Global developments brought to you monthly by the ITA Board of Reporters
General Editor: Roger Alford
Managing Editors: Elina Mereminskaya & Monique Sasson
Volume XVI - Issue 5-6-7
July 2018
 
 
 
 
Recent Developments (1)
 
 
Mexico Enters the ICSID Convention
 
Once signed by Mexico’s Secretary of Economy, on April 26, 2018, the Mexican Senate approved the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention”) and remanded it to the Federal Executive.

In accordance with article 68 of the same ICSID Convention, it shall enter into force 30 days after the date of deposit at ICSID, on 27 July 2018..
 
Author(s): Cecilia Flores Rueda, Flores Rueda Abogados
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Mexico
 
Mexico Full text
 
 
 
 
 
Recent Cases and Awards (56)
 
 
TCPSA S.A. v. ADT Security Services S.A. s/ organismos externos, Court of Appeals in Commercial Matters of the Federal District, Chamber E, COM 2455/2017, 31 October 2017
 
The Commercial Court of Appeals of the City of Buenos Aires, Argentina (“Court of Appeals”) rejected an application for annulment of an arbitral award, reiterating that the Court will only exercise its jurisdiction to annul an arbitral award based on grounds expressly authorized by section 760 of the Argentine Civil and Commercial Procedural Code, namely: (i) an essential procedural defect, (ii) an award has been rendered on matters not submitted to arbitration, or (iii) an award has been rendered beyond the deadline agreed by the parties. The Court of Appeals further stated that it will not conduct a substantive review of the arbitration tribunal’s decision in the absence of such grounds.
 
Author(s): Federico Godoy, Beretta Godoy
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Argentina
 
Argentina Full text Full text as PDF
 
 
 
 
 
Ku-ring-gai Council v. Ichor Constructions Pty Ltd [2018] NSWSC 610, Supreme Court of New South Wales, 2018/110112, 08 May 2018
 
The New South Wales Supreme Court (NSWSC) has held that, where an arbitrator switches from the role of arbitrator to mediator (and vice versa) under the Commercial Arbitration Act 2010 (NSW) (CAA), there must be written consent from the parties at each stage of the switch.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Australia
 
Australia Full text Full text as PDF
 
 
 
 
 
Kraft Foods Group Brands LLC v. Bega Cheese Ltd [2018] FCA 549, Federal Court of Australia, Victoria District Registry, VID 1220 of 2017, 20 April 2018
 
The Federal Court of Australia (FCA) has granted an anti-arbitration injunction, restraining an arbitration in the United States from proceeding while the FCA case is on foot.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Australia
 
Australia Full text Full text as PDF
 
 
 
 
 
Warner Bros Feature Productions Pty Ltd v. Kennedy Miller Mitchell Films Pty Ltd [2018] NSWCA 81, Supreme Court of New South Wales, Court of Appeal, , 24 April 2018
 
The New South Wales Court of Appeal (NSWCA) has overturned a primary judge’s refusal to grant a stay of court proceedings and refer a dispute to arbitration under s7(2) of the International Arbitration Act 1974 (Cth) (IAA).  The NSWCA found that an arbitration clause had been effectively incorporated into the agreement between the parties.  The dispute concerns the production of the film Mad Max: Fury Road.  See our earlier update on the initial decision
    here
.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Australia
 
Australia Full text
 
 
 
 
 
Mango Boulevard Pty Ltd v. Mio Art Pty Ltd & Anor [2018] QCA 39, Supreme Court of Queensland, Court of Appeal, Appeal No 6003 of 2017; SC No 9991 of 2016; SC No 1383 of 2017, 20 March 2018
 
The Queensland Court of Appeal (QCA) has upheld a trial judge’s decision and refused an application to set aside a domestic arbitral award on the basis that the award was contrary to Australian public policy.  
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Australia
 
Australia Full text Full text as PDF
 
 
 
 
 
Société de droit grec Agriphar Hellas A.E.B.E. v. S.P.R.L. Arysta LifeScience Benelux et Angelo Kalliontzis, Constitutional Court of Belgium, 21/2017, 16 February 2017
 
1. Court judgments and arbitral awards have identical effects towards third parties. In both cases, third parties’ rights may be affected where such decisions are invoked against them in subsequent proceedings. Third parties to judgments and arbitral awards are therefore in comparable circumstances as far as the need to oppose to the legal presumption of truth attached to such decisions is concerned. However, the possibilities offered to third parties to oppose such decisions vary depending on the procedural choice made by the parties. Pursuant to Article 1122 of the Belgian Judicial Code (BJC), third parties can lodge third party opposition against court judgments. By contrast, the said article does not offer them the same possibility against arbitral awards. As a result, third parties are faced with a presumption of truth of arbitral awards, without the possibility of third party opposition. Accordingly, Article 1122 BJC violates Articles 10 and 11 of the Belgian Constitution (i.e. the provisions of the Belgian Constitution on equality and non-discrimination) in that it excludes third parties negatively affected by an arbitral award from the possibility to file third party opposition.

2. By submitting their dispute to arbitration, the parties choose to limit the possibilities for challenging the award before state courts and exclude a full review. Article 1717 BJC lists the limited grounds on which an award can be set aside. Third parties are not concerned by the possible annulment grounds that could affect an award. Third parties are only concerned by the opposability of the award against them. Since proceedings to set aside an award are not related to the issue of the opposability of the awards against third parties, the difference of treatment between parties and third parties relating to the possibility to challenge an award is justified. This is without prejudice to the finding of the Belgian Supreme Court in its 29 January 1993 judgment, holding that a third party affected by an arbitral award obtained by fraud and with the sole aim of aggrieving that third party’s rights, has the necessary legal interest to introduce setting aside proceedings against such an award. Accordingly Article 1717 BJC does not violate Articles 10 and 11 of the Belgian Constitution where it is interpreted as not allowing third parties negatively affected by arbitral wards to start setting aside proceedings against such arbitral award, except in case of fraud.
 
Author(s): Maarten Draye, Hanotiau & van den Berg; Charlotte Villeneuve, Hanotiau & van den Berg
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Belgium; Belgium
 
Belgium Full text Full text as PDF
 
 
 
 
 
S.A. I. v. Ordre des barreaux francophones et germanophones, Commercial Court of Brussels, , 14 October 2016
 
A company that provides services and sends the corresponding invoices pursuant to a contract of which it is not a signatory, accepts tacitly to be bound by this contract and the arbitration clause contained therein. Consequently state courts have no jurisdiction to deal with a claim raised by this company against the beneficiary of the services provided under this contract.
 
Author(s): Maarten Draye, Hanotiau & van den Berg; Charlotte Villeneuve, Hanotiau & van den Berg
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Belgium; Belgium
 
Belgium Full text Full text as PDF
 
 
 
 
 
Fundación Solar Chile S.A. and others v. Valeria Galíndez (ICC arbitrator in Case N° 20756/ASM), Court of Appeal of Santiago, 13472-15, 20 July 2017
 
The Court of Appeals of Santiago rejected a Recurso de Queja seeking to challenge an arbitral award issued in an ICC arbitration. The Court held that the award had been rendered in the context of an international arbitration, and was subject to Law 19.971 of International Commercial Arbitration, thus excluding the application of the disciplinary actions contained in Chilean Code of the Judiciary.
 
Author(s): Cristian Conejero-Roos, Philippi, Prietocarrizosa & Uría
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Chile
 
Chile Full text Full text as PDF
 
 
 
 
 
Changsheng Trading Co. Inc., Alan L. George and others v. Henan Jianghe Industry Co., Ltd. re Recognition and Enforcement of the Foreign Arbitration Award, Higher People’s Court of Jiangsu, (2016) Su Min Zhong No.783, 22 September 2016
 
The Higher People's Court of Jiangsu Province (“Jiangsu High Court”)renders a judgment to dismiss an appeal for recognition and enforcement of an SCC award. Jiangsu High Court made its ruling based on Article 283 of Chinese Civil Procedural Law, which stipulates that any applicant who applies for recognition and enforcement of foreign arbitral awards shall submit his application to the intermediate people's court in the place where the Respondent has his domicile or where his property locates. The reason for Jiangsu High Court's final decision is that the Applicant fails to submit its application to a competent court. The court which Applicant submits its application is not in the place where Respondent has his domicile or where his property locates. Therefore, Jiangsu High Court upholds the court of first instance's decision that the suit shall not be accepted. 
 
Author(s): Arthur X. Dong, AnJie Law Firm
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: China
 
China Full text Full text as PDF
 
 
 
 
 
Gold Group Investor Inc. and Darvinson Corportation C. por A. v. Kimani Limited, Supreme Court of Justice of the Dominican Republic, TC/0543/17, 24 October 2017
 
In Gold Group Investor Inc. and Darvinson Corportation C. por A. v. Kimani Limited, the Constitutional Tribunal of the Dominican Republic ruled that arbitral awards are not subject to appeal before domestic judicial courts, pursuant to the principle of party autonomy and the applicable law.
 
Author(s): Stephan Adell, Squire Sanders
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Dominican Republic
 
Dominican Republic Full text Full text as PDF
 
 
 
 
 
Easmar Logistics Oy v. Contimer Oü, Court of Appeal of Eastern Finland, Case No. S 17/1025, Decision No. 83, 21 February 2018
 
The Court of Appeal of Eastern Finland evaluates the requirements for hearing witnesses under Section 55 of the Finnish Arbitration Act (“FAA”) in connection with enforcing an international arbitration award, and grounds for considering an arbitral award null and void under the public policy defence of Section 40(2) of the FAA.
 
Author(s): Anna-Maria Tamminen, Hannes Snellman Attorneys
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Finland
 
Finland Full text Full text as PDF
 
 
 
 
 
Société Projet Pilote Garoubé v. Chambre de commerce internationale, Court of Cassation of France, First Civil Law Chamber, Arrêt n° 1289 FS-P+B, pourvoi n° M 16-22 131, 13 December 2017
 
The French highest court has upheld the decision of the Paris Court of Appeal confirming that the juge d’appui (judge acting in support of the arbitration) has no jurisdiction to order the ICC to reintroduce a case that was withdrawn following the parties’ failure to pay the advance on costs.
 
Author(s): Nataliya Barysheva, CastaldiPartners; Valentine Chessa, CastaldiPartners
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: France; France
 
France Full text Full text as PDF
 
 
 
 
 
République du Congo v. Société Commissions Import Export (Commisimpex), Court of Cassation of France, First Civil Law Chamber, 16-22.494, 10 January 2018
 
The decision of the French Cour de cassation of 10 January 2018  is a significant case for the application of the French Law No. 2016-1691 of 9 December 2016 on immunity of foreign States in France. The key provisions are Article L111-1-2, which provides a non-exhaustive list of assets used or intended to be used for government non-commercial purposes, and Article L111-1-3 regarding the express and specific waiver requirement by the foreign State owing the assets.

The French Cour de cassation overrules the decision of the Paris Court of Appeal dated 30 June 2016 considering that the case law on immunity preceding the new law is no longer valid.
 
Author(s): Nataliya Barysheva, CastaldiPartners; Valentine Chessa, CastaldiPartners
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: France; France
 
France Full text Full text as PDF
 
 
 
 
 
OLG Frankfurt am Main – 26 SchH 10/17, Higher Regional Court of Frankfurt am Main, 26 SchH 10/17, 22 January 2018
 
A violation of a party’s right to be heard, as part of the ordre public, can only be assumed if the special circumstances of the case show that a point which is of central importance in the assertions of the party has not been considered at all when the arbitral tribunal rendered the arbitral award. Unless proven otherwise, it is presumed that the arbitral tribunal has considered the parties’ assertions.
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
OLG München – 34 Sch 28/16, Higher Regional Court of Munich, 34 Sch 28/16, 05 February 2018
 
A party behaves contradictorily and, as a general rule, acts in bad faith if it initiates an arbitration, relying on an arbitration agreement, and later seeks to set aside the arbitral award that rejected its claims, asserting that the same arbitration agreement was invalid, or contending that the matter in dispute was not arbitrable.
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
KG Berlin – 13 SchH 2/17, Regional Court of Berlin, 13 SchH 2/17, 12 February 2018
 
An arbitrator cannot be successfully challenged for bias if the arbitrator omits to provide, upon request of one party, a written indication regarding his assessment of the case. While an arbitrator has a procedural duty to grant the parties their right to be heard, he is not required to provide such an indication. If an arbitrator does provide such an indication on the preliminary assessment of the case, it does likewise not, in and for itself, suffice for a finding of bias.
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
Israel Sorin (IZZY) Shohat v. Balram Chainrai [2017] 6 HKC 174, High Court of Hong Kong, Court of First Instance, HCCT 9/2016, 26 May 2017
 
Overview

In Israel Sorin (IZZY) Shohat v Balram Chainrai [2017] 6 HKC 174; HCCT 9/2016, the Hong Kong Court of First Instance considered that enforcement of arbitral awards should be subject to the same regime as governs the stay of execution of an ordinary court judgment, and ruled that the Court had jurisdiction to stay execution of an arbitral award enforcement order.

However, in the circumstances of this case, the Court refused to grant a stay of execution, despite a pending action commenced by the respondent before the High Court.

Comment

The Hong Kong Court has indicated that it will apply a flexible interpretation of section 84 Arbitration Ordinance and Order 73, rule 10(1) Rules of the High Court, bringing the regimes applicable to the stay of execution of awards and court judgments closer. While the flexibility is welcome, this decision also extends the scope of the court's powers to delay enforcement of an arbitral award. However, it is likely that the power will be exercised sparingly, in keeping with Hong Kong's usual practice of encouraging enforcement and the arbitral process overall.
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
Polytec Overseas Ltd and another v. Grand Dragon International Holdings Co Ltd and others [2017] HKCFI 604, High Court of Hong Kong, Court of First Instance, HCA 2776/2016, 22 March 2017
 
In Polytec Overseas Ltd and another v. Grand Dragon International Holdings Co Ltd and others [2017] HKCFI 604; HCA 2776/2016, the Hong Kong Court of First Instance upheld the defendant's application under s. 20 of the Arbitration Ordinance to stay court proceedings issued by the plaintiffs in favour of arbitration.

Notwithstanding that the relevant contracts between the parties appeared to contain incompatible dispute resolution provisions, the Court confirmed the existence of a valid and operative arbitration clause binding on the plaintiffs and defendants and prima facie encompassing the substantive claims advanced.

As we have come to expect, the Hong Kong Court has applied the provisions of the Arbitration Ordinance robustly. While the judgment confirms that the application of s. 20 Arbitration Ordinance will depend on the facts of each case, the threshold for ordering a s.20 stay is relatively low. The Court must merely be satisfied on a prima facie basis that there is a valid arbitration clause, and that it encompasses the disputes before the court. As such, Chan J's decision is consistent with the overarching aim of the Arbitration Ordinance (and the Model Law) that courts should intervene in a dispute that is subject to arbitration only insofar as necessary, and shall defer to the arbitral tribunal wherever possible, to determine its own jurisdiction on a final basis.
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
Sun Tian Gang v. Hong Kong & China Gas (Jilin) Ltd [2017] 1 HKC 69, High Court of Hong Kong, Court of First Instance, HCCT 46/2015, 21 September 2016
 
In Sun Tian Gang v. Hong Kong & China Gas (Jilin) Ltd [2017] 1 HKC 69; HCCT 46/2015, the Hong Kong Court of First Instance set aside an arbitral award rendered in 2007 after it found that the Plaintiff was not given proper notice of the arbitral proceedings and was not able to present its case due to his incarceration in Mainland China. The Court found that the recognition and enforcement of the award would be contrary to notions of natural justice, fairness, due process and to public policy.

The facts of this case are clearly exceptional. Nevertheless, Sun Tian Gang v. Hong Kong & China Gas (Jilin) Ltd highlights that fairness and due process underpin the arbitral process and are pre-requisites for the recognition and enforcement of awards. Central to this is the requirement that a party against whom claims are made must not only be given due and fair notice of those claims, but must also have an opportunity to answer them. The "deeming provisions" for service (Article 3(1) of the Model Law and Article 2 of the UNCITRAL Rules) cannot be invoked to derogate from fundamental principles of natural justice.
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
William Lim and Another v. Hung Ka Hai Clement and Others [2016] HKCFI 1439, High Court of Hong Kong, Court of First Instance, HCA 1282/2016, 24 August 2016
 
In William Lim and Another v. Hung Ka Hai Clement and Others [2016] HKCFI 1439; HCA 1282/2016, the Hong Kong Court of First Instance ordered a stay of court proceedings and referred an ongoing dispute to arbitration pursuant to s 20 (1) of the Arbitration Ordinance (Cap 609). The Court found that it had no jurisdiction when an action brought before it is one which is the subject of an arbitration agreement.

 
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
American International Group and another v. X Company [2016] HKCFI 1530, High Court of Hong Kong, Court of First Instance, HCCT 60/2015, 30 August 2016
 
In American International Group and AIG Capital Corporation v. X Company [2016] HKCFI 1530; HCCT 60/2015, the Hong Kong Court of First Instance has dismissed an application to set aside an arbitral award. In its judgment, the Court found that although the Tribunal may have made errors of law, it could not be established that it had “consciously disregarded” the applicable law in order to reach what it believed to be the fair and equitable outcome.

In Hong Kong, as in any Model Law jurisdiction, an error of law made by an arbitral tribunal is not a valid ground for setting aside an award. An applicant must prove that there was a "conscious disregard" of the applicable law. Such an inference is often considered an attack on the professional integrity of the tribunal. Therefore, when raised, it must be properly grounded in the primary facts of the case. The Courts will not easily speculate on the reasons or motives behind a tribunal’s decision, nor will they correct an error of law.
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
Leung, Kwok Hung trading as Kaiser (M&E) Decoration Engineering Company v. Johnson Controls Hong Kong Limited [2018] HKCFI 1500, High Court of Hong Kong, Court of First Instance, HCCT 56/2017, 28 June 2018
 
In Leung Kwok Hung trading as Kaiser (M&E) Decoration Engineering Company v. Johnson Controls Hong Kong Limited [2018] HKCFI 1500; HCCT 56/2017, the Hong Kong Court of First Instance granted the Defendant's application under s.20 of the Arbitration Ordinance, staying Court proceedings in favour of arbitration. In doing so, Justice Mimmie Chan noted that the principles for granting such a stay were clear and had not been disputed by the parties.

In light of the termination of the parties' subcontract containing the arbitration clause, the Court reiterated that the arbitration agreement is separable from the underlying contract and confirmed that the matters in dispute between the parties relating to alleged breach, termination of contract and payment fell within the scope of the clause.
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
TRF Ltd. v. Energo Engineering Projects Ltd., Supreme Court of India, Civil Appeal No. 5306 of 2017, 03 July 2017
 
A person who is ineligible to be appointed as an arbitrator cannot nominate an arbitrator in his/her place.
 
Author(s): Dipen Sabharwal, White & Case LLP; Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
M/S Duro Felguera S.A. v. M/S. Gangavaram Port Limited, Supreme Court of India, Arbitration Petition No. 30 of 2016 & Arbitration Petition No. 31 of 2016, 10 October 2017
 
An application for ‘composite reference’ i.e. the constitution of a single tribunal to hear interrelated disputes arising from five separate contracts was rejected by the Court. However, the Court appointed the same arbitrators in all five arbitral proceedings since the issues in each dispute were interrelated.
 
Author(s): Dipen Sabharwal, White & Case LLP; Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
Alka Chandewar v. Shamshul Ishrar Khan, Supreme Court of India, Civil Appeal No. 8720 of 2017, 06 July 2017
 
If a party violates an interim order issued by an arbitral tribunal then the tribunal can refer the matter to the appropriate court for contempt.
 
Author(s): Dipen Sabharwal, White & Case LLP; Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
Indus Mobile Distribution Private Limited v, Datawind Innovations Private Limited & Ors., Supreme Court of India, Civil Appeal Nos. 5370-5371 of 2017, 19 April 2017
 
Courts at the seat of arbitration have exclusive jurisdiction over all matters relating to the arbitration proceeding, regardless of whether or not the cause of action (in whole or part) arose at the seat.
 
Author(s): Dipen Sabharwal, White & Case LLP; Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
Natural persons A & B v. AS "Rietumu banka", Regional Court of Riga, Case No. C30748516, 01 November 2017
 
The case shows that there are gaps in the arbitration law in Latvia and that the judiciary does not always understand main principles of arbitration. Latvia does not follow UNCITRAL Model Law and therefore, among other things, there is no set aside procedure provided by law. Latvia is a party to the European Convention on International Commercial Arbitration, which provides for set aside proceedings, however, there are no corresponding norms in the Civil Procedural Law.

The Latvian courts’ stated that Article 537 of the Civil Procedural Law is not applicable to the case at hand as it deals with compulsory judicial execution (not annulment) and only when the execution is sought in Latvia. Moreover, the Law does not explicitly provide that the award becomes invalid if this compulsory judicial execution is not granted.
 
Author(s): Inga Kacevska, Law Office of Inga Kačevska
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Latvia
 
Latvia Full text Full text as PDF
 
 
 
 
 
Granting of Interim Measures to preserve the subject matter of the arbitration and maintain the market conditions, Seventh District Court in Civil Matters of the Federal District, 410/2016-II, 05 September 2016
 
The Seventh District Court in Mexico City grants interim measures to preserve the subject matter of the arbitration and maintain the market conditions.
 
Author(s): Cecilia Flores Rueda, Flores Rueda Abogados
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Mexico
 
Mexico Full text Full text as PDF
 
 
 
 
 
Resolute Forest Products Inc. v. Canada (Decision on Jurisdiction and Admissibility), PCA Case No. 2016-13, 30 January 2018
 
In NAFTA Chapter 11 proceedings conducted under the UNCITRAL Arbitration Rules (1976) and administered by the Permanent Court of Arbitration, a tribunal held that (1) NAFTA’s three-year limitations period did not bar any of the investor’s claims, (2) some of the challenged measures related to the investor or its investment for purposes of NAFTA Art. 1101, but some did not, (3) the national treatment obligations of sub-federal units are not limited to investors physically located on the territory of those sub-federal units, and (4) the reasoning of the ICJ’s Oil Platforms case did not require dismissal of the investor’s claim for expropriation under the particular circumstances at the jurisdictional phase, but (5) NAFTA Art. 2103 excluded jurisdiction over claims based on taxation measures. 

 
 
Author(s): Charles H. Brower, II, Wayne State University Law School
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: NAFTA
 
North American Free Trade Agreement Full text Full text as PDF
 
 
 
 
 
Mercer International Inc. v. Canada (Award), ICSID Case No. ARB(AF)/12/3, 06 March 2018
 
In NAFTA Chapter 11 proceedings conducted under the ICSID Additional Facility Rules, a majority of the tribunal dismissed certain claims for lack of jurisdiction under the three-year limitations period set forth in Articles 1116(2) and 1117(2), and other claims under the carve-out for procurement set forth in Article 1108(7).  On the merits, a majority of the tribunal denied claims for violations of Articles 1102 (national treatment) and 1103 (MFN treatment) because the investor failed to establish that the comparators who received more favorable treatment were in like circumstances.  A majority of the tribunal also denied claims for violations of Article 1105 (minimum standard of treatment) because that provision did not include any disciplines on nondiscrimination or transparency.  Also, the investor failed to establish that Canada had subjected it to the sort of arbitrary treatment required for a successful claim under Article 1105. 
 
Author(s): Charles H. Brower, II, Wayne State University Law School
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: NAFTA
 
North American Free Trade Agreement Full text Full text as PDF
 
 
 
 
 
Ministerio de Salud v. Gestora Peruana de Hospitales S.A., Superior Court of Justice of Lima, 00356-2017-0, 30 November 2017
 
The second Commercial Chamber of the Superior Court of Lima, confirms the validity of an arbitral award.
 
Author(s): Fernando Cantuarias Salaverry, Law School of Universidad del Pacìfico
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Peru
 
Peru Full text Full text as PDF
 
 
 
 
 
Parties Not Indicated, Court of Appeal of Lisbon, Case No. 1320/17.0YRLSB-8, 01 February 2018
 
From the arbitration community’s perspective, this decision may have a very negative impact. When facing a challenge, arbitrators should consider applying the well-known "rule of thumb of stepping aside", i.e., arbitrators should resign from the case if a party is challenging her/his impartiality and independence, especially if the case is in its outset, as it happened in the case at hand. Courts should also consider that the international standard is in favour of higher scrutiny on this kind of situations.
 
Author(s): José Miguel Júdice, PLMJ, Sociedade de Advogados
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Portugal
 
Portugal Full text Full text as PDF
 
 
 
 
 
A v. B & C, High Court of Cassation and Justice of Romania, Decizia nr. 1491/2016, 27 September 2016
 
The decision deals with the interraction between arbitration and insolvency of one of the parties of the arbitral lawsuit. One option taken by certain legislations is the stay of the arbitration and reference of any claim to the insolvency proceedings.

In the context of this legislative option, the High Court of Cassation and Justice of Romania decided that the stay is also applicable in the stage of the action for annullment against an arbitral award, as this is equivalent to a "claim" for the purposes of the rationale of the suspension of any regular judicial proceedings when insolvency was commenced against the defendant party.
 
Author(s): Viorel Nicolae Dinu, Bondoc & Asociatii
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Romania
 
Romania Full text Full text as PDF
 
 
 
 
 
Rakna Arakshaka Lanka Ltd v. Avant Garde Maritime Services (Private) Limited [2018] SGHC 78, Supreme Court of Singapore, High Court, Originating Summons No. 198 of 2017, 02 April 2018
 
This decision confirms that, where a tribunal has ruled on its own jurisdiction as a preliminary question or issue, a party wishing to challenge the tribunal’s jurisdiction must do so within the time limit set out in Article 16(3) of the Model Law and section 10(3) of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“IAA”) (i.e. within 30 days of receiving the tribunal’s ruling). A party will be precluded from raising the same plea at any subsequent setting aside proceedings (pursuant to Article 34(2)(a)(iii) of the Model Law) if it could have done so at an earlier stage (i.e. pursuant to Article 16(3) of the Model Law or section 10(3) of the IAA). However, a party is not precluded from raising the same jurisdictional challenge pursuant to its passive remedy of resisting enforcement.
 
Author(s): Yin Wai Chan, Michael Hwang Chambers LLC; Michael Hwang, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Singapore; Singapore
 
Singapore Full text Full text as PDF
 
 
 
 
 
Man Diesel Turbo SE v. I.M. Skaugen Marine Services Pte Ltd [2018] SGHC 132, Supreme Court of Singapore, High Court, Originating Summons No. 731 of 2017 (Summons No. 3315 of 2017) (Summons No. 5596 of 2017), 28 May 2018
 
What is the test and standard applicable to an application to adjourn enforcement proceedings and to order security on an application of an award creditor pursuant to section 31(5) of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“IAA”)? This decision appears to be the first time that a Singapore Court considered an application under section 31(5) of the IAA. The decision sets out the approach and considerations that will guide the Court when determining applications under this provision.
 
Author(s): Yin Wai Chan, Michael Hwang Chambers LLC; Michael Hwang, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Singapore; Singapore
 
Singapore Full text Full text as PDF
 
 
 
 
 
China Machine New Energy Corporation v. Jaguar Energy Guatemala LLC and another [2018] SGHC 101, Supreme Court of Singapore, High Court, Originating Summons No. 185 of 2016, 26 April 2018
 
Parties entered into an arbitration agreement which was governed by New York law and provided for Singapore-seated arbitration under International Chamber of Commerce (“ICC”) 1998 Arbitration Rules on an expedited basis. During the arbitration, the Tribunal imposed an Attorney-Eyes Only Regime, which was subsequently lifted and replaced with a Redaction Order. After a merits hearing, the Tribunal unanimously found that the Respondent, Jaguar, had validly terminated the contract and allowed their claim for liquidated damages and an order for cost against the Claimant, CMNC, was made. CMNC sought to set aside the Award on the basis that, amongst other things, the AEO Regime deprived CMNC of a reasonable opportunity to present its case, which amounted to a breach of the rules of natural justice. CMNC also contended that the AEO Regime was unjustifiably imposed in this case, which caused CMNC to suffer irreversible prejudice. It was further argued that the procedure throughout the arbitration was defective and the Tribunal’s failure to restrain Jaguar from employing guerrilla tactics in the arbitration rendered it appropriate for the Award to be set aside for breach of public policy. In addition, CMNC argued that the Tribunal had a duty to investigate allegations of corruption or fraud, and it failed to do so in this case.

The Singapore High Court had to decide whether the AEO Regime, which was not entrenched in Singapore’s jurisprudence, had breached the rules of natural justice. It also discussed novel issues which no Singapore court has dealt with yet, such as what the scope and content of the duty to arbitrate in good faith meant, actions that were considered guerrilla tactics and whether the use of guerrilla tactics would be a breach of the duty to arbitrate in good faith which rendered the Award liable to being set aside. In addition, it considered whether an arbitral tribunal had a duty to investigate allegations of corruption, and if so, when this duty would be triggered.
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC; Rachel Ong, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Singapore; Singapore
 
Singapore Full text Full text as PDF
 
 
 
 
 
Advadis S.A., in bankruptcy, and Adam Brodowsky v. Royal Unibrev A/S, Svea Court of Appeal of Stockholm, T 8043-13, Case Date 20 March 2015
 
During an arbitration between two Claimant-Appellant parties and a Defendant-Appellee party the Claimant-Appellant parties had not been able to commonly designate an arbitrator. The SCC had then appointed the arbitrator designated by the Defendant-Appellee but neither of the arbitrators designated by the Claimant-Appellant parties. The Claimant-Appellant parties challenged the SCC’s decision, pursuant to Section 34(4) SAA, arguing that the arbitrators had been appointed in conflict with the parties’ agreement and the principle of equal treatment. The Court found that the appointment had been done in accordance with the parties agreement as it did not conflict with the agreed upon rules. Pursuant to the agreed rules, Section 13(4) of the SCC arbitration rules, the SCC may freely appoint an arbitrator when multiple parties on any side of the dispute fail to commonly designate an arbitrator. The Court explained that the SCC’s decisions should generally be rejected only if it conflict with the parties’ agreement or case law. The Court further found that the principle of equal treatment had not been violated as the Claimant-Appellant parties had not been able to show that the Claimant-Appellant parties were unable to commonly designate an arbitrator due to a conflict of interest.

The Claimant Appellant further argued that there was not a valid arbitration agreement between one of the Claimant-Appellant parties and the Defendant-Appellee. The Claimant-Appellant argued that the party had been placed in bankruptcy and that under Polish law, which it argued was applicable to the arbitration agreement, a party in bankruptcy is absolved from any arbitration agreements. The Court found that while the parties’ agreement stated that Polish law was applicable in regards to substantive law, the agreement provided no law for the application of the arbitration agreement. Because Stockholm was given as the place of the arbitration the Court considered Swedish law applicable to the arbitration agreement. Under Swedish law the Claimant-Appellant party in bankruptcy was bound by the arbitration agreement. The dispute was thus covered by a valid arbitration agreement.
 
Author(s): Reporter ITA
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Sweden Full text Full text as PDF
 
 
 
 
 
Berde Plants Sweden AB v. Borkhult Invest AB in bankruptcy, Court of Appeal of Western Sweden, T 4028-13, Case Date 27 February 2015
 
The Claimant-Appellant argued that the arbitrator had exceeded his mandate by distributing the legal costs of the arbitration, within the spans of sums claimed by the parties, differently than either party had claimed. The Claimant-Appellant also argued that the arbitrator had neglected his duty to guide the proceedings by applying an uninvoked legal principle to the case, which had surprised the parties. Further the party argued that the arbitrator had neglected to consider the Claimant-Appellant’s objections, the party’s counterclaim and the evidence that the party had presented.

The Court found, by legal analogy, that the arbitrator was free to distribute the legal costs within the span of sums claim by the parties. It should not have surprised the parties that the arbitrator applied an uninvoked legal principal, which was his duty. Lastly, the Court found, from the award, that the arbitrator had twice compiled his understanding of the parties’ arguments, giving the Claimant-Appellant opportunity to object and clarify its position. Pursuant to the award, the Court found, the counterclaim had been invalid, giving the arbitrator no reason to consider it. The Court found that the arbitrator had considered the evidence since the arbitrator had judged on the issue to which the evidence related to. 
 
Author(s): Reporter ITA
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Sweden Full text Full text as PDF
 
 
 
 
 
PJSC Ukrnafta v. Carpatsky Petroleum Corporation, Svea Court of Appeal of Stockholm, T 10470-10, Case Date 26 March 2015
 
The Claimant-Appellant challenged an arbitral award, claiming that the tribunal had exceeded its mandate by not determining specific date for an occurrence of relevance to the case, which it claimed that the Defendant-Appellee had invoked. The Court found that the Defendant-Appellee had not specified any dates it its claims to the tribunal nor that the tribunal had been obliged to determine a date and that there had thus not been an excess of mandate. ‘

The Claimant-Appellant also argued that the tribunal had refused to consider evidence that it had presented to it, constituting an irregularity in the proceedings. The Court found that the evidence had been presented to the tribunal after the proceedings had been closed pursuant to the SCC arbitration rules and that there had been no extraordinary reasons to reopen the proceedings for the evidence.

The Claimant-Appellant argued that the tribunal had based its award on arguments that had been introduced by the Defendant-Appellee after the proceedings had been closed. The Court found that the Defendant-Appellee’s arguments had been introduced as allowable amendments before the proceedings had been closed.

The Claimant-Appellant argued that it had not been given the opportunity to presents its case. The Court found that the Claimant-Appellant had indeed had the opportunity to present its case as the tribunal had discussed the issue and given the parties due opportunity to understand and respond to each other’s arguments.

The Claimant-Appellant argued that the tribunal had calculated damages based on future injuries, despite that the Defendant-Appellee had not invoked such injuries. The Court found that the Defendant-Appellee had invoked damages in accordance with the agreement and that the tribunal had based its award on the claims.

The Claimant appellant argued that the tribunal had neglected to use an invoked model for calculating damages. To this the Court responded that it was a question of judging the case on its merit, which could not be an issue for a challenge of an award. Further, the Court found, that there had been no binding instructions from the parties regarding the calculations of the damages to the tribunal, whose breach could have constituted an excess of mandate. The court explained that merely common grounds for calculating the injuries, used by both parties’ expert witnesses, did not constitute binding instructions to the tribunal.
 
Author(s): Reporter ITA
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Sweden Full text Full text as PDF
 
 
 
 
 
Quasar de Valores SICAV S.A., Orgor de Valores SICAV S.A., GBI 9000 SICAV S.A. and ALOS 34 S.L. (Spanish Investment Funds) v. The Russian Federation, Svea Court of Appeal of Stockholm, T 9294-12, 07 June 2018
 
This relates to the decision of the Svea Court of Appeal in the arbitration initiated by claimants holding ADR's in Yukos Oil Company, claiming compensations for losses due to expropriation by the Russian Federation relying on the Agreement for Reciprocal Promotion and Protection of Investments between Spain and the USSR which entered into force on 28 November 1991 ("the Spanish BIT"). An award on preliminary objections relating to jurisdiction dated 20 March 2009 is reported on here, whilst the final award of 20 July 2012 is reported on here.

After the arbitral tribunal had assumed jurisdiction under a BIT, the defendant state challenged the decision by the arbitral tribunal by instituting proceedings under Section 2 of the Swedish Arbitration Act, seeking a declaratory judgement that the Arbitral Tribunal lacked jurisdiction. In a final judgement dated 18 January 2016 (reported on here, which entered into force after the Supreme Court did not grant leave), the Svea Court of Appeals found that the arbitral tribunal lacked jurisdiction. Such a decision is binding on the arbitral tribunal and as a consequence it should have found it lacked jurisdiction. Thus the award should be set aside, regardless if was based on Section 34(1) for lack of a valid arbitration agreement covering the claim in the arbitration or if it was based on Section 34(2) for excess of mandate; such distinction lacks practical meaning.

In this decision, the Svea Court of Appeal annulled and set aside the arbitral award of 20 July 2012 in its entirety.
 
Author(s): John Kadelburger, Advokat John Kadelburger AB
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Sweden
 
Sweden Full text
 
 
 
 
 
Quasar de Valores SICAV S.A., Orgor de Valores SICAV S.A., GBI 9000 SICAV S.A. and ALOS 34 S.L. (Spanish Investment Funds) v. The Russian Federation (Award), Arbitration V (024/2007): Renta 4 S.V.S.A., et al v. The Russian Federation, 20 July 2012
 
This relates to the final award in the arbitration initiated by claimants holding ADR's in Yukos Oil Company, claiming compensations for losses due to expropriation by the Russian Federation relying on the Agreement for Reciprocal Promotion and Protection of Investments between Spain and the USSR which entered into force on 28 November 1991 ("the Spanish BIT"). An award on preliminary objections relating to jurisdiction dated 20 March 2009 is reported on separately, here.
 
Author(s): Reporter ITA
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Sweden Full text
 
 
 
 
 
Renta 4 S.V.S.A., Ahorro Corporacion Emergentes F.I., Ahorro Corporacion Eurofondo F.I., Rovime Inversiones SICAV S.A., Quasar de Valors SICAV S.A., Orgor de Valores SICAV S.A. and GBI 9000 SICAV S.A. (Spanish Investment Funds) v. The Russian Federation (Award on Preliminary Objections and Dissenting Opinion), SCC No. 24/2007, 20 March 2009
 
This relates to an award on preliminary objections in the arbitration initiated by the claimants holding ADR's in Yukos Oil Company, claiming compensations for losses due to expropriation by the Russian Federation relying on the Agreement for Reciprocal Promotion and Protection of Investments between Spain and the USSR which entered into force on 28 November 1991 ("the Spanish BIT").  The claim is that the dispossession was achieved by means of a variety of abuses of executive and judicial power. Russia asserted that the Arbitral Tribunal lacked jurisdiction under Article 10 of Spanish BIT regarding jurisdiction.

Note that this also relates to the separate dissenting opinion of Judge Brower on the methodology of the interpretation of international instruments under the Vienna Convention.
 
Author(s): Reporter ITA; John Kadelburger, Advokat John Kadelburger AB
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Sweden
 
Sweden Full text Full text as PDF
 
 
 
 
 
BGE – 4A_247/2017, Federal Supreme Court of Switzerland, 1st Civil Law Chamber, 4A_247/2017, 18 April 2018
 
The Swiss Federal Supreme Court (hereinafter the "Supreme Court") dismissed an appeal seeking to invalidate an award rendered in an arbitration with seat in Switzerland. The appeal argued that the award violated the principle of res iudicata. The Supreme Court found that the principle had not been violated since the prior award of the state court failed to consider the parties' arbitration agreement and was therefore unenforceable.
 
Author(s): Georg von Segesser, von Segesser Law Offices
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Switzerland
 
Switzerland Full text Full text as PDF
 
 
 
 
 
BGE – 4A_136/2018, Federal Supreme Court of Switzerland, 1st Civil Law Chamber, 4A_136/2018, 30 April 2018
 
The Swiss Federal Supreme Court (hereinafter the "Supreme Court") held that an appeal against a final award rendered by an arbitral tribunal with seat in Zurich, Switzerland was inadmissible as it targeted the nomination of two arbitrators, who had been confirmed in an interim order that the Appellant could and should have contested at the time it was issued.

The decision merits attention due to the Supreme Court's decisive approach and its willingness to consider a preliminary decision that the arbitral tribunal had issued as a "Procedural Order" as an interim award eligible to be appealed before the Supreme Court.
 
Author(s): Georg von Segesser, von Segesser Law Offices
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Switzerland
 
Switzerland Full text Full text as PDF
 
 
 
 
 
X v. Y, Court of Cassation of Turkey, 15th Civil Law Chamber, File No. 2017/776, Decision No. 2017/2981, 14 September 2017
 
For an arbitration clause to be applicable to a dispute, the dispute must arise from an agreement containing an arbitration clause; disputes unrelated to the agreement are outside the scope of the arbitration clause.
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Turkey; Turkey
 
Turkey Full text Full text as PDF
 
 
 
 
 
X v. Y, Court of Cassation of Turkey, 8th Civil Law Chamber, File No. 2017/12500, Decision No. 2017/8827, 12 June 2017
 
An application to set aside an arbitral award will automatically suspend execution of arbitral award.
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Turkey; Turkey
 
Turkey Full text Full text as PDF
 
 
 
 
 
X v. Y, Court of Cassation of Turkey, 15th Civil Law Chamber, File No. 2017/1666, Decision No. 2017/2907, 18 July 2017
 
The competent court to decide on the setting aside of an arbitral award is the commercial court, not the civil regional courts.
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Turkey; Turkey
 
Turkey Full text Full text as PDF
 
 
 
 
 
X v. Y, Court of Cassation of Turkey, 15th Civil Law Chamber, File No. 2017/1887, Decision No. 2017/4424, 14 December 2017
 
An arbitral award can be anulled under Art. 15/A 1-f of the Turkish International Arbitration Law if an arbitrator fails to take part in the final deliberations.
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Turkey; Turkey
 
Turkey Full text Full text as PDF
 
 
 
 
 
X v. Y, Court of Cassation of Turkey, 11th Civil Law Chamber, File No. 2017/1992, Decision No. 2017/5518, 19 October 2017
 
If, upon a party's request for complementary award, the arbitral tribunal renders a decision which exceeds the scope of a complementary award and can be considered as a new award, this will not affect the time limit for initiating a set aside action of the final award.
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Turkey; Turkey
 
Turkey Full text Full text as PDF
 
 
 
 
 
X v. Y, Court of Cassation of Turkey, 11th Civil Law Chamber, File No. 2016/8794, Decision No. 2017/6687, 29 October 2017
 
If a bill of lading contains a reference to a charter-party contract containing an arbitration clause, the bearer of the bill of lading must also be provided with a copy of the relevant charter-party contract in order for its arbitration clause to be binding.
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Turkey; Turkey
 
Turkey Full text Full text as PDF
 
 
 
 
 
X v. Y, Court of Cassation of Turkey, 11th Civil Law Chamber, File No. 2016/5836, K. 2017/4720, 26 September 2017
 
According to the Code on the Mandatory Usage of the Turkish Language in Commercial Enterprises No. 805, it is mandatory for Turkish commercial enterprises to execute all contracts in Turkish. An arbitration clause in an international commercial contract was held to be invalid because it was not in Turkish.
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Turkey; Turkey
 
Turkey Full text Full text as PDF
 
 
 
 
 
Dogus Insaat ve Ticaret A.S. v. State Territorial Sectoral Association South Western Railways, Commercial Court of the City of Kiev, 761/22804/15-ц, 27 April 2018
 
Refusal to recognise arbitral award based on newly discovered facts about arbitration clause invalidity.
 
Author(s): Yaroslav Petrov, Asters
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Ukraine
 
Ukraine Full text Full text as PDF
 
 
 
 
 
Jana Jubail Chemical Industries Co. v. Kotlomontazh LLC, Court of Appeals of the Oblast of Zaporizhzhya, 335/10957/17, 10 May 2018
 
Refusal to recognise arbitral award because it was considered by the arbitral institution not envisaged by the arbitration agreement.
 
Author(s): Yaroslav Petrov, Asters
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Ukraine
 
Ukraine Full text Full text as PDF
 
 
 
 
 
Parties Not Indicated, Federal Supreme Court of the United Arab Emirates, Case No. 764 of Judicial Year 24, 07 June 2005
 
This judgment considers the ratification and enforcement of foreign judgments and arbitral awards in the United Arab Emirates.
 
Author(s): John Gaffney, Al Tamimi & Company
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: United Arab Emirates
 
United Arab Emirates Full text Full text as PDF
 
 
 
 
 
Halliburton Company v. Chubb Bermuda Insurance Company, M, N & P [2018] EWCA Civ. 817, Court of Appeal of England and Wales, Civil Division, Case No. A3/2017/0623, 19 April 2018
 
The Arbitration Act imposes a duty of impartiality upon arbitrators.

An arbitrator may accept appointments in multiple references concerning the same or overlapping subject matter with only one common party without thereby giving rise to an appearance of bias. An arbitrator should be trusted to decide the case solely on the evidence or other material adduced in the proceedings in question. Arbitrators are assumed to be trustworthy and to understand that they should approach every case with an open mind. The mere fact of appointment and decision making in overlapping references does not give rise to justifiable doubts as to the arbitrator's impartiality.

The fact that overlapping appointments may be accepted is not determinative of whether disclosure should be given before accepting such appointments.

The present position under English law is that disclosure should be given of facts and circumstances known to the arbitrator which, in the language of section 24 of the Act, would or might give rise to justifiable doubts as to his impartiality. This means facts or circumstances which would or might lead the fair-minded and informed observer, having considered the facts, to conclude that there was a real possibility that the arbitrator was biased.

There are two distinct questions for a court considering an allegation of non-disclosure after the event. First, the court needs to consider whether disclosure ought to have been made in accordance with the principles set out. Secondly, the court needs to consider the significance of that non-disclosure in the context of the application with which the court is dealing. In the case of an application for removal of the arbitrator in question, the court will consider on the basis of all the factual information available when that application is heard (including the fact that there has been non-disclosure), whether the fair-minded and informed observer would conclude that there was a real possibility that the arbitrator was biased.
 
Author(s): Nicholas Fletcher, Berwin Leighton Paisner LLP
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: United Kingdom of Great Britain and Northern Ireland
 
United Kingdom Full text Full text as PDF
 
 
 
 
 
Grindrod Shipping PTE Ltd v. Hyundai Merchant Marine Co. Ltd [2018] EWHC 1284 (Comm), High Court of Justice of England and Wales, Queen's Bench Division, Commercial Court, Case No. CL-2017-000531, 25 May 2018
 
In order to make out a case for the Court's intervention under section 68(2)(a) of the Arbitration Act 1996, the applicant must show: (a) a breach of s. 33 of the Act; i.e. that the tribunal has failed to act fairly and impartially between the parties, giving each a reasonable opportunity of putting his case and dealing with that of his opponent, adopting procedures so as to provide a fair means for the resolution of the matters falling to be determined; (b) amounting to a serious irregularity; (c) giving rise to substantial injustice. There will generally be a breach of section 33 where a tribunal decides the case on the basis of a point which one party has not had a fair opportunity to deal with. If the tribunal thinks that the parties have missed the real point, which has not been raised as an issue, it must warn the parties and give them an opportunity to address the point. There is, however, an important distinction between, on the one hand, a party having no opportunity to address a point, or his opponent's case, and, on the other hand, a party failing to recognise or take the opportunity which exists.

The court does not have to conclude that a tribunal would have reached a different outcome. All that the claimant must do is to show that had he had an opportunity to address the point, the tribunal might well have reached a different view and produced a significantly different outcome.

The two grounds under s. 41(3) of the Arbitration Act 1996 are alternative, and it is a matter for the tribunal what weight it gives to costs issue in deciding on the appropriate remedy. It would be a retrograde step in international arbitration for the court effectively to rule out the cost of delay as a ground for striking out a claim on the basis that it could always be compensated for in an order for costs at the end of the day.
 
Author(s): Nicholas Fletcher, Berwin Leighton Paisner LLP
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: United Kingdom of Great Britain and Northern Ireland
 
United Kingdom Full text Full text as PDF
 
 
 
 
 
Legislation (7)
 
 
New South Wales: Commercial Arbitration Act 2010 (NSW), Act No. 61 of 2010
 
On 1 October 2010 the Commercial Arbitration Act 2010 (NSW) came into effect. The Act applies to domestic commercial arbitrations. However, the Act reflects the Model Law and so is relevant for interpretation of the International Arbitration Act 1974 (Cth), which is the act that expressly deals with International Arbitration.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Australia
 
Australia Full text
 
 
 
 
 
Queensland: Commercial Arbitration Act 2013 (QLD), Act No. 8 of 2013
 
On 17 May 2013 the Commercial Arbitration Act 2013 (QLD) came into effect. The Act applies to domestic commercial arbitrations. However, the Act reflects the Model Law and so is relevant for interpretation of the International Arbitration Act 1974 (Cth), which is the act that expressly deals with International Arbitration.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Australia
 
Australia Full text
 
 
 
 
 
Australian Capital Territory: Commercial Arbitration Act 2017 (ACT), Act No. 7 of 2017
 
On 1 July 2017, the Commercial Arbitration Act 2017 (ACT) came into effect. The Act applies to domestic commercial arbitrations. However, the Act reflects the Model Law and so is relevant for interpretation of the International Arbitration Act 1974 (Cth), which is the act that expressly deals with International Arbitration.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Australia
 
Australia Full text
 
 
 
 
 
Northern Territory: Commercial Arbitration (National Uniform legislation) Act 2011 (NT), Act No. 23 of 2011
 
On 1 August 2012 the Commercial Arbitration (National Uniform legislation) Act 2011 (NT) came into effect. The Act applies to domestic commercial arbitrations. However, the Act reflects the Model Law and so is relevant for interpretation of the International Arbitration Act 1974 (Cth), which is the act that expressly deals with International Arbitration.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Australia
 
Australia Full text
 
 
 
 
 
Western Australia: Commercial Arbitration Act 2012 (WA), Act No. 23 of 2012
 
On 7 August 2013 the Commercial Arbitration 2012 (WA) came into effect. The Act applies to domestic commercial arbitrations. However, the Act reflects the Model Law and so is relevant for interpretation of the International Arbitration Act 1974 (Cth), which is the act that expressly deals with International Arbitration.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Australia
 
Australia Full text
 
 
 
 
 
Tasmania: Commercial Arbitration Act 2011 (TAS), Act No. 13 of 2011
 
On 1 October 2012 the Commercial Arbitration Act 2011 (TAS) came into effect. The Act applies to domestic commercial arbitrations. However, the Act reflects the Model Law and so is relevant for interpretation of the International Arbitration Act 1974 (Cth), which is the act that expressly deals with International Arbitration.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Australia
 
Australia Full text
 
 
 
 
 
South Australia: Commercial Arbitration Act 2011 (SA), Act No. 32 of 2011
 
On 1 January 2012 the Commercial Arbitration Act 2011 (SA) came into effect. The Act applies to domestic commercial arbitrations. However, the Act reflects the Model Law and so is relevant for interpretation of the International Arbitration Act 1974 (Cth), which is the act that expressly deals with International Arbitration.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Australia
 
Australia Full text
 
 
 
 
 
Upcoming Events (2)
 
 
Beijing: CIETAC to Launch First Global Arbitrators Forum (18 September 2018)
 
CIETAC aims at promoting the cohesion and development of international arbitration and enhancing the communication among CIETAC’s international arbitrators by hosting the first CIETAC Global Arbitrators Forum on 18 September 2018 in Beijing.
 
Author(s): Arthur X. Dong, AnJie Law Firm
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: China
 
China Full text
 
 
 
 
 
Berlin: The German Arbitration Institute Autumn Conference (25-26 September 2018)
 
On September 25 and 26, 2018, the German Arbitration Institute (Deutsche Institution für Schiedsgerichtsbarkeit e. V. – DIS) will hold its annual autumn conference at Hotel de Rome in Berlin. 
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 30 Jul 2018
 
Reporter for: Germany
 
Germany Full text
 
 
 
 
 
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