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.
The Ontario Superior Court recently considered the application and operability of an arbitration clause in a subcontract in the context of a related claims proceeding under a related main contract. The case highlights the challenges involved in drafting pre-dispute arbitration clauses that will operate effectively when multiple claims arise between multiple parties under multiple contracts.
The British Columbia Court of Appeal recently declared a notice to arbitrate a nullity because it sought to commence four separate arbitrations against three different parties under four separate arbitration agreements. Practitioners and parties entering into multiple contracts relating to the same subject matter or project should consider whether it is desirable to have all potential disputes which arise under the multiple contracts arbitrated in one proceeding.
In a decision that is inconsistent with the weight of Canadian and international jurisprudence, the Court of Queen's Bench of Alberta recently ordered the consolidation of arbitration proceedings without the consent of all parties. For now, parties and practitioners should be aware that arbitrations seated in Alberta may be subject to consolidation without consent.
The Ontario Court of Appeal recently interpreted when an international commercial arbitration award becomes binding on the parties for the purposes of judicial recognition and enforcement of foreign arbitral awards. It held that the determination of whether an award is binding pursuant to Articles 35 and 36 of the United Nations Commission on International Trade Law Model Law rests with the court rather than the arbitral tribunal.
Third-party funding in commercial arbitration in Canada has moved increasingly into the mainstream. Its implementation is largely influenced by the treatment of third-party funding in litigation, which is why it is important for arbitration practitioners in Canada to continue to follow jurisprudential trends regarding the treatment of third-party funding. A recent third-party litigation decision from Quebec provides valuable insight for arbitrators in this regard.
An independent letter of guarantee involves a legal relationship between the applicant, the issuer and the beneficiary. Without an arbitration clause in a letter of guarantee, it is unclear whether the arbitration clause in the underlying contract can also bind the issuer. A recent Supreme People's Court ruling provides a clear answer to this question.
The Fushun Intermediate People's Court recently ruled that, although an arbitration clause was invalid on the grounds that it allowed disputes to be resolved through arbitration or litigation, the award issued by the arbitration commission was final and binding as the company had failed to challenge the validity of the arbitration clause or the arbitration commission's jurisdiction over the dispute within the mandatory timeframe.
Mainland China and Hong Kong recently signed the Arrangement Concerning Mutual Assistance in Court-Ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region. Historically, it has been impossible for parties to arbitral proceedings with a seat outside mainland China to obtain interim measures from mainland courts. This situation will change completely after the arrangement comes into force.
It has long been disputed whether video or audio recordings can be admitted as evidence in arbitration where they are made without the counterparty's consent. Although the general attitude in this regard has become more relaxed, such private video and audio recordings are not an effective form of evidence, as the counterparty may dispute them for many reasons. Thus, in order for recordings to be accepted as evidence, a number of factors should be considered.
The Changsha Intermediate Court recently ruled on whether the arbitration clause in a share transfer agreement had a binding effect on the petitioner – who was a controlling shareholder of a public company – and a company to which he had intended to transfer his shares. The validity of the arbitration clause hinged on whether a director of the public company who had signed the share transfer agreement on the petitioner's behalf could express the petitioner's intention to arbitrate.
In a recent Supreme Court case, the appellant appealed against a first-instance judgment in which he had sought to annul an arbitral award. The dispute related to the non-payment of a loan granted by the respondent to the appellant and a subsequent challenge of the amount owed. Arbitration had taken place in which the arbitrator had issued his decision in favour of the respondent.
In a recent Limassol District Court case, the applicants applied for the recognition and enforcement of a London Court of International Arbitration award, which the respondents argued was contrary to Cypriot public policy pursuant to the New York Convention. This case serves as a useful reminder that the courts will rarely resort to public policy grounds to refuse the recognition of an arbitral award unless presented with cogent evidence.
In a recent Limassol District Court case, the applicants applied for the recognition and enforcement of an arbitral award issued by the Arbitration Institute of the Stockholm Chamber of Commerce. The case is one of the first examples of the judicial interpretation and application of Article VI of the New York Convention by the Cypriot courts and serves as a useful guide to the proper procedure to be followed by parties when invoking said article.
A recent Limassol District Court decision serves as a useful reminder that the courts will rarely resort to public policy grounds for refusing the recognition of arbitral awards unless presented with cogent evidence. In addition, the courts are prepared to demonstrate the necessary flexibility dictated by modern commercial practices in examining the imperative requirements of Article IV of the New York Convention in a manner which will not hamper the convention's underlying objectives.
In a recent Limassol District Court case, the applicants applied to the court to set aside a Cypriot court order which had allowed the ex parte recognition and enforcement of a Dutch judgment pursuant to the EU Brussels Regulation or, alternatively, the recast EU Brussels Regulation. The applicants raised several arguments to support their application – in particular, the fact that the Netherlands judgment allowed for the registration and execution of the arbitral award only in the Netherlands.