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 2
February 2017
 
 
 
 
Recent Cases and Awards (8)
 
 
Sino Dragon Trading Ltd v. Noble Resources International Pte Ltd [2016] FCA 1131, Federal Court of Australia, New South Wales District Registry, NSD 1333 of 2016, 13 December 2016
 
The Federal Court of Australia (FCA) has dismissed an application to set aside an arbitral award, dismissing the applicant’s claim on all grounds.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 28 Feb 2017
 
Reporter for: Australia
 
Australia Full text Full text as PDF
 
 
 
 
 
Sino Dragon Trading Ltd v. Noble Resources International Pte Ltd (No 2) [2016] FCA 1169, Federal Court of Australia, New South Wales District Registry, NSD 1333 of 2016, 29 September 2016
 
The Federal Court of Australia (FCA) has granted an order for indemnity costs in proceedings brought under Art 34(2) of the UNCITRAL Model Law on International Commercial Arbitration (Model Law). 
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 28 Feb 2017
 
Reporter for: Australia
 
Australia Full text Full text as PDF
 
 
 
 
 
Peter Kenneth Green v. Econia Pty Ltd [2016] SASC 153, Supreme Court of New South Wales, SCCIV-16-669, 23 September 2016
 
The South Australian Supreme Court (SASC) has ruled in favour of an application seeking referral to arbitration, dismissing a claim for interlocutory relief on the basis that disputes suitable for arbitration should not be split between multiple proceedings.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 28 Feb 2017
 
Reporter for: Australia
 
Australia Full text Full text as PDF
 
 
 
 
 
Arce Holding Corporation v. Matriz Ideas S.A., Supreme Court of Chile, No. 55.038-16, 05 October 2016
 
The Supreme Court of Chile declared inadmissible a judicial review called “recurso de casación” against a judgement from Court of Appeals of Santiago which rejected an appeal to nullify an arbitral award raised under Chilean Law N° 19.971, which governs international commercial arbitration in Chile. 
 
Author(s): Cristian Conejero-Roos, Philippi, Prietocarrizosa & Uría
 
Source: A contribution by the ITA Board of ReportersDate: 28 Feb 2017
 
Reporter for: Chile
 
Chile Full text Full text as PDF
 
 
 
 
 
Backalland S.A. v. Agropex Internacional S.A., Supreme Court of Chile, Rol. 24348-2016, 29 November 2016
 
The Supreme Court of Chile granted recognition to a foreign arbitral award from the Chamber of Commerce of Poland, stating that the notification made in polish language did not violate the right to defense of the defendant and that the notification was valid because it was made according to the parties’ arbitral clause.  
 
Author(s): Cristian Conejero-Roos, Philippi, Prietocarrizosa & Uría
 
Source: A contribution by the ITA Board of ReportersDate: 28 Feb 2017
 
Reporter for: Chile
 
Chile Full text Full text as PDF
 
 
 
 
 
Morpho Detection LLC v. Watairpoll Engineering Ltd., Supreme Court of Israel, 4884/16, 25 October 2016
 
“Third round” appeal proceedings before the Supreme Court are reserved for instances raising fundamental questions that need to be discussed for the purpose of clarifying or developing the law.
 
Author(s): Tamar Meshel, University of Toronto
 
Source: A contribution by the ITA Board of ReportersDate: 28 Feb 2017
 
Reporter for: Israel
 
Israel Full text Full text as PDF
 
 
 
 
 
Holland Intergroup Ltd v. FSC EU, Supreme Court of the Republic of Latvia, Chamber of Civil Cases, SJC-59/2016, 27 October 2016
 
Newly discovered circumstances allow for re-examination of the decision on compulsory enforcement of an arbitral award.

Explicit written authorization shall be given by the principal to withdraw the application for compulsory enforcement of an arbitral award.
 
Author(s): Inga Kacevska, Law Office of Inga Kačevska
 
Source: A contribution by the ITA Board of ReportersDate: 28 Feb 2017
 
Reporter for: Latvia
 
Latvia Full text Full text as PDF
 
 
 
 
 
X v. Y, Court of Appeal of Kraków, I ACz 1997/16, 22 November 2016
 
The decision of the Court of Appeal of Cracow confirms that the Polish state courts reject the use of anti-arbitration injunctions and cannot prohibit a party from commencing or continuing arbitration.
 
Author(s): Wojciech Sadowski, K&L Gates LLP; Ewelina Wetrys, K&L Gates LLP
 
Source: A contribution by the ITA Board of ReportersDate: 28 Feb 2017
 
Reporter for: Poland; Poland
 
Poland Full text Full text as PDF
 
 
 
 
 
Legislation (1)
 
 
Act of 23 September 2016 on Out-of-Court Consumer Dispute Resolution
 
On 10 February 2017, the act of 23 September 2016 on out-of-court consumer dispute resolution (Polish Journal of Laws, Dz. U. item 1823) implementing Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes has entered into force in Poland. The Act introduces several important changes to the provisions on arbitration found in the Code of Civil Proceedings (hereinafter referred as: the “CCP”).

Firstly, a new Article 1164[1] CCP introducing additional exceptions to a form and a content of an arbitration clause has been added. Its paragraph 1 stipulates that the arbitration clause covering the disputes arising from contracts involving a consumer may only be entered into after a dispute has actually arisen, and not prior to the dispute. In all those cases an arbitration clause must be in writing. The “in writing” requirement is not met by an exchange of correspondence between the parties or statements made by means of distance communication enabling the content thereof to be recorded, nor through the reference in the contract to a document containing an arbitration clause.

In addition, Article 1164[1] § 2 CCP requires that the arbitration clause in consumer contracts states, on pain of nullity, that the parties are aware of its consequences, and know that the legal force of an arbitral award or settlement concluded before an arbitral tribunal is equal to that of a court judgment or settlement concluded before a court upon recognition or enforcement thereof by the court.

Secondly, a newly added Article 1194 § 3 CCP limits parties’ autonomy to choose the rules upon which an arbitral tribunal decides their disputes. It specifies that dispute settlement in consumer contracts cannot deprive the consumer of the protection afforded by mandatory provisions of the governing law. Consequently, in all such cases the arbitral tribunals always have to take into consideration the mandatory provisions of applicable law even if the parties have agreed to decide their disputes on the basis of general principles or equity.

Thirdly, state court can set aside an arbitral award (or a settlement entered into before an arbitral tribunal) or refuse their recognition or enforcement, if they find ex officio that such an award or settlement deprive a consumer of the protection afforded by mandatory provisions of the law governing the contract. In practice, the amendment in question enables the courts to review arbitral awards on their merits in order to verify whether they comply with all the mandatory provisions protecting the consumers.
 
Author(s): Wojciech Sadowski, K&L Gates LLP; Ewelina Wetrys, K&L Gates LLP
 
Source: A contribution by the ITA Board of ReportersDate: 28 Feb 2017
 
Reporter for: Poland; Poland
 
Poland Full text
 
 
 
 
 
Upcoming Events (5)
 
 
Warsaw: Money for Nothing? Security for Costs and Other “Costly Matters” in International Arbitration (16 March 2017)
 
On 16 March 2017 the University of Warsaw will be hosting a conference preceding the 9th Warsaw Pre-Moot organized before the finals of the 24th Willem C. Vis International Commercial Arbitration Moot Competition.
 
Author(s): Wojciech Sadowski, K&L Gates LLP; Ewelina Wetrys, K&L Gates LLP
 
Source: A contribution by the ITA Board of ReportersDate: 28 Feb 2017
 
Reporter for: Poland; Poland
 
Poland Full text
 
 
 
 
 
Warsaw: Challenges to Arbitrators (21 March 2017)
 
On March 21, 2017 the Young Arbitration Forum at the Court of Arbitration at the Polish Chamber of Commerce in Warsaw will organize a conference on the challenges to arbitrators. 
 
Author(s): Wojciech Sadowski, K&L Gates LLP; Ewelina Wetrys, K&L Gates LLP
 
Source: A contribution by the ITA Board of ReportersDate: 28 Feb 2017
 
Reporter for: Poland; Poland
 
Poland Full text
 
 
 
 
 
Warsaw: Dispute Resolution in M&A Transactions: Tactics, Challenges, Defenses (18-19 May 2017)
 
On 18-19 May 2017 the Lewiatan Court of Arbitration will hold the fourth edition of "Dispute Resolution in M&A Transactions: Tactics, Challenges, Defenses”. The conference will focus on the most interesting issues in M&A-related arbitrations including procedural issues, calculation of damages and case studies.
 
Author(s): Wojciech Sadowski, K&L Gates LLP; Ewelina Wetrys, K&L Gates LLP
 
Source: A contribution by the ITA Board of ReportersDate: 28 Feb 2017
 
Reporter for: Poland; Poland
 
Poland Full text
 
 
 
 
 
Washington, DC: 14th Annual ITA-ASIL Conference: Third-Party Funding in International Arbitration: Legal and Ethical Considerations (12 April 2017)
 
The ½-day ITA-ASIL Conference is presented annually in Washington, D.C. by the ITA Academic Council with the American Society for International Law (ASIL) immediately preceding the ASIL Annual Meeting. Scholarship is the hallmark of this conference, the papers from which are published in the law journal World Arbitration and Mediation Review. The conference concludes with a networking luncheon.
 
Author(s): Reporter ITA
 
Source: A contribution by the ITA Board of ReportersDate: 28 Feb 2017
 
United States of America Full text
 
 
 
 
 
Plano, TX: 29th Annual ITA Workshop: Challenges to the Legitimacy of International Arbitration (14-16 June 2017)
 
The ITA Workshop, held in Dallas on the third Thursday in June every year 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.” The Workshop now begins on the preceding Wednesday afternoon, with membership activities continuing into the following Friday.

On Friday morning following the Workshop, members of the ITA Advisory Board, Academic Council, ITAAR Board of Reporters, WAMR Board of Editors, ITAFOR Moderators and Contributors, and the Workshop faculty reassemble for the annual ITA Forum and other membership activities.
 
Author(s): Reporter ITA
 
Source: A contribution by the ITA Board of ReportersDate: 28 Feb 2017
 
United States of America Full text
 
 
 
 
 
 
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