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 HKIAC Administered Arbitration Rules, from preliminary steps to post-award.

The UNCITRAL Arbitration Rules 2010 are often adopted in ad hoc arbitrations. This note provides a step-by-step guide to conducting an arbitration under the UNCITRAL Rules 2010, from preliminary steps to post-award. For a guide to arbitrating under the UNCITRAL Rules 1976, see Practice note, Arbitrating under the UNCITRAL Rules 1976: a step-by-step guide.

This note describes the most significant features of the arbitral process in Germany, including the German law regarding arbitration agreements, the duties and powers of the tribunal, the role of state courts, and the challenge and enforcement of awards.

A note giving practical advice on the steps parties and arbitrators can take to avoid excessive delays and costs in arbitration.

A guide to the key issues that arise when allegations of bribery, corruption and money laundering affect international arbitration proceedings.

This Note explains the important factors to consider in selecting a US arbitral seat for an international arbitration in New York, California, Florida and Washington, DC. To the extent that the law applicable to domestic arbitrations between two US companies differs, this Note does not address domestic arbitration, unless expressly indicated.

An overview of the principles governing the recovery of costs in international arbitration.

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

A practice note examining issues that arise in the production of electronic documents (also known as disclosure) in international arbitration.

This note identifies factors that parties should consider when drafting an arbitration agreement calling for arbitration in the US.

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

A summary of the enforcement of arbitral awards in the US, including procedural considerations and the grounds on which enforcement might be challenged.

This note considers the issues that can arise from duties of professional conduct owed by counsel in an international arbitration. It assess the problems for parties and their counsel and proposes possible solutions, including a code of ethics for international arbitration.

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.

A Most Favoured Nation (MFN) clause requires the state party to one investment treaty to provide investors with treatment no less favourable than the treatment it provides to investors under other investment treaties. This note examines the evolving role of the most favoured nation clause, including commentary on leading investment treaty awards.

This practice note considers the different forms that so-called "hybrid", "multi-tiered" (or "escalation") and "carve-out" dispute resolution clauses may take. Although a short form, standard arbitration or jurisdiction clause will suffice in the majority of contracts, certain complex projects may require more complicated dispute resolution provisions. This note focuses on the issues that may arise in using complex clauses and highlights the potential pitfalls a lawyer may face in drafting these types of clauses.

A step-by-step guide to running an ICC arbitration (1998 Rules), from preliminary steps to post-award.

This note sets out the usual steps in ICSID arbitration, providing links to the relevant rules and practical guidance.

An introduction to the US arbitral institutions highlighting the key features and differences of the institutions and their rules.

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

A tracker outlining anticipated key developments in international arbitration.

This Practice Note analyzes, and suggests ways to maximize, the various privileges and protections that may shield mediation communications from disclosure to third parties who are uninvolved in the mediation. In particular, this Note addresses the mediation privilege, attorney-client privilege, work product doctrine and Federal Rule of Evidence 408.

This note outlines the purpose and structure of the opening phase of a mediation.

A brief overview of the minumum procedural standards that apply in international arbitration and the relevant sources of law.

This note outlines the complex questions associated with making, or responding to, a request for non-damages remedies in international arbitration. It also considers the range of non-damages remedies (pecuniary and non-pecuniary) that are available in international arbitration.

Practical guidance on the issues that may arise in connection with procedural orders and preliminary meetings in international arbitration.

A table outlining the key stages of the reform of Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation).

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. Note: this note is currently under review in light of CEITAC's announcement suspending the Shanghai and South China subcommission's authorisation to administer CIETAC cases.

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 Arbitration (Scotland) Act 2010 (AA 2010) provides a modern statutory framework for domestic and international arbitration in Scotland, drawing on the best features of arbitration regimes around the world and reflected in the founding principles of the AA 2010. This practice note considers the terms of the AA 2010, including the Scottish Arbitration Rules.

This note considers the growth of third party funding in international arbitration. It summarises some of the benefits and risks of third party funding for claimants in arbitration and provides guidance on how to manage those risks. The note describes the process of obtaining funding and gives practical tips for parties entering into a funding agreement.

This Note provides an overview of the structure of the law applicable to international arbitration in the US. Unless expressly indicated, it does not address the differences in law applicable to domestic arbitrations between two US companies (where different rules apply).

A case tracker outlining progress in the case of West Tankers v Allianz SpA and another, including summaries of the decisions and links to associated PLC legal updates and articles.

A Practice note which considers a number of "pathological" (or, badly drafted) arbitration clauses and offers drafting guidance. The note is accompanied by Slides, What's wrong with my arbitration clause? which can be used or adapted for training purposes.

A note identifying the various aspects of an international arbitration that may be governed by different laws.

A quick guide to the interim remedies available from tribunals and local courts in key jurisdictions, based upon information in the Arbitration multi-jurisdictional guide. Each country section is based on information provided between March - June 2012.

A quick guide to the interim remedies available from tribunals and local courts in key jurisdictions, based upon information in the Arbitration multi-jurisdictional guide.   Each country section is based on information provided between March - June 2012.

An example witness statement supporting an application to remove an arbitrator under section 24 of the English Arbitration Act 1996, with integrated drafting notes.

An example draft order for an application to remove an arbitrator under section 24 of the English Arbitration Act 1996, with integrated drafting notes.

A notice appointing a party-nominated arbitrator.

An example covering letter for an 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 SIAC Arbitration Rules 2010 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 is an example Statement of Claim 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 illustrates the procedure for enforcing a New York Convention arbitration award made in an arbitration in France, pursuant to section 101 of the Arbitration Act 1996 (the Act). For further discussion of enforcement, see Practice note, Enforcing arbitration awards in England.

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.

This case study provides a worked example of a draft order for an interim request for security for costs under the Arbitration Rules of the Singapore International Arbitration Centre, with integrated drafting notes.

A boilerplate clause for an ad hoc arbitration in which the parties determine the rules most appropriate for the arbitration.

A sample waiver of sovereign immunity clause for commercial matters in Argentina. This standard clause includes integrated drafting notes, with explanations and drafting tips.

The British Coffee Association's (BCA's) recommended arbitration clause.

A sample ad hoc arbitration clause providing for arbitration in Canada, with integrated drafting notes. The clause is available in English and French.

A boilerplate clause for an ad hoc arbitration in England and Wales in which the parties determine the rules most appropriate for the arbitration. The clause includes integrated drafting notes.

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

Grain and Food Trade Association's (GAFTA's) recommended arbitration clause.

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

A sample ad-hoc arbitration clause providing for arbitration in Latvia, in English and Latvian.

The London Rice Brokers Association's (LRBA's) standard arbitration clause.

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 sample ad hoc arbitration clause providing for arbitration in Singapore.

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

The Sugar Association of London's (SAL's) standard arbitration clause.

A sample waiver of sovereign immunity clause which acknowledges the jurisdiction of an arbitral tribunal and waives immunity from the jurisdiction of state courts. The clause further waives immunity in respect of enforcement measures against state property in Sweden.

A sample waiver of sovereign immunity clause for Thailand. This standard clause has integrated notes with important explanations and drafting tips.

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

This table contains details of venues from across the world that provide facilities for arbitration hearings.

A comparative table on commencing arbitration proceedings under the UNCITRAL, LCIA, ICC, ICDR and SCC Arbitration Rules.

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 Checklist explaining how to choose an arbitration panel for industry disputes (particularly employment-related disputes) or customer/ investor cases (on behalf of the respondent firm or broker-dealer) under the FINRA Code of Arbitration Procedure for Industry Disputes and the FINRA Code of Arbitration Procedure for Customer Disputes.

A flowchart showing all the stages of an ICC arbitration (2012 Rules). For a more in-depth look at the procedure in an ICC arbitration (2012 Rules), please see ICC arbitration (2012 Rules): a step-by-step guide.

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

This checklist sets out the issues to bear in mind when a claimant is considering requesting, or has requested, a non-damages remedy or remedies.

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.

Key issues for claimants and their lawyers to consider when seeking third party funding and negotiating a funding agreement for international arbitration claims.

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

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

An article highlighting the key arbitration-related developments in China in 2012/2013. 

An article highlighting the key arbitration-related developments in France in 2012/2013. 

An article highlighting the key arbitration-related developments in India in 2012. 

An article highlighting the key arbitration-related developments in the Netherlands in 2012/2013. 

An article highlighting the key arbitration-related developments in Singapore in 2012. 

An article highlighting the key arbitration-related developments in Switzerland in 2012. 

An article highlighting the key arbitration-related developments in the US in 2012/2013. 

An article highlighting the key arbitration-related developments in Australia in 2012/2013. 

An article highlighting the key arbitration-related developments in the European Union in 2012/2013. 

2012 has seen a number of changes in the international arbitration landscape, including rule changes, legislative developments and important caselaw. PLC Arbitration has reviewed the year's developments and selected ten of the most important.

The Country Q&A tool enables subscribers to search the Country Q&A in the PLC Arbitration multi-jurisdictional guide 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.

An article examining the grounds under the New York Convention for refusing enforcement of international arbitration awards. The article includes a review of case law that illustrates the circumstances where awards may be practically unenforceable. It also examines the circumstances in which courts have felt able to refuse enforcement on grounds not appearing in the exhaustive list of grounds for non-enforcement in Article V of the New York Convention.

This feature article provides an overview of third party funding in arbitration claims, and considers its advantages and disadvantages.

This chapter provides an overview of the 2012 revisions to the Swiss Rules of International Arbitration and the ICC Rules of Arbitration. In particular, it: summarises the main amendments to the two sets of rules that deal with efficiency considerations; examines mechanisms aimed at complex arbitrations; and discusses provisions relating to the emergency arbitrator. This article is part of the PLC Arbitration multi-jurisdictional guide. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Malta. 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. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice 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 Turkey. 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. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice 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 dispute resolution law in Sweden. 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. To compare answers across multiple jurisdictions visit the Litigation and enforcement 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.

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.

Pursuant to a new Dubai law that extends the jurisdiction of the Dubai International Financial Centre (DIFC), any party, even those with no connection to the DIFC, can now choose to have their commercial disputes resolved by the DIFC Courts.  Moreover, the law formalises the mechanism for the enforcement of arbitral awards rendered in the DIFC in onshore Dubai.

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 arbitration-related developments in Hong Kong in 2011.

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

An article highlighting the key arbitration-related developments in Spain in 2011. 

PLC Arbitration has selected some of the most significant developments from 2011. This article highlights our top five tips.

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

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

After 30 years without significant alteration, and following a lengthy consultation period with French arbitration practitioners, the text of French arbitration law was very recently reformed by Decree 2011-48 of 13 January 2011. 

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

An article highlighting the key arbitration related developments in England and Wales in 2010/2011. 

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

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

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

An article highlighting the key arbitration related developments in the Russian Federation in 2010. 

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

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

Publication of Practice note, Annulment of awards in ICSID arbitration, written by Herbert Smith LLP. (Free access).

On 3 November 2010, the Supreme Court handed down its judgment in Dallah Real Estate and Tourism Holding Co v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46. Their Lordships upheld the High Court and Court of Appeal's refusal to enforce an ICC award made against the government of Pakistan by a tribunal sitting in France. Enforcement was refused on the ground that the government of Pakistan had not consented to the jurisdiction of the ICC tribunal as a matter of French law. 

If arbitration is to continue as a viable and preferred method of international dispute resolution, all stakeholders in the process must adopt a more value-centric approach to its execution. This Article examines ways that parties, their counsel and the arbitrators themselves can make more reasonable and responsible decisions while arbitrating, particularly in the context of discovery, to ensure that the process becomes more efficient and, as a result, more value-driven.

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 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.

Current trends in international construction dispute resolution, especially those emerging from the global economic downturn, are reshaping the dispute resolution process. This article examines the rise of ADR and it impact on arbitration, construction as an "investment" dispute and issues when negotiating and administering construction contracts, particularly the increased importance of bonds, time clauses and choice of law clauses.

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.

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.

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.

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.

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

We have updated our table of institutional statistics to include the figures for 2012.

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

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

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

We have published a new checklist on non-damages remedies in international arbitration.s.)

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

PwC and Queen Mary School of International Arbitration have published their 2013 International Arbitration Survey on industry perspectives on international arbitration.

On 10 April 2013, Montenegro ratified the ICSID Convention.

On 1 April 2013, the Singapore International Arbitration Centre (SIAC) published a revised set of rules.

In Hong Kong, the Arbitration (Amendment) Bill 2013 has been gazetted and a date for the new HKIAC Administered Arbitration Rules has been announced.

The Qatar International Center for Conciliation and Arbitration (QICCA) and the Australian Centre for International Commercial Arbitration (ACICA) have signed a co-operation agreement to boost investment.

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

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

In AI v MT [2013] EWHC 100 (Fam), the High Court explained its approach in making a consent order in terms of an arbitral award by the Beth Din in matrimonial proceedings.

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

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

In a decision dated 8 February 2012, but only recently published, the Turkish Supreme Court Assembly of Civil Chambers held that tax-related issues are part of public order in Turkey. Therefore, a decision of the First Instance Court, which involved tax-related issues and was given without having the necessary expert reports, was contrary to Turkish law and public policy.

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

In Victor Pey Casado and Foundation "Presidente Allende" v Republic of Chile (ICSID Case No. ARB/98/2, Annulment decision of 18 December 2012), an ad hoc committee considered an application to annul an ICSID award because the tribunal had seriously departed from a fundamental rule of procedure by denying the parties an opportunity to be heard on the appropriate method for the calculation of damages and by giving contradictory reasoning for its own determination of what that method should be.

On 31 December 2012, the Chinese International Economic and Trade Arbitration Centre (CIETAC) made an announcement regarding its relationship with the Shanghai and South China sub-commissions.

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

The United States District Court for the District of New Jersey has upheld an arbitrator's finding that an arbitration agreement implicitly authorised class arbitration.

We have published an article which examines the impact of two recent decisions, White Industries and Bharat Aluminium, on investment arbitration in India.

PLC Arbitration's top ten international arbitration developments from 2012. (Free access).

We have published an article on arbitration in the international banking and finance sectors. (Free access).

The United States Court of Appeals for the Eighth Circuit has affirmed a District Court’s denial of a request for a mandatory stay of litigation for resolution of a related arbitration, because the suit was not covered by the arbitration clause.

On 1 November 2012, the Dublin International Arbitration Centre opened. Located in the Distillery Building, in the heart of Dublin’s legal quarter, the establishment of the centre is a joint venture between the Bar Council of Ireland and the Chartered Institute of Arbitrators.

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

We have published a practice note on arbitrability in international arbitration. (Free access).

This article examines the ongoing debate surrounding most favoured nation (MFN) clauses, with a particular focus on the four recent arbitral awards.

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

The United States Court for the Southern District of Florida has granted a motion to compel arbitration after determining that the parties' agreement to arbitrate was enforceable. (Free access).

In a German-language decision dated 6 August 2012, which is designated for publication as a leading decision, the Swiss Supreme Court confirmed its approach to the issue of negative competence-competence (kompetenz-kompetenz) for Swiss-seated arbitrations.

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

On 16 October 2012, the European Commission published its opinion on the Council's first reading position on the adoption of a Regulation of the European Parliament and of the Council establishing transitional arrangements for bilateral investment agreements between member states and third countries.

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

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel) and Daniel J. Hickman (Associate), White & Case LLP The United States District Court for the Southern District of New York has confirmed an ICC arbitration award and dismissed objections based on personal jurisdiction, forum non conveniens and assertions of non-arbitrability and due process violations.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel) and Daniel J. Hickman (Associate), White & Case LLP The United States District Court for the Eastern District of Virginia has refused to dismiss an ICSID enforcement proceeding filed in the wrong forum, instead transferring the case to the proper venue.

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

We have published a practice note which set outs the background, scope and procedural rules of the Family Law Arbitration Scheme, launched in February 2012.

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

In Flughafen Zürich AG and Gestión e Ingenería IDC SA v Bolivarian Republic of Venezuela (ICSID Case No. ARB/10/19), an ICSID tribunal considered the claimants' application to disqualify an expert appointed by the respondent and to exclude his expert report.

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

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

We have published a practice note and checklist on third party funding for international arbitration claims.

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate), Natalia Bacelar de Rezende Belliboni (Associate), Mattos Filho Advogados The Brazilian Superior Court of Justice has issued a new precedent (No. 485) on the retroactivity of the Brazilian Arbitration Act 1996, expressing its application to arbitration clauses contained in contracts that pre-date the enactment of the Act. With this precedent, the court settled a long standing debate on the status of arbitration clauses entered into before the Act entered in force.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel) and Daniel J. Hickman (Associate), White & Case LLP The United States Court of Appeals for the Fifth Circuit has held that a district court’s attempt to resolve an impasse over the selection of an arbitral panel, by disregarding the parties’ arbitration agreement requiring the constitution of a three arbitrator panel and ordering the parties to proceed to arbitration before five arbitrators, exceeded the district court’s appointment authority under the Federal Arbitration Act (FAA).

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a French-language decision of 27 June 2012, the Swiss Supreme Court dealt with the issue of the impartiality of arbitrators who must re-examine a case remanded to them after a successful challenge to an award. It found that unless there are particular reasons to doubt their impartiality, cases should be remanded to the original arbitrators. The decision also further defined the permissible scope of re-examination.

PD Dr. Nathalie Voser (Partner) and Aileen Truttmann (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 12 July 2012, and published on 6 August 2012, the Swiss Supreme Court ruled that the arbitral tribunal had not failed to take one of the petitioner’s arguments into account and was entitled to refuse a site inspection. Therefore, the parties' right to be heard had not been violated. Moreover, the arbitral tribunal had not violated the principles of pacta sunt servanda and bona fides.

PD Dr. Nathalie Voser (Partner) and Hannah Boehm (Associate),  Schellenberg Wittmer (Zurich) In a German language decision of 23 May 2012, published on 25 July 2012, the Swiss Supreme Court clarified that the issue of the arbitrability of the matter in dispute is, as a rule, exclusively governed by Article 177(1) PILA. Only in exceptional circumstances may ordre public reasons justify the application of foreign statutory provisions.

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

Nathalie Voser, partner and co-head of Schellenberg Wittmer's international arbitration group, and Paula Hodges, partner and co-head of Herbert Smith LLP's global arbitration practice, have joined PLC Arbitration's consultation board. (Free access).

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

We have added further materials to the case study on commencing an international arbitration under the Arbitration Rules of the Singapore International Arbitration Centre. (Free access.)

We have published a collection of waiver of sovereign immunity clauses in a number of key jurisdictions with integrated drafting notes. (Free access).

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

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

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

PD Dr. Nathalie Voser (Partner) and Elisabeth Leimbacher (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 2 May 2012 and published on 20 June 2012, the Swiss Supreme Court confirmed that a challenge based on a breach of the principle of equal treatment and the right to be heard is only admissible if it has been raised during the arbitral proceedings. The Supreme Court also rejected the petitioner's motion that the granting of punitive damages infringed public policy (ordre public), although without examining the merits of the motion.

An Ask the team article on the options open to parties who wish to set a time limit for the production of the arbitral award.

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 Eastern District of Virginia has declined to recognise incorporation of the International Chamber of Commerce arbitration rules in an agreement to arbitrate as "clear and unmistakable" intent to let the arbitral panel decide threshold questions of arbitrability.

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

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

Olof Rågmark (Partner), Advokatfirman Delphi, Stockholm On 2 July 2012, the Svea Court of Appeal in Stockholm (case T611-11) dismissed an appeal by Naftogaz relating to a separate arbitral award issued by an SCC tribunal in 2010 finding that Naftogaz was obliged to deliver gas and pay penalties for undelivered gas.

Montenegro has signed the ICSID convention.

In Fraport AG Frankfurt Airport Services Worldwide v Philippines (ICSID Case no ARB/11/12) (Procedural order no 1), an ICSID tribunal considered the effect of the annulment of an award in a previous arbitration between the parties. It also considered issues arising out of an ICC arbitration on the same subject matter but between related parties.

The AAA has announced the appointment of a new President.

An ICSID tribunal has considered whether Guatemala's interference with railroad concessions granted to Railroad Development Corporation breached the minimum standard of treatment provision under the Dominican Republic - Central America Free Trade Agreement.

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

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate) and Diego Nocetti (Associate), Mattos Filho Advogados The Brazilian Superior Court of Justice has ruled on the extent of state courts', and arbitral tribunals', jurisdiction when issuing pre-arbitral interim measures. This is the first time that the issue has come before this court.  Although state courts have the power to issue preliminary measures prior to the constitution of the arbitral tribunal, they must not conduct proceedings in parallel with an ongoing arbitration.

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

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

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 Northern District of Texas has denied a motion to remand to state court a dispute between two foreign nationals, both domiciled in the US, over an arbitral award, holding that federal jurisdiction was proper pursuant to the New York Convention.

Joanne Greenaway (Professional Support Lawyer) and Dominic Kennelly (Associate), Herbert Smith LLP The English Commercial Court has provided guidance on the circumstances in which third parties seeking to enforce contractual provisions (pursuant to the Contract (Rights of Third Parties) Act 1999 (CRTPA) will be subject to an arbitration agreement in the relevant contract.  Essentially, Blair J finds that a party will be treated as a party to the arbitration agreement if they are seeking to enforce a substantive term of the contract.

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

Kamal Shah (Partner) and Matthew Harley (Trainee Solicitor), Stephenson Harwood LLP On 1 June 2012, the Kigali International Arbitration Centre (KIAC) was launched with over 400 guests in attendance, including the Rwandan Prime Minister, Pierre Damien Habumuremyi.

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

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman The Supreme Court of Victoria has interpreted a dispute resolution clause and ruled in favour of expert determination over arbitration. The decision provides yet another reminder of the need for clarity and precision when drafting dispute resolution clauses. 

A freely accessible website providing case law on the application of the New York Convention from a number of key jurisdictions has been launched.

PLC has published an article which provides an overview of third party funding in arbitration claims, and considers its advantages and disadvantages. (Free access.)

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

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

The International Swaps and Derivatives Association (ISDA) Law Reform Committee held a meeting in Singapore last week to discuss the use of arbitration for derivative disputes.

The Kuala Lumpur Regional Centre for Arbitration (KLRCA) has revised its arbitration rules. (Free access).

In Latvian Shipping Company v The Russian People's Insurance Company (Rosno) Open Ended Joint Stock Company [2012] EWHC 1412 (Comm), the Commercial Court considered the court’s power, both under CPR 3.1(7) and its inherent jurisdiction, to set aside an order granting leave to appeal an arbitration award under section 69 of the Arbitration Act 1996.

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

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

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

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

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

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.

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. 

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. 

Charles Ball (International Counsel), Hiswara Bunjamin & Tandjung On 1 April 2012, members of the Indonesian National Olympic Committee formalised a new arbitral body to hear sporting disputes in Indonesia.  The new body, called the Indonesian Sports Arbitration Body (in Indonesian "Baden Arbitrase Keolahragaan Indonesia" or "BAKI") will be the official arbitral body to handle disputes between sporting bodies and adjudicate allegations of doping. 

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.

UNCTAD has released its 2011 annual review of investment treaty arbitration cases.

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

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.

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

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.

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

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.

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate), Diego Nocetti (Associate), Mattos Filho Advogados In a long-awaited decision dated 7 December 2011, the Court of Appeals of the State of Paraná (TJPR) overturned one of the most criticised arbitration-related court decisions in Brazil, according to which the execution of a submission agreement was a necessary step before initiating arbitral proceedings, even when the parties had entered into a valid arbitration clause and had participated in ICC proceedings without objecting to the tribunal’s jurisdiction.

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.

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.

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

In LaVoice v. UBS Financial Services, Inc., the US District Court for the Southern District of New York granted a motion to compel arbitration of the plaintiff's Fair Labor Standards Act (FLSA) and state wage and hour claims despite a class and collective action waiver. The court found AT&T Mobility v. Concepcion, precluded LaVoice's argument that the FLSA creates an unwaivable right to collective actions. Notably, the court rejected the argument that D.R. Horton, Inc. supported a contrary reading of AT&T Mobility.

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.

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.

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

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

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.

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

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.

PLC Arbitration has published three Standard documents on extensions of time for commencing arbitration under section 12 of the Arbitration Act 1996.

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

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.

Joe Kelly (Partner) and Siobhán Kirrane (Associate), A&L Goodbody Over the coming months, Dublin will be holding a number of arbitration conferences, hosted by Arbitration Ireland, the ICDR, TCD and CIArb.

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

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.

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.

The International Chamber of Commerce (ICC) has launched its revised Rules of Arbitration, which will come into force on 1 January 2012.

PLC Magazine has published three articles that are now available to PLC Dispute Resolution subscribers.

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.

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.

The Chamber of Arbitration of Milan (CAM) has released guidelines on transparency in international commercial arbitration, which follows the revision of CAM's Arbitration Rules in January 2010.

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.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Fourth Circuit Court of Appeals has found that the question of which arbitral panel can decide the validity of an agreement, when two arbitrations have been commenced in a dispute involving two agreements providing for arbitration in different places, is a procedural question to be decided by the arbitrators.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore Court of Appeal has set aside an arbitral award that breached the dispute resolution clause chosen by the parties. The Court of Appeal discussed, amongst other things, the scope of the Singapore courts' powers to review an arbitral award and the requirements that would need to be proven before an award could be set aside.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Court of Appeals for the Fifth District of Texas at Dallas has vacated and remanded a US$22 million arbitral award, which included over US$6 million in attorney's fees, after finding that the sole arbitrator had acted improperly by failing to disclose his relationship with an attorney representing the claimant in a partnership dispute in a JAMS arbitration.

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

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.

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

The Arbitration and Mediation Services (Equality) Bill 2010-11 had its first reading in the House of Lords on 7 June 2011. 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, in particular, in the context of family law matters, domestic abuse and criminal proceedings.

Andrew Robertson (Partner), Piper Alderman From 27 to 28 May 2011, the first Chartered Institute of Arbitrators (CIArb) Asia Pacific Conference, entitled Investment and Innovation: International Dispute Resolution in the Asia Pacific, was held in Sydney, Australia. The conference had speakers from 13 countries, including Australia, China, the UK and the US.

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

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).

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

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

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

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.

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.

The UK government has decided to opt in to the European Commission's proposals for reform of the Brussels Regulation and to participate in negotiations.

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).

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 ruled that a court may not grant a motion relying on the Federal Rules of Civil Procedure (FRCP) to extend the statutory time limit to file a motion to vacate or modify an arbitral award.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), 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.

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

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.

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).

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Ninth Circuit Court of Appeals has affirmed a district court’s decision allowing removal to federal court of a case on the basis that it fell under the New York Convention as the defendant asserted an affirmative defence relying on a foreign arbitral award.

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 District of Columbia has indicated that it will enforce an award set aside by a Qatari court and upheld by a French court in a long-contested arbitration.

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

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

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.

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).

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.

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

PD Dr. Nathalie Voser (Partner) and Dr. Dorothee Schramm (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 4 October and published on 10 November 2010, the Swiss Supreme Court confirmed the recognition and enforcement of an arbitral award rendered in the Czech Republic under the auspices of the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic. The Supreme Court rejected, among other things, claims of violation of res judicata and a violation of the parties' arbitration agreement, which provided for arbitration under the auspices of the Czechoslovak Chamber of Commerce and Industry.

PD Dr. Nathalie Voser (Partner) and James Menz, J.D. (Associate), Schellenberg Wittmer (Zurich) In two German-language decisions dated 28 September and 6 October 2010, and published on 11 November and 16 November 2010 respectively, the Swiss Supreme Court rejected petitions for revision of doping-related decisions by CAS tribunals. Both decisions reflect the Supreme Court's very restrictive approach to the revision doctrine and show that parties must exercise considerable "due diligence" to develop, or to determine the existence of, exonerating facts.

Wojciech Sadowski (Of Counsel), K&L Gates, Warsaw The Young Arbitration Practitioners in Poland (YAPP) group was established on 8 November 2010 and is the first organisation of its kind in Poland. YAPP is intended to provide a platform for exchange of experience and professional development for Polish lawyers under the age of 40 who are involved in arbitration.

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

Alejandro López Ortiz (Senior Associate) and Pablo Martínez (Junior Associate), Hogan Lovells International LLP In a judgment of 7 May 2010 and only recently published, the Court of Appeal of Madrid dismissed an action to set aside an arbitral award on the basis that the tribunal's refusal to accept a res iudicata defence did not constitute, per se, a breach of public policy and that the award had not determined matters that are not capable of settlement by arbitration.

Publication of articles from PLC Magazine (November 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 Sarah Garvey of Allen & Overy LLP on the progress of the Brussels Regulation reforms and the issues for the European Commission, following the European Parliament's resolution of 7 September 2010.

Publication of the Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals.

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).

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."

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP The Seventh Circuit has held that the court, not the arbitrator, must rule on the question of contract formation where the purported contract contains an arbitration clause. 

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.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore High Court has set aside an ICC arbitral award where the tribunal acted in excess of the powers granted to it in the arbitration agreement.

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.

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

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

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

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.

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

 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. 

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

Ruth Byrne (Solicitor Advocate) and Joanne Greenaway (Professional Support Lawyer), Herbert Smith LLP The English Commercial Court has held that it had jurisdiction to grant declaratory and injunctive relief even though there was no actual, proposed or intended arbitration. This decision is of practical significance for parties who, while not wishing to commence arbitration, wish to rely on an arbitration clause so as to restrain their counterparty from suing them other than by means of arbitration. 

Neha Vijayvargiya (Associate) and Priyanka Gandhi (Associate) , Juris Corp The Indian Supreme Court recently refused to set aside an order of the Bombay High Court rejecting an application to amend the memorandum of the arbitration appeal (the Memorandum). The application to amend the Memorandum (which in turn was appealing against the district court’s rejection of the challenge to the arbitral award) was rejected. The rejection was on the basis that the amendment sought to add new grounds of challenge to the arbitral award which were not originally raised in the application for setting aside the arbitral award. Further, the application was made outside the applicable time limit.

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.

Publication of a survey as part of the European Commission's impact assessment of the proposed reforms of the Brussels Regulation.

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

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

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.

PD Dr. Nathalie Voser (Partner) and Sonja Stark-Traber (Associate), Schellenberg Wittmer (Zurich) In a decision dated 15 February 2010 and published on 18 March 2010, the Swiss Federal Tribunal rejected a petition to set aside an ICC award for ultra or extra petita (going beyond what was sought by the claimant or granting relief different from that sought), for violation of public policy and for violation of the right to be heard. The Federal Tribunal held that an intrinsic contradiction in an award does not render the award contrary to substantive public policy such as to justify the annulment of the award under Article 190(2)(e) of the Swiss Federal Statute on Private International Law.

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

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

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

An update on the Irish Arbitration Bill 2008 which was passed by the Irish Senate on 24 February 2010.

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.

Alvin Yeo, Senior Counsel (Senior Partner) and Andre Maniam (Head of Litigation & Dispute Resolution Department), WongPartnership LLP It is not uncommon for transactions involving multiple related agreements to contain different dispute resolution clauses. In such cases, when a dispute in relation to the transaction arises, determining which clause applies to the dispute can become a thorny issue. This was the case in the recent Singapore High Court decision of Transocean Offshore International Ventures Ltd v Burgundy Global Exploration Corp [2010] SGHC 31 where there were two related contracts: one containing an arbitration clause and the other containing a submission to the jurisdiction of the Singapore courts. The court held that, in the event of a claim for breach of contract, it would consider which contract the dispute was more closely related to and apply the relevant dispute resolution clause accordingly.

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

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

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), White & Case LLP The Eighth Circuit has, for the first time, applied "alternative estoppel" to allow a non-signatory to an arbitration agreement to compel a signatory to arbitrate claims. 

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

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

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

Sverker Bonde (Advokat and Senior Associate), Delphi On 18 December 2009, the Svea Court of Appeal in Stockholm refused to set aside a 2007 SCC arbitral award in relation to a dispute between US Global Nuclear Services and Supply (GNSS) and the Russian company AO Techsnabexport (Tenex).

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

An update on arbitration related developments expected in 2010.

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.

Meghna Sankhla (Managing Partner), Sankhla & Associates The Apex Court has reinforced the grounds for setting aside an award or for contesting the validity of an arbitration agreement or award.

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

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

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. 

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 Seventh Circuit has affirmed a district court decision enforcing a subpoena for certain documents relating to an arbitration award. The court rejected the defendant's argument that it could not produce the documents due to the existence of a confidentiality agreement.

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

An update on Brandes Investment Partners, LP v Bolivarian Republic of Venezuela (ICSID Case No ARB/08/3), in which the tribunal considered the respondent's preliminary objection that the claim was manifestly without legal merit, under ICSID Arbitration Rule 41(5).

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

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).

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Paul, Weiss, Rifkind, Wharton & Garrison LLP The Financial Industry Regulatory Authority (FINRA) has reported an increase in the number of FINRA arbitration cases commenced in the first four months of 2009. At the current pace, 2009 will see the most arbitrations commenced (approximately 7200) since 2004, when 8201 arbitration cases were filed.

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

On 4 September 2008, Advocate General Kokott delivered her opinion that anti-suit injunctions against proceedings in another member state brought in breach of an arbitration agreement are incompatible with EC law.

The International Law Association (ILA) has issued a draft report on ascertaining the contents of the applicable law in international commercial arbitration. For background on applicable law, see Practice note, Which laws apply in international commercial arbitration? The ILA report provides a list of 15 practical recommendations that arbitrators may take into account when ascertaining the applicable law and its contents. The recommendations, offered as guidance only (much like the IBA Guidelines on Conflicts of Interest), focus on how arbitrators should acquire information on the content of the applicable law, how to interact with the parties about such content, how to make use of the information and how to address situations that require special treatment. The report proposes, amongst other things, that arbitrators should: Develop a sufficient understanding of the applicable law Respect due process and public policy. Rely on the parties for information about the contents of the applicable law. Question parties on legal issues raised, their submissions and evidence on the contents of the applicable law. Not introduce legal issues that the parties have not raised. Give parties a reasonable opportunity to be heard on legal issues. Apply appropriate alternative laws or rules when, after diligent effort, the contents of the applicable law cannot be ascertained. The draft report, available on the ILA's website, is being presented at the association's biennial con

The UNCITRAL Working Group tasked with considering proposed revisions to the UNCITRAL Arbitration Rules (the Rules) met in Vienna from 10 to 14 September 2007 to consider amendments to articles 21 to 41. (Articles 1 to 20 were considered at the last meeting in February 2007 - see Legal update, Revisions to UNCITRAL arbitration rules: latest developments.) Various amendments to articles 21 to 41 had been highlighted for discussion (see the UNCITRAL report of 6 December 2006) including:Article 25 (Witnesses): whether officers, employees and shareholders of a party may appear as witnesses, given that they cannot be characterised as witnesses in some jurisdictions.Article 26 (Interim Measures): whether provision should be made for ex parte applications for interim measures and various safeguards in relation to applications for interim measures.Article 31 (Decisions): whether a presiding arbitrator alone may make an award in the absence of a majority decision.The Working Group was also expected to consider proposed amendments to the Rules to reflect the particular features of arbitrations to which states are party, in particular the role of non-parties in such arbitrations and the submission of amicus curiae briefs. (For more background, see Legal update, Proposed revisions to UNCITRAL rules for state arbitrations.) PLC Dispute Resolution will continue to track these developments and report on the outcome of the discussions when a summary is available. A revised draft o

An article highlighting key American Arbitration Association/International Centre for Dispute Resolution (AAA/ICDR) resources.

A drafting note covering the issues which may arise when considering and negotiating a CIETAC arbitration clause, with drafting guidance.

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 Statement of  Defence and Counterclaim under the Arbitration Rules of the Singapore International Arbitration Centre.

These are drafting notes to accompany the example Response to 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 draft order for a freezing injunction in support of an arbitration.

An article highlighting key Hong Kong International Arbitration Centre (HKIAC) resources.

An article highlighting key International Chamber of Commerce (ICC) resources.

A drafting note to accompany an LCIA order for directions.

The checklists that are currently on PLC Arbitration are listed below under the relevant topic. The same documents can also be viewed by clicking on the relevant subject in the Topic box on the PLC Arbitration homepage and then selecting the "Checklists" tab.

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

An article highlighting key Stockholm Chamber of Commerce (SCC) resources.

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

An article highlighting key United Nations Commission on International Trade Law (UNCITRAL) resources.

In KwikasairCargasExpressas S/A; KwikasairCargasExpressas S/A – Bankrupt Estate and others v AIG Venture Holdings Ltd in the Special Appeal n. 1.355.831, Superior Court of Justice, Judgement of 19 March 2013, published on 22 April 2013, the Brazilian Superior Court of Justice (STJ) considered whether the validity of an arbitration agreement must be considered by the arbitral tribunal before a claim seeking annulment of the arbitration clause could be submitted to the courts, even where the plaintiff was a bankrupt company.

In Beijing Jianlong Heavy Industry Group v Golden Ocean Group and others [2013] EWHC 1063 (Comm), the Commercial Court considered the validity of the arbitration clauses contained in guarantees that were unenforceable for illegality.

In England and Wales Cricket Board Ltd v Danesh Kaneria [2013] EWHC 1074 (Comm) (a judgment dated March 2013 but only recently published), Cooke J considered whether disciplinary appeal proceedings before the England and Wales Cricket Board (ECB) amounted to arbitration proceedings for the purposes of the Arbitration Act 1996.

The Delhi High Court has considered the applicability of Part I of the Arbitration and Conciliation Act 1996 to a London-seated arbitration.

The Court of Appeal of Nigeria has considered whether it could set aside the decision of an arbitrator on the grounds of misconduct.

The US Court of Appeals for the Sixth Circuit has affirmed a District Court's order vacating an arbitration award due to evident partiality of an arbitrator.

The Court of Appeal of the State of California has affirmed an order denying a motion to compel arbitration, by upholding the trial court's conclusion that the arbitration provision was unenforceable under state law.

The US Court of Appeals for the Fourth Circuit has held that the Supreme Court's decision in AT&T Mobility LLC v Concepcion applies not only to state laws, but also to contractual provisions.

The Nigerian Court of Appeal has considered whether a dispute concerning a winding-up petition is arbitrable, even when legislation grants jurisdiction to the Federal High Court.

The Swiss Supreme Court has considered whether a foreign mandatory provision could potentially affect the arbitrability of a dispute in Switzerland.

The Swiss Supreme Court has considered whether an athlete had a legitimate interest in having an award set aside, even though the ban imposed on him by the award expired two days after the petition was filed. It also considered, although leaving the question open, whether issues related to evidence in its widest sense, in sports disciplinary matters, fell under the setting aside ground of public policy.

The Hong Kong Court of Final Appeal has refused leave to appeal in the Pacific China Holdings Limited (In Liquidation) v Grand Pacific Holdings Limited dispute.

In an Italian-language decision dated 10 December 2012, the Swiss Supreme Court confirmed that a challenge of an award for infra petita will not be possible where there has been a general dismissal of claims in the operative part of the award.

In Cadogan Maritime Inc v Turner Shipping Inc [2013] EWHC 138 (Comm), the court considered an application to set aside an additional award that had been made under section 57 of the Arbitration Act 1996, on grounds of serious irregularity.

The First Chamber of the Supreme Court of Justice of Mexico (Supreme Court) issued a final ruling under case docket no. 755/2011, holding that public policy, as a ground to set aside an award, should be restrictively interpreted. Although the judgment is not yet binding, state and federal courts will most likely adhere to the Supreme Court’s view on a restrictive interpretation of public order.

The Bombay High Court has granted an anti-arbitration injunction, restraining a foreign party from joining an Indian non-party to an arbitration agreement into an international arbitration.

In a French-language decision dated 6 December 2012, the Swiss Supreme Court rejected an application to set aside an arbitral award rendered in Court of Arbitration for Sport (CAS) proceedings that involved a dispute between two football clubs and a player over the presumed breach of an employment contract. The applicant had argued that the CAS tribunal, in considering sanctions that had been imposed by FIFA on certain parties, violated material and procedural public policy by failing to take into account facts that had been agreed upon by the parties in their settlement agreement.

In Arsanovia Ltd and others v Cruz City 1 Mauritius Holdings [2012] EWHC 3702 (Comm), the court considered what was the governing law of an arbitration agreement, where the substantive law of the underlying agreement was governed by Indian law, but the seat of the arbitration was London.

In Ases Havacilik Servis Ye Destek Hizmetleri AS v Delkor UK Ltd [2012] EWHC 3518 (Comm), the court considered a challenge to an award on jurisdiction, under section 67 of the Arbitration Act 1996, by a party who had decided not to participate in the arbitration and had also applied to the court to challenge jurisdiction under section 72.

In a decision dated 23 July 2012, but only recently published, the Higher Regional Court of Munich held that Article 31 of the ICC Arbitration Rules 1998 provides a self-contained system of rules for decisions on costs. This means that it is not necessary to refer to the provisions on costs in the domestic legal system, that is, the German Code of Civil Procedure and the German Lawyers’ Compensation Act.

In Moondance Maritime Enterprises SA v Carbofer Maritime Trading APS [2012] EWHC 3618 (Comm), Field J considered applications to secure sums awarded, including costs, pending a challenge to an award.

In a decision dated 6 July 2012, but only recently published, the Higher Regional Court of Cologne refused to adjourn enforcement proceedings in respect of an award when set aside proceedings were still pending before the Supreme Court of South Korea. The court also considered denying enforcement (but sensibly refused to do so) on the ground of an alleged breach of a party agreement by the arbitral tribunal.

In a much anticipated decision, the Singapore High Court refused to entertain a jurisdictional objection to the enforcement of a domestic international arbitration award (an international arbitration award made in Singapore) to the value of over US$250million. The court held that the award debtor was precluded from challenging the arbitral tribunal’s jurisdiction at the enforcement stage, in circumstances where the tribunal ruled, as a preliminary question, that it had jurisdiction and where the award debtor did not appeal from that ruling and proceeded to contest the substantive claims in the arbitration. The court examined the scope of parties’ powers to resist the enforcement of international arbitration awards in Singapore and the differences in approach to the curial oversight of international arbitration between Singapore, the UNCITRAL Model Law and civil law jurisdictions on the one hand, and the United Kingdom on the other.

In a German-language decision dated 11 October 2012 and published on 15 November 2012, the Swiss Supreme Court held that there was no violation of the right to be heard where an arbitral tribunal permitted new evidence in a post-hearing submission without recalling witnesses for examination.

In Bosh International Inc and another v Ukraine (ICSID Case No ARB/08/11), an ICSID tribunal rejected the claimants’ argument that the conduct of a university was attributable to the Ukraine.

In Terna Bahrain Holding Company Wll v Al Shamsi and others [2012] EWHC 3283 (Comm), the Commercial Court considered an application to challenge an award for lack of jurisdiction and serious irregularity, under sections 67 and 68 of the Arbitration Act 1996, and an application for an extension of time to do so.

In Assaubayev and others v Michael Wilson & Partners Ltd [2012] EWHC 90223 (Costs), the court considered an application to stay proceedings under section 9 of the Arbitration Act 1996 or under the court’s inherent jurisdiction.

On 3 October 2012, the Federal Commercial Court of Moscow region refused to enforce an arbitral award, issued in a domestic arbitration, on public policy grounds. The court referred to the fact that the sum awarded was disproportionate to any damage suffered by the claimant. (Free access).

In an Italian-language decision dated 21 August 2012 and published on 1 October 2012, the Swiss Supreme Court confirmed that a party cannot request the revision of an award on the basis of facts or evidence discovered after the award was rendered, if those newly available facts or evidence would have been irrelevant to the outcome of the arbitration. (Free access).

In a French language decision dated 19 September 2012, the Swiss Supreme Court rejected an application to set aside an arbitral award rendered in Court of Arbitration for Sport (CAS) proceedings involving a dispute over the hosting of two elite European chess tournaments. The applicant had argued that the CAS arbitral tribunal violated its right to be heard by denying its request during the proceedings for a tribunal-appointed expert. (Free access).

In Antoine Goetz and Consorts and another v Republic v Burundi (ICSID Case No ARB/01/2), an ICSID tribunal considered whether it had jurisdiction over a counterclaim brought by the respondent state.

Freshfields Bruckhaus Deringer The Hong Kong Court of First Instance has refused an application to set aside an HKIAC award under Article 34(2)(a)(ii) of the UNCITRAL Model Law.

In Commerce Group Corp and San Sebastian Gold Mines Inc v El Salvador (ICSID Case No ARB/09/17 (Annulment Proceeding)), an ad hoc committee considered whether it had power to order security for costs in annulment proceedings.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a French-language decision of 16 July 2012, the Swiss Supreme Court ruled on a long-standing and much-publicised dispute between the football club, FC Sion, and the Union of European Football Associations (UEFA) regarding the integration in the club of six new players and their participation in the Europa League 2011/2012. It dismissed a request to set aside a ruling by the CAS in favour of UEFA, finding that the club no longer had an interest worthy of protection. Although the case is domestic, the findings of the Supreme Court are of direct relevance for international arbitration, as the same principles apply.

Freshfields Bruckhaus Deringer On 23 July 2012, the Hong Kong Court of Appeal issued a decision on costs in relation to the proceedings between Pacific China Holdings Ltd (In Liquidation) and Grand Pacific Holdings Ltd (CACV 136/2011).

Natalia Belomestnova (Senior Associate), Goltsblat BLP The full text of the Russian Supreme Commercial Court’s decision of 19 June 2012 in the Sony Ericsson case has been published. In this decision, the highest instance commercial court declared unilateral (or one-sided) dispute resolution clauses to be invalid.

Alastair Henderson (Partner) and Sean Izor (Associate), Herbert Smith LLP The Singapore High Court has dismissed a claimant's application to have an arbitral award set aside on the ground that the tribunal had applied an incorrect choice of substantive law when making its determination. The High Court held that this basis for setting aside the award did not fall within the grounds for setting aside under the Singapore International Arbitration Act and the UNCITRAL Model Law.

PLC Arbitration The Supreme Court of India has issued the eagerly awaited decision in Bharat Aluminium Co v Kaiser Aluminium Technical Services Inc, and has overruled the controversial decision in Bhatia International.

In SerVaas Incorporated v Rafidain Bank and others [2012] UKSC 40, the Supreme Court held that the commercial purposes exception to state immunity did not apply, and so dismissed an appeal against a decision upholding immunity from execution.

In Itochu Corporation v Johann M K Blumenthal GmbH & Co KG and another [2012] EWCA Civ 996, the Court of Appeal considered whether it had jurisdiction to grant leave to appeal from an order appointing an arbitrator.

In Bitumex (HK) Company Ltd v IRPC Public Company Ltd [2012] EWHC 1065 (Comm), the court considered whether to make a retrospective order for alternative service of an arbitration claim form outside the jurisdiction.

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.

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

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman In a decision dated 1 December 2011, the High Court of Australia allowed an appeal, holding that it was not an abuse of process for a litigant to hold a judgment which was inconsistent with a foreign arbitral award delivered in an arbitration between different parties, regardless of whether there is a principal and accessory relationship involved.

John Choong (Senior Associate), Freshfields Bruckhaus Deringer In Gao Haiyan v Keeneye Holdings Ltd, the Hong Kong Court of Appeal allowed the enforcement of a Chinese arbitration award, reversing a decision of the Court of First Instance (CFI) to refuse enforcement on public policy grounds, due to apparent bias.

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).

In ED & F Man Sugar Ltd v Belmont Shipping Ltd [2011] EWHC 2992 (Comm), Teare J considered whether section 33 of the Arbitration Act 1996 obliged a tribunal to alert parties of potential arguments of law that may support their case.

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.

Kamal Shah (Partner) and Leonie Parkin (Associate) of Stephenson Harwood, and John Miles, Chairman of ALN  In a judgment delivered on 28 September 2011, the High Court of Tanzania dismissed a petition to set aside an ICC arbitration award on the grounds of excess of jurisdiction, public policy and misconduct due to alleged errors of fact and law on the face of the record. The High Court's decision was partly based on the principle that where specific questions of fact or law have been referred to an arbitral tribunal for consideration and decision, the supervising court cannot interfere with the decisions of the arbitral tribunal, even if the court takes a different view of the law.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore Court of Appeal has overturned a High Court judgment setting aside an arbitral tribunal's decision on public policy grounds. The tribunal had found that a settlement agreement entered into between the parties was legal and enforceable. The High Court set aside the arbitral tribunal's decision on the basis that the settlement agreement was illegal and, by enforcing the illegal agreement, the tribunal breached the public policy of Singapore. The Court of Appeal ruled that the alleged conflict with Singapore's public policy did not entitle the High Court to re-open the arbitral tribunal's findings of fact and overturned the High Court's ruling. 

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman In a decision dated 22 August 2011, the Court of Appeal division of the Victorian Supreme Court allowed an appeal from a decision to enforce a Mongolian arbitral award and set aside indemnity costs orders against the appellant.

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.

Eduardo Damião Gonçalves (Partner), Flavia Foz Mange (Associate), and Débora Auler de Almeida Prado (Associate), Mattos Filho Advogados In a unanimous decision rendered on 30 June 2011, the Court of Appeals of the State of Rio Grande do Sul (TJRS) restated the negative effect of arbitration agreements. In doing so, the TJRS reaffirmed a first instance decision, dismissing the claimant's action for payment due by the respondent for services rendered under agency agreements' regardless of alleged defects in the arbitration agreement. The TJRS' decision confirms the kompetenz-kompetenz principle.

John Choong (Senior Associate), Freshfields Bruckhaus Deringer The Hong Kong Court of First Instance has taken the rare step of setting aside an International Chamber of Commerce (ICC) arbitration award because the applicant was unable to present its case and the procedure adopted by the tribunal was not in line with the agreement of the parties.

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.

In Fulham Football Club (1987) Ltd v Richards and another [2011] EWCA Civ 855, the Court of Appeal upheld a decision that a claim based on an unfair prejudice petition under section 994 of the Companies Act 2006 was capable of being referred to arbitration. Note: Leave to appeal this decision to the Supreme Court was refused on 22 February 2012, see Legal update, Unfair prejudice: arbitration agreements between shareholders (Supreme Court)

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)

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.

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).

PD Dr. Nathalie Voser (Partner) and Eliane Fischer (Associate), Schellenberg Wittmer (Zurich) In a recent French-language decision dated 17 March 2011, published on 19 April 2011, the Swiss Supreme Court overturned parts of an award rendered by the Court of Arbitration for Sport (CAS). The Supreme Court held that the CAS had acted contrary to the principle of good faith and had thereby violated the parties' right to be heard. Despite having requested the parties to provide additional information on their expenses, the CAS had rendered its award without awaiting the parties' replies.

Allen & Overy comment on the implications of the Court of Appeal's decision in AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647, on the English courts' jurisdiction to grant final injunctions restraining foreign proceedings brought in breach of an arbitration agreement, where there is no actual, proposed or intended arbitration. Note: This decision is being appealed to the Supreme Court, the appeal being listed for hearing on 1 May 2013.

In Paushok and others v Government of Mongolia (UNCITRAL Arbitration Rules) Award of 28 April 2011 on Jurisdiction and Liability, the tribunal considered, among other things, whether it had jurisdiction over the respondent’s counterclaims.

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.

The Court of Appeal has decided that money paid into court as a condition of the grant of a freezing injunction should not be paid out of court, although the injunction had been set aside. Instead, the money should remain available for the enforcement of an arbitration award. (Free access).

Andrew Robertson (Partner), Piper Alderman In two recent decisions, the Federal Court of Australia has considered the enforcement of an ex parte award that was issued out of Uganda and clarified the appropriate form of the orders for the recognition and enforcement of the arbitral award.

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).

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.

In Cosco Bulk Carrier Co Ltd v Armada Shipping SA and another [2011] EWHC 216 (Ch) (11 February 2011), the High Court considered whether arbitration proceedings should be stayed under the Cross-Border Insolvency Regulations 2006 (SI 2006/1030) and whether Swiss main insolvency proceedings constituted the appropriate venue for deciding the underlying dispute.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 2 November 2010 and published on 13 December 2010, the Swiss Supreme Court ruled upon the delimitation of jurisdiction between arbitral tribunals and state courts with regard to debt enforcement proceedings. The Court confirmed that arbitral tribunals do not have jurisdiction to set aside an objection to an order for payment. Moreover, a standard arbitration clause cannot, in and of itself, be interpreted as excluding recourse to state courts for debt collection related remedies.

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.

In Martin Dawes v Treasure & Son Ltd [2010] EWHC 3218 (TCC), the High Court ruled that an arbitrator was not functus officio and had jurisdiction to consider further claims referred to him.

Priyanka Gandhi (Associate) and Ankur Kashyap (Associate), Juris Corp In a recent decision, the Supreme Court of India held that a guarantor who is not a party to the arbitration agreement cannot be made a party to the arbitration proceedings.

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.

In Star Reefers Pool Inc v JFC Group Co Ltd [2010] EWHC 3003 (Comm), the Commercial Court considered the principles which apply when deciding whether to continue an anti-suit injunction to restrain foreign proceedings. Note that this decision was overturned on appeal on 20 January 2012, see Legal update, Court of Appeal overturns finding on anti-suit injunctions.

In Stellar Shipping Co LLC v Hudson Shipping Lines [2010] EWHC 2985 (Comm), the Commercial Court considered an application under section 67 of the Arbitration Act 1996 challenging an arbitration award on the basis that the tribunal lacked substantive jurisdiction because no arbitration agreement had been entered into between the parties.

In Dallah Real Estate and Tourism Holding Co v Government of Pakistan [2010] UKSC 46, the Supreme Court dismissed an appeal against the Court of Appeal's refusal to enforce an ICC arbitration award.

Andrew Robertson (Partner), Piper Alderman The High Court of Australia (Australia's final court of appeal) has granted special leave to appeal the Gordian Runoff decision.  That decision dealt with the controversial ruling in Oil Basins Ltd v BHP Billiton Ltd [2007] VSCA 255 (Oil Basins). That case considered the standard of reasons required in an arbitral award, and, in particular, whether the standard required in a complex arbitration was comparable to that required from a judge in litigation.

In Dolphin Tanker SrL v Westport Petroleum Inc [2010] EWHC 2617 (Comm), the Commercial Court has confirmed the scope and nature of evidence admissible on an appeal under section 69 of the Arbitration Act 1996.

In William McIlroy Swindon Ltd & another v Quinn Insurance Ltd [2010] EWHC 2448 (TCC), the High Court considered whether it had jurisdiction to extend the contractually agreed time for commencing arbitration. NB The Court of Appeal allowed an appeal against this decision on 18 July 2011, finding that the claimant's claims were not time-barred ([2011] EWCA Civ 825). The issue of extending time for commencing arbitration that is discussed in this legal update was not considered on appeal.

In Gustav F W Hamester GmbH & Co KG v Republic of Ghana (ICSID Case No ARB/07/24), an ICSID tribunal considered the difference between commercial and treaty claims.

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.

James Clark (Associate), Herbert Smith LLP The French Supreme Court has confirmed a decision of the Versailles Court of Appeal holding that the parties' ICC arbitration agreement was effective to refer tortious claims brought under a mandatory rule of French law to arbitration. The courts thereby confirmed their robust and arbitration-friendly approach to the interpretation of arbitration agreements.

Sahaneen Parikh (Partner), Amarchand & Mangaldas & Suresh A Shroff & Co In a judgment dated 29 July 2010, the Bombay High Court held that where an award is set aside, parties are free to arbitrate the dispute afresh.

Peter Yuen (Partner) and John Choong (Senior Associate), Freshfields Bruckhaus Deringer Where the parties have agreed to arbitration, it is common for a Hong Kong court to stay court proceedings brought in breach of that agreement, and to refer the parties to arbitration.  In a recent case, the court dealt with the unusual situation where the applicant itself was also the plaintiff which was seeking to stay its own court proceedings. 

In Urbaser SA and another v Argentina (ICSID Case No ARB/07/27) (Decision on Claimants' Proposal to Disqualify), an ICSID tribunal has considered the relevance of an arbitrator's previous written articles and awards in the context of a challenge to his appointment.

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.    

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.

An update on Louis Dreyfus Commodities Kenya Ltd v Bolster Shipping Company Ltd [2010] EWHC 1732 (Comm), regarding an application for an anti-suit injunction where the defendant sought to secure evidence from the applicant in foreign proceedings.

Alvin Yeo, Senior Counsel (Senior Partner) and Andre Maniam (Head of Litigation & Dispute Resolution Department), WongPartnership LLP The Singapore High Court court has expressed the view that proceedings to enforce a foreign arbitral award should take the form of a re-hearing. In doing so, Quentin Loh JC (as he then was) expressed his reservations about the approach that was taken in two previous Singapore High Court cases, namely that enforcement was a mechanistic process requiring limited review.

James Clark (Associate), Herbert Smith LLP The Paris Court of Appeal has upheld a decision of the President of the Tribunal de Grande Instance to grant exequatur (enforcement order) of an ICC award rendered in London and refused to stay enforcement of the award pending the outcome of related criminal proceedings.

An update on Walter Bau AG (in Liquidation) v The Kingdom of Thailand (UNCITRAL, 1 July 2009), in which the tribunal considered claims of expropriation and breach of the fair and equitable treatment standard, some of which arose before the relevant BIT came into force.

An update on the decision on jurisdiction in Bureau Veritas, Inspection, Valuation, Assessment and Control, BIVAC BV v The Republic of Paraguay (ICSID Case No ARB/07/9).

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'.

PD Dr. Nathalie Voser (Partner) and James Menz, J.D. (Associate), Schellenberg Wittmer (Zurich) In a decision dated 16 December 2009 and only published on 15 March 2010, the Swiss Federal Tribunal rejected a petition to set aside an arbitral award, further defining the restrictive contours of its jurisprudence on challenges on public policy and right-to-be-heard grounds.

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.

An update on Quiborax SA, Non Metallic Minerals SA and Allan Fosk Kaplún v Plurinational State of Bolivia (ICSID Case No ARB/06/2) (Decision on Provisional Measures of 26 February 2010), which considered whether provisional measures should be ordered against criminal proceedings initiated in Bolivia and connected with the ICSID arbitration.

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. 

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.

An update on Shashoua and another v Sharma [2010] EWCA Civ 15, in which permission to appeal was granted.

An update on Habas Sinai Ve Tibbi Gazlar Isthisal Endustri AS v Sometal SAL [2010] EWHC 29 (Comm), in which the court considered the incorporation of an arbitration clause.

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.

An update on Cementownia "Nowa Huta" SA v Republic of Turkey (ICSID Case No Arb(AF)/06/2), in which the ICSID tribunal dismissed the claim against the Republic of Turkey as "fraudulent".

An update on Glamis Gold Ltd v USA which concerned expropriation and fair and equitable treatment under Articles 1110 and 1105 of NAFTA.

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.

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.