Global developments brought to you monthly by the ITA Board of Reporters
General Editor: Roger Alford
Managing Editors: Crina Baltag & Monique Sasson
Volume XIX - Issue 5
May 2021
 
 
 
 
Recent Developments (2)
 
 
Interim proposal on the amendment to the Arbitration Act in Japan
 
Review of the amendment to the Arbitration Act is under way. The Legislative Council of the Ministry of Justice issued “The interim proposal on the amendment to the Arbitration Act, etc.” on March 5, 2021.
 
Author(s): Hisaya Kimura, Nagashima, Ohno & Tsunematsu; Koki Yanagisawa, Nagashima, Ohno & Tsunematsu; Mai Umezawa, Nagashima, Ohno & Tsunematsu
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Japan; Japan; Japan
 
Japan Full text
 
 
 
 
 
Agreement to Terminate Intra-EU BITs referred to Spanish Parliament for Ratification
 
On 16 March 2021, the Spanish Council of Ministers resolved to refer the Agreement for the Termination of Bilateral Investment Treaties Between the Member States of the European Union (the “Agreement”) to the Spanish Parliament (Cortes Generales) and authorized the ratification of the Agreement.

The Agreement had been signed ad referendum by Spain on the day of its adoption on 5 May 2020. On 4 August 2020, the Council of Ministers had approved the signature ad referendum, and on 10 December 2020, the Council of State had opined that the Agreement’s ratification required the prior authorization of the Spanish Parliament pursuant to Art. 94.1 of the Constitution.
 
Author(s): Esperanza Barron Baratech, Latham & Watkins LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Spain
 
Spain Full text
 
 
 
 
 
Recent Cases and Awards (26)
 
 
OGH – 18 OCg 10/19y, Supreme Court of Justice of Austria, 18 OCg 10/19y, 02 March 2021
 
Considering the general principle that an arbitration clause should be interpreted broadly, an arbitration clause with the wording "All disputes arising out of or in connection with this Agreement shall be finally settled ..." does not indicate that the arbitral tribunal should not have the jurisdiction to adjust the contract price.

Failure to hold an oral hearing despite a party’s request does not necessarily lead to a setting-aside of an award. The arbitral tribunal has no obligation to hold an oral hearing in cases where the basis for the decision has already been subject to an oral hearing (Austrian Supreme Court, Der Oberste Gerichtshof, OGH, 2 March 2021, 18 OCg 10/19y).

Judges: Univ.-Prof. Dr. Neumayr, Dr. Veith, Hon.-Prof. Dr. Höllwerth, Hon.-Prof. PD Dr. Rassi and Mag. Painsi
 
Author(s): Matthias Hofer, Freshfields Bruckhaus Deringer LLP; Katherine Khan, Freshfields Bruckhaus Deringer LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Austria; Austria
 
Austria Full text Full text as PDF
 
 
 
 
 
OGH – 3 Ob 127/20b, Supreme Court of Justice of Austria, 3 Ob 127/20b, 20 January 2021
 
A state court must dismiss an action that is brought in a matter that is subject to an arbitration agreement unless the respondent pleads without contesting the state court’s jurisdiction. The existence of an arbitration clause does not invalidate a separate non-exclusive jurisdiction clause (Austrian Supreme Court, Der Oberste Gerichtshof, OGH, 20 January 2021, 3 Ob 127/20b).

Judges: Hon.-Prof. Dr. Lovrek, Dr. Roch, Dr. Rassi, Dr. Weixelbraun-Mohr and Dr. Kodek
 
Author(s): Matthias Hofer, Freshfields Bruckhaus Deringer LLP; Katherine Khan, Freshfields Bruckhaus Deringer LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Austria; Austria
 
Austria Full text Full text as PDF
 
 
 
 
 
OGH – 18 ONc 5/20k, Supreme Court of Justice of Austria, 18 ONc 5/20k, 19 January 2021
 
In general, procedural violations by the arbitral tribunal do not justify their challenge on the grounds of bias or partiality. The use of email correspondence as a means of communication between the arbitral tribunal and a party against one party’s will does not justify a challenge to the arbitral tribunal. (Austrian Supreme Court, Der Oberste Gerichtshof, OGH, 19 January 2021, 18 ONc 5/20k).

 
 
Author(s): Matthias Hofer, Freshfields Bruckhaus Deringer LLP; Katherine Khan, Freshfields Bruckhaus Deringer LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Austria; Austria
 
Austria Full text Full text as PDF
 
 
 
 
 
OGH – 18 ONc 1/21y, Supreme Court of Justice of Austria, 18 ONc 1/21y, 19 January 2021
 
The OGH is not competent to decide about applications for judicial assistance pursuant to section 602 of the Austrian Code of Civil Procedure (Austrian Supreme Court, Der Oberste Gerichtshof, OGH, 19 January 2021, 18 ONc 1/21y).

 
 
Author(s): Matthias Hofer, Freshfields Bruckhaus Deringer LLP; Katherine Khan, Freshfields Bruckhaus Deringer LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Austria; Austria
 
Austria Full text Full text as PDF
 
 
 
 
 
OGH – 4 Ob 136/20h, Supreme Court of Justice of Austria, 4 Ob 136/20h, 20 October 2020
 
The principle according to which arbitration clauses in a contract are to be interpreted broadly refers to disputes resulting from the same contract and not to disputes resulting from another contract between the parties, even if the contracts are related (Austrian Supreme Court, der Oberste Gerichtshof OGH 20.10.2020, 4 Ob 136/20h).

 
 
Author(s): Matthias Hofer, Freshfields Bruckhaus Deringer LLP; Katherine Khan, Freshfields Bruckhaus Deringer LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Austria; Austria
 
Austria Full text Full text as PDF
 
 
 
 
 
OGH – 18 OCg 6/20m, Supreme Court of Justice of Austria, 18 OCg 6/20m, 29 September 2020
 
An arbitration clause can also cover a claim for damages based on alleged abuse of a dominant position within the internal market pursuant to Art 102 of the Treaty on the Functioning of the European Union (TFEU), if the alleged abuse materializes in contractual provisions which are the basis of the damages claim (Austrian Supreme Court, der Oberste Gerichtshof OGH 29.09.2020, 18 OCg 6/20m).

 
 
Author(s): Matthias Hofer, Freshfields Bruckhaus Deringer LLP; Katherine Khan, Freshfields Bruckhaus Deringer LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Austria; Austria
 
Austria Full text Full text as PDF
 
 
 
 
 
OGH – 18 OCg 7/20h, Supreme Court of Justice of Austria, 18 OCg 7/20h, 25 August 2020
 
The withdrawal of an action for setting aside an arbitral award becomes effective with its receipt by the competent court; in practice, courts nonetheless usually issue a declaratory decision acknowledging the withdrawal of the action (Austrian Supreme Court, der Oberste Gerichtshof OGH 25.08.2020, 18 OCg 7/20h).

 
 
Author(s): Matthias Hofer, Freshfields Bruckhaus Deringer LLP; Katherine Khan, Freshfields Bruckhaus Deringer LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Austria; Austria
 
Austria Full text Full text as PDF
 
 
 
 
 
OGH – 18 ONc 3/20s, Supreme Court of Justice of Austria, 18 ONc 3/20s, 23 July 2020
 
Videoconferencing technology can be used in arbitral proceedings even where one party raises objections against a remote hearing. Unsubstantiated allegations concerning the potential misuse of videoconferencing technology in examining witnesses cannot itself render a remote hearing inappropriate (Austrian Supreme Court, der Oberste Gerichtshof OGH 23.07.2020, 18 ONc 3/20s).

 
 
Author(s): Matthias Hofer, Freshfields Bruckhaus Deringer LLP; Katherine Khan, Freshfields Bruckhaus Deringer LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Austria; Austria
 
Austria Full text Full text as PDF
 
 
 
 
 
OLG Frankfurt am Main – 26 Sch 18/20, Higher Regional Court of Frankfurt am Main, 26 Sch 18/20, 25 March 2021
 
In enforceability proceedings concerning an arbitral award, a German court does not review whether the arbitral tribunal wrongly admitted a late submission unless otherwise agreed by the parties.  In contrast to German civil courts, an arbitral tribunal may conduct its own research.
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP; Harry Nettlau, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Germany; Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
OLG Frankfurt am Main – 26 Sch 15/19, Higher Regional Court of Frankfurt am Main, 26 Sch 15/19, 17 December 2020
 
The factually incorrect mentioning of “sworn testimony” of a witness in an arbitral award does not constitute grounds for challenge of the award pursuant to Sec. 1059 (2) 1 d) of the German Code of Civil Procedure (Zivilprozessordnung, or “ZPO”) if the decision does not rely on an increased evidentiary value of such “sworn testimony”.  A delay in issuing an arbitral award in supposed violation of Section 33 (1) of the DIS Arbitration Rules 1998 (“DIS Rules 1998”) does not provide for grounds for setting aside the arbitral award.
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP; Harry Nettlau, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Germany; Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
BGH – I ZB 78/20, Federal Court of Justice of Germany, I ZB 78/20, 25 February 2021
 
On appeal, a party is heard with a complaint that the lower instance wrongly took into account an objection that a claim is subject to arbitration if such objection was raised too late.  However, the objection that a matter is subject to an arbitration agreement pursuant Sec. 1032 (1) of the German Code of Civil Procedure (Zivilprozessordnung, or “ZPO”), including the timeliness of such objection, constitutes a waivable procedural provision under Sec. 295 (2) ZPO, with the result that a lack of timeliness of a party’s objection is cured if the counterparty fails to complain about this lack of timeliness during the lower instance proceedings.
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP; Harry Nettlau, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Germany; Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
Son v. Manager of the Late Father’s Estate, Magistrate Court of Tel Aviv-Jaffa, 28326-10-15, 31 May 2018
 
An application for recognition and enforcement of a foreign arbitral award issued in England in 2015, between the Applicant and his late father, in accordance with commercial contracts signed between them in 1987, which included an arbitration agreement. The award ordered the late father to pay his son US$ 6 million. The son also applied to recognize and enforce an additional award from 2017 relating to interest. The Respondent passed away during the proceedings and an estate manager has been appointed (hereinafter: the Respondent). The Family Court accepted the application while maintaining that the rule is recognition and enforcement of foreign arbitral award and that the grounds for refusing such recognition provided for under the Convention will be interpreted in a narrow way, with the burden of proof carried by the party who resists the recognition.
 
Author(s): Avishai Azriel, White & Case LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Israel
 
Israel Full text Full text as PDF
 
 
 
 
 
Parties Not Indicated, Court of Appeals of Beirut Governorate, , 22 October 2020
 
In this decision, the Beirut Court of Appeal (Civil) considered the consequences of the failure to notify the other party of a submission in the arbitration. The court found that knowledge on the part of the claimant of the submission did not constitute notification in circumstances where such knowledge could not be proved, nor was respondent permitted to invoke the principle of estoppel in the absence of the claimant’s prior objection.

The court decided to annul the arbitral award based on a violation of due process and the right of defence.
 
Author(s): Jalal El Ahdab, Bird & Bird
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Lebanon
 
Lebanon Full text Full text as PDF
 
 
 
 
 
Thoroughbred Technologies (Pty) Ltd (South Africa) v. Industrial Technologies LLC (Russia), Supreme Court of the Russian Federation, A40-76498/2020, 23 April 2021
 
The Supreme Court of the Russian Federation, as the second cassation instance, upheld the lower courts’ position that the party’s consent to supply goods in accordance with the Standard Terms of Supply, which contained an arbitration clause, does not amount to the conclusion of the arbitration agreement between the parties, in this particular case. On this ground, the court denied enforcement of a foreign arbitral award against a Russian entity.
 
Author(s): Elena S. Burova, Ivanyan and Partners
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Russian Federation
 
Russian Federation Full text Full text as PDF
 
 
 
 
 
X v. Y, Court of Cassation of Turkey, 19th Civil Law Chamber, File No. 2018/2954, Decision No. 2020/154, 01 January 2020
 
In cases where the subject matter of a claim is divisible, the parties may raise claim for a part of it. Filing such a partial claim shall not constitute a waiver of the remaining portion of the subject matter. Therefore, the award issued pursuant to an arbitration succeeding another one, wherein the claimant requested a partial claim, is enforceable and does not warrant a set-aside.
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
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. 2020/1470, Decision No. 2020/2373, 20 September 2020
 
The plaintiff cannot claim the invalidity of the arbitration clause because it filed a counterclaim in the arbitral proceedings initiated by the defendant. The claim for the invalidity of the arbitration clause by the party who filed a counterclaim under the arbitral proceedings constitutes an abuse of its rights.
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Turkey; Turkey
 
Turkey Full text Full text as PDF
 
 
 
 
 
X v. Y, Regional Court of Istanbul, 14th Civil Chamber, File No. 2019/532, Decision No. 2020/892, 10 September 2020
 
For the validity of an arbitration clause, the parties' intention to resolve their disputes through arbitration must be clear and without hesitation since arbitration is an exceptional dispute resolution method.
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Turkey; Turkey
 
Turkey Full text Full text as PDF
 
 
 
 
 
X v. Y, Regional Court of Istanbul, 14th Civil Chamber, File No. 2020/576, Decision No. 2020/606, 16 June 2020
 
Claiming the invalidity of the arbitration clause because it was concluded in English, and thus contrary to the mandatory usage of the Turkish language, would be a breach of good faith principle if the party had remained silent when the agreement was being implemented between the parties.
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Turkey; Turkey
 
Turkey Full text Full text as PDF
 
 
 
 
 
X v. Y, Regional Court of Istanbul, 14th Civil Chamber, File No. 2019/2499, Decision No. 2020/248, 26 February 2020
 
The arbitration clause in a fixed-term agreement (belirli süreli sözleşme) remains valid even if it transforms into an indefinite term agreement (belirsiz süreli sözleşme) due to the parties' actions.
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
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. 2019/3156, Decision No. 2020/2913, 05 November 2020
 
If Turkish parties executed an arbitration clause in English although the agreement containing the arbitration clause was executed in Turkey, the arbitration objection before Turkish courts cannot be taken into consideration in favor of the party who relies upon the arbitration agreement (i.e. the party raising the preliminary arbitration objection) as such an arbitration clause violates the Law on the Mandatory Use of the Turkish Language in Commercial Enterprises No. 805 ("Law No. 805").
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
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. 2019/2759, Decision No. 2020/685, 20 February 2020
 
The Court of Cassation ruled that the decision on the competence of an arbitral tribunal falls within the scope of the jurisdiction of the arbitral tribunal under Article 15.A.1.d of the Turkish International Arbitration Law No. 4686 ("IAL").
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Turkey; Turkey
 
Turkey Full text Full text as PDF
 
 
 
 
 
X v. Y, Regional Court of Istanbul, 14th Civil Chamber, File No. 2021/205, Decision No. 2021/185, 11 February 2021
 
The Regional Court emphasized that if one of the contracting parties is foreign, Article 1 of the Code on the Mandatory Usage of the Turkish Language in Commercial Enterprises No. 805 ("Law No. 805") is not applicable; therefore, the arbitration clause concluded in English is valid. Additionally, the Regional Court ruled that an arbitration clause under an agreement between merchants cannot be considered an unfair term (haksız şart).
 
Author(s): Ismail Esin, Esin Attorney Partnership; Stephan Wilske, Gleiss Lutz
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: Turkey; Turkey
 
Turkey Full text Full text as PDF
 
 
 
 
 
Tenaris S.A., et al. v. Bolivarian Republic of Venezuela, United States District Court, District of Columbia, No. 1:18-cv-01373, 29 March 2021
 
The Petitioners Tenaris S.A. and Talta-Trading e Marketing Sociedade Unipessoal LDA obtained a $253 million USD award in an ICSID arbitration initiated against Respondent Venezuela in connection with the expropriation of the Petitioners’ Venezuelan assets. The Petitioners sought to recognize and enforce the ICSID award before the U.S. District Court for the District of Columbia (the “Court”).

After Venezuela initially failed to enter an appearance, the Petitioners moved for default judgment. Because Venezuela ultimately made an appearance, the Court determined that a default judgment against Venezuela was inappropriate.

The Court next granted the Petitioners’ bid to enforce the ICSID award against Venezuela. In doing so, the Court denied Venezuela’s request to stay the enforcement of the judgment rendered on the ICSID award based on the Venezuelan sanction regulations issued by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), reasoning that such a stay would be redundant and unnecessary in light of the Venezuelan sanctions program.

The Court, however, sided with Venezuela in declining the Petitioners’ request for attorneys’ fees and their calculation of post-judgment interest, which relied upon the rate specified in the ICSID for post-award interest.
 
Author(s): Lorna Maupilé, King & Spalding LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: United States of America
 
United States of America Full text Full text as PDF
 
 
 
 
 
Polyflow, LLC v. Specialty RTP, LLC & John R. Wright, Jr., United States Court of Appeals, Fifth Circuit, No. 20-20416, 30 March 2021
 
Polyflow, L.L.C. (“Polyflow”) sent a demand for arbitration to Specialty RTP, L.L.C. and its president John Wright (collectively “Specialty”) pursuant to a 2017 Settlement Agreement between the parties (the “Settlement Agreement”).  When Specialty resisted arbitration, Polyflow filed a lawsuit in the U.S. District Court for the Southern District of Texas to compel arbitration.  Specialty moved to dismiss.  The court denied Polyflow’s motion to compel arbitration without providing any reasons.  Polyflow appealed.

On appeal, the U.S. Court of Appeals for the Fifth Circuit reversed the district court and remanded with instructions to order arbitration.  The Fifth Circuit observed that:  (i) the parties’ arbitration agreement was broadly worded to cover all of Polyflow’s claims; (ii) a claim-by-claim review of Polyflow’s statutory and common law claims reinforced the conclusion that they were all arbitrable, as they all arose out of or related to the Settlement Agreement; and (iii) none of Specialty’s defenses would bar arbitration, as they did not challenge the existence of the arbitration agreement and there was no waiver on Polyflow’s right to arbitrate.
 
Author(s): Xiaomao Min, King & Spalding LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: United States of America
 
United States of America Full text Full text as PDF
 
 
 
 
 
Darrelle Revis, et al. v. Neil Schwartz, et al., Supreme Court of the State of New York, Appellate Division, 2017-07940, 30 December 2020
 
Darrelle Revis, a veteran professional National Football League (“NFL”) cornerback, and his corporate entity Shavae, LLC brought an action against Schwartz & Feinsod, LLC (“S&F”) in New York state court to recover damages for breach of fiduciary duty, breach of contract, and fraud.

In January 2007, Revis and S&F had entered into a Standard Representation Agreement (“SRA”) in accordance with the National Football League Players’ Association Regulations Governing Contract Advisors (“NFLPA Regulations”).  Under the terms of the SRA, Revis agreed that S&F “would be his exclusive representative with respect to negotiating player contracts with NFL clubs [on behalf of Revis].”  The SRA also obliged Revis to pay S&F a certain percentage commission of the compensation that he earned annually under any NFL player contract for which S&F had facilitated negotiations. The SRA contained a paragraph entitled “Disputes,” which expressly incorporated Section 5 of the NFLPA Regulations. Section 5 of the NFLPA Regulations provided that arbitration administered by the American Association of Arbitration (“AAA”) and its institutional rules (“the AAA Rules”) would be the “exclusive method for resolving any and all disputes” arising between the parties to the SRA.

Revis and Shavae alleged that on some date following January 2007, Revis and S&F had concluded a separate oral agreement supplementing the SRA.  According to the complaint, under the terms of the oral agreement, S&F would provide a range of legal services to Revis in exchange for a 10% contingent fee extracted from the total remuneration Revis received for marketing and endorsement agreements negotiated by S&F on Revis’ behalf. The complaint also alleged that “[w]hen Shavae was formed . . . [S&F] provided legal services to Shavae under the terms of [its] oral legal agreement with . . . Revis.”

After Revis and Shavae filed their complaint, S&F subsequently moved pursuant to C.P.L.R. § 7503 to compel arbitration and to stay all proceedings in the court action pending arbitration.  The trial court grated S&F’s motion to compel arbitration pursuant to the SRA and Section 5 of the NFLPA Regulations, stating that “[i]t is clear . . . that the parties entered into a valid arbitration agreement and that the issues stated in the Summons and Complaint are encompassed within the SRA’s broad arbitration clause.” 

The Second Department’s Appellate Division agreed with the trial court’s view that the SRA and NFLPA Regulations, together, expressly delegated “gateway” questions of arbitrability to the AAA tribunal constituted pursuant to the AAA Rules.  For both the trial court and the Appellate Division, this conclusion was confirmed by both the Federal Arbitration Act (“FAA”) (9 U.S.C. § 1) and C.P.L.R. §§ 7501 and 7503, the latter of which expressly authorizes an “aggrieved” party hauled to court such as S&F to move for the trial judge to “enforce” an overriding written arbitration agreement.  Thus, the Appellate Division affirmed the trial court’s decision to grant S&F’s motion to compel arbitration and stay Revis’ action against S&F pending resolution of the AAA proceedings.  
 
Author(s): Emma Iannini, King & Spalding LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: United States of America
 
United States of America Full text Full text as PDF
 
 
 
 
 
Compañía de Inversiones Mercantiles v. Grupo Cementos de Chihuahua & GCC Latinoamérica, United States District Court, District of Colorado, 1:15-cv-02120-JLK, 30 April 2021
 
Mexican Respondents, Grupo Cementos de Chihuahua S.A.B. de C.V. (“GCC”) and GCC Latinoamérica, S.A. de C.V. (“GCC Latam”) brought a motion to vacate a district court’s 2019 judgment that had confirmed a foreign arbitral award of $ 36,139,222.90 in favor of Bolivian company Compañía de Inversiones Mercantiles S.A. (“CIMSA”).

Respondents argued that because the award had been set aside in Bolivia in 2020 by a series of orders issued by the Bolivian Courts, the district court had to vacate its 2019 confirmation judgment. 

The district court denied Respondents’ motion to vacate, invoking public policy grounds to justify the enforcement of the award  notwithstanding the recent orders of the Bolivian courts and finding that Respondents had acted inequitably throughout the proceedings by filing repeated challenges to the award at the seat of arbitration to avoid enforcement abroad.
 
Author(s): Arturo Oropeza Casas, King & Spalding LLP
 
Source: A contribution by the ITA Board of ReportersDate: 27 May 2021
 
Reporter for: United States of America
 
United States of America Full text Full text as PDF
 
 
 
 
 
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