Division IV of the Federal Court of Appeals on Administrative Matters recently found there to be no basis presently for Argentina's request to set aside the refusal of the International Court of Arbitration of the International Chamber of Commerce (ICC) to admit a challenge against an arbitral tribunal chairman. This request was based on the argument that the ICC court had failed to express the grounds for its decision.
The Argentine Chamber of Commerce and the Chamber of Commerce and Industry of the Russian Federation have signed an agreement to make the resolution of disputes that may arise in bilateral commerce and other economic relations easier. This includes investments between individuals or legal entities domiciled in both countries.
A recent case emphasizes the importance of the seat of arbitration, since its selection determines the procedural law and jurisdiction. Parties involved in arbitration proceedings should ensure they have a complete understanding of the jurisdiction, scope and value of arbitral agreements and the consequences of non-fulfilment of their obligations.
The Supreme Court of the Province of Buenos Aires is yet to decide on appeals filed against the decision of the La Plata Court of Appeals in re Milantic Trans SA v Ministry of Production - Shipyard Río Santiago. The Supreme Court now has the opportunity to reaffirm the correct path marked by the first judicial decision and restore the principle of legal rights.
In a recent case Division D of the Commercial Court of Appeals upheld a first instance decision which had rejected the lack of jurisdiction objection filed by the defendants due to the existence of an arbitral clause agreed by the parties. The court held that arbitral clauses "should be interpreted in a restricted manner".
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 Federal Court of Australia has held that parties who agree to arbitration or exclusive jurisdiction clauses are bound by their agreements. Only in exceptional circumstances will the court grant a stay that has the effect of overriding an exclusive jurisdiction agreement.
The federal Parliament has finally passed the Tax Laws Amendment (Long-Term Non-reviewable Contracts) Bill 2005. The bill sets out a new arbitration process to be used in cases where a supplier and a recipient cannot reach agreement on the consideration to account for the imposition of goods and sales tax.
In the absence of any legal precedent, it is unclear how an Australian court faced with an application for security for costs in respect of an international arbitration would respond. However, the courts appear to have the power to order such security notwithstanding the lack of an express legislative foundation.
The Supreme Court has established an economic approach to the qualification of shareholders as consumers or entrepreneurs for the purposes of the Consumer Protection Act. This was consolidated by a new decision in which it ruled on whether a shareholder, holding 50% of the shares in a company and acting as managing director thereof, was to be considered a consumer for the purposes of consumer protection law.
In a recent case the Supreme Court was called on to decide whether an arbitral tribunal's disregard of Section 598 of the Code of Civil Procedure constitutes a violation of a party's right to be heard and justifies setting aside an award. According to Section 598, a tribunal is to hold a hearing at an appropriate stage of the proceedings if one party so requests and the parties did not previously agree to exclude the possibility of a hearing.
Two relevant questions of Austrian law were recently raised in a dispute between an Austrian distributor and a US company. The first question was whether an arbitration agreement remains valid when it provides for arbitration abroad in a case in which Austrian mandatory rules may govern the merits of the dispute; the second was whether interim measures can be granted to ensure the enforcement of awards rendered abroad.
The Austrian Supreme Court recently addressed for the first time some of the uncertainties surrounding the relevance of Section 617 of the Code of Civil Procedure in enforcement proceedings. Section 617 of the code was introduced by the Arbitration Act in 2006 and contains several provisions intended to protect consumers from becoming involved in arbitral proceedings.
A US and a Cypriot party applied for the recognition and enforcement in Austria of an arbitral award made in the United Kingdom in proceedings conducted under the London Court of International Arbitration Rules. The Supreme Court had to deal with the question of whether all the formal requirements for the enforcement of the award had been fulfilled.
The Arbitration Act and the Arbitration (Foreign Arbitral Awards) Act have entered into force. Both acts are the result of The Bahamas' commitment to adhere to the recommendations of the United Nations Commission on International Trade Law in order to develop uniformity and harmonization in the law relating to arbitral procedures on a domestic level, as well as the specific needs of international commercial arbitration practice.
The Brussels Court of First Instance recently set aside an arbitral award which it found had violated Article 81 of the EC Treaty. The court noted that an award must be set aside for any violation of public policy, not only in the event of obvious, effective and concrete violation.
For the second time in two years the Supreme Court has ruled that when a state court is seized of an action in a matter in respect of which the parties entered into an arbitration agreement, the state court may apply its own law (ie, the lex fori) in deciding whether the dispute is arbitrable and must be referred to arbitrators.
The Belgian Supreme Court recently quashed a judgment by the Antwerp Court of Appeal that had set aside an arbitral award because the arbitrators had misquoted a contractual provision. The advocate general stressed that the competence given to arbitral bodies cannot be limited by allowing an exhaustive review of awards by state courts.
A Belgian court recently found that it had no jurisdiction to hear a request for provisional measures brought by a party which sought to bar the arbitral institution and the appointed arbitrators from continuing the arbitration proceedings in which it was a respondent. The court applied the Kompetenz-Kompetenz principle, declining its territorial competence and jurisdiction over the subject matter.
In a long-awaited decision, Belgium's Supreme Court has ruled that when a state court is seized of an action in a matter in respect of which the parties entered into an arbitration agreement, the state court may apply its own law to decide whether the dispute is arbitrable and must be referred to arbitration.