Global developments brought to you monthly by the ITA Board of Reporters
General Editor: Roger Alford
Managing Editors: Elina Mereminskaya & Monique Sasson
Volume XV - Issue 9
October 2017
 
 
 
 
Recent Cases and Awards (23)
 
 
OGH – 4 Ob 92/17h, Supreme Court of Justice of Austria, 4 Ob 92/17h, 30 May 2017
 
Since 2013 the OGH has in general exclusive jurisdiction to decide on actions regarding an annulment of an arbitral award (Section 615 Civil Procedure Code (Zivilprozessordnung; ZPO)). It was disputed, whether another court than the OGH can have jurisdiction to decide an annulment action, if the defendant defends himself on the merits before such court, however, without objecting to the jurisdiction of said court. The OGH confirmed that in this case, notwithstanding section 615 ZPO, the other court would have jurisdiction to decide the annulment action (Austrian Supreme Court, Der Oberste Gerichtshof, OGH, 30 May 2017, 4 Ob 92/17h)
 
Author(s): Günther J. Horvath, Freshfields Bruckhaus Deringer LLP
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Austria
 
Austria Full text Full text as PDF
 
 
 
 
 
Empresa de Investigação e Desenvolvimento de Eletrônica S.A. v. Indústria Naval do Ceará S/A (INACE), Superior Court of Justice of Brazil, Sentença Estrangeira Contestada No. 14.679 - EX (2015/0265413-8), 07 June 2017
 
The Brazilian Superior Court of Justice granted recognition to a foreign Arbitral Award without the analysis of the alleged nullity of the arbitration agreement contended by the Respondent, for it found that it would constitute an analysis of the merits of the case. 
 
Author(s): Joao Bosco Lee, Lee, Taube, Gabardo Sociedade de Advogados
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Brazil
 
Brazil Full text Full text as PDF
 
 
 
 
 
Gold Circle Films LLC v. Cannes Produções S/A, Superior Court of Justice of Brazil, Sentença Estrangeira Contestada No. 3.687 - EX (2008/0267733-7), 03 May 2017
 
The Brazilian Superior Court of Justice ruled that a previous procedure of recognition of arbitral award in another country does not, in any way, impair the recognition of the same award in Brazil.
 
Author(s): Joao Bosco Lee, Lee, Taube, Gabardo Sociedade de Advogados
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Brazil
 
Brazil Full text Full text as PDF
 
 
 
 
 
Pentágono Engenharia Empreendimentos Imobiliários Ltda. v. Romero e Associados Participações Ltda., Superior Court of Justice of Brazil, Recurso Especial No. 1.526.789 - SP (2015/0081712-3), 13 June 2017
 
The Brazilian Superior Court of Justice decided that an arbitrator who has collateral family ties on the third degree with one of the counsels of a party can be considered to have its impartiality and independence harmed. 
 
Author(s): Joao Bosco Lee, Lee, Taube, Gabardo Sociedade de Advogados
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Brazil
 
Brazil Full text Full text as PDF
 
 
 
 
 
ASA Bioenergy Holding AG, Abengoa Bioenergia Agrícola Ltda, Abengoa Bioenergia Sao Joao Ltda, Abengoa Bioenergia Sao Luiz S/A and Abengoa Bioenergia Santa Fé Ltda v. Adriano Giannetti Dedini Ometto and Adriano Ometto Agricola Ltda, Superior Court of Justice of Brazil, Sentença Estrangeira Contestada No. 9.412 - US (2013/0278872-5), 19 April 2017
 
The Brazilian Superior Court of Justice denied the recognition of two foreign arbitral awards rendered by an Arbitral Tribunal seated in New York and constituted under the rules of the ICC, based on the ground that the awards harmed Brazilian public policy due to the lack of impartiality of the Chairman of the Arbitral Tribunal.
 
Author(s): Joao Bosco Lee, Lee, Taube, Gabardo Sociedade de Advogados
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Brazil
 
Brazil Full text Full text as PDF
 
 
 
 
 
Helsingin Pizzapalvelu Oy (franchisor) v. Leena Hinkkanen, Slice-away (franchisee), Court of Appeal of Helsinki, Judgment No. 24 in Case S 16/838, 11 January 2017
 
Foreign parties are sometimes concerned with the applicability of Section 36 of the Finnish Contracts Act on agreements in general and arbitration agreements more specifically. According to said provision, “If a contract term is unfair or its application would lead to an unfair result, the term may be adjusted or set aside. In determining what is unfair, regard shall be had to the entire contents of the contract, the positions of the parties, the circumstances prevailing at and after the conclusion of the contract, and to other factors.” The provision seldom finds application in contractual arrangements between commercial parties. However, the provision can find application in exceptional circumstances if the enforcement of the contractual terms as such would lead to an unfair result. In the context of arbitration agreements, this is practically the case only when there is an imbalance between the parties and a party in an inferior position cannot initiate arbitration to have a dispute resolved or a dispute resolution clause is unilateral.
 
Author(s): Mika Savola, Hannes Snellman Attorneys; Anna-Maria Tamminen, Hannes Snellman Attorneys
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Finland; Finland
 
Finland Full text Full text as PDF
 
 
 
 
 
Company (Unknown) v. Greek State as lawfully represented by the Minister of Finance and the Minister of Public Order and Citizen Protection, Supreme Court of Greece, Decision No. ΑΠ 517/2016, 22 September 2016
 
A court that is called to rule upon a request for annulment on the grounds that the arbitral award is said to be contrary to international public order, shall only review the arbitral tribunal’s holdings as presented in the reasoning and the operative part of the award. The annulment Court does not have the authority to rule upon the substance of the case or evaluate key-facts differently; this would be tantamount to adjudicating the dispute anew and, as such, would in essence negate the finality of the arbitral award. 
 
Author(s): Ioannis Vassardanis, Ioannis Vassardanis & Partners
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Greece
 
Greece Full text Full text as PDF
 
 
 
 
 
Raffles Design International India Private Limited v. Educomp Professional Education Limited, High Court of Delhi, O.M.P.(I) (COMM.) 23/2015 & CCP(O) 59/2016, IA Nos. 25949/2015 & 2179/2016, 07 October 2016
 
The Delhi High Court has provided clarity on the applicability of the Amendments to the Arbitration and Conciliation Act, 1996.
 
Author(s): Dipen Sabharwal, White & Case LLP; Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
NTT Docomo Inc. v. Tata Sons Ltd., High Court of Delhi, O.M.P.(EFA)(COMM.) 7/2016 & IAs 14897/2016, 2585/2017, 28 April 2017
 
The High Court of Delhi has ruled on the ability of a non-party to an arbitral award and underlying arbitration agreement to intervene in enforcement proceedings.
 
Author(s): Dipen Sabharwal, White & Case LLP; Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
Centrotrade v. Hindustan Copper, Supreme Court of India, Civil Appeal No. 2562 of 2006, 15 December 2016
 
The Supreme Court of India has provided clarity on the validity of a two-tier arbitration mechanism under Indian law.
 
Author(s): Dipen Sabharwal, White & Case LLP; Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
A. Ayyasamy v. A. Paramasivam, Supreme Court of India, Civil Appeal Nos. 8245-8246 of 2016, 04 October 2016
 
The Supreme Court has provided more clarity on the arbitrability of fraud under Indian law.
 
Author(s): Dipen Sabharwal, White & Case LLP; Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
Vimal Kishor Shah v. Jayesh Dinesh Shah, Supreme Court of India, Civil Appeal No. 8164 of 2016 (Arising out of SLP(C) No. 13369 of 2013), 17 August 2016
 
The Supreme Court of India has provided clarity on several issues relating to an arbitration clause in a trust deed. 
 
Author(s): Dipen Sabharwal, White & Case LLP; Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
Maguire & anor v. Motor Services Limited t/a MSL Park Motors & anor [2017] IEHC 532, High Court of Ireland, 2017 79 CA, 07 September 2017
 
This case decided two issues: (a) the circumstances when an appeal is available against a stay-of-proceedings order made court below the High Court; and (b) the scope of Art. 8(1) of the Model Law when deciding whether or not to stay proceedings brought by non-parties to the arbitration agreement.

 
 
Author(s): Klaus Reichert, Law Library/Brick Court Chambers
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Ireland
 
Ireland Full text Full text as PDF
 
 
 
 
 
Cub Med sas v. Ability Real Estate srl, Supreme Court of Cassation of Italy, Ordinanza No. 14861, 15 June 2017
 
The Supreme Court recognized the arbitrability of lease contracts for non-residential use.
 
Author(s): Stefano Azzali, Chamber of Arbitration of Milan; Benedetta Coppo, Chamber of Arbitration of Milan
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Italy; Italy
 
Italy Full text Full text as PDF
 
 
 
 
 
Carnival Cruise Lines v. Arcadi Claudio, Supreme Court of Cassation of Italy, Sentenza No. 17549, 14 July 2017
 
The Supreme Court denies arbitrability in labor disputes in lack of any collective labor contracts or agreements.
 
Author(s): Stefano Azzali, Chamber of Arbitration of Milan; Benedetta Coppo, Chamber of Arbitration of Milan
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Italy; Italy
 
Italy Full text Full text as PDF
 
 
 
 
 
X v. Y, CAM Case No. .../2016, 21 September 2016
 
Arbitrator established that under Romanian Law, where an insolvency declaration occurs while arbitration is pending, only monetary claims against the debtor have to be suspended, while arbitration proceeds on declaratory claims.

 
 
Author(s): Stefano Azzali, Chamber of Arbitration of Milan; Benedetta Coppo, Chamber of Arbitration of Milan
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Italy; Italy
 
Italy Full text Full text as PDF
 
 
 
 
 
An action for constitutional relief under a writ of amparo cannot be interposed against an arbitral award, Fifth District Court in Civil Matters of the Federal District, 384/2013, Case Date 13 August 2013
 
A decision issued by the Fifth Collegiate Court has been published, holding that the Collegiate Circuit Court has no jurisdiction to hear a direct amparo action against an arbitral award. 
 
Author(s): Cecilia Flores Rueda, Flores Rueda Abogados
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Mexico
 
Mexico Full text Full text as PDF
 
 
 
 
 
Insured v. Insurance Company, Fifth District Court in Civil Matters of the Federal District, 543/2014, 13 July 2017
 
The Fifth Civil Court of First Instance in Culiacan referred the parties to the dispute resolution mechanism agreed by the parties, in accordance with articles 1464, and 1465 of the Mexican Arbitration Law.
 
Author(s): Cecilia Flores Rueda, Flores Rueda Abogados
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Mexico
 
Mexico Full text Full text as PDF
 
 
 
 
 
Party X v. Party Y, Twelfth District Court in Civil Matters of the Federal District, Nulidad de laudo arbitral 279/2014-P.C. y su acumulado 232/2015- P.C., 31 May 2017
 
The powers of the arbitral tribunal to conduct the arbitration in such manner as it considers appropriate, were endorsed by the Twelfth Civil District Court in Mexico City, when deciding on a setting aside request of an arbitral award.
 
Author(s): Cecilia Flores Rueda, Flores Rueda Abogados
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Mexico
 
Mexico Full text Full text as PDF
 
 
 
 
 
AA Clube de Portugal v. BB Engenharia, S.A., Supreme Court of Justice of Portugal, 416/16.0YRLSB.S1, 06 April 2017
 
The Portuguese Supreme Court annulled the interlocutory decision of an Arbitral Tribunal that had declared it had jurisdiction over a dispute due to a breach of a works contract on the basis that, despite both parties having agreed on an arbitral clause, the works contract which contained that clause was “inexistent” due to lack of signature or written form.
 
Author(s): José Miguel Júdice, PLMJ, Sociedade de Advogados
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Portugal
 
Portugal Full text Full text as PDF
 
 
 
 
 
X v. Y, Regional Court of Justice of Istanbul, 14th Civil Division, File No. 2017/264, Decision No. 2017/253, 11 May 2017
 
An interim attachment application can only be granted in the course of recognition and enforcement proceedings of a foreign arbitral award once the relevant security has been deposited.
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Turkey; Turkey
 
Turkey Full text Full text as PDF
 
 
 
 
 
Appellant v. Respondent, Court of Cassation of Abu Dhabi, Judgment No. 708-2014, 29 October 2014
 
This case involved an application to the Abu Dhabi Court of Cassation (United Arab Emirates) to set aside an arbitral award issued and ratified by the Abu Dhabi Court of First Instance, and upheld by the Abu Dhabi Court of Appeal.
 
Author(s): John Gaffney, Al Tamimi & Company; Malak Nasreddine, Al Tamimi & Company
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: United Arab Emirates; United Arab Emirates
 
United Arab Emirates Full text Full text as PDF
 
 
 
 
 
Internaves de Mexico S.A. de C.V. v. Andromeda Steamship Corp., United States District Court, Southern District of Florida, Case No. 16-81719-CIV, 29 March 2017
 
The United States District Court for the Southern District of Florida held that it was not permitted to void an arbitration clause based on fraud in the inducement of the contract as a whole.  The court then followed the Ninth Circuit Courts of Appeals in holding that conflicting location clauses in the arbitration agreement meant that the arbitration location had not been “provided for,” and that under the Federal Arbitration Act, the federal court could therefore compel arbitration only within its own district.
 
Author(s): Megan Corrarino, Debevoise & Plimpton LLP; William Mattessich, Debevoise & Plimpton LLP; Zachary Saltzman, Debevoise & Plimpton LLP; William H. Taft V, Debevoise & Plimpton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: United States of America; United States of America; United States of America; United States of America
 
United States of America Full text Full text as PDF
 
 
 
 
 
Legislation (1)
 
 
Rules regarding the Annulment of Arbitral Awards
 
On 22 March 2017, the National Court of Justice issued a resolution in which it clarifies the scope and interpretation of certain rules regarding the annulment of arbitral awards and its procedure (Resolution No. 08-2017 published in the Official Gazette No. 983 of 12 April 2017). The most relevant aspect dealt in the resolution concerns a query on whether the judicial decision resolving on the annulment application is subject to appeal. Ecuadorian law recognizes that arbitral awards are not subject to be appealed but remains silent regarding the judicial decision on the annulment application.  This query remained unanswered in the past and there was no consensus among lower courts on the way they should interpret the provisions of the arbitration law and the Organic General Code Procedural Code (Código Orgánico General de Procesos). In this respect, the National Court clarified that “no appeal shall proceed in respect to the decision rendered by the President of the [Court resolving on the annulment application].” Resolution No. 08-2017 is relevant for awards rendered in both national and international arbitration proceedings seated in Ecuador. 
 
Author(s): Javier Robalino Orellana, Ferrere Abogados; María Teresa Borja, Ferrere Abogados
 
Source: A contribution by the ITA Board of ReportersDate: 5 Oct 2017
 
Reporter for: Ecuador; Ecuador
 
Ecuador Full text
 
 
 
 
 
 
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