International Arbitration

This practice note highlights and summarises some of the key features of the major global arbitral institutions.

A note on the annulment of awards in ICSID arbitration.

A step-by-step guide to running an arbitration under the UNCITRAL Rules 1976, from preliminary steps to post-award.

Switzerland is one of the most established venues venues for international arbitration. This note considers the framework for domestic and international arbitrations in Switzerland, as set out in Chapter 12 of the Private International Law Act, the Civil Code of Procedure and case law of the Swiss Federal Supreme Court. The note describes the most significant features of the arbitral process in Switzerland, from the requirements for a valid arbitration agreement to the duties and powers of the tribunal, and the role of the state courts.

The Brazilian Arbitration Act 1996 (BAA 1996) initiated a new era of arbitration in Brazil and provided a solid basis for its development. This practice note: Explains the underlying principles of the BAA 1996. Offers guidance on the interpretation of the BAA 1996. Explains the interplay between arbitral tribunals and courts in Brazil.

This note provides practical guidance on the grounds for challenging an arbitrator and the procedure for making a challenge. PLC Arbitration is grateful to Lee A. Steven of White & Case LLP for his assistance.

Claims referred to arbitration may be time-barred if the arbitration has not been commenced properly for the purposes of stopping time from running. Failure to commence an arbitration effectively may also result in the tribunal lacking jurisdiction to make a binding award. This note examines what steps to take to ensure an arbitration has been effectively commenced.

This practice note deals with the use of witness evidence in international arbitration. Its focus is on factual as opposed to expert witnesses.

A note examining the rules and principles that govern document production (also known as disclosure) in international arbitration, including practical tips for ensuring efficiency and avoiding delays.

A guide to drafting arbitration clauses in multi-party or multi-contract cases.

This practice note considers the following issues relating to enforcement of arbitral awards in China: Enforcing awards in China, both domestic and foreign-related.  Enforcing foreign arbitral awards in China. The procedure for enforcement and possible challenges to enforcement are explained, focusing in particular on the question of whether arbitration awards are, in practice, enforced within China.

A note outlining the circumstances in which expert evidence may be adduced in international arbitration, and providing guidance on the relevant practice and procedure.

A practice note analysing the fair and equitable treatment standard in international investment law, including comparisons with other standards of treatment.

This note considers the significance of the seat in international arbitration against the background of increased harmonisation of national arbitration laws and institutional rules. The concept of delocalised arbitration and the relevance of national laws are addressed.

A step-by-step guide to running an ICC arbitration, from preliminary steps to post-award, under the ICC Arbitration Rules 2012.

A Practice Note describing the necessary steps for conducting arbitration under the rules of the International Centre for Dispute Resolution.

This practice note outlines the range of interim measures available in the context of international arbitration, and gives practical advice on where, when and how to apply for such measures.

A step-by-step guide to running an LCIA arbitration, from preliminary steps to post-award.

A resource providing the text of, and links to, maritime arbitration clauses.

The settlement phase will follow the negotiation phase of a mediation.  Any agreement between the parties will be formalised. This note suggests methods for breaking deadlock in negotiations, and outlines the points to be considered when formalising any settlement agreed by the parties, including points to be covered in the settlement agreement, and the need to dispose of any court proceedings.

This note identifies the criteria that parties and their advisers should consider when selecting a mediator, including factors such as accreditation, experience and cost.  It also suggests ways of finding a suitable mediator for a particular dispute. 

A note identifying the issues that arise from multi-party and multi-contract situations, and considering different solutions to those issues.

A brief overview of the procedural powers which may be available to international arbitration tribunals.

This practice note outlines some of the practical and cultural considerations when assessing dispute resolution mechanisms and the advantages of arbitration for China-related disputes. The note also describes the most significant features of the arbitral process, focussing in particular on international arbitration under both the 2012 and 2005 versions of the CIETAC arbitration rules. The options for arbitrating China-related disputes outside China, and the possible choice of alternative venues and arbitral rules, are also considered.

This note offers a practical guide to selecting an arbitrator. It includes consideration of pre-selection interviews and the guidance offered in the International Bar Association Guidelines.

A resource providing the text of, and links to, institutional standard recommended arbitration clauses.

The definition of investment in international investment law is of fundamental importance to the question of whether a tribunal has jurisdiction over the subject matter of the dispute. This note examines the meaning of investment under international treaties and the ICSID Convention, and discusses specific issues which can arise in relation to the definition of investment.

This Note provides an overview of the scope of the federal legal principles applicable to arbitration in the US.

To invoke the protections of an investment treaty, one of the jurisdictional thresholds a claimant must overcome is to establish that it is an investor as defined by the relevant treaty. This note analyses the concept of an investor within the framework of international investment agreements.

This note outlines the main features of a selection of major arbitration institutions, and offers a comparative guide, including a table illustrating the similarities and differences which arise at different stages of the arbitral proceedings.

A quick guide to document production in key jurisdictions, based on information in the PLC Cross-border Arbitration Handbook 2011.

A quick guide to the interim remedies available from tribunals and local courts in key jurisdictions, based upon information in the PLC Cross Border Arbitration Handbook 2011-12.

A notice appointing a party-nominated arbitrator.

An example Answer to Notice of Arbitration under the HKIAC Administered Arbitration Rules.

An example covering letter for a Notice of Arbitration under the HKIAC Administered Arbitration Rules.

This document is available in MS Word format. Click here to view it.

This case study illustrates the commencement of an ICC arbitration (1998 Rules). It offers guidance on both: How to draft and file a Request for Arbitration. How to respond to the Request with an Answer, and (where appropriate), how to file a counterclaim.

This is an example Request for Arbitration under the ICC Rules 2012 and is available in MS Word format. Click here to view it.

This is an example Notice of Arbitration under the Arbitration Rules of the Singapore International Arbitration Centre and is available in MS Word format. Click here to view it.

This case study provides a worked example of the commencement of an international arbitration under the Arbitration Rules of the Singapore International Arbitration Centre. The case study consists of a Notice of Arbitration, together with a drafting note and a covering letter.

This is an example claim form for a freezing injunction in support of an arbitration. Click here to view it.

This is an example witness statement for a freezing injunction in support of an arbitration. Click here to view it.

A sample order for directions in an international arbitration conducted by the London Court of International Arbitration (LCIA). This document is only available in MS Word format. Click here to view it.

A sample ad-hoc arbitration clause providing for arbitration in Argentina, in English and Spanish.

An arbitration clause for an administered arbitration under the auspices of CIETAC, based on CIETAC's suggested wording.

A sample ad-hoc arbitration clause providing for arbitration in Estonia, in English and Estonian.

A sample ad hoc arbitration clause providing for arbitration in India.

A sample ad-hoc arbitration clause providing for arbitration in Ireland.

A sample ad-hoc arbitration clause providing for arbitration in Lithuania, in English and Lithuanian.

A sample ad-hoc arbitration clause providing for arbitration in Mauritius (for GBL companies).

A sample ad hoc arbitration clause providing for arbitration in Poland, in English and Polish.

A resource providing the text of and drafting notes for the standard recommended arbitration clauses of the American Arbitration Association, International Centre for Dispute Resolution, International Chamber of Commerce and the United Nations Commission on International Trade Law.

A sample ad hoc clause providing for arbitration in the US.

Please click here to view a comparative table of administrative and arbitrator fees in ICC, ICDR, SCC and LCIA arbitrations. The fees are calculated on the basis of a sole arbitrator.

A comparative table on document production under the LCIA, ICC, ICDR, SCC and UNCITRAL arbitration rules.

A comparative table on evidence under the LCIA, ICC, ICDR, SCC and UNCITRAL arbitration rules.

A flowchart showing all the stages of an ICC arbitration (1998 Rules). For a more in-depth look at the procedure in an ICC arbitration (1998 Rules), please see ICC arbitration (1998 Rules): a step-by-step guide.

A flowchart showing all the stages of an ICDR arbitration.

A flowchart showing all the stages of an LCIA arbitration. For a more in-depth look at the procedure of an LCIA arbitration, please see LCIA arbitration: a step-by-step guide.

A checklist of procedural and other matters that the parties or the tribunal can usefully raise at the preliminary meeting stage of an arbitration. The checklist can be used as an agenda to prepare for a preliminary meeting, or as a framework for discussing or agreeing procedural directions.

A flowchart showing all the stages of an UNCITRAL arbitration, based on the UNCITRAL Arbitration Rules 2010. For more detailed guidance, see Practice note, Arbitrating under the UNCITRAL Rules 2010.

A collection of essential reading materials, tools and useful information to assist the arbitration practitioner.

On April 18, 2012, Practical Law Company and Hughes Hubbard & Reed presented Class Action Waivers in Arbitration Agreements: Drafting Effective Clauses in the New Environment, a one-hour webinar on how to tailor contract language and address the changing legal landscape of class action arbitration. You can access the recorded webinar here (registration required to view recorded webinar). Click here to download webinar slides.

A Q&A guide to arbitration law and practice in Germany. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. For a full list of law firms and lawyers, recommended for their arbitration expertise in Germany, please visit PLC Which lawyer? To compare answers across multiple jurisdictions visit the Arbitration Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in India. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. For a full list of law firms and lawyers, recommended for their arbitration expertise in India, please visit PLC Which lawyer? To compare answers across multiple jurisdictions visit the Arbitration Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.  

A Q&A guide to arbitration law and practice in Lithuania. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. For a full list of law firms and lawyers, recommended for their arbitration expertise in Lithuania, please visit PLC Which lawyer? To compare answers across multiple jurisdictions visit the Arbitration Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.  

A Q&A guide to arbitration law and practice in the UK (England and Wales). The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. For a full list of law firms and lawyers, recommended for their arbitration expertise in the UK (England and Wales), please visit PLC Which lawyer? To compare answers across multiple jurisdictions visit the Arbitration Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

This article provides an overview of the product liability exposure of foreign manufacturers in the US. It considers the relevant substantive law, providing analysis of the tactics used by claimants against foreign corporates, and discussing the ways in which foreign manufacturers can minimise their exposure. This article is part of the PLC multi-jurisdictional guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-mjg.

A Q&A guide to dispute resolution in Canada. The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals. For a full list of recommended dispute resolution law firms and lawyers in Canada, please visit PLC Which lawyer? To compare answers across multiple jurisdictions visit the Dispute Resolution Country Q&A tool. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-mjg.

A Q&A guide to dispute resolution in Cyprus. The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals. For a full list of recommended dispute resolution law firms and lawyers in Cyprus, please visit PLC Which lawyer? To compare answers across multiple jurisdictions, visit the Dispute Resolution Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-mjg.

A Q&A guide to dispute resolution law in India. The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals. For a full list of recommended dispute resolution law firms and lawyers in India, please visit PLC Which lawyer? To compare answers across multiple jurisdictions visit the Dispute Resolution Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-mjg.  

A Q&A guide to dispute resolution law in Japan. The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals. For a full list of recommended dispute resolution law firms and lawyers in Japan, please visit PLC Which lawyer? To compare answers across multiple jurisdictions visit the Dispute Resolution Country Q&A tool. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-mjg.

A Q&A guide to dispute resolution in Luxembourg. The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals. For a full list of recommended dispute resolution law firms and lawyers in Luxembourg, please visit PLC Which lawyer? To compare answers across multiple jurisdictions visit the Dispute Resolution Country Q&A tool. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-mjg. 

A Q&A guide to dispute resolution law in the Russian Federation. The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals. For a full list of recommended dispute resolution law firms and lawyers in the Russian Federation, please visit PLC Which lawyer? To compare answers across multiple jurisdictions visit the Dispute Resolution Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-mjg.

A Q&A guide to dispute resolution law in Switzerland. The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals. For a full list of recommended dispute resolution law firms and lawyers in Switzerland, please visit PLC Which lawyer? To compare answers across multiple jurisdictions visit the Dispute Resolution Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-mjg.

An Article that explains new ways to proactively reduce and manage the likelihood of formal disputes. These methods include appointing a standing neutral, establishing a peer review panel program for employee disputes and implementing a planned early negotiation process.

A Q&A guide to arbitration law in Canada. The Q&A guide provides a structured overview of the key practical issues including, for example, any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. For a full list of recommended arbitration law firms and lawyers in Canada, please visit PLC Which lawyer? For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

A Q&A guide to arbitration law and practice in Japan. The Q&A guide provides a structured overview of the key practical issues including, for example, any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. For a full list of recommended arbitration law firms and lawyers in Japan, please visit PLC Which lawyer? For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

A Q&A guide to arbitration in Malaysia. The Q&A guide provides a structured overview of the key practical issues including, for example, any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. For a full list of recommended arbitration law firms and lawyers, please visit PLC Which lawyer? For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

A Q&A guide to arbitration law and practice in the Russian Federation. The Q&A guide provides a structured overview of the key practical issues including, for example, any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. For a full list of recommended arbitration law firms and lawyers, please visit PLC Which lawyer? For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

A Q&A guide to arbitration in Sweden. The Q&A guide provides a structured overview of the key practical issues including, for example, any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. For a full list of recommended arbitration law firms and lawyers, please visit PLC Which lawyer? For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

A Q&A guide to arbitration law and practice in the United Arab Emirates. The Q&A guide provides a structured overview of the key practical issues including, for example, any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. For a full list of recommended arbitration law firms and lawyers in the United Arab Emirates, please visit PLC Which lawyer? For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

A Q&A guide to dispute resolution in Egypt. The Q&A gives a structured overview of the key practical issues including, for example, court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals. For a full list of recommended dispute resolution law firms and lawyers in Egypt, please visit PLC Which lawyer? For a full list of jurisdictional Q&As visit www.practicallaw.com/disputehandbook.

A Q&A guide to dispute resolution law in Italy. The Q&A gives a structured overview of the key practical issues including, for example, court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals. For a full list of recommended dispute resolution law firms and lawyers in Italy, please visit PLC Which lawyer? For a full list of jurisdictional Q&As visit www.practicallaw.com/disputehandbook. 

A Q&A guide to dispute resolution law in Mexico. The Q&A gives a structured overview of the key practical issues including, for example, court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals. For a full list of recommended dispute resolution law firms and lawyers in Mexico, please visit PLC Which lawyer? For a full list of jurisdictional Q&As visit www.practicallaw.com/disputehandbook. 

A Q&A guide to dispute resolution in Turkey. The Q&A gives a structured overview of the key practical issues including, for example, court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals. For a full list of recommended dispute resolution law firms and lawyers in Turkey, please visit PLC Which lawyer? For a full list of jurisdictional Q&As visit www.practicallaw.com/disputehandbook.

A Q&A guide to dispute resolution in the United Arab Emirates. The Q&A gives a structured overview of the key practical issues including, for example, court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals. For a full list of recommended dispute resolution law firms and lawyers in the United Arab Emirates, please visit PLC Which lawyer? For a full list of jurisdictional Q&As visit www.practicallaw.com/disputehandbook. 

A number of arbitration related developments are expected in the second half of 2011. The key areas to watch are highlighted in this article.

The Arbitration Country Q&A tool enables subscribers to search the PLC Cross-border Arbitration Handbook Country Q&As by question and jurisdiction. Simply select the questions and the jurisdictions that you are interested in and click the "submit" button. Please note that the law stated dates for each jurisdiction covered may not be the same. To check the law stated dates for each jurisdiction, please visit the individual article.

A Q&A guide to arbitration law and practice in Hong Kong. The Q&A guide provides a structured overview of the key practical issues including, for example, any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. For a full list of recommended arbitration law firms and lawyers in Hong Kong, please visit PLC Which lawyer? For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

This chapter considers Hong Kong's new Arbitration Ordinance (Chapter 609 of the laws of Hong Kong), which was enacted on 11 November 2010, and will come into effect in June 2011. The chapter highlights some of the reforms brought about by the new Ordinance, and reviews how arbitral parties may benefit from the new Ordinance and the unique elements of the new arbitration system that it will introduce. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

An introduction to the PLC Law Department Arbitration Toolkit.

A Q&A guide to arbitration in Brazil. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

A Q&A guide to arbitration in the Czech Republic. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

A Q&A guide to arbitration in Tanzania. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

A Q&A guide to arbitration in Zambia. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitrationhandbook.

The Gulf states do not have a reputation for establishing user-friendly means of dispute resolution. Some jurisdictions, particularly Dubai and Bahrain, have taken steps to introduce innovative reforms to create a more welcoming environment for arbitration and make their courts more accessible to foreign parties. This article examines the reasons behind these reforms and looks at what is required to increase confidence in the dispute resolution procedures in the region. This article is part of the PLC multi-jurisdictional guide to dispute resolution. For a full list of contents visit www.practicallaw.com/disputehandbook.

This article considers two forms of dispute resolution clauses in M&A agreements: general dispute resolution clauses (usually, providing for arbitration) and expert determination clauses. Expert determination clauses are analysed in detail (in particular, their use in relation to technical issues such as closing accounts in M&A agreements, the rules governing expert determination, problems that can arise during an expert determination and possible solutions to these problems).  This article is part of the PLC multi-jurisdictional guide to arbitration. For a full list of contents visit www.practicallaw.com/arbitrationhandbook.

This article examines the extent of the right to admit new statements, claims and grounds for the claims, and present new evidence during the course of arbitration in Norway. It compares the position under the new Norwegian Civil Procedure Act 2005 (NCPA), and the Norwegian Arbitration Act 2004 (NAA). These two acts originate from the same reform of Norwegian civil procedure, but have slightly different legal effects due to their different wording and objectives. Comparison is also made to the position under the UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL Model Law), which the NAA is closely based on. This article is part of the PLC multi-jurisdictional guide to dispute resolution. For a full list of contents visit www.practicallaw.com/disputehandbook.

Arbitral institutions have reported a significant caseload rise over the past few years, which shows that arbitration is an increasingly popular dispute resolution mechanism. Its effectiveness depends largely on whether the underlying arbitration agreement is drafted properly.

Many factors require businesses to document their relations with business partners and customers. Production of these documents or the disclosure of information in them is usually not intended and businesses in civil law jurisdictions do not expect that they may have to produce them. Such documents or information may, however, be important in legal proceedings. Data protection laws have introduced new potential tools to obtain documents and gather information outside legal proceedings on the merits. This article examines the bases for requests for production of documents and disclosure of information in civil proceedings under Swiss law, rights for production of documents and disclosure under the Swiss Data Protection Act, and the uses and abuses of the data protection law for these purposes. The issues discussed here not only exist in Switzerland, but in other civil law jurisdictions.

Significant developments took place in the areas of patent and trade-mark litigation in Canada in 2007 and 2008, the full impact of which is not yet known. This article highlights these trends, and provides a few suggestions as to their probable effect.

An examination of the impact of an insolvent respondent in an arbitration.

International arbitration is replacing transnational litigation as the dispute resolution mechanism of choice for international commercial contracts, particularly in the areas of energy, oil and gas. This is largely down to the 1958 New York Convention on Arbitral Awards, which obliges courts of contracting states to honour the agreement and enforce awards. However, enforcement is often inconsistent across signatory states, partly because of the public policy defence. And with increasing economic uncertainty in developing countries, this already controversial defence may just attract more attention.

Key trends can be identified in IP litigation in relation to claimants using courts across Europe as their theatre of operations, litigants seeking new and innovative forms of declaratory relief, comparative advertising becoming a significant flashpoint in EU trade mark litigation and courts in China appearing to place greater emphasis on the protection of intellectual property rights. This chapter examines these trends in relation to patents, trade marks, designs and copyright.

This article explains the significance of a recent investment treaty claim heard by the International Centre for Settlement of Investment Disputes.

The decision of where to locate an international arbitration can have major implications for the outcome. This first of a two-part feature examines the factors to consider when making that decision and provides an overview of the approaches to arbitration practice and the attitudes of arbitrators in ten key jurisdictions.

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

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 District Court for the Northern District of California recently upheld an arbitration agreement containing a class action waiver, holding that AT&T Mobility LLC v. Concepcion, which articulates a strong federal policy of enforcing arbitration agreements, controls. The court distinguished D.R. Horton, Inc., finding the National Labor Relations Act (NLRA) does not bar enforcement of agreements to arbitrate non-NLRA claims on an individual basis.

PLC Arbitration has reviewed and amended its materials to reflect the recent launch of CIETAC's arbitration rules 2012, which came into force on 1 May 2012. (Free Access.)

John Choong (Counsel), Freshfields Bruckhaus Deringer The Hong Kong government has recently been informed by the Indian government that it will be gazetting China and Hong Kong as reciprocal territories to which the New York Convention applies.  This will help remove any concern that Hong Kong awards may not be enforceable under Indian law, and will boost Hong Kong’s attractiveness as a seat in arbitrations involving Indian parties. 

Liz Kantor, Herbert Smith LLP In the most recent of the long-running series of decisions in the West Tankers saga, the English court has found that the majority of the tribunal was wrong to decline jurisdiction to award equitable damages or to declare a party liable for an indemnity for breach of an arbitration clause.  Subject to any successful appeal, this decision makes it clear that there is scope for a party in the EU who is faced with parallel proceedings in breach of an arbitration agreement to seek damages and an indemnity from an arbitration tribunal for that breach. 

Eduardo Damião Gonçalves (Partner) and Flávio Spaccaquerche Barbosa (Associate), Mattos Filho Advogados On 20 March 2012, the Brazilian Superior Court of Justice (STJ) hosted a conference on the application of the New York Convention. Albert Jan Van Den Berg, representing ICCA, spoke to an audience of Brazilian judges in charge of enforcing foreign arbitral awards in Brazil.

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. 

In Lombard North Central plc and another v GATX Corporation [2012] EWHC 1067 (Comm), the Commercial Court considered an application to stay proceedings under section 9(1) of the Arbitration Act 1996, including whether the proceedings were "in respect of a matter" which had been referred to arbitration. The court also considered whether the arbitration agreement was inoperative, within the meaning of section 9(4) of the Act.

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.

PD Dr. Nathalie Voser (Partner) and Dr. Petra Rihar (Associate), Schellenberg Wittmer (Zurich) In two German-language decisions both dated 23 January 2012, published on 28 March 2012, the Swiss Supreme Court dismissed the petitions to set aside awards, holding, among other things, that the parties' right to be heard is not violated if an arbitrator refuses to hear a witness because he concluded by way of anticipated assessment of evidence on file that the testimony would be irrelevant to the outcome of the dispute.

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

In a Recommendation made in December 2011 but only recently published, the Secretary-General of the Permanent Court of Arbitration (PCA) considered a proposal for disqualification under the ICSID Convention.

In Nestor Maritime SA v Sea Anchor Shipping Co Ltd [2012] EWHC 996 (Comm), Eder J considered an application for an extension of time to challenge an award under section 68 of the Arbitration Act 1996.

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

In West Tankers Inc v Allianz SpA and another [2012] EWHC 854 (Comm), Flaux J considered whether EU law precluded a London arbitration tribunal from granting relief that might be inconsistent with the decision of an EU member state court.

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

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman The Queensland Supreme Court has set aside an award where the arbitrator had failed to provide a party with an opportunity to address a point which was crucial in the arbitrator's reasoning.

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 denied without prejudice an application to attach a commercial property of the State of Eritrea in satisfaction of a confirmed default arbitral award because of the petitioner’s failure to comply with notice requirements under the Foreign Sovereign Immunities Act.

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman On 9 March 2012, the Western Australia Supreme Court of Appeal considered the effect of amendments to the International Arbitration Act (IAA) on pre-amendment arbitration agreements. This case clarifies the application of section 21 of the IAA and also elucidates several issues of procedure under Australian arbitral legislation. 

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.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP Relying on the Supreme Court’s recent decision in AT&T Mobility LLC v Concepcion, the United States Court of Appeals for the Ninth Circuit has held that the Federal Arbitration Act (FAA) preempts state substantive unconscionability laws from invalidating class action waivers in arbitration clauses.

Brendan Green (Associate), Herbert Smith LLP The Reims Court of Appeal has set aside an ICC award rendered in 2002 in a domestic arbitration, finding that there were grounds on which to believe that one of the arbitrators lacked impartiality, and that these had not been disclosed to the non-appointing party. The arbitrator had disclosed the fact that he had been appointed by one of the other parties in the past, but did not disclose the number and regularity of appointments. The decision adds to the growing body of French case law addressing an arbitrator's duty to disclose circumstances relevant to his independence and impartiality throughout the proceedings.

Chiann Bao, the Secretary-General of the Hong Kong International Arbitration Centre (HKIAC), has joined PLC Arbitration's consultation board. (Free access).

The School of International Arbitration at Queen Mary, University of London has invited responses to its 2012 International Arbitration Survey.

PLC Arbitration has published an article on the new Dubai law which recently extended the jurisdiction of the Dubai International Financial Centre (DIFC), and formalised the mechanism for the enforcement of arbitral awards rendered in the DIFC in onshore Dubai.

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.

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.

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.

Agnieszka Wojciechowska (Associate) and Tomasz Sychowicz (Junior Associate), K&L Gates, Warsaw The Lewiatan Arbitration Court, one of the leading arbitration institutions in Poland, has recently adopted new rules of arbitration. The Rules of the Court of Arbitration at the PKPP Lewiatan were officially presented during a special event organised by the court on 10 January 2012, and published on the court’s website the next day. The new rules will enter into force on 1 March 2012.

Brendan Green (Associate), Herbert Smith LLP The Paris Court of Appeal has set aside an international arbitral award on the ground that its enforcement in France would be contrary to international public policy because it would conflict with judgments rendered by courts in Burkina Faso that had been granted exequatur under a bilateral treaty on judicial cooperation.

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.

The International Chamber of Commerce Court is to open an office in New York. (Free access.)

Natalia Belomestnova (Senior Associate),Goltsblat BLP On 25 January 2012, the lower chamber of the Russian Parliament passed, at first reading, the amendments to the Law on international commercial arbitration (07.07.1993 N 5338-1) (Law). The aim is to bring the Law in line with the 2006 changes to the UNCITRAL Model Law. The amendments are yet to be approved.

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.

PD Dr. Nathalie Voser (Partner) and Eliane Fischer (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 16 December 2011, published on 6 January 2012, the Swiss Supreme Court confirmed that the party against whom the recognition and enforcement of an arbitral award is invoked carries the burden of proof for the objection that it was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present its case.

PD Dr. Nathalie Voser (Partner) and James Menz, J. D. (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 9 December 2011 and published on 22 December 2011, the Swiss Supreme Court considered an agreement to waive setting-aside proceedings pursuant to Article 192 PILA where one party to the agreement had died and its successor-in-interest claimed not to be bound by the arbitration agreement. Despite the waiver clause, which it found valid, the Swiss Supreme Court first engaged in an inquiry whether the successor-in-interest was bound by the arbitration clause.

PD Dr. Nathalie Voser (Partner) and Angelina M Petti, LL.M.(Associate), Schellenberg Wittmer (Zurich/Geneva) In an Italian-language decision dated 18 October 2011, published on 19 December 2011, the Swiss Supreme Court dismissed an appeal to set aside an arbitral award, holding that the parties' right to be heard had not been violated when the sole arbitrator did not forewarn the parties that the evidence advanced was insufficient to establish a decisive fact.

Joanne Greenaway, Professional Support Lawyer, Herbert Smith LLP The English Court of Appeal has confirmed that the court has power to enter judgment in terms of a declaratory award under section 66 of the Arbitration Act 1996 (AA 1996).

In Sulamerica CIA Nacional De Seguros SA and others v Enesa Engenharia SA and others [2012] EWHC 42 (Comm), the Commercial Court considered issues relating to the proper law and interpretation of a clause that provided for both mediation and arbitration.

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

The National Labor Relations Board (NLRB) recently held that requiring employees, as a condition of employment, to sign an arbitration agreement prohibiting them from filing collective or class actions for employment-related claims violates the National Labor Relations Act (NLRA). In its January 3, 2012 decision in D.R. Horton, Inc., the NLRB also held that its decision does not conflict with the Federal Arbitration Act (FAA) and distinguished AT&T Mobility v. Concepcion.

PLC Arbitration has published Article, Looking ahead: anticipated developments in 2012: arbitration. (Free access).

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 stayed an action pending arbitration based on its inherent power to manage its docket, where a choice of law issue made it uncertain whether two of the three defendants in the action, who were non-signatories to the arbitration agreement, could compel arbitration of claims against them.

Brendan Green (Associate), Herbert Smith LLP In a decision dated 17 November 2011, the Grenoble Court of Appeal upheld the decision of the Commercial Court to decline jurisdiction over a dispute involving an agency contract that contained an arbitration clause.  In doing so, the Court of Appeal found that the arbitration clause was valid despite provisions of Spanish law (the governing law of the contract) that would have arguably invalidated it.

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.

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.

PLC Arbitration has published a new Article, The battle of the seats: Paris, London or New York?, authored by White & Case LLP. The article examines the advantages and disadvantages of choosing London, Paris or New York as a seat of international arbitration. (Free access.)

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate) and Diego Nocetti (Associate), Mattos Filho Advogados In a decision rendered on 20 October 2011, the Brazilian Superior Court of Justice (STJ) affirmed the validity of a submission agreement executed following a dispute arising under a public tender contract. The STJ disregarded the respondent’s main argument that the submission agreement was invalid because arbitration was not provided for in the public request for proposals (PRFP).

Joanne Greenaway, Herbert Smith LLP The English Commercial Court has provided some useful clarity on the scope of section 33 of the Arbitration Act 1996, the most far-reaching and open-ended of the arbitrators' duties and the one on which most challenges against awards are founded, albeit mostly unsuccessfully. In this case, Teare J determined that a tribunal need not assist the parties with further possible arguments to support their case.

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.

PD Dr. Nathalie Voser (Partner) and Eliane Fischer (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 20 September 2011 and published on 19 October 2011, the Swiss Supreme Court held that a tribunal of the Court of Arbitration for Sport (CAS) had rightly interpreted an arbitration clause contained in a licence agreement to also apply to claims based on purchase agreements closely linked with the licence agreement.

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.)

On 1 January 2012, the International Centre for Settlement of Investment Disputes (ICSID) will revise its Schedule of Fees.

PLC Arbitration has published a case study of an application to the English court for an injunction restraining proceedings brought in breach of an arbitration clause under section 44 of the Arbitration Act 1996 or section 37 of the Senior Courts Act 1981 (or both). (Free access.)

PLC Arbitration has published two useful resources that provide the text of and links to maritime and reinsurance arbitration clauses. (Free access.)

In Hochtief AG v Argentine Republic (ICSID Case No. ARB/07/31), an ICSID tribunal considered whether the claimant could rely on the "most favoured nation" clause in the Argentina-Germany bilateral investment treaty to import a more favourable dispute resolution provision from the Argentina-Chile bilateral investment treaty.

Andrew Robertson (Partner), Piper Alderman In a decision dated 5 October 2011, the Australian High Court handed down its eagerly anticipated decision on the standard of arbitral reasons in Australian domestic arbitrations. While the court adopted a mainstream approach, rejecting the view that equated the standard of arbitral reasons with a common law judicial decision, it did not take the opportunity to discuss issues of broader arbitral practice relevant to international arbitration.

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), Leah Witters (Associate), White & Case LLP The United States District Court for the Middle District of Florida has found that an arbitrator, and not the court, must decide whether the actions of the parties prior to filing in court were sufficient to fulfill the conditions precedent to arbitration included in the parties’ arbitration agreement.

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.

An update on the PLC Arbitration multi-jurisdictional guide, which answers key questions on arbitration law from the perspective of practitioners in 22 jurisdictions.

In Watson (on behalf of Dollingstown Football Club), Re Application (for leave to appeal) [2011] NIQB 66, the High Court of Justice in Northern Ireland held that the right of appeal under section 69 of the Arbitration Act 1996 had been excluded by the Irish Football Association (IFA) Articles of Association.

PLC Arbitration has published Practice note, ICC arbitration (2012 Rules): a step-by-step guide, which provides guidance on running an International Chamber of Commerce (ICC) arbitration, from preliminary steps to post-award, under the ICC Rules of Arbitration 2012. (Free access.)

On 27 September 2011, the Swiss Arbitration Association launched the Swiss Initiative for Transparency in Arbitration Costs, at the Chartered Institute of Arbitrators' international conference, Costs of International Arbitration, in London.

Andrew Robertson (Partner), Piper Alderman Australian domestic arbitration legislation is continuing 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.

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 to compel arbitration that was filed by a third party defendant. The court found that a disagreement about the extent of contribution and indemnification fell within an arbitration clause requiring arbitration of all disputes, when the agreement included an indemnification clause, and set forth the duties on which the contribution clause was based.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In a decision dated 14 July 2011, but only recently published, the Federal Court of Justice confirmed that an arbitration agreement is not inoperative even if the parties erroneously agreed on an institutional arbitral tribunal which does not exist, as long as a supplementary interpretation of the contract demonstrates that the parties wanted to agree on arbitration.

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman In a decision dated 22 June 2011, the Queensland Supreme Court has considered the circumstances in which an arbitral award can give rise to an issue estoppel in subsequent proceedings.

PD Dr. Nathalie Voser (Partner) and Pierre Ducret, LL.M. (Associate), Schellenberg Wittmer (Zurich/Geneva) In a French-language decision of 22 August 2011, published on 13 September 2011, the Swiss Supreme Court rejected an application for revision of an arbitral award rendered by a tribunal of the Court of Arbitration for Sport (CAS), on the ground that the applicant failed to comply with the 90 day time limit to file its application for revision. The time limit runs from the date the applicant discovers the ground for revision.

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.

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.

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.

PLC Arbitration has published a table outlining the key differences between the ICC Rules of Arbitration 1998 and the ICC Rules of Arbitration 2012. (Free access.)

PLC Magazine has published an article on the UK Supreme Court decision in Jivraj v Hashwani [2011] UKSC 40, written by Kieron O'Callaghan and Ben Hornan of Hogan Lovells International LLP. (Free access).

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 On 9 August 2011, the Federal Court of Australia considered the circumstances in which it would stay the enforcement of an arbitral award by the provision of security, its value, its form and the circumstances in which security may be granted to the enforcing party. The decision relates to the approach that the court should take regarding enforcement of an arbitral award, in circumstances where the award was the subject of an appeal at the seat of arbitration.

John Choong (Senior Associate), Freshfields Bruckhaus Deringer In a recent decision, the Hong Kong Court of Appeal upheld the proposition that an enforcing court cannot go behind an arbitration award to examine the underlying dispute and that supplementary awards must be made strictly in accordance with the applicable arbitration rules.

Priyanka Gandhi (Associate) and Neha Samant (Trainee), Juris Corp In a recent decision, the Supreme Court of India has held that if an instrument is not registered, but is required to be mandatorily registered, an arbitration clause in the instrument is valid and enforceable. However, if the instrument is not duly stamped, the arbitration clause in the instrument cannot be enforced.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP A Bill (S.5798-2011) currently pending in the New York state legislature could amend a relevant arbitration provision found in the New York Civil Practice and Rules, which provides grounds for vacating an arbitral award.

Natalia Belomestnova (Senior Associate), Goltsblat BLP In a decision of 24 May 2011, which only recently became available, the Russian Supreme Commercial Court has issued its final ruling in Sberbank v Business-Lada, Lada-Forward LLC et al (case N A55-11220/2010). The court annulled the judgments of the lower courts that enforced the arbitral awards and rejected the claimant’s request for enforcement because of the suspicion of partiality.

The Commercial Court has granted a stay of proceedings that concerned claims that were, in substance, the same as disputes that had already been referred to arbitration.

Andrew Robertson (Partner), Piper Alderman Following the opening of the Australian International Disputes Centre in 2010, in Sydney, New South Wales, the Victorian Chief Justice has called for a similar centre to be opened in Melbourne, Victoria.

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.

Mustafa Motiwala (Partner) and Sreyash Basu Dasgupta (Associate), Juris Corp In a recent decision, the Supreme Court of India, on a comprehensive analysis of Indian arbitration and civil procedure law, has held that a letters patent appeal is not maintainable against an order enforcing a foreign award.

Deborah Wilkie, Associate, Herbert Smith LLP In Jivraj v Hashwani [2011] UKSC 40, the UK Supreme Court clarified the status of arbitrators and confirmed that they are not employees, but rather "independent providers of services who are not in a relationship of subordination with the person who receives the services". Arbitration agreements do not, therefore, fall within the scope of the UK anti-discrimination legislation, including the UK Equality Act 2010.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP On 1 June 2011, the biannual Singapore International Arbitration Forum (SIAF), entitled The Future for International Arbitration, was held in Capella, Singapore.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore High Court has set aside three arbitral awards on the basis that the arbitral tribunal determined an issue which was not formally pleaded by the respondent to the proceedings. Instead the issue was raised by way of a letter addressed to the arbitral tribunal. Accordingly, the arbitral tribunal had decided on an issue beyond the scope of the matters submitted to it.

PD Dr. Nathalie Voser (Partner) and Dr. Petra Rihar (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 14 June 2011, published on 7 July 2011, the Swiss Supreme Court dismissed an appeal to set aside an arbitral award, holding that the right to the appointment of an expert by the arbitral tribunal had not been violated, as the request was not made in time (that is, before the tribunal at the relevant stage of the proceedings) and in proper form.

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

The Supreme Court has unanimously allowed the appeal in Jivraj v Hashwani [2011] UKSC 40, finding that arbitrators are not employees within the ambit of the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660).

In PT Thiess Contractors Indonesia v PT Kaltim Prima Coal and another [2011] EWHC 1842 (Comm), the Commercial Court refused a stay of proceedings under section 9 of the Arbitration Act 1996, holding that the claims fell within the scope of an English non-exclusive jurisdiction clause, not a Singapore arbitration clause. (Free access)

In Sovarex SA v Romero Alvez SA [2011] EWHC 1661 (Comm), Hamblen J confirmed that the issue of whether the parties were bound by a valid arbitration agreement could be determined by the court in the context of proceedings to enforce the award under section 66 of the Arbitration Act 1996.

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

PLC Arbitration has updated its ad hoc arbitration clauses to include a sample Indian arbitration clause with accompanying drafting notes, authored by Juris Corp. (Free access).

In Excalibur Ventures LLC v Texas Keystone Inc and others [2011] EWHC 1624 (Comm), the Commercial Court considered whether to grant an injunction restraining an arbitration with its seat in New York and whether to grant the claimant's application to stay Commercial Court proceedings.

Eduardo Damião Gonçalves (Partner), Flávio Foz Mange (Associate) and Débora Auler de Almeida Prado (Associate), Mattos Filho Advogados In a unanimous decision dated 24 May 2011 and published on 1 June 2011, the Superior Court of Justice (STJ) confirmed its decision rendered in a preliminary injunction, which held that an arbitral award administered by the International Chamber of Commerce (ICC), but issued in Brazil, should be considered domestic and does not require homologation by the STJ to be enforceable in Brazil.

PD Dr. Nathalie Voser (Partner) and Aileen Truttmann (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 16 May 2011 and published on 26 May 2011, the Swiss Supreme Court confirmed that an arbitral tribunal was competent even though contractual pre-arbitral steps had not been complied with. The award was, however, set aside based on the violation of the right to be heard, since the arbitral tribunal had not dealt in the award with an argument raised by one of the parties.

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 found that where one provision in an arbitration clause included the term New York, the parties clearly intended arbitration to take place in New York. This was the case even though the parties failed to specify in another provision whether arbitration would be in New York or London, and relied on the federal policy favouring arbitration to enjoin proceedings in Brazil.

Alejandro López Ortiz (Counsel) and Ana Morales (Associate), Hogan Lovells International LLP In June 2011, Madrid hosted several arbitration events, which are part of the arbitration community's efforts to promote arbitration.

PD Dr. Nathalie Voser (Partner) and Dr. Petra Rihar (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 18 April 2011, published on 8 June 2011, the Swiss Supreme Court dismissed an appeal to set aside an award by the Court of Arbitration for Sport (CAS) for lack of jurisdiction, stating that a reference to an arbitration clause contained in the statutes of an association suffices to establish CAS' jurisdiction.

PLC Arbitration has published a new Practice note, A guide to the CIETAC Arbitration Rules and an accompanying flowchart on China International Economic and Trade Arbitration Commission (CIETAC) arbitration, authored by Herbert Smith LLP. The resources explain and set out the usual steps in a CIETAC arbitration.

PLC Arbitration has published a new Article, The challenges of arbitrating in Africa, authored by the Chairman of Africa Legal Network and Stephenson Harwood. The article sets out the challenges faced when arbitrating in Africa.

PLC Arbitration's Quick guide, Document production in international arbitration has been updated to reflect information contained in the PLC Cross-Border Arbitration Handbook 2011-12. (Free access).

In Universal Compression International Holdings SLU v Bolivarian Republic of Venezuela (ICSID Case No ARB/10/9), the chairman of the ICSID Administrative Council has rejected requests to disqualify Professor Brigitte Stern and Professor Guido Santiago Tawil, which had been made on the basis that Stern had been repeatedly appointed by the respondent and that Tawil had acted as co-counsel with the claimant's lawyers on previous occasions.

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate), and Débora Auler de Almeida Prado (Associate), Mattos Filho Advogados On 2 May 2011, the Brazilian Federal Supreme Court, in association with the Brazilian Arbitration Committee (CBAr), hosted a seminar, Judiciary and Arbitration: necessary dialogue, which aimed to promote a debate on the relevance of the judiciary’s support for arbitration and vice versa. The event was attended by ministers, judges and scholars, as well as national and international arbitrators.

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.

Mustafa Motiwala (Partner) and Priyanka Gandhi (Associate), Juris Corp The Supreme Court of India in a recent decision has distinguished between disputes that may be submitted to arbitration and disputes that may be decided by a public forum (in this instance, a mortgage suit).

Andrew Robertson (Partner), Piper Alderman In a speech at the Chartered Institute of Arbitrators' (CIArb) Asia Pacific Conference, retiring New South Wales Chief Justice Spigelman suggested that parties should consider incorporating into their arbitration clauses the adoption of a particular law of contractual interpretation to be applied to the construction of the arbitration clause and the contract.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore Court of Appeal has upheld the decision of the Singapore High Court that most insolvency-related disputes are not suitable for arbitration due to public interest considerations. The Court of Appeal also dealt with the arbitrability of insolvency-related claims and the proper judicial approach towards an arbitration agreement that expressly includes insolvency-related claims.

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.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The US Supreme Court has found that California’s Discover Bank Rule (DBR), which was applied to prohibit the enforcement of an arbitration agreement with a class action waiver, frustrates the purposes and objectives of the Federal Arbitration Act (FAA).

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.

In AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647, the Court of Appeal considered the court's jurisdiction to grant declaratory and injunctive relief where there is no actual or intended arbitration. (Free access).

In RSM Production Corporation v Grenada (ICSID Case ARB/05/14) (Annulment Proceeding), an ICSID ad hoc committee considered the appropriate order for costs where annulment proceedings were discontinued without any objection.

Moldova has ratified the ICSID Convention.

Andrew Robertson (Partner), Piper Alderman Further to previous reports regarding Australia's moves to modernise and harmonise its domestic and international arbitration legislation (see Article, Australia: round up 2010/2011 and Legal update, Australia to get new domestic arbitration legislation), the Attorney-General of Victoria, Australia’s second most populous state, has now announced the forthcoming introduction in the Victorian Parliament of a new Commercial Arbitration Bill that will be consistent with the Commercial Arbitration Act already passed in New South Wales.

John Choong (Senior Associate), Freshfields Bruckhaus Deringer In Gao Haiyan v Keeneye Holdings Ltd, the Hong Kong Court of First Instance refused to enforce a Chinese arbitration award, on the basis that it would be contrary to public policy to enforce the award because it was tainted by apparent bias.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Southern District of New York has denied a motion to compel arbitration, finding that an agreement to arbitrate cannot be implied from the parties' prior course of dealing when there is no written agreement to arbitrate.

Alejandro López Ortiz (Counsel) and Ana Morales (Associate), Hogan Lovells International LLP Less than a year after the launching of its new rules, the Spanish Court of Arbitration has introduced some amendments that entered into force on 15 March 2011.

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.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In an Italian-language decision of 10 February 2011, published on 7 April 2011, the Swiss Supreme Court rejected a request for revision of an arbitral award. In so doing, it set out the requirements which must be fulfilled in order for facts or evidence to be considered as "new" and to therefore serve as a basis for a request for revision.

Andrew Robertson (Partner), Piper Alderman In a decision rendered on 12 April 2011, the Supreme Court of the Australian Capital Territory was asked to consider an application for a stay of proceedings to permit an arbitration to proceed in Sweden pursuant to a partner agreement between the parties.

Karin Ståhlbröst (Senior Associate), Delphi On 9 March 2011, the Svea Court of Appeal in Stockholm ordered a company to produce documents in an ongoing arbitration in spite of the fact that the documents related to “commercial secrets” (trade secrets). The Court of Appeal held that the arbitrators’ assessment of the documents being relevant as evidence was vital for determining whether there were extraordinary reasons for disclosure.

Iain Maxwell, Herbert Smith LLP The English Commercial Court has upheld an order enforcing a declaratory award made in the West Tankers arbitration proceedings. The award declared that West Tankers has no liability to Allianz SpA and Generali Assicurazione Generali SpA (the Insurers), who are currently pursuing court proceedings against it in Italy. The order was upheld on the basis that enforcing the declaratory award under section 66 of the English Arbitration Act 1996 (the Act) may permit West Tankers to establish the primacy of the declaratory award over any subsequent inconsistent judgment in the Italian proceedings. This was despite the ECJ's finding, earlier in the same dispute, that the English court is not permitted to grant an anti-suit injunction to restrain the same Italian proceedings.

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)

In GEA Group Aktiengesellschaft v Ukraine (ICSID Case No ARB/08/16), an ICSID tribunal considered whether an ICC award was an investment for the purposes of an ICSID arbitration.

On 9 April 2011, the Bangladesh International Arbitration Centre launched, becoming the country's first arbitration centre for the settlement of commercial disputes.

The article, Joint venture disputes: resolving deadlock through arbitration, has been updated by Bird and Bird and re-published for PLC Arbitration and PLC Dispute Resolution subscribers. (Free access).

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

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).

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 held that the Foreign Sovereign Immunity Act 1976 (FSIA) does not override a court’s inherent power to impose contempt sanctions on a foreign sovereign.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Fifth Circuit Court of Appeals has found no grounds for injunctive relief where two sophisticated commercial entities entered an investment agreement for payment of international arbitration fees that required arbitration outside the US where one entity was incorporated.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In a decision dated 25 January 2011, but only recently published, the Federal Court of Justice held that an arbitration agreement contained in a contract for investment services between a foreign broker and a German consumer is invalid if the arbitration agreement is not contained in a separate document personally signed by the parties.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Appellate Division of the Supreme Court of New York, First Department, has held that an attachment order can be granted over assets in New York in anticipation of an award in a foreign arbitration where there is no other connection to New York.

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.

PD Dr. Nathalie Voser (Partner) and Eliane Fischer (Associate), Schellenberg Wittmer (Zurich) In a recent French-language decision dated 7 January 2011, published on 21 February 2011, the Swiss Supreme Court (Supreme Court) confirmed an award rendered by the sole arbitrator of the World Intellectual Property Organization's (WIPO) Arbitration and Mediation Center. The Supreme Court considered that the sole arbitrator had been justified in awarding interest on the sum due by X while refusing it on the sum due by Y, on the grounds that Y had formally requested the payment of "at least" a certain amount and had asked for interest payments in its submissions, whereas X had only formally requested a fixed amount and had not mentioned the payment of interest.

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 JSC BTA Bank v Ablyazov and others [2011] EWHC 587 (Comm) Christopher Clarke J considered whether the court should determine issues relating to the validity of an arbitration agreement in the context of a stay application brought pursuant to section 9 of the Arbitration Act 1996.

In European Commission v Republic of Slovakia [2011] EUECJ (Case C-264/09), Advocate General Jääskinen considered the relationship between Slovakia's EU law obligations to ensure non-discriminatory access to the electricity transmission network and its obligations to protect investments under an investment protection agreement concluded before Slovakia's accession to the EU. The Advocate General concluded that obligations entered into before Slovakia ratified the EC Treaty cannot be affected by that Treaty and, as such, Slovakia cannot be held to be in breach of its obligations under Directive 2003/54/EC concerning common rules for the internal market in electricity. (Free access).

On 1 March 2011 the Cairo Regional Centre for International Commercial Arbitration (CRCICA) adopted new arbitration rules, based on the UNCITRAL Arbitration Rules 2010 with minor modifications reflecting CRCICA's role as an arbitral institution and appointing authority. The rules will apply to arbitral proceedings commencing after 1 March 2011.

PLC Arbitration has combined its resources on arbitration clauses and arbitration in Asia and the US into separate toolkits which are now accessible from the PLC Arbitration homepage. (free access).

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) The Swiss Arbitration Association (ASA) annual conference was held on 28 January 2011 in Basel, Switzerland. Arbitration practitioners met to discuss the theoretical and practical issues which may arise after a final arbitral award has been rendered and the arbitral tribunal has become functus officio. For example, an arbitral tribunal may be called upon to revisit its decision or to re-open the proceedings. Arbitrators must also decide on practical matters, such as the preservation of the file after the arbitration has come to a close, and may, in some cases, be required to fulfil further duties, for example in the context of subsequent proceedings before state courts. The speakers addressed these issues from various angles, providing valuable insights into the practice of different jurisdictions and arbitral tribunals.

In Fraport AG Frankfurt Airport Services Worldwide v The Philippines (ICSID Case No ARB/03/25) Decision of the Annulment Committee of 23 December 2010, the Committee found that the arbitral tribunal had seriously departed from a fundamental rule of procedure by denying the applicant the right to be heard and annulled the award in its entirety.

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.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz The Higher Regional Court of Dresden in its decision dated 26 July 2010, just recently published, held that an arbitration agreement providing for the application of the rules of the "International Chamber of Commerce in Dresden" is to be interpreted as pointing to the Arbitration Rules of the International Chamber of Commerce (ICC) in Paris.

Natalia Belomestnova (Associate), Goltsblat BLP At the beginning of February 2011, the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (ICAC) published its statistics for the past year. The statistics show that in 2010, ICAC received a total of 299 claims, the highest number of filed claims for the last five years.

Wojciech Sadowski (Of Counsel) and Tomasz Sychowicz (Junior Associate), K&L Gates, Warsaw On 10 and 11 February 2011 Warsaw University hosted the third Warsaw pre-moot for the 18th Willem C. Vis international arbitration moot, which was followed by a conference on the confidentiality of arbitration.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Seventh Circuit has ruled that an arbitrator could serve on two consecutive arbitral panels involving the same dispute as long as he remains disinterested.

PD Dr. Nathalie Voser (Partner) and Aileen Truttmann (Associate), Schellenberg Wittmer (Zurich) In two French-language decisions dated 12 January 2011 and published on 16 February 2011, the Swiss Supreme Court dismissed two petitions to set aside an award by the Court of Arbitration for Sport (CAS). The Supreme Court held that the petitions, filed more than thirty days after the receipt of a fax copy of the award, were timely as the time period only started running from the receipt of the award by registered mail.

PD Dr. Nathalie Voser (Partner) and Sonja Stark-Traber (Associate), Schellenberg Wittmer (Zurich) In two French-language decisions dated 3 January 2011 and published on 16 February 2011, the Swiss Supreme Court rejected two appeals against decisions rendered by the Court of Arbitration for Sport (CAS) in the doping case of Spanish cyclist Alejandro Valverde Belmonte. The Supreme Court denied, inter alia, that the arbitral tribunal had been improperly constituted when rendering its award and that it violated the principle of ne bis in idem, which was held to form part of public policy.

Andrew Robertson (Partner), Piper Alderman In two recent decisions, the Victorian Supreme Court has considered the recognition and enforcement of a Mongolian arbitral award in Australia and, in a subsequent costs decision, the Australian courts' expectation of parties in enforcement proceedings.

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.

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.

In Malicorp Ltd v The Arab Republic of Egypt (ICSID Case No ARB/08/18), an ICSID tribunal considered whether the claimant had made an "investment" for the purposes of ICSID jurisdiction, and whether allegations of bad faith should be considered at the jurisdiction or the merits phase.

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.

The PLC Arbitration multi-jurisdictional monthly e-mail for January 2011 has been published. (free access).

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.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), Leah Witters (Associate), White & Case LLP The District Court for the Eastern District of Missouri ruled that when the agreement requires disputes over the existence or validity of the agreement be submitted to arbitration following Singapore International Arbitration Centre (SIAC) rules, the court should not decide claims related to the agreement.

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.

Alejandro López Ortiz (Senior Associate) and Ana Morales (Associate), Hogan Lovells International, LLP On 30 December 2010, a new court specialising in arbitration (First Instance Court no. 101) opened in Madrid. This newly created court will be the competent court for all new arbitration-related matters which were previously under the general competence of the First Instance Courts of Madrid.

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.

Herbert Smith LLP Thirty-one years after the codification of the law on domestic arbitration and thirty years after the codification for international arbitration, France has enacted a further reform of the law on domestic and international arbitration, in a Decree dated 13 January 2011.

In Cemex Caracas Investments BV and Cemex Caracas II Investments BV v Bolivarian Republic of Venezuela (ICSID Case No ARB/08/15), an ICSID tribunal considered whether it had jurisdiction to hear a claim under either the Netherlands/Venezuela BIT or under Venezuelan investment law.

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

The State of Qatar and Cape Verde have ratified the ICSID Convention.

CEDR has published sample directions to accompany the CEDR Rules for the Facilitation of Settlement in International Arbitration.

James Clark (Associate), Herbert Smith LLP The Paris Court of Appeal has upheld an arbitral tribunal's decision holding that it did not have jurisdiction over the dispute.

Priyanka Gandhi (Associate) and Ankur Kashyap (Associate), Juris Corp In a recent decision the Supreme Court of India (Supreme Court) held that once the issue of validity of an arbitration agreement is in dispute, such issue has to be finally decided by the court or its designate (any person or institution designated by the Chief Justice), and not the arbitration tribunal.

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.

Wojciech Sadowski (Of Counsel) and Tomasz Sychowicz (Junior Associate), K&L Gates, Warsaw On 3 December 2010, Vienna hosted the first twin Austrian-Polish international arbitration conference, held under the auspices of the Arb-Aut (Austrian non-profit association dedicated to promoting domestic and international arbitration) and the Lewiatan Court of Arbitration (Polish arbitration court at the Polish Confederation of Private Employers).

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz The Federal Court of Justice (BGH), the highest German court that deals with arbitration matters, ruled in a decision dated 30 September 2010 but only recently published, that in enforcement proceedings in German courts relating to a domestic or foreign arbitral award, the opposing party/debtor may set off counterclaims if such counterclaims are themselves not subject to an arbitration agreement.

The European Commission has published its proposals for the reform of the Brussels Regulation. (Free access).

In Global Trading Resource Corp and Globex International Inc v Ukraine (ICSID Case ARB/09/11), the tribunal dismissed claims pursuant to Rule 41(5) of the ICSID Arbitration Rules.

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.

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. 

John Choong (Senior Associate), Freshfields Bruckhaus Deringer LLP Hong Kong's new Arbitration Ordinance (Cap. 341) (Arbitration Ordinance) was passed on 11 November 2010 and is expected to come into force in a few months' time. It represents the culmination of over 10 years of debate and public consultation.

Kamal Shah (Partner) and Antony Singh (Trainee), Stephenson Harwood. In a move to ensure that Nigeria becomes the new hub for the arbitration of commercial disputes in and beyond the West African sub-region, three Bills are currently being reviewed by the National Assembly in Nigeria.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), Leah Witters (Associate) ,White & Case LLP On 9 November 2010, the Supreme Court heard oral arguments on whether a state may refuse to enforce an arbitration agreement that does not allow class arbitration.

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.

Polina Permyakova (Senior Associate), Delphi  On 12 November 2010, the Swedish Supreme Court confirmed jurisdiction of Swedish courts to rule on the Russian Federation’s request for a declaratory judgment concerning the arbitral tribunal’s lack of jurisdiction in the Yukos arbitration. The Supreme Court also confirmed that the Russian Federation’s request complied with the requirements regarding declaratory claims under the Swedish Procedural Code.

Liina Linsi (Partner) and Holger Tilk (Associate), Lawin On 23 November 2010, the District Court of Tallinn upheld an arbitration award rendered by the Arbitration Institute of the Stockholm Chamber of Commerce (SCC).

In Noble Denton Middle East and another v Noble Denton International Ltd [2010] EWHC 2574 (Comm), the High Court considered the standard of proof required in an application for the appointment of an arbitrator under section 18 of the Arbitration Act 1996.

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

In Eureko BV v the Slovak Republic (PCA Case No 2008-13, UNCITRAL Arbitration Rules) Award on Jurisdiction, Arbitrability and Suspension, an UNCITRAL tribunal considered Slovakia's jurisdictional objection based on its accession to the EU. 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 ICSID tribunal considered whether to make a decision on costs in a procedural order for discontinuance of the proceedings in Quadrant Pacific Growth Fund LP and Canasco Holdings Inc v Republic of Costa Rica (ICSID Case No ARB (AF)/08/1).

The International Chamber of Commerce has published its 2009 statistical report.

Eduardo Damião Gonçalves (Partner) and Flavia Foz Mange (Associate), Mattos Filho Advogados In a decision dated 23 September 2010, the Lower Court of Rio de Janeiro granted a preliminary injunction to suspend three related arbitral proceedings pending its judgment in respect of a request for their consolidation before the same arbitral tribunal.

Andrew Robertson (Partner), Piper Alderman The Chief Justice of Victoria, Australia, has indicated her support for an arbitration centre in Victoria.

Ruth Byrne and Joanne Greenaway, Herbert Smith LLP In Broda Agro Trade (Cyprus) Ltd v Alfred C Toepfer International GmbH [2010] EWCA Civ 1100, the Court of Appeal confirmed that section 72 of the Arbitration Act 1996 is not restricted to arbitral proceedings concerning the substantive jurisdiction of the arbitrators. Section 72 entitles a person "who takes no part in [arbitral] proceedings" to challenge the tribunal's jurisdiction by proceedings in court.

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.

The Supreme Court has unanimously dismissed the appeal in Dallah Real Estate and Tourism Holding Company v Government of Pakistan [2010] UKSC 46. (Free access.)

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In its decision dated 17 August 2010, only recently published, the Higher Regional Court of Munich clarified the requirements for a successful challenge of an arbitrator, applying section 1037 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO), which stipulates that arbitrators are not obliged to issue a "declaration of independence" without a particular reason.

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.

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.

Publication of articles from PLC Magazine (November 2010).

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

PLC Arbitration, in association with Berwin Leighton Paisner LLP, are hosting a free seminar on 7 December 2010 on strategies for enforcing and upholding London arbitration clauses. Mr Justice Burton will be chairing.

New article by Angeline Welsh and Andrew Pullen, Allen & Overy LLP, in which the authors analyse the Court of Appeal's decision in Jivraj v Hashwani [2010] EWCA Civ 712 and explain the common misconceptions surrounding the case.

In Broda Agro Trade (Cyprus) Ltd v Alfred C Toepfer International GmbH [2010] EWCA Civ 1100, the Court of Appeal upheld the judge's decision on the scope of section 72 of the Arbitration Act 1996.

The UNCITRAL Working II has resumed its discussions on transparency in treaty-based investor-state arbitration. (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.

Publication of the 2010 International Arbitration Survey by the School of International Arbitration, Queen Mary, University of London.

Publication of Practice note, The Irish Arbitration Act 2010. (Free access.)

Lawrence Thacker (Partner), Lenczner Slaght Royce Smith Griffin LLP The Ontario Court of Appeal has confirmed that the standard of review which the parties had agreed to at the first level challenge could not be challenged later before a higher court. In this case, the failure to challenge the standard of review before the applications judge barred the respondent from doing so in the Court of Appeal.

PD Dr. Nathalie Voser (Partner) and Dr. Patrick Rohn (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 3 August and published on 26 August 2010, the Swiss Supreme Court rejected a challenge of an award on the ground of violation of the right to be heard. Among other things, the Supreme Court analysed the interaction between the principles of the right to be heard and jura novit curia (principle that the court knows the law), and confirmed its jurisprudence that, as a rule, the principle of jura novit curia prevails.

Lawrence Thacker (Partner), Lenczner Slaght Royce Smith Griffin LLP The Ontario Superior Court of Justice has held that the 30-day period allowed for an appeal from an arbitration award provided in the Ontario Arbitration Act 1991 (c. 17) begins to run when the parties received the arbitrator’s reasons.

Neha Vijayvargiya (Associate) and Priyanka Gandhi (Associate) , Juris Corp In a recent decision, the Bombay High Court (High Court) restrained World Sports Group (Mauritius) Ltd (respondent) from continuing with a foreign arbitration on the grounds that the agreement which contained the arbitration provisions was: Vitiated by fraud. Contrary to Indian public policy. Involved and affected the rights of a third party.

Marina Danilova (Junior Associate), Goltsblat BLP The Federal arbitrazh court of the Far-East district (commercial court of third level) has recently held that disputes relating to rights to real estate in Russia are subject to the exclusive competence of the Russian courts. Therefore, the court found it was competent to hear the dispute despite the arbitration clause in the relevant contracts.

Natalia Belomestnova (Associate), Goltsblat BLP In a ruling of 2 September 2010, the Federal arbitrazh court of Moscow region (commercial court of third level) supported the Commercial Court of Moscow in its annulment of an ICAC arbitral award on the ground that the dispute did not fall within the scope of the arbitration clause.

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.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz The Federal Court of Justice, the highest German court that deals with arbitration matters, confirmed in a decision dated 29 July 2010, only recently published, that in enforcement proceedings in German courts relating to a domestic or foreign arbitral award, the opposing party/debtor may not set-off counterclaims if such counterclaims are themselves subject to an arbitration agreement.

Wojciech Sadowski (Of Counsel), K&L Gates, Warsaw On 3 September 2010, an UNCITRAL arbitral tribunal in Vienna rendered a partial award in a long-lasting dispute between Telekomunikacja Polska, a leading Polish telecoms company (controlled by France Telecom), and Danish Polish Telecommunications Group (DPTG) (controlled by GN Store Nord in 75% and 25% of TDC).

Devan Parikh, Senior Advocate and Arbitrator, India The Indian Supreme Court has recently clarified the legal position with regard to the appointment of directors and employees of companies and government enterprises as arbitrators.

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."

Valeria Galíndez (Partner) and Ana Gerdau de Borja (Associate), Barretto Ferreira, Kujawski, Brancher and Gonçalves (BKBG) In a decision of 6 August 2010, the Brazilian Solicitor General, Luís Inácio Lucena Adams, agreed with the Opinion No. AGU/AG-12/2010 issued by the Office of the Brazilian Solicitor-General (AGU Opinion) with respect to the use of arbitration in disputes arising out of specific contracts governed by Law 12,276 of 30 June 2010 (Law 12,276), under which exploration rights in pre-salt reservoirs can be assigned to Petrobras. The AGU Opinion considered that it was inappropriate to provide for international arbitration in these contracts, which are concluded between the federal government, Petrobras (a mixed-capital company) and the Oil, Natural Gas and Biofuel National Agency (ANP).

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP The District Court for the Southern District of New York has confirmed an arbitral award under the New York Convention rendered in an ICDR arbitration with its seat in New York. 

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP The Third Circuit has applied the domestic provisions of the Federal Arbitration Act to confirm an arbitral award rendered in Philadelphia governed by the New York Convention. 

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.

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.

PD Dr. Nathalie Voser (Partner) and Dr. Petra Rihar (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 2 June 2010, published on 23 August 2010, the Swiss Federal Supreme Court dismissed an appeal to set aside an award by the Court of Arbitration for Sport (CAS).

Dr. Martin Bernet and Sonja Stark-Traber, Schellenberg Wittmer (Zurich) In a German-language decision dated 3 May 2010 and published on 2 August 2010, the Swiss Federal Tribunal set aside an arbitral award rendered by a tribunal of the Court of Arbitration for Sports (CAS), after finding that the tribunal lacked jurisdiction to hear a marathon runner's appeal against a doping ban.

The KLRCA has adopted the UNCITRAL Arbitration Rules 2010.

In Cia de Aguas del Aconquija SA and Vivendi Universal SA v Argentina (ICSID Case No ARB/97/3) (Annulment Proceeding), an ad hoc committee has issued guidance on the duties of ICSID arbitrators in respect of potential conflicts of interest.

In Piero Foresti and others v The Republic of South Africa (ICSID Case No ARB(AF)/07/1), an ICSID tribunal considered the question of costs on discontinuance of an ICSID arbitration.    

In Suez and others v Argentina (ICSID Case No ARB/03/19) and AWG Group v Argentina (UNCITRAL),  and Suez and others v Argentina (ICSID Case No ARB/03/17), two parallel tribunals considered whether Argentina could rely on the defence of necessity in connection with its treatment of investors during and in the aftermath of its financial crisis.

Kamal Shah (Partner) and Jonathan Morton (Trainee), Stephenson Harwood   There are several high profile oil company arbitrations brewing in Africa at present, with two particularly interesting disputes developing in Kenya and Uganda.

Eduardo Gonçalves (Partner) and Flavia Mange (Associate), Barretto Ferreira, Kujawski, Brancher and Gonçalves (BKBG) On 9 June 2010, a first instance São Paulo State court intervened in an ongoing arbitration proceeding.  By means of a writ of mandamus (Mandado de Segurança), the court reviewed the arbitral tribunal's decision rejecting a party's request for production of additional engineering evidence.  The state court issued an order to assure the production of engineering expert opinion before the arbitral tribunal.  In a preliminary judgment by the São Paulo State Court of Appeals, the effect of this order was suspended on 22 June 2010.

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.

Ruth Byrne and Joanne Greenaway, Herbert Smith LLP The English High Court has dismissed an application made under sections 67 (lack of substantive jurisdiction) and 68 (serious irregularity) of the English Arbitration Act 1996 (1996 Act) because it found that the claimant had no real prospect of success.  The claimant had challenged the award on the basis that the tribunal had failed to decide the dispute in accordance with the governing law (as required by section 46 of the 1996 Act) but had expressly disclaimed any allegation of impropriety on the part of the tribunal.

An update on Helnan International Hotels A/S v Arab Republic of Egypt (ICSID Case No ARB/05/19) (Annulment proceeding) in which the tribunal partially annulled an award for requiring exhaustion of local remedies.

An update on Paul Price and another v Ian Carter (t/a Ian Carter Building Contractors) [2010] EWHC 1737 (TCC), in which the court assessed the costs of two applications to enforce an arbitration award and to set aside that award, and took into account an offer to settle made in the underlying arbitration proceedings.

An update on Burlington Resources Inc v Republic of Ecuador (ICSID Case No ARB/08/5), in which the tribunal considered whether it had jurisdiction over claims relating to tax legislation and lack of protection against indigenous protests.

An update on Sempra Energy International v The Argentine Republic (ICSID Case No ARB/02/16) (Annulment proceeding), in which the tribunal granted Argentina's application for annulment.

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.

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.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP On 6 June 2010, the District Court for the District of Columbia rejected Argentina’s motions to set aside two UNCITRAL awards issued in favor of UK investors National Grid and BG Group.  The awards, totaling US$280 million, were granted for measures enacted by Argentina during its 2001-2002 financial crisis that denied the investors fair and equitable treatment under the Argentina-UK bilateral investment treaty (BIT).

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP The Fourth Circuit has affirmed a district court decision confirming an arbitral award governed by the Inter-American Convention on International Arbitration.

An update on arbitration-related developments expected in the second half of 2010.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP The Ninth Circuit has ruled that a district court may issue interim injunctive relief to preserve the status quo where parties have agreed to arbitrate their claims.     

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 Philipp Meier (Associate), Schellenberg Wittmer (Zurich) In a recent French-language decision, the Swiss Federal Tribunal ruled on a petition to set aside an interim award by the Court of Arbitration for Sport. In its decision, the Federal Tribunal continues to leave open the question of whether or not the legal principles of non-retroactivity and lex mitior are part of public policy.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP On 21 June 2010, the United States Supreme Court issued an important decision which limits the judicial review of arbitral agreements. The court’s decision is a victory for businesses that favours arbitration to litigation of complaints by consumers and employees, but its impact is uncertain. 

An update on the revised UNCITRAL Arbitration Rules produced by Working Group II.

An update on Alasdair Ross Anderson and others v Republic of Costa Rica (ICSID Case No ARB(AF)/07/3), in which the tribunal considered whether it had jurisdiction over the claims.

An update on Mobil Corporation and others v Bolivarian Republic of Venezuela (ICSID Case No ARB/07/27), in which an ICSID tribunal considered whether it had jurisdiction over certain claims and, in particular, whether the defendant had consented to ICSID arbitration.

Publication of updated quick guides on enforcing arbitration awards and interim remedies.

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.

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.

Neha Vijayvargiya (Associate) and Priyanka Gandhi (Associate), Juris Corp In two recent decisions, the Supreme Court of India considered contracts containing arbitration clauses which had been entered into for the benefit of a non-party.  In one case, the Court decided that a non-signatory to an arbitration agreement cannot be bound by an agreement.  In the other decision, the court held that a company that was not in existence at the time the arbitration agreement had been executed, but had been incorporated afterwards, could not be bound by that agreement.

 Natalia Belomestnova (Associate), Goltsblat BLP The lower chamber of Russian Parliament has passed, in the first reading, a long-awaited mediation law which sets out the rules regulating various aspects of mediation procedure. The law, which will go through further readings in Parliament in the forthcoming months, contains rules which might be of interest to those practising arbitration. 

Wojciech Sadowski (Of Counsel), K&L Gates LLP On 8 March 2010, the Polish Ministry of Economy proposed a draft act proposing to amend 81 existing legislative acts, including arbitration law contained in the Polish Code of Civil Procedure, as well the Insolvency and Restructuring Act. The general aim of the proposed amendments in relation to arbitration is to speed up arbitration-related proceedings before the state courts. It is hoped  that this will be achieved by introducing short time limits for state courts to decide applications to disqualify arbitrators, as well as proceedings relating to the setting aside, confirmation and enforcement of arbitral awards.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), Stephanie Early (Associate), White & Case LLP The District Court for the Southern District of New York has affirmed that 28 USC 1782, a statute that authorises US courts to order discovery of evidence for use by a "foreign or international tribunal", extends to investment treaty arbitrations.

PD Dr. Nathalie Voser (Partner) and Christopher Boog (Associate), Schellenberg Wittmer (Zurich) In a recent French-language decision dated 13 April 2010 and published on its website on 12 May 2010, the Swiss Federal Tribunal ruled for the first time on an appeal against interim measures ordered by an arbitral tribunal seated in Switzerland. The Federal Tribunal held that a petition for setting aside an award was inadmissible where the "award" was a decision regarding interim relief. Moreover, the Swiss Federal Tribunal held that a number of principles regarding interim relief in civil procedure law were also applicable to international arbitration. As it is a leading case, this decision will be published in the official compilation of decisions of the Swiss Federal Tribunal.

Alejandro López Ortiz (Senior Associate) and Silvia Martínez (Junior Associate), Hogan Lovells International LLP The Spanish Court of Arbitration's new arbitration rules entered into force on 15 May 2010. The Spanish Court of Arbitration proposes a modernised procedure with an emphasis on the speed of proceedings.

PD Dr. Nathalie Voser (Partner) and Philipp Meier (Associate), Schellenberg Wittmer (Zurich) Three recent decisions of the Swiss Federal Tribunal on matters related to sports arbitration were published in May 2010. In a decision dated 22 March 2010, the Federal Tribunal rejected a petition to set aside an interim award by the Court of Arbitration for Sport (CAS) as the petitioner had failed to show a sufficient "legally protected interest". In a decision dated 12 April 2010, the Federal Tribunal dealt with the legal principles of interdiction of "reformatio in peius", non-retroactivity and "lex mitior" in the context of public policy challenges. Finally, in a decision dated 13 April 2010, the Federal Tribunal held that decisions by the International Council of Arbitration for Sport (ICAS) concerning challenges to arbitrators cannot be brought as such before the Federal Tribunal.

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

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

An update on the publication of ICSID decisions and 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.

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.

Andrew Robertson (Partner), Piper Alderman A Victorian Supreme Court decision has provided important clarification of the role of the courts in domestic arbitration, by confirming that the courts will not exercise a supervisory jurisdiction over interlocutory orders made in a domestic arbitration. This decision suggests a growing support for the arbitral process from the Australian judiciary.

Kamal Shah (Partner) and Jonathan Morton (Trainee), Stephenson Harwood In a decision dated 30 March 2010 (but only recently published), the English High Court granted a stay of enforcement of a judgment on an arbitration award. However, the court ordered that the stay should be conditional on the provision of substantial security.

Alejandro López Ortiz (Senior Associate) and Silvia Martínez (Junior Associate), Hogan Lovells International LLP The Spanish government has recently published a draft Bill to amend the Spanish Arbitration Act which, amongst other things, requires a higher threshold for awards to be found contrary to public policy.

Alvin Yeo, Senior Counsel (Senior Partner) and Andre Maniam (Head of Litigation & Dispute Resolution Department), WongPartnership LLP The Singapore High Court has held that the question of whether a foreign arbitral award was valid under the law to which the parties have subjected it must be decided in accordance with foreign law, not Singapore law.

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.

Ivan Lischchyna (Counsel), ENGARDE Attorneys at Law, (Ukraine) In late March 2010, an SCC tribunal issued an intermediate award ordering Naftogaz Ukrayiny (Ukrainian National Joint Stock Company) to pay RosUkrEnergo (Swiss-based gas trader) US$197 million.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP The United States Supreme Court has handed down its ruling in the Stolt-Nielsen case, reversing the Second Circuit decision. The Court ruled that a tribunal had exceeded its powers under the Federal Arbitration Act by construing an arbitral clause to permit class arbitration when the clause did not address that issue. The decision is significant in that it will undoubtedly create a barrier to class arbitrations and has already impacted the law regarding class action waivers. Further, the Court assumed, without deciding, that the manifest disregard standard is still viable after its decision in Hall Street LLC v Mattel.

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 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.

Publication of an ICDR arbitration flowchart.

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

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.

An update on the decision on jurisdiction and liability in Joseph Charles Lemire v Ukraine (ICSID Case No ARB/06/18).

An update on Chevron Corporation (USA) and Texaco Petroleum Company (USA) v The Republic of Ecuador (UNCITRAL arbitration): Partial Award on the Merits of 30 March 2010, which considered whether Ecuador breached its obligation to provide the claimants with an effective means of asserting their claims and enforcing their rights.

Ms. Neha Vijayvargiya (Associate) and Ms. Priyanka Gandhi (Associate), Juris Corp The Bombay High Court recently set aside an arbitral award on the grounds that it was 'contrary to the substantive provisions of law' and 'patently illegal'.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP On 10 March 2010, the District Court for the Southern District of Texas confirmed a US$640 billion ICDR award, rejecting the defendant's argument that the award was unenforceable under section 202 of the Federal Arbitration Act (FAA). The court held that the principal place of business of a corporation under the FAA is the corporation's "nerve center" and applied the test from the Supreme Court's decision in Hertz Corp v Friend.

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.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP On 10 March 2010, the District Court for the Southern District of New York denied Ecuador's motion to stay an UNCITRAL arbitration brought by Chevron. Ecuador has since filed a notice to appeal the District Court's decision. 

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.

Andrew Robertson (Partner), Piper Alderman In a recent decision, the Victoria Court of Appeal held that, where provisions in a contract demonstrate a preference for arbitration, the courts will be reluctant to allow parties to proceed with court proceedings. Further, when seeking urgent declaratory relief pursuant to an exception in the arbitration agreement, it was not enough that the party's reasonable opinion was that such relief was necessary to protect that party's rights; the facts also had to demonstrate objective urgency. Therefore, the Court indicated that it would stay the court proceedings to allow the dispute to be resolved by arbitration.

PD Dr. Nathalie Voser (Partner) and Philipp Meier (Associate), Schellenberg Wittmer (Zurich) In a decision dated 29 January 2010 (published online on 17 March 2010), the Swiss Federal Tribunal rejected a petition to set aside an award rendered by a sole arbitrator appointed by the Geneva Chamber of Commerce. The dispute before the sole arbitrator related to contracts for the supply of steel products governed by the UN Convention on the International Sale of Goods (CISG). A (the seller) had claimed to be in a force majeure situation and subsequently tried to impose higher prices. Relying on Article 72 CISG, B (the buyer) had terminated the contracts, entered into substitute transactions with another supplier and claimed compensation from A. In the award, B's claims were upheld. In its petition against the award, A had raised challenges based on substantive ordre public and its right to be heard.

An update on SAB Miller Africa v Tanzania Breweries Ltd and Another [2010] EWCA Civ 1564, which concerned whether the parties could contractually expand the grounds for court intervention set out in section 44 of the Arbitration Act 1996.

An update on the commencement of the Scottish Arbitration Act 2010.

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.

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.

John Choong (Senior Associate), Freshfields Bruckhaus Deringer The Hong Kong Court of Appeal has considered an appeal from a decision of the High Court dealing with state immunity. The Court decided, amongst other things, that the doctrine of restrictive immunity applies in Hong Kong. 

Alejandro López Ortiz (Senior Associate) and Silvia Martínez (Junior Associate), Lovells LLP The Spanish Government has announced a raft of bills which will affect the practice of arbitration and mediation in Spain.

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.

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.

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

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 Hulley Enterprises Limited (Cyprus) v The Russian Federation (PCA Case No AA 226), Yukos Universal Limited (Isle of Man) v The Russian Federation (PCA Case No AA 227) and Veteran Petroleum Limited (Cyprus) v The Russian Federation (PCA Case No AA 228), in which three parallel arbitral tribunals considered whether they had jurisdiction to hear each case on the merits under the Energy Charter Treaty.

An update on Transfield Shipping Inc v Chiping Xinfa Huayu Alumina Co Ltd [2009] EWHC 3642 (Comm), in which the court considered the appropriate test to be applied in deciding whether to grant an anti-suit injunction based on an alleged arbitration agreement between the parties.

Andrew Robertson (Partner), Piper Alderman The Honourable Justice Byrne, Senior Judge Administrator of the Supreme Court of Queensland, has refused an application for a stay of proceedings to allow for the domestic arbitration of a dispute despite the presence of an arbitration agreement between the parties.  His Honour held that "there is no reason to suppose that arbitration offers a better way" for resolving the dispute. While the decision in question relates to a domestic arbitration agreement which is governed by State legislation rather than Commonwealth legislation based on the Model Law, it nevertheless provides a useful insight into some of the attitudes of the Australian courts towards arbitration.

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.  

Alejandro López Ortiz (Senior Associate) and Silvia Martínez (Junior Associate), Lovells LLP The Court of Appeal of Vizcaya, in its Judgment 313/2009 of 5 May 2009, only recently published, deals with the question of whether an award can be set aside on the basis that it has been issued after the expiration of the six-month time limit prescribed by the Spanish Arbitration Act 2003.

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

Maxim Kulkov (Partner), Goltsblat BLP The Federal Arbitration Court of Moscow District has recently upheld the decisions of the 9th Appellate Court (Moscow District) on the validity of so-called "hybrid" dispute resolution clauses.

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

Alejandro López Ortiz (Senior Associate) and Silvia Martínez (Junior Associate), Lovells LLP In Judgment 310/2009 of 30 April 2009, only recently published, the Court of Appeal of Madrid held that the notification of a hearing given to a party only 24 hours before it was held was not enough time for the party to ensure its attendance and prepare it in conditions that can guarantee its due process rights.

Alvin Yeo, Senior Counsel (Senior Partner) and Andre Maniam (Head of Litigation & Dispute Resolution Department), WongPartnership LLP In January 2010, a new dispute resolution facility housing some of the top international ADR institutions and a state of the art hearing centre for arbitration and mediations opened.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), White & Case LLP The Second Circuit has held that an arbitrator had the power to amend an award pursuant to requests made by the parties, and that therefore there was no ground for vacatur of the award under the Federal Arbitration Act. The court also held, affirming the ruling of the District Court, that the arbitrator's calculation of damages was not in manifest disregard of the law. 

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), White & Case LLP In December 2009, the Supreme Court heard oral arguments in Stolt-Nielsen case which arises from an arbitral panel's award holding that an arbitration agreement in an oceanic shipping contract permits class action arbitration even though that maritime agreement did not address the issue of class arbitration. 

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.

An update on the publication of three interim awards relating to the 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.

An update on amendments made to the ICC Statement of Acceptance, Availability and Independence for arbitrators.

An update on LIDL GmbH v Just Fitness Limited and another [2010] EWHC 39 (Ch), which concerned the rules of estoppel in the context of arbitration.

An update on the Delaware Court of Chancery's new voluntary arbitration rules for certain business disputes.

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 Lantic Sugar Limited and Copersucar Trading AVV v Baffin Investments Limited [2009] EWHC 3325 (Comm), in which the court considered whether arbitration proceedings had been commenced in time and, if not, whether time for commencement should be extended.

An update on National Ability SA v Tinna Oils and Chemicals Limited [2009] EWCA Civ 1330, which considered the limitation period for enforcing an arbitration award under the Arbitration Act 1996. Note: The Supreme Court refused permission to appeal from this decision on 17 June 2010.

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

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.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Christopher P. DeNicola (Law Clerk), Paul, Weiss, Rifkind, Wharton & Garrison LLP In December, the Supreme Court ruled that the National Railroad Adjustment Board should not have dismissed an arbitration for lack of jurisdiction where the union had failed to show proof of pre-arbitration conferencing.

Kamal Shah (Partner) and Jo Livermore (Trainee Solicitor), Stephenson Harwood A report highlighting the most significant arbitration related developments in Africa in 2009.

An update on Participaciones Inversiones Portuarias SARL v Gabonese Republic (ICSID Case No ARB/08/17), which considered issues of impartiality of arbitrators in ICSID 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 Second Circuit Court of Appeals has affirmed the district court's decision that an arbitration panel did not abuse its discretion in ignoring a Ukrainian court decision that the arbitration clause in dispute was "null and void".  

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, the Eighth Circuit held that a credit card agreement with an arbitration clause inserted by amendment was not unconscionable. 

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Christopher P. DeNicola (Law Clerk), Paul, Weiss, Rifkind, Wharton & Garrison LLP On 16 October 2009, the Second Circuit overruled a prior decision to hold that Rule B of the Supplemental Rules for Admiralty of the Federal Rules of Civil Procedure cannot be used to attach electronic funds transfers. The decision will likely have a significant impact on maritime arbitration.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Christopher P. DeNicola (Law Clerk), Paul, Weiss, Rifkind, Wharton & Garrison LLP On 5 October 2009, the Supreme Court denied three petitions requesting review of circuit court decisions holding that federal courts may vacate arbitral awards when they are in "manifest disregard of the law." 

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Paul, Weiss, Rifkind, Wharton & Garrison LLP The American Bar Association (ABA) has criticised the Arbitration Fairness Act, the arbitration reform bill currently pending before the US Senate and House of Representatives, which would prohibit mandatory pre-dispute binding arbitration provisions in certain consumer contracts. 

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. 

John Choong (Senior Associate), Freshfields Bruckhaus Deringer LLP Until recently, there has been no reported instance of enforcement being granted in the PRC of an ICC (or other foreign arbitration) award made in the PRC. However, in a recent (and unpublished) order, made in April 2009 and reported recently in domestic PRC publications,  the PRC courts have granted enforcement of such an ICC award.

An update on Toto Construzioni Generali SpA v Republic of Lebanon (ICSID Case No ARB/07/12), in which the ICSID tribunal upheld jurisdiction in part.

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

An update on Bayindir Insaat Turizm Ticaret VE Sanayi AS v Islamic Republic of Pakistan (ICSID Case No ARB/03/29), which concerned the relationship between contract and treaty claims, and the operation of an MFN clause.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Paul, Weiss, Rifkind, Wharton & Garrison LLP In AES Gener v. Compania Carbones Del Cesar, 08 Civ. 10407 (S.D.N.Y. 2009), the United States District Court for the Southern District of New York rejected a motion to compel arbitration. The court held that in order for a motion to compel arbitration to be granted, a formal demand for arbitration must first be rejected by the opposing party.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Paul, Weiss, Rifkind, Wharton & Garrison LLP The United States Court of Appeals for the Third Circuit has ruled that an arbitrator cannot sue a lawyer for wrongful use of civil proceedings consisting of the filing of a petition to recuse the arbitrator based on "bias, misconduct, dishonesty, and fraud."

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Paul, Weiss, Rifkind, Wharton & Garrison LLP In a number of recent rulings, US courts have interpreted the scope of 28 U.S.C. § 1782, which authorises federal courts to order the production of evidence or documents for use in a "proceeding in a foreign or international tribunal." These rulings, which all resulted in dismissing §1782 applications, may suggest a growing trend towards narrowly interpreting the statute.

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.

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.

Aaron J. Wredberg (Associate), Sidley Austin LLP In Glamis Gold, Ltd. v. United States of America (UNCITRAL), a tribunal constituted under Chapter 11 of the North America Free Trade Agreement (NAFTA) rejected a Canadian company's claim that certain regulatory and legislative actions of the US and the State of California adversely impacting the company's gold mining rights in south-eastern California constituted expropriation or a denial of fair and equitable treatment. Of particular significance, the Glamis tribunal held that the US had not violated the international minimum standard of treatment of non-nationals, which the tribunal found had not changed significantly since the decision in Neer v Mexico 4 R. Int'l Arb. Awards (Oct 15 1926) (Neer).

An update on Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2009] EWCA Civ 755, in which the Court of Appeal upheld the first instance judgment of Aikens J and refused to give permission to enforce an ICC award.

An update on Glamis Gold Ltd v USA (8 June 2009), in which the tribunal considered claims for expropriation and breach of the fair and equitable treatment provision of the North American Free Trade Agreement (NAFTA).

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.

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.

The National Association of Pension Funds (NAPF) and the Association of British Insurers (ABI) have indicated their concern about the introduction or maintenance of certain dispute resolution provisions in articles of association of publicly traded companies. However, the position of the NAPF and the ABI is potentially controversial, and is not necessarily substantiated when the empirical record is examined.

An update on the 50th Session of the UNCITRAL Working Group II regarding the revisions to the UNCITRAL arbitration rules.

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.

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

An update on EDF International SA and ors v Argentina (ICSID Case No ARB/03/23), which considers the grounds on which an arbitrator may be removed in ICSID arbitration.

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

In Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2008] EWHC 1901 (Comm), Aikens J set aside an order giving leave to enforce an ICC award, holding that the arbitration agreement was not "valid" for the purposes of section 103 of the Arbitration Act 1996. The case is a relatively uncommon example of a refusal by the court to enforce a New York Convention award, and is particularly notable because the judge reached a different conclusion to the arbitral tribunal on the issue of whether the award debtor was a party to the arbitration agreement. The judgment of Aikens J contains helpful analysis of the scope and meaning of section 103, and the nature of the hearing when an application is made under that section. Note that the Court of Appeal has refused an appeal by Dallah and upheld Aikens J 's decision

ICSID arbitration rule 41(5) permits early objections to claims which are "manifestly without legal merit". In Trans-global Petroleum Inc v Jordan (ICSID Case no ARB/07/25), the tribunal has given the first ruling on the proper interpretation of this provision. The tribunal noted that objections under rule 41(5) involved a truncated procedure, but nevertheless had the potential (should the tribunal uphold the objection) for a legal award to be made against a claimant. It concluded that the provision was intended only for clear and obvious cases of "patently unmeritorious claims". The reference in rule 41(5) to "legal" merit indicated that the tribunal was not concerned to determine factual issues (and should not, therefore, exercise its powers to order document production on a section 41(5) application). Despite this, the tribunal was not required to accept at face value any factual allegation which was "manifestly incredible, frivolous, vexatious or inaccurate". Nor need it accept any legal submission which was "dressed up" as a factual allegation. Applying these principles, the tribunal rejected the challenge to two claims, but confirmed that a third claim was manifestly without legal merit. An award was made recording that the claim was to be treated as having been formally withdrawn by the Claimant with the consent of the Respondent.

In Braes of Doune Wind Farm (Scotland) Ltd v Alfred McAlpine Business Services Ltd [2008] EWHC 426 (TCC), Akenhead J considered an arbitration clause which stated expressly that the seat of any arbitration was "Glasgow, Scotland", but which also selected the English Arbitration Act 1996 (which does not apply in Scotland) as the applicable procedural law. He held that, on a proper construction of the contract as a whole, the juridical seat of the arbitration was England, and that Scotland had been selected as the location of any hearing. It followed that the English court had jurisdiction to entertain an application for leave to appeal brought pursuant to the English Arbitration Act. Although the dispute resolution provisions considered in the present case were unusual, Akenhead J's judgment is of interest because it confirms that, while a choice of seat will usually dictate a corresponding choice of procedural law, the converse is also true. His judgment also contains some interesting comments on the approach which a judge will take to the issue of whether an arbitrator's decision is "obviously" wrong for the purposes of any appeal.

In Suez v Argentina (Case no ARB/03/17), a challenge to an ICSID arbitrator based upon her participation in an earlier award which was unfavourable to the challenger has been rejected. The decision, which has been widely reported, contains a helpful exposition of the standard of proof which applies in relation to challenges to the impartiality or independence of arbitrators. It also demonstrates a strict approach to the timeliness of such challenges: in this case, a delay of less than two months was found to be sufficient to bar the challenge. The arbitrators who ruled on the point made clear that a challenging party should raise any objection as soon as he becomes aware of it. Even if the objection is made in summary form, it can (if raised in good time) be amplified at a later date.

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

In Svenska v Government of Lithuania [2006] EWCA Civ 1529, the Court of Appeal interpreted a joint venture agreement (JVA) to determine whether the Lithuanian government was bound to refer disputes to ICC arbitration. Notwithstanding the deletion of an arbitration clause from an earlier draft, the Court held that there was a common intention that the government should submit disputes to arbitration, and "interpreted" the JVA accordingly. It followed that the ICC tribunal appointed pursuant to the JVA had jurisdiction to make an award against the government, and that the award was enforceable. The case is of interest because the Court of Appeal recognised that it was, effectively, rectifying the agreement under the guise of interpreting it under Lithuanian law. This highlights the differing approach to construction of an arbitration agreement which may apply where there is a foreign proper law. The judgment of the Court also contains analysis of lines of international authority on state parties to arbitration agreements and recognition of foreign awards.

A resource providing sample arbitration clauses in a number of key jurisdictions with accompanying drafting notes. The resource is drafted by experts in those jurisdictions.

Drafting notes to accompany Standard clause, Australia: ad hoc arbitration clause.

Drafting note to accompany the Answer to Notice of Arbitration under the HKIAC Administered Arbitration Rules in Case study, Commencing HKIAC Arbitration.

These are drafting notes to accompany the example Answer to the Request for Arbitration under the ICC Rules 2012.

These are drafting notes to accompany the example Notice of Arbitration under the Arbitration Rules of the Singapore International Arbitration Centre.

A table outlining the key differences between the ICC Rules of Arbitration 1998 and the ICC Rules of Arbitration 2012.

These are drafting notes to accompany the example claim form for a freezing injunction in support of an arbitration.

These are drafting notes to accompany the example witness statement for a freezing injunction in support of an arbitration.

Drafting notes to accompany Standard clause, India: ad hoc arbitration clause.

A drafting note to accompany an LCIA order for directions.

Drafting notes to accompany Standard clause, Lithuania: ad hoc arbitration clause.

Drafting notes to accompany Standard clause, Poland: ad hoc arbitration clause.

Drafting notes to accompany Standard clause, Singapore: ad hoc arbitration clause.

Drafting notes to accompany Standard clause, Sweden: ad hoc arbitration clause.

Drafting notes to accompany Standard clause, Uganda: ad hoc arbitration clause.

An article highlighting the key arbitration-related developments in Australia in 2011/2012.

An article highlighting the key arbitration-related developments in the EU in 2011/2012. 

An article highlighting the key arbitration-related developments in France in 2011/2012. 

An article highlighting the key investment treaty arbitration-related developments in 2011/2012. 

An article highlighting the key arbitration-related developments in Sweden in 2011/2012. 

This article, written for PLC Dispute Resolution, features news and commentary for in-house lawyers and others advising companies facing or contemplating litigation in the US and Latin America.

An examination of arbitration as a way of resolving disputes between parties to a joint venture.

These training materials focus on 15 defective arbitration clauses, and provide an overview of the possible pitfalls when drafting arbitration agreements.

An article highlighting the key arbitration related developments in Africa in 2010/2011. 

An article highlighting the key arbitration related developments in the EU in 2010/2011. 

An article highlighting the key arbitration related developments in Estonia in 2010/2011. 

An article highlighting the key arbitration related developments in Germany in 2010/2011. 

An article highlighting the key arbitration related developments in Ireland in 2010/2011. 

An article highlighting the key arbitration related developments in Singapore in 2010/2011. 

An article highlighting the key arbitration related developments in Sweden in 2010.

This article examines the pros and cons of arbitrating in South Africa, and concludes that, from the point of view of subsequent enforcement, there are advantages to seating an international arbitration in South Africa.

Competition law issues are raised in arbitrations with increasing regularity but it remains judicially undecided whether an arbitral tribunal has a duty, as opposed to a power, to raise and adjudicate competition law issues of its own motion.

An article highlighting the key arbitration-related developments in the Russian Federation in 2011/2012.