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 7
August 2017
 
 
 
 
Recent Cases and Awards (9)
 
 
Guz-Mar Technology S.A. s. Quiebra v. ADT Security Service S.A. s. Ordinario, Court of Appeals in Commercial Matters of the Federal District, Chamber D, , 30 August 2016
 
The case analyzes the conflict of jurisdiction when a party files a claim before an ordinary court instead of the previously agreed arbitration court.
 
Author(s): Federico Godoy, Beretta Godoy
 
Source: A contribution by the ITA Board of ReportersDate: 17 Aug 2017
 
Reporter for: Argentina
 
Argentina Full text Full text as PDF
 
 
 
 
 
BGH – I ZB 119/15, Federal Court of Justice of Germany, I ZB 119/15, 26 April 2017
 
Pursuant to Sec. 240 of the German Code of Civil Procedure (Zivilprozessordnung, or “ZPO”), a court proceeding to declare an arbitral award enforceable (an “enforceability proceeding”) is stayed upon the opening of insolvency proceedings over the assets of one party if the enforceability proceeding concerns the insolvency estate. In order to assert a claim against the insolvent party, an insolvency creditor must file his claim(s) for admission to the insolvency schedule pursuant to, and in accordance with the procedure provided in, Sec. 174 et seq. of the Insolvency Code (Insolvenzordnung, or “InsO”). Given the specific requirements and procedure pursuant to Sec. 174 et seq. InsO, which are different from those of a court proceeding, an insolvency creditor may not seek admission to the schedule within a court proceeding before he has filed his claim(s) pursuant to Sec. 174 et seq. InsO. Following reopening of a stayed enforceability proceeding by one party, an amended application for a declaratory judgment on the admission of a claim to the insolvency schedule is inadmissible because the reopened enforceability proceeding concerns only the enforceability of the arbitral award, not such an admission to the insolvency schedule.
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 17 Aug 2017
 
Reporter for: Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
BGH – I ZB 23/16, Federal Court of Justice of Germany, I ZB 23/16, 06 April 2017
 
The minimum requirements for an arbitration clause in the articles of association of a German corporation to encompass disputes arising out of shareholders’ resolutions apply, in principle, also to an arbitration clause in the partnership agreement of a German partnership.
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 17 Aug 2017
 
Reporter for: Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
OLG München – 23 U 3159/16, Higher Regional Court of Munich, 23 U 3159/16, 30 March 2017
 
The Higher Regional Court of Munich held that a clause in a settlement agreement, which provides for a binding expert determination on preliminary issues of a claim against a director of a stock corporation (Aktiengesellschaft, or “AG”) is invalid if the agreement is concluded within the three-year deferral period pursuant to Sec. 93(4) sent. 3 of the Stock Corporation Act (Aktiengesetz, or “AktG”).  The Court also confirmed that any court proceeding brought in disregard of an expert determination clause, i.e., before agreed expert determination has been carried out, is admissible, but temporarily unfounded, whereas a proceeding brought in disregard of an arbitration clause agreed between the parties leads to inadmissibility of the claim.
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 17 Aug 2017
 
Reporter for: Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
Josias Van Zyl and others v. Kingdom of Lesotho [2017] SGHC 104, Supreme Court of Singapore, High Court, Originating Summons No. 95 of 2017 (Registrar's Appeal No. 91 of 2017), 08 May 2017
 
Must an order granting leave to enforce an arbitral award against a State be served through diplomatic channels in accordance with s 14 of the State Immunity Act (Cap 313, 2014 Rev Ed) (“SIA”)? In its consideration of this question in an ex parte appeal, the Singapore High Court in Josias Van Zyl and others v Kingdom of Lesotho [2017] SGHC 104 examined two decisions of the English High Court,  Norsk Hydro ASA v State Property Fund of Ukraine and others [2002] EWHC 2120 (Comm) (“Norsk Hydro”) and PCL and others v Y Regional Government of X [2015] EWHC 68 (Comm) (“PCL”), which considered the statutory and procedural framework under s 12 of the UK State Immunity Act 1978 and r 62.18 of the UK Civil Procedure Rules. 
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of ReportersDate: 17 Aug 2017
 
Reporter for: Singapore
 
Singapore Full text Full text as PDF
 
 
 
 
 
Wilson Taylor Asia Pacific Pte Ltd v. Dyna-Jet Pte Ltd [2017] SGCA 32, Supreme Court of Singapore, Court of Appeal, Civil Appeal No. 71 of 2016 (Suit No. 1234 of 2015), 26 April 2017
 
In a previous issue of this ITA Arbitration Report, this Reporter had reported on the decision of the Singapore High Court in Dyna-Jet Pte Ltd v Wilson Taylor Asia Pacific Pte Ltd [2016] SGHC 238, where the High Court found that, for the purposes of a stay application under s 6 of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (the “IAA”), a contractual dispute-resolution agreement which conferred an asymmetric right to elect whether to arbitrate a future dispute was nevertheless an arbitration agreement.

Since that issue, the plaintiff to the High Court proceedings has appealed against the decision, and the Court of Appeal has delivered its judgment on the appeal on 26 April 2017.

This decision of the Court of Appeal raises interesting issues about the nature of dispute-resolution agreements which confer on one party the right to elect to arbitrate, as well as the implications of this nature on the question of whether a dispute would fall within the ambit of the dispute-resolution agreement.

This Report summarises the decision of the Court of Appeal against the background of the main points of law which were considered and determined by the High Court.
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of ReportersDate: 17 Aug 2017
 
Reporter for: Singapore
 
Singapore Full text Full text as PDF
 
 
 
 
 
RHI Aktiengesellschaft v. Public Joint Stock Company "Energomashspetstal", Supreme Specialized Court of Ukraine for Civil and Criminal Cases, 234/10967/15-ц, 12 April 2017
 
Ukrainian courts confirmed recognition and enforcement of the default clause of the settlement agreement approved by the Ukrainian ICAC award.
 
Author(s): Yaroslav Petrov, Asters; Anna Tkachova, Asters
 
Source: A contribution by the ITA Board of ReportersDate: 17 Aug 2017
 
Reporter for: Ukraine; Ukraine
 
Ukraine Full text Full text as PDF
 
 
 
 
 
Belize Bank v. Belize, United States Court of Appeals, District of Columbia Circuit, 16-7083, Consolidated with 16-7089, 16-7094, 31 March 2017
 
The United States Court of Appeals for the District of Columbia affirmed the United States District Court for the District of Columbia’s decision confirming a foreign arbitral award against Belize.  The court held that it was not contrary to the public policy of the United States that one of the arbitrators was a member of an English chambers that at an earlier point in time had other members with clients adverse to Belize.
 
Author(s): William H. Taft V, Debevoise & Plimpton LLP; Zachary Saltzman, Debevoise & Plimpton LLP; Megan Corrarino, Debevoise & Plimpton LLP; Rhianna Hoover, Debevoise & Plimpton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 17 Aug 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
 
 
 
 
 
Eisen v. Venulum Ltd., United States District Court, Western District of New York, 1:06-cv-00461, 27 March 2017
 
The United States District Court for the Western District of New York denied a motion to compel arbitration, holding that incorporation of the International Chamber of Commerce Rules of Arbitration, in force as of January 1, 2012, did not constitute a clear and unmistakable agreement to arbitrate arbitrability, and that arbitration provisions designed to avoid U.S. securities laws were substantively unconscionable and therefore unenforceable.
 
Author(s): William H. Taft V, Debevoise & Plimpton LLP; Blair Albom, Debevoise & Plimpton LLP; Zachary Saltzman, Debevoise & Plimpton LLP; Megan Corrarino, Debevoise & Plimpton LLP; Azeezah Goodwin, Debevoise & Plimpton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 17 Aug 2017
 
Reporter for: United States of America; 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
 
 
 
 
 
 
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