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 4
May 2018
 
 
 
 
Recent Cases and Awards (24)
 
 
Ricardo Agustín López, Marcelo Gustavo Daelli, Juan Manuel Flo Díaz, Jorge Zorzópulos v. Gemabiotech S.A. s/ organismos externos, Supreme Court of Justice of Argentina, COM No. 182/2014/1/RH001, 09 May 2017
 
The Supreme Court of Argentina (“Supreme Court”) revoked a judgment handed down by the Commercial Court of Appeals, determining that the Court exceeded its jurisdiction in annulling an arbitral award based on a complete assessment of the substantive reasoning by the arbitration tribunal.
 
Author(s): Federico Godoy, Beretta Godoy
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Argentina
 
Argentina Full text Full text as PDF
 
 
 
 
 
Huashi et al. v. UIR et al., Reply of the Supreme People's Court to a Request of the Shanghai Higher People’s Court for Instructions on Setting Aside an Arbitral Award [(2013) Hu Mao Zhong Ca Zi No.415] of the Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Center), Supreme People's Court of the People's Republic of China, (2015) SPC 4th Civil Chamber Others No. 8, 09 October 2015
 
Where the parties to a contract containing an arbitration clause agree to the designation of one party's subsidiary as its assignee of contractual rights and obligations under the contract, the arbitration clause is considered binding on the subsidiary even if it does not subscribe to the arbitration clause. Should the arbitration rules do not specify the time limit for notification of extending the time limit for rendering the arbitral award and the Tribunal's decision of extension was made after the expiration of the aforesaid time limit, an award issued within the lasted extended time limit does not constitute a procedural irregularity to justify setting-aside the award under Article 274(3) of the PRC Civil Procedure Law (2012).

 
 
Author(s): Jingzhou Tao, Dechert LLP Beijing
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: China
 
China Full text Full text as PDF
 
 
 
 
 
GS Global Corporation v. Shanghai Zhenrong Petroleum Co., Ltd., Ruling in Recognition and Enforcement of a Foreign Arbitral Award Seated in South Korea, First Intermediate People's Court of Shanghai, (2016) Hu 01 Xie Wai Ren No. 12, 22 February 2017
 
This case seems to be the first one in China to confirm that signing a contract via e-mail qualifies the requirement of "written agreement" under the New York Convention.
 
Author(s): Jingzhou Tao, Dechert LLP Beijing
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: China
 
China Full text Full text as PDF
 
 
 
 
 
Company A v. Company B in confirmation of the validity of the arbitration agreement, Supreme People's Court of the People's Republic of China, (2016) Zui Gao Fa Min Ta No. 35, 26 June 2016
 
The Supreme People's Court of China (“SPC”) rendered a judgment, deciding that there was no arbitration agreement between the parties on the ground that the parties never set out their intention to arbitrate in a clear written form. SPC made its ruling based on Article 16 of Chinese Arbitration Law which requires arbitration agreement to be in written form. In this case, parties have cooperated with each other previously. The previous contracts they signed contain arbitration clauses. They wanted to continue cooperation on a new project, i.e. CDE380 project. They signed a memorandum of the willingness to conclude supplementary agreement based on previous contract articles. However, neither of the parties signed or sealed the supplementary agreement. SPC considers that the signed memorandum does not automatically refer the old contracts articles to the supplementary one; neither does it contain an arbitration clause. Instead, the memorandum only expresses parties’ consensus to conclude the supplementary agreement. SPC sees no arbitration clause in relation to CDE380 project.
 
Author(s): Arthur X. Dong, AnJie Law Firm
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: China
 
China Full text Full text as PDF
 
 
 
 
 
BGH – I ZB 12/17, Federal Court of Justice of Germany, I ZB 12/17, 11 October 2017
 
An arbitral tribunal pursuant to Sec. 1025 et seq. German Code of Civil Procedure (Zivilprozessordnung, or “ZPO”) does not fulfill the statutory impartiality requirements if the contractually designated arbitrators, or even one of them, at the same time is a party, or a legal representative of a party, to the arbitration.
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
LG Dortmund – 8 O 30/16 (Kart), Regional Court of Dortmund, 8 O 30/16 (Kart), 13 September 2017
 
Cartel damages claims fall within the scope of a (narrow) arbitration agreement that subjects to arbitration all claims “arising from the contract” if such cartel damages claims are based on tortious conduct that corresponds to acts giving rise to a parallel contractual damages claim. This is all the more true if the arbitration agreement employs an even broader language and adds that disputes “in relation to the contract” shall be resolved by means of arbitration. According to the Regional Court of Dortmund, its ruling does not contradict the CJEU’s decision in CDC/Evonik, in which the CJEU had held that a jurisdiction clause encompasses cartel damages claims only if at the time of the formation of the contract it was foreseeable for the aggrieved party that the jurisdiction clause would encompass such cartel damages claims. 
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
OLG Saarbrücken – 4 U 44/16, Higher Regional Court of Saarbrücken, 4 U 44/16, 23 November 2017
 
When determining the personal scope of an arbitration agreement, the principle of relativity of contracts must be observed. According to this principle, arbitration agreements generally govern the contractual relationships of the contracting parties only, and the contracting parties cannot by their mutual agreement impose contractual duties on third parties. In case of a multi-party sales contract, the principle of relativity of contracts prescribes that generally an arbitration clause contained in the contract applies only to disputes arising “horizontally” between a seller and a purchaser, but not “vertically” among several sellers or among several purchasers. When determining the personal scope, however, the involved parties’ actual intentions must be determined, for which the party invoking the arbitration agreement bears the burden of proof.
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
Schindler Lifts (Hong Kong) Ltd v. Sui Chong Construction and Engineering Co Ltd [2014] HKEC 1967, High Court of Hong Kong, Court of Appeal, Civil Action No. 2784 of 2014, DCCJ 2784/2014, 26 December 2014
 
This case demonstrates that the Hong Kong courts will construe the requirements of section 20 Arbitration Ordinance broadly to order stay of court proceedings in favour of arbitration, in keeping with their generally pro-arbitration stance and the overall aim of the Arbitration Ordinance. Users of arbitration will also welcome the court’s willingness to consider exercising its inherent jurisdiction to stay court proceedings in favour of arbitrations in appropriate circumstances, even where the requirements for a mandatory stay are not met.
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
Astro Nusantara & Ors v. Pt Ayunda Prima Mitra [2015] HKCU 432, High Court of Hong Kong, Court of First Instance, Construction and Arbitration Proceedings No. 45 of 2010, HCCT 45/2010, 17 February 2015
 
First Media, part of the Lippo Group and the unsuccessful defendant in a Singapore-seated arbitration, has failed to resist enforcement in Hong Kong of Awards that the Singapore Court of Appeal had previously refused to enforce because they were made without jurisdiction (Astro Nusantara International B.V. v PT First Media TBK HCCT 45/2010). First Media lost on two grounds, each of which is explained in more detail below.
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
Z v. A and Ors [2015] HKEC 289, High Court of Hong Kong, Court of First Instance, Construction and Arbitration Proceedings No 8 of 2013, HCCT 8/2013, 30 January 2015
 
This case demonstrates that Longlide does not ultimately answer the question whether mainland Chinese courts would recognise and enforce an award made under a clause providing for arbitration administered by a non-Chinese arbitration institution with its seat in mainland China. While the uncertainty continues, we remain of the view that parties should avoid clauses that provide for arbitration in mainland China administered by any non-Chinese institution, and make sure that their clauses are drafted clearly and precisely, to leave no doubt as to the parties’ intentions.
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
廣東長虹電子有限公司 v. Inspur Electronics (HK) Ltd [2015] HKCU 684, High Court of Hong Kong, Court of Appeal, Miscellaneous Proceedings No. 434 of 2015 (On an Intended Appeal from HCCT No. 43 of 2013), HCMP 434/2015, 24 March 2015
 
In 廣東長虹電子有限公司 v Inspur Electronics (HK) Ltd (HKMP 434/2015), the Hong Kong Court of Appeal has confirmed a lower court’s order to enforce a Mainland award, reiterating Hong Kong’s “deliberate policy of restricting the rights of appeal” in respect of arbitration awards, and upholding the pragmatic approach to enforcement adopted by the first instance judge. It is the first Court of Appeal authority to confirm that the leave of the Court of First Instance is required to appeal against a decision to grant or refuse leave to enforce an award, under section 84(3) of the Arbitration Ordinance (Cap. 609). The judgment also suggests that Hong Kong will follow the approach of the PRC Supreme People’s Court to clauses that provided for arbitration by “CIETAC Shenzhen” or “CIETAC Shanghai” before the CIETAC split. 
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
China Property Development (Holdings) Ltd v. Mandecly Ltd & Ors [2015] HKCU 682, High Court of Hong Kong, Court of First Instance, Construction & Arbitration Proceedings No. 53 of 2010, HCCT 53/2010, 30 March 2015
 
In China Property Development (Holdings) Ltd v Mandecly Ltd HCCT 53/2010, the Hong Kong Court of First Instance (the CFI) has set aside part of an arbitral Award, on the basis that the applicant had been denied an opportunity to present its case on certain issues. The decision underlines the policy of the Hong Kong courts to set aside arbitral awards on due process grounds only where the conduct of the arbitral tribunal has been “serious” or “egregious” in nature (see our previous post on the leading case Pacific China Holdings Ltd v Grand Pacific Holdings Ltd here). It also provides a useful reminder for arbitral tribunals of some of the pitfalls to be avoided when setting out their reasoning in arbitral awards. 

 
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
China International Fund Ltd v. Dennis Lau & Ng Chun Man Architects & Engineers (HK) Ltd [2015] HKCU 1854, High Court of Hong Kong, Court of Appeal, Miscellaneous Proceedings No. 2472 of 2014 (On an Intended Appeal from HCCT Nos. 49 of 2013 & 9 of 2014), HCMP 2472/2014, 12 August 2015
 
The Hong Kong Court of Appeal has rejected a challenge to the constitutionality of s.81(4) of the Arbitration Ordinance (Cap. 609), under which a party who wishes to appeal a Court of First Instance (CFI) decision on setting aside an arbitral award must obtain leave to appeal from the CFI.
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
Chimbusco International Petroleum (Singapore) Pte Ltd v, Fully Best Trading Ltd [2015] HKCU 2964, High Court of Hong Kong, Court of First Instance, Action No. 2416 of 2014, HCA 2416/2014, 03 December 2015
 
In Chimbusco International Petroleum (Singapore) Pte Ltd v Fully Best Trading Ltd (HCA 2416/2014), the Hong Kong Court of First Instance (CFI) has confirmed that a party who unsuccessfully challenges an arbitration agreement before the court should expect to pay costs on an indemnity basis, unless special circumstances can be shown. This decision is the latest in a series of clear messages from the Hong Kong court that it will not brook any unmeritorious interference with the arbitral process. The Hong Kong courts have consistently signaled their disapproval of such conduct, and indicated their willingness to sanction parties who engage in it.  As such, Chan J's decision is to be welcomed by users of arbitration.
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
Dana Shipping and Trading SA v. Sino Channel Asia Ltd [2016] HKCU 586, High Court of Hong Kong, Court of First Instance, Construction and Arbitration Proceedings No. 47 of 2015, HCCT 47/2015, 14 March 2018
 
The Hong Kong Court of First Instance has confirmed the test under s.89(5) Arbitration Ordinance for granting security for the award, pending an application to set aside the award at the seat. The court held that same test applies where an applications to set aside a CFI order granting leave to enforce the awards is pending under O.73, r. 10A Rules of the High Court. In applying the test, Mimmie Chan J reiterated the CFI's well-established stance in support of arbitration, namely that the Court's "primary aim" under the Arbitration Ordinance is to "facilitate the arbitral process" and "to treat the arbitral award as final."

 
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
Wing Bo Building Construction Co Ltd v. Discreet Ltd [2016] HKCU 97, High Court of Hong Kong, Court of First Instance, High Court Action No. 146 of 2015, HCA 146/2015, 14 January 2016
 
In Wing Bo Building Construction Company Limited v Discreet Limited (HCA 146/2015) the Hong Kong Court of First Instance ("CFI") has upheld the constitutionality of s.20(8) Arbitration Ordinance, which provides that CFI decisions to stay proceedings in favour of arbitration are not subject to appeal. This decision follows the Court of Appeal ("CA") decision in China International Fund Limited v Dennis Lau & Ng Chun Man Architects & Engineers (HK) Limited v Secretary for Justice, which upheld the constitutionality of the limits on appeal in s.81(4) of the Arbitration Ordinance. That section requires leave from the CFI to appeal its decision on setting aside an arbitral award.

 
 
Author(s): Briana Young, Herbert Smith Freehills
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
Qnow B.V. v. B., Supreme Court of the Netherlands, ECLI:NL:HR:2016:2215, 30 September 2016
 
In this decision of 30 September 2016, the Dutch Supreme Court set out the scope of the standard for personal liability of an arbitrator where his or her decision is later set aside on the basis of a procedural defect in the coming about of an award. In its decision of 4 December 2009 in the Greenworld case, the Supreme Court had determined that arbitrators can only be held personally liable if, as regards the decision in question, they acted (i) with intent or willfully recklessly, or (ii) with gross misjudgment of that which a proper performance of one's duties entails. However, that case regarded the setting aside of an arbitral award on substantive grounds (i.e. grounds relating to the content of the arbitrators' decision in that case), which left the question open of whether the same standard applied where procedural grounds are the reason for the arbitral award being set aside. In the present decision of 30 September 2016, the Dutch Supreme court held that this indeed is the case. It also made clear that not assuring that an award is signed by the co-arbitrators could lead to personal liability of a chairperson, but that this must be assessed in light of the facts of each specific case.
 
Author(s): Richard Hansen, NautaDutilh; Bo Ra Hoebeke, NautaDutilh
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Netherlands; Netherlands
 
Netherlands Full text Full text as PDF
 
 
 
 
 
BQP v. BQQ [2018] SGHC 55, Supreme Court of Singapore, High Court, Originating Summons No. 534 of 2016, 14 March 2018
 
Are pre-contractual negotiations admissible as evidence to construe written agreements in the context of international arbitrations? Further, should the admissibility of evidence be characterised as a procedural rule or a substantive rule in international arbitration? In considering these questions, the High Court took advantage of the opportunity to examine the applicability of the rules and principles concerning the admissibility of evidence to international arbitration cases with Singapore as the seat and where Singapore law is the governing law of the contract.
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC; Yin Wai Chan, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Singapore; Singapore
 
Singapore Full text Full text as PDF
 
 
 
 
 
Hilton International Manage (Maldives) Pvt Ltd v. Sun Travels & Tours Pvt Ltd [2018] SGHC 56, Supreme Court of Singapore, High Court, Originating Summons No, 845 of 2017, 14 March 2018
 
This is a case about anti-suit injunctions but it is also not the typical case. In the paradigm, the defendant would commence foreign litigation in breach of an arbitral agreement and in spite of an ongoing arbitration, and the claimant would apply to the arbitral tribunal for an interim anti-suit injunction. In this case, the defendant only commenced foreign litigation after the conclusion of the arbitration and the issuance of an award against the defendant, and the claimant applied to the court of the seat (Singapore) for a permanent anti-suit injunction. What are the principles which apply in this scenario, and how different are these principles from the ones which apply in the paradigm?
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC; Si Cheng Lim, Michael Hwang Chambers
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Singapore; Singapore
 
Singapore Full text Full text as PDF
 
 
 
 
 
BGE – 4A_432/2017, Federal Supreme Court of Switzerland, 1st Civil Law Chamber, 4A_432/2017, 22 January 2018
 
In an appeal by a professional football player against a decision of the Court of Arbitration in Sport ("CAS") ordering him to pay contractual damages to his former agent, the Swiss Federal Supreme Court (hereinafter the "Supreme Court") set aside the decision on the basis that the CAS wrongly confirmed its jurisdiction in the absence of a valid arbitration agreement.

In its decision, the Supreme Court revisited and confirmed its established practice of relying on the constructive (or objective) consent of the parties in the absence of clear factual circumstances evidencing their actual, subjective agreement to arbitrate a dispute. It also reinforced its commitment to the principle of consent in arbitration, emphasizing that the agreement to arbitrate implied a considerable limitation of possible appeals.
 
Author(s): Georg von Segesser, von Segesser Law Offices
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Switzerland
 
Switzerland Full text Full text as PDF
 
 
 
 
 
BGE – 4A_508/2017, Federal Supreme Court of Switzerland, 1st Civil Law Chamber, 4A_508/2017, 29 January 2018
 
In an unsuccessful appeal brought by a football club condemned in a CAS arbitration to pay outstanding salaries and damages to a former trained, the Swiss Federal Supreme Court (hereinafter the "Supreme Court") confirmed its established practice of requiring the appellant to provide a detailed and point by point critique of the appealed award rather than limiting itself to a general indication of the grounds for appeal.

The Supreme Court also clarified that it will only consider an arbitral award ultra petita to the extent the resulting order exceeds the relief requested by either party and not alone due to incidental effects of the arbitral tribunal's decision that stay within the ambit of the requested relief. With regard to the appellant's claim that the appealed decision violated the substantial ordre public (public policy), the Supreme Court reiterated that for an award to be set aside its final result (and not just the arbitral tribunal's reasoning in arriving at that result) has to constitute a violation of public policy.
 
Author(s): Georg von Segesser, von Segesser Law Offices
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Switzerland
 
Switzerland Full text Full text as PDF
 
 
 
 
 
State Enterprise "Odesa Sea Trade Port" (Ukraine) v. Company "Manchester Shipping S.A." (Liberia), Supreme Court of Ukraine, 522/16628/15-ц, 28 February 2018
 
The representative office, which generates revenues, permits to enforce the arbitral award not in the country of a company registration.
 
Author(s): Yaroslav Petrov, Asters; Olena Sichkovska, Asters
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Ukraine; Ukraine
 
Ukraine Full text Full text as PDF
 
 
 
 
 
Limited Liability Company “Restoransnab” (Ukraine) v. Company “Mikoshi Trading Hawaii Inc” (USA), Supreme Commercial Court of Ukraine, 910/17708/15, 06 December 2017
 
Ukrainian cassation court decides on the territorial jurisdiction of courts for determination of the validity of the pathological arbitration clause.

 
 
Author(s): Yaroslav Petrov, Asters; Olena Sichkovska, Asters
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Ukraine; Ukraine
 
Ukraine Full text Full text as PDF
 
 
 
 
 
Simply Wireless, Inc. v. T-Mobile US, Inc., United States Court of Appeals, Fourth Circuit, 16-1123, 16-1166, 13 December 2017
 
The United States Court of Appeals for the Fourth Circuit held that the District Court for the Eastern District of Virginia erred in determining that the parties’ dispute was arbitrable and dismissing the Complaint on that ground rather than submitting the question of arbitrability to an arbitrator.  The Court of Appeals affirmed the district court’s dismissal of the Complaint on the alternate ground that the arbitration clause’s express incorporation of the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which delegate questions of arbitrability to the arbitrator, constituted clear and unmistakable evidence of the parties’ intent to delegate questions of arbitrability to a JAMS arbitrator.
 
Author(s): Austin Clarke, Debevoise & Plimpton LLP; Megan Corrarino, Debevoise & Plimpton LLP; Natalie L. Reid, Debevoise & Plimpton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: United States of America; United States of America; United States of America
 
United States of America Full text Full text as PDF
 
 
 
 
 
Legislation (3)
 
 
Law No. 16,873 of 22 February 2018 Recognizing and Regulating the Installation of Dispute Prevention and Resolution Committees in Continuous Administrative Contracts Signed by the City of São Paulo
 
In 2018, the city of São Paulo enacted the first regulation on Dispute Boards in Brazil. São Paulo’s Municipal Law no. 16.873 of February 22, 2018 allows the contracting parties to long term contracts involving the public administration to provide for Dispute Boards in case of disputes regarding their contract.

In these cases, the Dispute Boards can issue binding decisions or non-binding recommendations, or both, subject to the agreement of the parties. In any case, the decisions of the Dispute Boards can be submitted to arbitral tribunals or state courts if so is requested by one of the parties.

Under the São Paulo’s Dispute Boards Law, the contracting parties may choose a specialized institution whose set of rules will guide the procedure. The Law also provides that the procedure shall be public and abide by the principle of legality.

One of the most controversial provisions of the Law is contained in its article 8, according to which the members of the Dispute Boards, when acting as such, will be considered equal to public officials under criminal law.
 
Author(s): Joao Bosco Lee, Lee, Taube, Gabardo Sociedade de Advogados
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Brazil
 
Brazil Full text
 
 
 
 
 
Decree No. 46.245 of 19 February 2018 Regulating the Adoption of Arbitration to Determine Disputes Involving the State of Rio de Janeiro or Its Entities
 
Following the enactment of the new Brazilian Arbitration Act in 2015, the Governor of the State of Rio de Janeiro issued Decree no. 46.245 of February 19, 2018 which further regulates the use of arbitration as a method of resolution of disputes involving the State of Rio de Janeiro or its public entities.

According to the Decree, the State and its public administration are only allowed to contract institutional arbitration, conducted in Portuguese, seated in Rio de Janeiro and applying Brazilian law.

The Decree also provides that procedures relating to the arbitration, i.e. request for interim relief, enforcement of orders and awards, annulment of awards, or the motions provided for on articles 6 and 7 of the Brazilian Arbitration Act, shall be ruled upon by the state courts of the city of Rio de Janeiro, except in cases of interim relief where it is necessary to sue the opposing party in the city where it is registered. The Decree leaves for the private party contracting with the State the possibility of choosing the institution that will administer the arbitral procedure and whose set of rules will be applicable. However, it limits the possibility of choice to a list of institutions that abide by a series of requirements, such as: having an operating facility in the State of Rio de Janeiro; being regularly registered for at least five years; being active as an arbitral institution; having had at least fifteen procedures in the past year.

One very interesting fact is that the Decree also provides a set of rules for the procedural timetable to be fixed in the arbitration, but this timetable can be modified if the parties agree to do so. According to the Decree, the parties must have at least 60 days to present their statement of facts, answer to the statement of facts, counterclaim, answer to the counterclaim and post-hearing briefs; they shall have at least 30 days for rebuttals; hearings shall be scheduled at least 30 days in advance.

Regarding arbitrators, the Decree provides for an extra ground of disclosure: the arbitrator should inform if he/she or his/hers law office acts in any cases against the State of Rio de Janeiro or its public administration, as well as if the arbitrator or its law office acts as party representative in cases with the same or a related subject matter of the one to be decided in the arbitration.

Under the Decree, the arbitration shall not be confidential and the arbitral institution that administers the procedure is allowed to provide third parties with information about the procedure if it is requested to do so.
 
Author(s): Joao Bosco Lee, Lee, Taube, Gabardo Sociedade de Advogados
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Brazil
 
Brazil Full text
 
 
 
 
 
National Center for Dispute Resolution Rules 2016
 
National Centre for Dispute Resolution (NCDR), formerly known as Karachi Centre for Dispute Resolution (KCDR) was established in February 2007 with the approval of the High Court of Sindh. The NCDR Arbitration Rules, 2016 set out the rules for arbitrating disputes under the auspices of the center.
 
Author(s): Nudrat Piracha, Samdani & Qureshi, Inc.
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
Reporter for: Pakistan
 
Pakistan Full text
 
 
 
 
 
Upcoming Events (1)
 
 
Dallas, TX: 30th Annual ITA Workshop and Annual Meeting (20-22 June 2018)
 
The annual ITA Workshop held in Dallas each June since 1989 is widely recognized as the leading conference in the field in the United States. As one participant summarized succinctly, “It is the forum in which legitimate top practitioners gather annually. Thus, the topics are sophisticated, the networking is legitimate, and the social element is valuable.”
 
Author(s): Reporter ITA
 
Source: A contribution by the ITA Board of ReportersDate: 3 May 2018
 
United States of America Full text
 
 
 
 
 
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