Arbitration & ADR updates

Chile

Interpretation of international arbitration agreements
  • Chile
  • 07 December 2017

As with any other contract, general rules of interpretation are crucial to ascertain the scope and reach of arbitration agreements. The Supreme Court recently missed the chance to provide a sharper and more sophisticated decision concerning the applicable legal rules of interpretation of arbitration agreements, which is a crucial matter for the uniform enforcement of international commercial arbitration agreements.


China

Contributed by Global Law Office
Mainland China and Hong Kong agree mutual interim measures to aid arbitral proceedings
  • China
  • 16 May 2019

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.

Are recordings made without counterparty's consent admissible as evidence in arbitration?
  • China
  • 21 March 2019

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.

Effects of unauthorised agency on arbitration agreements
  • China
  • 18 October 2018

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.

Arbitration clause not binding on insurer by way of subrogation
  • China
  • 14 October 2010

It is generally accepted that when a claim or a debt is assigned, the arbitration agreement attached thereto is also assigned. However, the Supreme People's Court has opined that an arbitration clause contained in a contract for carriage of goods by sea was not binding on an insurer that stepped into the shoes of the insured consignee by way of subrogation.

When is a dispute an inheritance dispute?
  • China
  • 05 August 2010

The Supreme People's Court recently issued a direction that an arbitral award should be refused recognition and enforcement as the arbitration concerned an inheritance dispute and was therefore not arbitrable. However, a request for a declaration of title to a 50% equity share in a company by way of succession could be characterized as a commercial matter.


Cyprus

Contributed by George Z Georgiou & Associates LLC
Court clarifies application of Article VI of New York Convention
  • Cyprus
  • 30 May 2019

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.

District court rejects public policy argument against recognition of arbitral award
  • Cyprus
  • 04 April 2019

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.

Nature of foreign arbitral award not altered despite judicial recognition by another EU member state
  • Cyprus
  • 07 February 2019

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.

Supreme Court dismisses appeal in Michaelides v Cooperative Bank of Pegia
  • Cyprus
  • 13 December 2018

The Supreme Court recently dismissed an appeal of a first-instance judgment which had applied the well-established principle that arbitral award registrations are a formality wherein district courts do not proceed to examine the merits or substance of the award. The Supreme Court rejected all of the appellant's arguments, dismissed the appeal in its entirety and endorsed the first-instance court's approach, which had been based on well-established case law.

Appellants partially succeed in challenging first-instance court judgment
  • Cyprus
  • 04 October 2018

The Supreme Court recently ruled that only part of a court judgment that had upheld an arbitrator's decision would be set aside. The appellants had raised a number of objections in their appeal, including that the summons to recognise and enforce the arbitral award had been filed improperly as the hearing had not been conducted in the same manner as a lawsuit, the parties had not agreed to refer the dispute to an arbitrator and the arbitrator had not had the legal authority to issue a mortgage disposal order.


European Union

Is effective intra-EU investment protection ending?
Skadden Arps Slate Meagher & Flom LLP
  • European Union
  • 02 May 2019

In January 2019 EU member states issued statements with wide-ranging effects for intra-EU investment protection. All member states pledged, among other things, to terminate intra-EU bilateral investment treaties (BITs) by 6 December 2019 and instruct investors not to initiate any new intra-EU investment arbitration proceedings under BITs. This article sheds light on the background of this development and its potential impact on investment protection.


France

Contributed by Freshfields Bruckhaus Deringer LLP
French court rules that mandatory expert determination provisions do not render arbitration clauses inapplicable
  • France
  • 16 May 2019

The Court of Cassation recently confirmed the quasi-absolute priority given to arbitral tribunals to determine questions relating to their jurisdiction, even when this involves rules of French public order. Although this is well established in French case law, it is the first time that the court has upheld an arbitration clause that conferred on a tribunal the statutory power to value shares in lieu of a party-appointed or judicially appointed expert.

Paris Court of Appeal may revisit definition of 'investment' under Energy Charter Treaty
  • France
  • 31 January 2019

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.

Paris Court of Appeal exerts power to review allegations of corruption during enforcement proceedings
  • France
  • 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.

Arbitrators' duty of disclosure
  • France
  • 04 January 2018

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.

Paris Court of Appeal rules on Iraq war's impact on due process in arbitral proceedings
  • France
  • 16 March 2017

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.