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.
In March 2018 the German Arbitration Institute's (DIS's) new arbitration rules came into force. The new rules are a good choice in almost every setting, offering competitive fees for arbitrators and institutions and providing a modern and efficient arbitration framework that preserves and expands on the distinctive features of the previous DIS rules. These unique factors are particularly appealing to in-house counsel.
The Ministry of Laws and Human Rights Regulation on the Settlement of Disharmony between Laws and Regulations through Mediation recently took effect. The regulation reinstates the possibility to settle disputes concerning laws and regulations outside the courts through the introduction of mediation, including disputes over ministerial regulations, non-ministerial government institution regulations, non-structural institution regulations and regional laws and regulations.
The International Chamber of Commerce Commission recently published an update to its report on construction industry arbitration, focusing on recommended tools and techniques for effective management. The report is a helpful reminder for practitioners and arbitrators of the procedural mechanisms available which are particularly relevant to the conduct of arbitration in the construction sector.
The question of whether a contract can be amended retroactively was raised in the arbitration proceedings between Ssangyong and the National Highways Authority of India. The Supreme Court's ruling on the case is a welcome exposition on the contours of Section 34 of the Arbitration and Conciliation Act, especially in relation to challenges on grounds of violations of principles of natural justice.
In 2018 the government adopted its new model bilateral investment treaty (BIT). Following this adoption, the government has now obtained the authorisation required to start the renegotiations with eight non-EU countries and conclude new BITs with two others. The government has made clear that the new model BIT is intended to serve as an opening offer that sets the scene for the negotiations. However, as each negotiation will have its own dynamic, it is difficult to predict what the new Dutch BITs will look like.
In construction disputes, a significant amount of legal time (and therefore expense) is often spent simply locating and trying to understand the relevance of key documents because of poor document management practices throughout the project lifecycle. Establishing clear guidelines for document management and information collection is critical and will assist contractors and suppliers in making and evidencing claims in arbitration.
Following a recent Supreme Court decision, the outlook for recovery following the enforcement of the Everest Estate arbitral award against Russian assets in Ukraine does not look particularly optimistic. However, the chances of recovery may increase if the Ukraine Cabinet of Ministers exercises its powers under the International Private Law to allow enforcement against assets indirectly owned or controlled by Russia – and the grounds for exercising such power continue to mount.
A recent High Court decision concerning access to confidential documents illustrates the limits to the implied duty of confidentiality arising out of arbitration proceedings in English law. While the court was supportive of the general principle that arbitration proceedings are to be treated as confidential, it also demonstrated its willingness to depart from this general principle should one of the identified exceptions apply.
The expert phase is often the most critical, and sometimes costly, part of the arbitration process. Thus, choosing the right expert is crucial. This means ensuring not only that the expert has the appropriate qualifications, technical expertise and reputation in the relevant field, but also (if possible) suitable experience of the dispute process and of writing expert reports and giving evidence in adversarial proceedings. This article offers some practical tips for managing party-appointed experts in arbitrations.
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.
The New York Appellate Division has reaffirmed that the manifest disregard doctrine is a "severely limited… doctrine of last resort" that requires more than a mere error of law to warrant vacating an arbitral award. This case involved the acquisition contracts between Daesang and NutraSweet, under which NutraSweet could rescind the deal if it was sued for antitrust law violations. After NutraSweet exercised this right, Daesang commenced an arbitration proceeding for breach of contract.
In a recent decision, the Supreme Court confirmed that Section 34(7) of the Arbitration Act – under which an arbitral award must be set aside if an irregularity occurred in the course of the proceedings and probably influenced the case's outcome – should be applied restrictively. This decision is a rare example of a Swedish court setting aside an award based on procedural irregularities under Section 34(7).
Construction contracts are often part of a wider suite of project contracts, involving multiple, overlapping parties. This intertwined suite of contracts means that when a dispute arises, it arises under multiple project contracts, which can be difficult to deal with. Choosing arbitration as the dispute resolution procedure for each project contract – and ensuring that the arbitration agreement in each project contract is consistent – will help parties to achieve consolidation of future disputes under different project contracts.
A recent Court of Appeal case addressed whether a negative declaratory arbitration award is enforceable. The decision emphasises the narrow grounds that enable the high courts to refuse to recognise or enforce an arbitration award, as long as the requirements of Section 38(2) of the Arbitration Act are complied with. It also establishes a precedent that there is no barrier to the enforcement of a negative declaratory arbitration award.
In post-arbitral proceedings, parties challenging an unfavourable award or its enforcement often argue that they were deprived of the right to present their case or that the tribunal violated the rules of procedure or committed some other procedural error and often request the state courts to order the tribunal to present the arbitral case file. A recent Supreme Court decision evaluated the usefulness and necessity of granting such requests and clarified that such measures should be granted only rarely.
Unbeknown to many, Section 1782 of Title 28 of the US Code permits parties to obtain discovery in the United States in aid of non-US legal proceedings, including – in some instances – international arbitrations. Such discovery can include documents and sworn testimony (eg, depositions). In conducting an arbitration seated outside the United States (or other non-US legal proceedings), it is useful to understand the mechanics, requirements and key issues of Section 1782 discovery.
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.
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.
A recent Banska Bystrica Regional Court decision is one of many which give a positive outlook for arbitration in Slovakia and can be equated with court decisions in arbitration-friendly jurisdictions. A limited review of arbitral awards, with a focus on the procedural aspects of arbitration proceedings, reflects the aim of the Arbitration Act amendment of 2015; however, other court decisions have interpreted arbitration clauses more restrictively.