petition to set aside an award by a panel of the Court of Arbitration for Sport (CAS) as incompatible with public policy.  The Federal Tribunal considered the petition an appeal on questions of law disguised as an ordre public challenge; moreover, the CAS had in fact properly applied the law.

PD Dr Nathalie Voser (Partner) and James Menz, J.D (Associate), Schellenberg Wittmer (Zurich) In a landmark German-language decision dated 13 April 2010 and published on 2 July 2010, the Swiss Federal Tribunal set aside an arbitral award rendered by a tribunal of the Court of Arbitration for Sports (CAS) for violation of the principle of res judicata. This is the first time that the Federal Tribunal has set aside an arbitral award for violation of public policy.

An arbitral tribunal is deemed to have an inherent power to rule on its own jurisdiction (kompetenz-kompetenz). This power is set out in many of the procedural rules (including ICC, LCIA and UNCITRAL) and in certain national arbitration laws. However, in Switzerland, the position was that: The tribunal had power to rule on its own jurisdiction under article 186 of the Swiss Private International Law Act 1987 (PILA), which recognises the concept of competence-competence. However (following the 2001 "Fomento" case in the Swiss Supreme Court), an arbitral tribunal was obliged to stay any proceedings under the same criteria as a Swiss court would have to apply under article 9 of the PILA. Under that provision, when an action having the same subject matter is already pending between the same parties in a foreign country, the Swiss court must stay the proceedings subject to certain other criteria. The amendment of Article 186 of the PILA, which takes effect from 1 March 2007, will insert additional wording which provides that a tribunal shall decide on its jurisdiction notwithstanding that an action on the same matter is already pending before a state court or another arbitral tribunal, unless there are serious reasons to stay the proceedings. This amendment (which effectively overrules the "Fomento" principle) has been welcomed by commentators and practitioners. It will provide greater certainty to parties choosing to arbitrate their disputes in Switzerland th

PD Dr. Nathalie Voser (Partner) and Sonja Stark-Traber (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 22 June 2010 and published on 20 September 2010, the Swiss Supreme Court acceded to an impartiality challenge to a sole arbitrator in a domestic arbitration case on the ground that the arbitrator had an indirect personal interest in the outcome of the arbitration proceedings.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a lengthy French-language decision dated 29 October 2010 and published on 19 November 2010, the Swiss Supreme Court dismissed, among other claims, an impartiality challenge against a party-appointed arbitrator of the Court of Arbitration for Sport (CAS). In its ruling, it clarified several issues of general interest, chief among which was the question of whether party-appointed arbitrators are to be held to the same standard of independence and impartiality as the chairperson of the tribunal or a sole arbitrator.

In a French language decision dated 14 December 2012, the Swiss Supreme Court found that it had jurisdiction over a petition for setting aside an unreasoned arbitral award.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 25 October 2010 and published on 19 November 2010, the Swiss Supreme Court dismissed a petition to set aside a judgment of the Appeals Court of Zug which held an arbitration clause to be inoperative within the meaning of Article II(3) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

PD Dr. Nathalie Voser (Partner) and Hannah Boehm (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 7 November 2011 and published on 29 December 2011, the Swiss Supreme Court held that a panel of the Court of Arbitration for Sport (CAS) had rightly interpreted a pathological arbitration clause contained in an agreement between a football club and a football agency in order to assume its jurisdiction to decide on the dispute regarding transfer fees.

PD Dr. Nathalie Voser (Partner) and Dr. Dorothee Schramm (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 20 December 2010 and published on 17 January 2011, the Swiss Supreme Court refused to set aside an arbitral award and denied a violation of the right to be heard. According to the Supreme Court, the applicant could not claim that the sole arbitrator's decision was surprising.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In two French-language decisions of 28 June and 23 July 2012, respectively, the Swiss Supreme Court dealt in some detail with the procedural and substantive requirements for the revision of arbitral awards. The second case, which concerned domestic arbitration, raised several issues which are also of interest to international arbitration practitioners, in particular the question of the admissibility of a request for revision based on an expert report established after the award was made.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 10 October 2011 and published on 20 October 2011, the Swiss Supreme Court upheld a decision granting recognition and enforcement of a foreign arbitral award, despite the fact that the party seeking enforcement had failed to produce the original or a certified copy of the arbitration agreement, as required by Article IV(1)(b) of the New York Convention.

PD Dr. Nathalie Voser (Partner) and Elisabeth Leimbacher (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 18 June 2012 and published on 12 July 2012, the Swiss Supreme Court among other interesting observations considered as "convincing" the view that the Court of Arbitration for Sport retains jurisdiction to dismiss an appeal filed after expiry of the time limit, without however decisively settling this issue. The Supreme Court also reiterated that the principle of reverse onus in doping disputes does not trigger "ordre public" in terms of Article 190(2)(e) PILA.

In a French-language decision dated 1 October 2012, the Swiss Supreme Court rejected an application to set aside an arbitral award rendered in Court of Arbitration for Sport (CAS) proceedings that involved a dispute between two football teams over the transfer of a player. The applicant had argued that the CAS tribunal violated its right to be heard, as well as public policy, by (among other things) not considering a closely related set of claims brought in a separate CAS arbitration alongside the claims in the arbitration at hand.

PD Dr. Nathalie Voser (Partner) and Pierre Ducret LL.M (Associate), Schellenberg Wittmer (Zurich/Geneva) A recently published German-language article gives a useful and detailed account of all arbitration matters which were decided by the Swiss Supreme Court in 2010.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 5 July 2011, the Swiss Supreme Court ruled on the distinction between an expert determination and an arbitral award and, for the first time, applied the relevant provisions of the Swiss Code of Civil Procedure to a request to set aside a domestic arbitral award.

PD Dr. Nathalie Voser (Partner) and Dr. Patrick Rohn (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 10 November 2010 and published on 22 November 2010, the Swiss Supreme Court confirmed that arbitral decisions on advances on costs and on suspension of the proceedings qualify as procedural orders, and that such procedural orders cannot be challenged before the Supreme Court. The Supreme Court further held that arbitrators lack the power to rule on their own claim for fees and expenses because their claim for remuneration does not arise from the parties' agreement to arbitrate and, as a matter of principle, the arbitrators are not allowed to rule on their own claims. If a tribunal "orders" the parties to pay the arbitrators' fees, such an "order" only qualifies as an invoice to the parties and an invitation to pay the fees agreed under the receptum arbitri.   

PD Dr. Nathalie Voser (Partner), Dr. Petra Rihar (Associate) and Dr. Dorothee Schramm (Associate), Schellenberg Wittmer (Zurich and Geneva) A look ahead to the expected arbitration related developments in Switzerland in 2010.

Syria has enacted a new arbitration law which will apply to all contracts signed after 1 May 2008. The new law is based on the Egyptian Arbitration Act and the UNCITRAL Model Law. However, it is understood that the law does not contain any new provisions governing the enforcement of foreign awards, which will remain subject to the rules governing the enforcement of foreign judgments, despite the fact that Syria became a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 1959. Source: Global Arbitration Review

Valeria Galíndez (Partner) and Patrícia Kobayashi (Associate), Barretto Ferreira, Kujawski, Brancher and Gonçalves (BKBG) In a decision of 12 May 2010, the Court of Appeal of the State of São Paulo (TJSP) once again recognised the negative effect of arbitration agreements. In so doing, the TJSP affirmed the first instance decision which had dismissed the action filed by the claimant (Back) for the payment by the respondent (Unibanco) of certain monies for services rendered under the subject contract. The TJSP took this view, regardless of the alleged pathological character of the arbitration agreement.

A legal update on Price and another v Carter (t/a Ian Carter Building Contractors) [2010] EWHC 1451, where the Technology and Construction Court (TCC) considered, among other issues, rules 2.1 and 4.2 of the Construction Industry Model Arbitration Rules (CIMAR).

The decision in The Rompetrol Group NV v Romania (ICSID Case No. ARB/06/3) relates to a preliminary objection to the jurisdiction of an ICSID tribunal in relation to a claim arising under a bilateral investment treaty (BIT). The respondent claimed that the claimant company was, in effect, owned and controlled by a domestic national and that the investment funds were from a domestic source. Accordingly, although the claimant was incorporated under Dutch law, its "real and effective" nationality was Romanian. Therefore the matter did not fall within the scope of the ICSID Convention.The tribunal dismissed this objection. The ICSID Convention allowed contracting parties wide latitude to agree the criteria on which nationality would be determined. When interpreting a treaty, Article 31 of the Vienna Convention requires the terms to be given their "ordinary meaning". In this case, the BIT provided that nationality of a company could be determined solely by the law under which it was constituted. The terms of the BIT were clear and unambiguous and there was no principle of international law that would override them.

The Admiralty and Commercial Courts Guide 9th edition (2011) has been published.

Alejandro López Ortiz (Associate), Lovells LLP The new Rules of the Court of Arbitration of Madrid came into force on 1 January 2009. Although it is too soon to make a final judgment, practitioners have generally welcomed the rules, as they represent a decisive step towards modernity and internationalisation and an attempt to become a natural venue for disputes between Latin-American and European parties.

Maxim Kulkov (Partner), Goltsblat BLP The Russian Federation's Supreme Arbitration Court has ruled in favour of granting interim measures in support of international commercial arbitrations which have their seat abroad, finally resolving  the debate as to whether the Russian courts can rely on Article 90(3) of the Russian Arbitrazh Court code.

The US Court of Appeals for the Third Circuit clarified in Guidotti v. Legal Helpers Debt Resolution the standard to be applied for motions to compel arbitration.

The United States Court of Appeals for the Third Circuit has reversed an order compelling arbitration, based on a finding that a defendant waived its rights to arbitrate when it actively litigated the case in federal court for more than ten months prior to demanding arbitration.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Christopher P. DeNicola (Law Clerk), Paul, Weiss, Rifkind, Wharton & Garrison LLP The Third Circuit has vacated a multidistrict litigation judge's order vacating an arbitration order previously issued by a transferor judge in the case.  The court reasoned that when the transferor judge issued an order compelling arbitration and staying judicial proceedings pending arbitration, that order effectively became part of "the law of the case".

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a French-language decision of 19 April 2011, published on 16 May 2011, the Swiss Supreme Court upheld the decision of an arbitral tribunal which had found that it had jurisdiction to hear the claims of a third party beneficiary in relation to a dispute opposing promisor and promisee.

James Clark (Associate), Herbert Smith LLP The French Supreme Court has upheld a Paris Court of Appeal decision confirming that third parties cannot challenge an international arbitration award even if they claim that the award affected their rights.

Andrew Robertson (Partner), Piper Alderman Three Australian courts have recently issued decisions on the standard of reasoning required in arbitral awards. In the first case, the New South Wales Court of Appeal disagreed with the finding of the Victoria Supreme Court in Oil Basins Ltd v BHP Billiton Ltd [2007] VSCA 255 (Oil Basins) that an arbitrator's standard of reasoning should equate to that of a judge. Instead, it drew a distinction between the arbitration and litigation processes. In the second case, a single Justice of the Queensland Supreme Court rejected the reasoning in both the New South Wales Court of Appeal’s decision and in Oil Basins. Finally, a single Justice in the Supreme Court of Victoria distinguished Oil Basins on the basis that it only applied to very substantial, complex and lengthy arbitrations, and referred to the New South Wales Court of Appeal decision with apparent approval.

Gavin Chesney, Associate, Herbert Smith LLP In Deutsche Bank AG v Tongkah Harbour Public Company Ltd [2011] EWHC 2251 (Comm), the UK Commercial Court was asked to consider a suite of finance contracts. The two key contracts both contained English court jurisdiction clauses, but gave the lender bank an option to refer disputes to LCIA arbitration.

Note: The Court of Appeal allowed an appeal from the decision of Toulson J (see Sumukan Ltd v Commonwealth Secretariat [2007] EWCA Civ 1148) In Sumukan Limited v Commonwealth Secretariat [2007] EWHC 188 (Comm), Toulson J dismissed applications to set aside an award of the Commonwealth Secretariat Arbitral Tribunal, holding that the applicants had failed to demonstrate the alleged bias on the part of the tribunal. The case is of interest because, in effect, the defendant had appointed one of the arbitrators without complying with certain statutory requirements. However, the judge refused to find that there were grounds for doubting the independence of the particular arbitrator in question. The judgment also addresses (albeit inconclusively) the interrelationship between section 73 of the Arbitration Act 1996 and article 6 of the European Human Rights Convention.

PD Dr. Nathalie Voser (Partner) and Aileen Truttmann (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 7 February 2011 and published on 2 March 2011, the Swiss Supreme Court (Supreme Court) dismissed a petition to set aside an award and confirmed that the arbitral tribunal was competent to rule on preliminary questions even if these questions were not covered by the arbitration clause.

In Bureau Veritas, Inspection, Valuation, Assessment and Control BIVAC BV v The Republic of Paraguay (ICSID Case No ARB/07/9), an ICSID tribunal has stayed proceedings in order to give the claimant an opportunity to commence local court proceedings under the relevant contract.

Kamal Shah (Partner) and Matthew Harley (Trainee solicitor), Stephenson Harwood LLP The Ugandan Government is facing mounting pressure from campaigners in Uganda who are demanding that the confidentiality of arbitral proceedings be lifted in the dispute between the Government and Heritage Oil. The dispute concerns unpaid capital gains tax on recently discovered deposits of oil.

Herbert Smith LLP in association with PLC Arbitration A look ahead to the expected arbitration related developments in the UK in 2010.

Irina Nazarova (Partner), ENGARDE Attorneys at Law, (Ukraine) A look ahead to the expected arbitration related developments in Ukraine in 2010.

Ivan Lischchyna (Counsel), ENGARDE Attorneys at Law, (Ukraine) The Higher Commercial Court of Ukraine has allowed court proceedings to continue despite the contracts at dispute containing an arbitration clause referring all disputes to the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry.

In Bosh International Inc and another v Ukraine (ICSID Case No ARB/08/11), an ICSID tribunal considered whether the umbrella clause in the US/Ukraine bilateral investment treaty (BIT) extended to cover alleged breaches of a contract to which the Ukraine was not a party.

UNCITRAL has adopted the UNCITRAL Recommendations to assist arbitral institutions and other interested bodies in arbitration under the UNCITRAL Arbitration Rules 2010.

Key amendments introduced by the UNCITRAL Arbitration Rules 2010.

An update on the publication of a compilation of survey results on the New York Convention.

An update on the publication of the new UNCITRAL Arbitration Rules.

An update on Austrian Airlines v Slovak Republic (UNCITRAL, 20 October 2009), which considered the tribunal's jurisdiction over a claim for expropriation and the scope of a Most Favoured Nation clause.

The UNCITRAL Working Group II (Arbitration and Conciliation) continued its discussions on transparency in treaty-based investment arbitration in Vienna between 1 - 5 October 2012.

PLC Arbitration has published a tracker outlining previous UNCITRAL Working Group II (Arbitration and Conciliation) meetings. (Free access.)

Publication of the report of the UNCITRAL Arbitration and Conciliation Working Group's 53rd session on 4-8 October 2010, on the subject of transparency in investment treaty arbitration. (free access).

UNCTAD has released its 2012 annual review of investment treaty arbitration cases.

Marinn F. Carlson (Partner), Sidley Austin LLP The US Administration is undertaking a review of the US model bilateral investment treaty (BIT), last updated in 2004. The objective of the current review is to ensure that the model BIT is consistent with the public interest and the overall US economic agenda.

We have updated our article on arbitral institution fees to include individual tables and comparison graphs of administrative and arbitrator fees in key arbitral institutions.

We have updated our quick guides on enforcing arbitration awards and interim remedies to reflect the information contained in the PLC Cross-Border Arbitration multi-jurisdictional guide 2012/2013. (Free access.)

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP In response to the Supreme Court’s decision in AT&T Mobility v Concepcion (see Legal update, Supreme Court holds that Federal Arbitration Act preempts California State rule on unconscionability: full update), US Congressmen have introduced the Arbitration Fairness Act 2011, which is intended to amend the Federal Arbitration Act (FAA) to prohibit enforcement of certain mandatory pre-dispute arbitration agreements.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Paul, Weiss, Rifkind, Wharton & Garrison LLP The US Department of State Advisory Committee on Private International Law will hold a public meeting on 9 September 2009 to discuss the efforts of the UNCITRAL Working Group to revise the 1976 UNCITRAL Arbitration Rules.

An update on H J Heinz Co Ltd v EFL Inc [2010] EWHC 1203 (Comm), in which the court considered the application of the principles in Ladd v Marshall, where the source of the evidence was from the "opposite camp".

Natalia Belomestnova (Senior Associate) and Tatiana Zakharova (Paralegal), Goltsblat BLP On 19 June 2012, the Presidium of the Russian Supreme Commercial Court will consider the validity of so-called alternative hybrid arbitration clauses. In this particular case, the clause provides that only one party has the right to choose the dispute resolution forum.

Brendan Green (Associate), Herbert Smith LLP The Versailles Court of Appeal has referred a dispute to arbitration, dismissing objections that the case raised issues of public policy  barring the parties from having recourse to arbitration, and that one of the parties had waived its right to do so by litigating several related disputes before French courts.

An application presently before the Australian High Court has the potential to seriously affect Australia’s appeal as a seat for international arbitration. If the High Court application is successful it will prevent Federal Court Judges from enforcing awards made under an international arbitration conducted in Australia.

We have updated our collection of waiver of sovereign immunity clauses to include a sample clause for Sweden, with integrated drafting notes. (Free access).

We have published a new case tracker outlining the progress of the case of West Tankers v Allianz SpA and another. (Free access.)

An update on the judgment of the European Court of Justice in Allianz SpA, formerly Riunione Adriatica di Sicurtà SpA v West Tankers Inc (Case C-185/07).

We have published an article discussing the various stages in the dispute between West Tankers and Allianz SpA which has given rise to a series of decisions by different courts and tribunals. Free access.

WIPO has published examples of arbitration cases and mediation cases conducted under WIPO rules. The arbitration cases featured involve cross-border disputes arising out of a wide range of agreements that contain a clause agreeing to WIPO arbitration, including patent licences, trade mark co-existence agreements and an artist-promotion agreement. Cases in which mediation has produced a successful outcome include a patent dispute that resulted in an ongoing licence and consultancy agreement, a dispute over a software development agreement, and trade mark disputes.Source: WIPO Arbitration Case Examples; WIPO Mediation Case Examples, 25 June 2008.

An update on the ABA's draft paper entitled "Disclosures for Arbitrators in Commercial Disputes: A Checklist".

Priyanka Gandhi (Associate) and Neha Samant (Trainee), Juris Corp In a recent decision, the Supreme Court of India held that an appeal against an interim order passed by an arbitral tribunal seated outside India is not maintainable as the seat of arbitration was outside India and the arbitration proceedings were governed by foreign law. The court held that Part I of the Indian Arbitration and Conciliation Act 1996 was impliedly excluded.

Iain Maxwell, Herbert Smith LLP In Yukos Capital SARL v OJSC Rosneft Oil Co [2011] EWHC 1461 (Comm), the court considered two preliminary issues. First, it concluded that an issue estoppel arose from a finding of the Amsterdam Court of Appeal that earlier Russian court decisions annulling arbitral awards in favour of Yukos Capital were the result of a "partial and dependent judicial process". Second, it held that the act of state doctrine was not engaged in circumstances where the validity of the acts of the foreign state was not an issue.