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Arbitration & ADR
The Netherlands Arbitration Institute (NAI) recently introduced a new transparency policy, which aims to enhance the transparency of arbitral proceedings without harming their confidential nature. This is a promising step by the NAI, which will hopefully contribute to a more cost-effective, efficient and credible arbitration practice in the Netherlands.
In June 2018 a new arbitration court specialised in art-related disputes was launched in The Hague. The court, which offers an attractive and efficient dispute resolution mechanism for cross-border art-related disputes, was founded by the Netherlands Arbitration Institute (NAI) in collaboration with Authentication in Art. According to the NAI's website, it has now started accepting arbitrator and mediator applications for the Court of Arbitration for Art.
The US District Court for the District of Columbia recently lifted a stay of proceedings to confirm an award issued by an ad hoc tribunal in Paris under the Energy Charter Treaty. The district court noted that the French Court of Cassation had overturned a decision of the Paris Court of Appeal setting aside the award. This article revisits the relevant facts and issues that gave rise to the setting aside of the award in France, and the subsequent reversal at the highest instance.
The government recently adopted its new model bilateral investment treaty (BIT). The proposed changes, which are likely to limit investor protection, have now been incorporated, together with additional important amendments. The model BIT reflects two government objectives: a sustainable investment policy and a better balance between the rights and obligations of both states and investors.
Paris Court of Appeal exerts power to review allegations of corruption during enforcement proceedingsFrance | 08 November 2018
Consistent with France's reputation as a pro-arbitration jurisdiction, the French civil courts' review of arbitral awards on grounds of public policy is traditionally limited in terms of both standard and content. However, in recent years, the scope of the courts' review in this regard has been tested in certain Paris Court of Appeal decisions which reviewed the underlying evidence rather than the arbitral tribunal's own determinations in the relevant award.
A consultation process on the new draft Dutch model bilateral investment treaty (BIT) recently ended. The government is expected to publish the finalised text of the new model BIT later in 2018. The new model will serve as the basis for renegotiation of the 79 BITs that the Netherlands has with states outside the European Union. Among other things, it proposes significant changes to the conduct of arbitral proceedings.
The Hague Court of Appeal recently ruled that its decision on an application for the enforcement of a foreign arbitral award would not be stayed solely on the basis of pending setting aside proceedings at the place of arbitration. Further, the court ruled that the party requesting exequatur did not have to submit Dutch translations of the award. The decision is notable, as the appeal court explicitly acknowledged the New York Convention's pro-enforcement bias, which several courts have failed to do in recent years.
The Supreme Court recently ruled that a Dutch court may enforce an annulled arbitral award if, among other things, the local annulment decision is based on grounds other than those set out in Article V(1)(a)-(d) of the New York Convention and which are not internationally recognised, or the annulment decision is irreconcilable with Dutch private international law. This judgment offers important guidance as to the Dutch courts' discretion to enforce annulled awards.
Parties' ability to choose their arbitrators remains one of the most frequently mentioned advantages of arbitration over litigation. However, this freedom makes sense only if it preserves the overarching duties of arbitrators and judges alike – that is, the duty to be and remain independent and impartial from the parties.
The Abu Dhabi Global Market (ADGM) has announced the establishment of the ADGM Arbitration Centre, which will include the Middle East and North Africa representative office of the International Chamber of Commerce International Court of Arbitration. The centre is forecast to be fully operational by January 2018. This marks an important development for arbitration in the region and provides users of arbitration in the Middle East with greater choice.
Will ruling denying recognition of Yukos bankruptcy affect setting aside of $50 billion UNCITRAL award?Netherlands | 21 September 2017
The Amsterdam Court of Appeals recently ruled that the Russian liquidation order regarding OAO Yukos Oil Company is contrary to Dutch public order and therefore null and void. An interesting question is whether the judgment will have a bearing in the appeal of the annulment proceedings concerning the $50 billion Energy Charter Treaty arbitration case between former Yukos shareholders and Russia, which is pending before The Hague Court of Appeal.
The third-party arbitration funding market is clearly developing in the Netherlands. A number of international funders are active on the Dutch market and, for the past few years, several national funders have been equally active. It is difficult to say at this stage whether external regulation is required. Once funders cater more frequently to less experienced claimants (eg, small and medium-sized enterprises and consumers), regulation may become desirable.
Swatch/Tiffany setting-aside proceedings: court rules restraint must be exercised in reviewing arbitral decisionsNetherlands | 01 June 2017
The Amsterdam Court of Appeals recently annulled a 2013 Amsterdam District Court decision to set aside a $450 million arbitral award in proceedings between watchmaker Swatch and jeweller Tiffany. The main question for the court of appeals was whether the district court had been correct in holding that the tribunal had exceeded its authority. The judgment, which may be subjected to Supreme Court review, confirms the court's pro-arbitration and enforcement approach.
Decree 19/2016 established a judicial committee tasked with resolving conflicts of jurisdiction between the Dubai courts and the Dubai International Finance Centre (DIFC) courts. Just over six months after the issuance of Decree 19/2016, the committee rendered its first decisions, which have made it clear that an arbitral award rendered onshore in Dubai cannot be enforced in the DIFC courts where proceedings in respect of the same award have been commenced before the Dubai courts.
In a recent decision, the Supreme Court rigorously applied Article III of the New York Convention and ruled that a decision recognising an international arbitral award is no more subject to appeal than a decision recognising a domestic arbitral award. Further, the court rejected the plea that such an appeal should be available under Article 6 of the European Convention on Human Rights.
The Paris Court of Appeal recently set aside an award on the grounds of a violation of the principle of equality of arms. The court had to rule on the Iraq war's impact on due process in arbitral proceedings between the Republic of Iraq and two German companies. This decision comes as a reminder that arbitration is a jurisdictional process where parties and arbitrators, while enjoying considerable freedom and flexibility, should be mindful of due process and fair trial guarantees.
The French courts recently supported the rigorous application of the principle of procedural estoppel and reiterated their commitment to the enforcement of agreements that govern arbitral proceedings. The principle prevents parties from relying on alleged irregularities that affect arbitration proceedings before the French courts if the requesting party has not initially raised them before the arbitral tribunal.
A recent Supreme Court decision confirms French law's strict approach in matters involving arbitrators' independence and impartiality. The court found that despite an arbitrator's previous disclosure that his firm had had an inactive relationship with the parent company of one of the parties to the arbitration, his later failure to disclose that this relationship had resumed created reasonable doubt as to his independence and impartiality.
Acknowledgement that civil courts can rule on enforcement of foreign awards involving public law mattersFrance | 17 December 2015
The jurisdictional duality which characterises the French legal system triggers practical difficulties in international arbitrations, especially when they involve the recognition and enforcement in France of arbitral awards relating to issues of French administrative law. The Cour de Cassation recently decided on this issue, holding that civil courts have jurisdiction to rule on the recognition and enforcement of any foreign arbitral award.
The issue of sovereign immunity from enforcement is highly sensitive. It is regarded as a vital component of state sovereignty and as necessary to preserve peaceful relationships between states, and should be recognised as a matter of international comity. However, the interests of international commerce and private parties cannot be denied. The Supreme Court recently issued a key decision focusing on diplomatic assets.
Two recent Paris Court of Appeal decisions offer a contrasting perspective on the challenges associated with arbitration: while the enforcement of awards that have been recognised must be facilitated and applications for stays of enforcement are held to the most stringent standards, the legitimacy of arbitration requires that the legal process remain immune from suspicions of corruption and fraud.
In order to enhance the flexibility of the arbitral process, French arbitration law allows parties to nominate their arbitrators, either directly or by reference to arbitration rules. Two recent decisions on conflicts of interest are illustrative of the approach of French courts, which seek to strike a delicate balance between giving arbitration users added freedom and ensuring that due process and fair trial guarantees apply
In its April 1 2014 decision the Paris Court of Appeal has reiterated its well-established position in relation to the enforcement of arbitral awards set aside at the seat of arbitration, confirmed the arbitrators' duty of disclosure, and restated the respective roles played by the arbitrators' duty of disclosure and the parties' duty of loyalty in arbitration proceedings.
The Supreme Court has upheld the validity and enforceability of a bilateral option clause which gave both parties the option to resolve their dispute by way of arbitration or through domestic courts. While this decision clarifies the French courts' position regarding bilateral option clauses, it raises concerns as to the validity of sole option clauses.
Reforms to French arbitration law determined that appellate review would no longer automatically stay execution of an award. A member of Parliament questioned this regime, which does not provide for an adversarial debate at the level of the application for an exequatur order, by posing a question to the minister of justice. The minister recently responded that exequatur proceedings are to remain ex parte – for now, at least.
When French arbitration law was reformed in 2011, one major innovation was to amend the position on the stay of enforcement of international arbitral awards pending the outcome of annulment proceedings or of an appeal against an order granting leave to enforce (exequatur). However, the courts' severity towards requests for a stay of execution has given rise to concerns about exequatur proceedings.
According to the French law on international arbitration, an action to set aside is available against international arbitral awards issued in France. Therefore, such an action may be instituted only against arbitral awards. The distinction between arbitral awards and other communications issued by tribunals can be unclear; however, a decision of the Supreme Court provides useful guidance.
The interaction between insolvency proceedings and arbitration is treated differently in different countries. The French legal position is clear: the supervening insolvency of a party does not render a dispute inarbitrable. In a recent decision the Paris Court of Appeal found that the International Court of Arbitration of the International Chamber of Commerce had committed an "excessive measure" justifying the annulment of an award.
In a recent case the Supreme Court reaffirmed the existence of an arbitral legal order, independent of any national legal order. It held that the arbitral proceedings in question were detached from the French judicial order, since the tribunal's seat was located in Sweden and proceedings were governed by the United Nations Commission on International Trade Law rules.
Since March 2010 the ordinary French courts have been able to challenge the constitutionality of a statute or statutory provision through a specific procedure. However, the reform was silent on the issue of whether arbitral tribunals enjoy similar rights to ask the Supreme Court to refer a matter to the Constitutional Council. In a recent decision, the Supreme Court found no basis for such rights to be allowed to arbitrators.
It is a truism that relativity applies in arbitration. An award can be set aside by the courts of the English seat of arbitration and yet be declared enforceable in France. The conflicting decisions issued by the Paris Court of Appeal and the UK Supreme Court in Dallah illustrate that an arbitral award can have a different fate depending on the approach of the courts of the seat of arbitration and the courts of the places where enforcement is sought.
The International Arbitration Institute has prepared an English translation of the new Decree 2011-48, which came into force in January and has introduced comprehensive reforms to the French arbitration system.
The reaction to the new arbitration law reform has been overwhelmingly positive, with commentators variously hailing it as arbitration friendly, innovative, elegant and trend setting. Practitioners agree that it has made a complex body of judicial solutions more accessible to non-specialist audiences and enhanced the predictability of solutions. This udpate considers the market response and delves more deeply into its provisions.
The new arbitration law reform features several innovations that will improve the efficiency of international arbitration and arbitral awards. It also codifies French court decisions in international arbitration law, updates the Code of Civil Procedure and clarifies the provisions of French domestic arbitration law applicable to international arbitration, with provisions inspired by foreign laws that have proved useful in practice.
The government is about to approve long-awaited reforms to French domestic and international arbitration law. Among other things, the Paris Court of First Instance will be empowered to assist parties with the production of documents, and the enforcement of international arbitral awards will be made easier. The decree should be published tomorrow.
The Supreme Court recently ruled that the standard International Chamber of Commerce arbitration clause included in a contract applied to a claim for wrongful termination, even though it was brought in tort on the grounds of a mandatory rule of French law. The legislation at issue purports to grant distributors mandatory indemnification rights in the event of termination without cause and appropriate advance notice.
It is the policy of French courts to enforce arbitration agreements where the parties clearly intended to submit their dispute to arbitration. In keeping with this well-established trend, the president of the Paris First Instance Court recently upheld a 'pathological' International Chamber of Commerce arbitration clause and exercised his power to assist the parties in constituting the arbitral tribunal.
The Cour de Cassation recently held that an international arbitral award may not be challenged by a third party to the arbitral proceedings by way of a third-party recourse. Only a party to the arbitration may bring proceedings in France to obtain the setting aside of an international award or to challenge the recognition of a foreign award by the French courts.
Courts must state the reasons for their decisions to enforce or vacate arbitral awards. Article 455 of the Code of Civil Procedure obliges judges to set forth the grounds on which their decisions are based and leads to frequent decisions being made by the Supreme Court in matters previously resolved by state courts.
The Paris Court of Appeal has held that the International Chamber of Commerce (ICC) Rules in force on the date an arbitration agreement is entered into apply unless the parties have agreed otherwise, and that the exclusion of liability clause contained in the 1998 version of the rules is unenforceable, as it is contrary to an essential duty owed by the ICC.
The Paris Court of Appeal has set aside an ICC award on the grounds that the arbitral tribunal had been irregularly constituted due to the chairman's lack of independence. It ruled that the duties of independence and impartiality are "the very essence of the arbitral function". The duty of independence is generally considered to relate to issues that may arise during the course of the arbitrator's relationship with one of the parties.
In a recent decision the Supreme Court gave priority to an arbitral tribunal to rule on the extension of an arbitration agreement within a group of contracts on the grounds of two major principles of French arbitration law, namely the autonomy of the arbitration agreement and the kompetenz-kompetenz principle.
A recent judgment of the First Civil Section of the Supreme Court is interesting because it confirms a 2005 ruling regarding the conditions for granting a stay of annulment or enforcement proceedings when criminal proceedings are running parallel to them, adopts a test formulated by the Paris Court of Appeal and restates that a state court hearing annulment proceedings does not review the merits of the case.
The doctrine of res judicata precludes a claimant from bringing proceedings when an earlier and final judgment or arbitral award has been made involving the same matter or relief, the same grounds and the same parties. The Supreme Court has now held that the broad interpretation of res judicata it established in Césareo also applies to arbitral awards.
The Supreme Court recently confirmed that in a chain of contracts which successively transfers title to the same goods the arbitration agreement is transferred automatically as an ancillary element to the right to sue, which is itself ancillary to the transferred substantive right.
The Supreme Court recently reiterated the kompetenz-kompetenz principle, which empowers arbitrators to rule on their own jurisdiction, and confirmed that exceptions to it are to be construed narrowly. Under French law, this principle applies in both domestic and international arbitration.
In two recent decisions the Supreme Court confirmed its liberal approach to the enforcement of arbitral awards. The reasoning is consistent with the approach adopted by French courts since Norsolor and Hilmarton. Where two foreign arbitral awards are irreconcilable, the first for which leave to enforce is granted will be enforceable in France, creating the risk of a race for official recognition.
Competition & Antitrust
As a result of recent amendments to the Anti-monopoly Act, the Japan Fair Trade Commission (JFTC) will soon have the power to accept voluntary commitments from companies. The changes will formally give the JFTC greater flexibility to deal with suspected infringement cases and align its powers with those of other competition authorities. However, in practice, they could have significant implications for the way in which the JFTC deals with both infringement and merger control cases.
The Japan Fair Trade Commission (JFTC) has been noticeably vocal regarding its intention to keep a close eye on e-commerce. It has already targeted a handful of tech giants and its longstanding image of being a mature but subdued authority does not appear to apply to its role in the digital economy. If anything, the JFTC seems to be striving to be the frontrunner in this regard, ahead of other Asian authorities.
Abuse of a superior bargaining position is a unique category of anti-competitive conduct under the Anti-monopoly Act, and the Japan Fair Trade Commission (JFTC) is increasingly stepping up its enforcement of this type of infringement. As the JFTC has also recently extended its investigation reach to include foreign companies, foreign companies which operate in Japan should remain aware of its enforcement in this regard.
In recent years, there has been a selection of work-style reforms in Japan, as well as a general move away from lifetime employment and a welcoming of more diversified ways of working, such as self-employment. In this context, the Japan Fair Trade Commission recently published its Report of Study Group on Human Resource and Competition Policy. The report covers three substantive topics: concerted practices, unilateral conducts and undesirable activities.
In 2017 the Japan Fair Trade Commission Competition Policy Research Centre published a report on competition issues surrounding Big Data. While the report did not presume that an oligopoly of digitalised businesses constituted a problem, it recognised that rapid advances in machine learning and data accumulation could boost the power of existing dominant players exponentially and limit opportunities for new market entrants.
Over the past two years, the Japan Fair Trade Commission (JFTC) has significantly amended its guidelines concerning distribution systems, giving particular consideration to the EU Commission's 2010 guidelines on vertical restraints. Although no cases have occurred in which the JFTC has had to decide on the legality of a particular selective distribution system, given that the number of traditional cartel cases is declining, it is likely to shift its focus to this area and follow in the footsteps of the EU Commission.
Over the past decade, the Japan Fair Trade Commission (JFTC) has made progressive efforts to revise its enforcement practice and procedures in order to align itself more closely with international standards. As part of its modernisation process, the JFTC is gradually adopting other regulators' assessment tools. It is also considering introducing a new penalty calculation system to provide it with more flexibility and discretion in setting fines in return for companies' cooperation.
Insolvency & Restructuring
The Amsterdam Court of Appeals recently ruled that the 2006 Russian liquidation order regarding OAO Yukos Oil Company is contrary to Dutch public order and therefore null and void. The court's reasoning was largely based on a 2014 European Court of Human Rights judgment following a complaint lodged against Russia by the former Yukos shareholders with regard to Yukos's liquidation.