The Supreme Court of Victoria recently approved the issuance of subpoenas compelling two witnesses to attend before an arbitral tribunal seated in Melbourne and give evidence pursuant to Section 23 of the International Arbitration Act. The application arose out of a long-running dispute concerning the sale of a food business. The court's judgment provides useful guidance on the circumstances in which it will issue subpoenas in aid of arbitration as well as the meaning of Section 23(4) of the act.
The Federal Court recently declined an application for leave to issue subpoenas pursuant to Section 23 of the International Arbitration Act 1974 on the basis that Section 23 of the act did not give the court jurisdiction to do so in aid of an arbitration seated outside Australia. While some practitioners will agree with the court's strict interpretation of the act, others – particularly those engaged in international arbitration in Asia-Pacific – may find the decision less satisfactory.
In a recent case, the Federal Court stayed the proceedings brought before it and referred the dispute to arbitration, save for the ultimate question of whether a winding-up order against the first defendant should be made. Among other things, the decision illustrates the policy of minimal curial intervention that the Australian courts follow where arbitration is concerned. It also confirms the arbitrability of certain claims under the Corporations Act 2001.
The Supreme Court recently considered the validity of a hybrid arbitration agreement which provided for the formation of a tribunal under the International Chamber of Commerce Rules of Arbitration to arbitrate at the Vienna International Arbitral Centre. In this context, the court also considered the consequences of violating procedural rules agreed by the parties and the tribunal's failure to issue a reasoned award.
The Supreme Court recently considered whether a rather brief and general notice of arbitration in ad hoc proceedings containing a nomination had properly initiated the arbitration proceedings and was thus sufficient grounds to request the Supreme Court to appoint an arbitrator, following the respondents' refusal to nominate one. The decision is a soft reminder for counsel that sending out incomplete notices of arbitration or nomination requests can be a time-consuming and costly endeavour.
The new Vienna International Arbitral Centre (VIAC) Rules of Arbitration and Mediation recently entered into force. They apply to all arbitration and mediation proceedings initiated after December 31 2017. The amendments to the VIAC rules allow for parties to conduct efficient and cost-effective arbitration and mediation proceedings, while offering enough flexibility when applying them in individual cases.
The Supreme Court recently considered whether proceedings (wrongly) commenced before an Austrian district court to set aside an arbitral award could nevertheless be continued. Notwithstanding the Supreme Court's exclusive jurisdiction regarding the setting aside of arbitral awards, the unusual facts of the case at hand led to the creation of an additional channel of appeals not provided for in the law.
The Vienna International Arbitral Centre (VIAC) recently obtained the right to administer domestic cases. The new law has received a warm welcome in Austria and is another sign of the quality of the VIAC's work and the confidence in its services. The VIAC has already established a working group to implement the proposed changes into the Rules of Arbitration and Conciliation in order to reflect this positive development.
The Supreme Court recently clarified its jurisdictional limits to assist in trust-related arbitrations, ruling that it has no such jurisdiction to allow service outside an action's jurisdiction. Given this ruling, parties to trust arbitration agreements must be cognisant that, notwithstanding whether their trust deeds provide for the seat of any arbitration to be The Bahamas, the court can provide only limited assistance where the arbitration is not held and the parties or assets are not in The Bahamas.
A recent decision rendered by an arbitral tribunal constituted under the Centre for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada has ended a 20-year dispute over the largest container port in South America. The outcome of this arbitration is positive, as it demonstrates that Brazil's arbitral framework is well established and well functioning – even in disputes involving public administration.
The Superior Court of Justice recently upheld a Sao Paulo State Appellate Court decision which had set aside an arbitral award due to alleged irregularities during the formation of the arbitral tribunal in the context of a multi-party dispute. The Superior Court of Justice's decision confirms the appellate court's opinion that the proceeding which had been adopted to form the arbitral tribunal contravened public policy.
The Superior Court of Justice recently confirmed the jurisdiction of an arbitral tribunal constituted before the Market Arbitration Chamber to render a decision connected to a company that had filed a lawsuit for a recovery plan before the competent court of law. In addition to taking a pro-arbitral stance on an important national case, this decision reinforces the jurisdictional nature of arbitration and solidifies the case law on conflicts of competence.
A recent Superior Court of Justice decision has broadened the interpretation of consent to an arbitration agreement to include economic groups, which could – by implication – pierce the corporate veil in such cases and extend arbitral jurisdiction to non-signatory parties. The decision sets a precedent for this issue and will serve as a parameter for future decisions by both the lower courts and the Superior Court of Justice.
The Sao Paulo State Appellate Court recently rendered an important precedent on the interpretation of Article 4(2) of the Arbitration Act. The appellate court ultimately dismissed the franchisee's appeal, despite arguments that, among other things, the franchise agreement entered into by the parties was a contract by adhesion, pursuant to Article 54 of the Consumer Protection Code. As such, the arbitration clause was invalid because it did not follow the requirements contained in Article 4(2) of the Arbitration Act.
A BVI court has appointed Grant Thornton as a receiver over a BVI company under Section 43 of the Arbitration Act 2013 in order to preserve the value of the company pending the determination of foreign arbitration proceedings. The decision illustrates the effectiveness of the interim relief provided under the Arbitration Act to preserve assets against which an arbitration award will be enforced.
The British Virgin Islands is a pro-arbitration jurisdiction. Under the Arbitration Act, with regard to both New York Convention awards and non-New York Convention awards, the party against which the award has been made can make representation to the court regarding a refusal to enforce. An example of the British Virgin Islands' pro-enforcement approach can be seen in Belport Development Limited v Chimichanga Corporation.