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BNE Administração de Imóveis S/A v. Sppatrim Administração e Participações Ltda (Atual Denom. de MS Participações Ltda), Vanorry Holding Eireli & Artur Abumansur de Carvalho, Court of Justice of the State of São Paulo, Apelação Cível nº 1122840-98.2014.8.26.0100, 01 March 2023 |
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The Court of Appeals of São Paulo decided by a majority to annul an arbitral award due to the dismissal, by the Arbitral Tribunal, of the analysis and production of an expert evidence before rendering the arbitral award.
The Court ruled that the arbitrators could not only rely on their own technical knowledge regarding the matter in dispute in this case. In addition, according to the Court, the absence of an expert evidence, linked to a contradictory reasoning to justify the denial of the production of such evidence, constituted a breach of due process of law that entailed the challenge of the award.
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Author(s): Joao Bosco Lee, Lee, Taube, Gabardo Sociedade de Advogados |
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Source: A contribution by the ITA Board of Reporters
Date: 9 Apr 2024 |
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Reporter for: Brazil |
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Brazil |
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Broadgrain Commodities Inc. v. Surtiabarrotes Internacional S.A.S., Supreme Court of Justice of Colombia, 11001-02-03-000-2019-03619-00, 22 October 2021 |
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A decision on the recognition of an award rendered by the Supreme Court of Justice on 22 October 2021, in Case No. 2019-03619, recently resurfaced on a compilation of judgments related to international arbitration matters, from the Civil Chamber of the Supreme Court of Justice, published on August 2022.
The award subject to recognition was rendered by an arbitral tribunal under the Rules Nº 125 of the Grain and Feed Trade Association (GAFTA), in a case between Broadgrain Commodities Inc., a Canadian company, and Surtiabarrotes Internacional S.A.S, a Colombian company.
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Author(s): Eduardo Zuleta Jaramillo, ZULETA Abogados Asociados S.A.S. |
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Source: A contribution by the ITA Board of Reporters
Date: 9 Apr 2024 |
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Reporter for: Colombia |
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Colombia |
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BGH – I ZB 12/23, Federal Court of Justice of Germany, I ZB 12/23, 12 October 2023 |
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Arbitration clauses in bilateral investment treaties between member states of the European Union (“Member States”) and third states (“extra-EU BITs”) are not contrary to EU law. In its decision of October 12, 2023, the German Federal Court of Justice (“Bundesgerichtshof”, or “BGH”) rejected the application of the Achmea doctrine (Case C-284/16) of the Court of Justice of the European Union (“CJEU”), according to which arbitration clauses in bilateral investment treaties between member states of the European Union (“intra-EU BITs”) were contrary to EU law, to extra-EU BITs. The BGH based its reasoning on the CJEU's Komstroy decision (Case C-741/19), pursuant to which the application of an arbitration clause in a multilateral treaty, such as Art. 26 of the Energy Charter Treaty (“ECT”), to extra-EU constellations did not violate EU law.
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Author(s): Harry Nettlau, Willkie Farr & Gallagher LLP; Berta Boknik, Cleary Gottlieb Steen & Hamilton LLP |
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Source: A contribution by the ITA Board of Reporters
Date: 9 Apr 2024 |
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Reporter for: Germany; Germany |
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Germany |
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BGH – I ZB 14/23, Federal Court of Justice of Germany, I ZB 14/23, 26 October 2023 |
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A party’s set-aside request against an arbitral award is not admissible if that party made payment as ordered in the arbitral award without reservation prior to submitting its set-aside request. The assessment whether such payment was made without reservation depends on the circumstances of the individual case that were recognizable to the recipient of the payment.
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Author(s): Harry Nettlau, Willkie Farr & Gallagher LLP; Berta Boknik, Cleary Gottlieb Steen & Hamilton LLP |
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Source: A contribution by the ITA Board of Reporters
Date: 9 Apr 2024 |
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Reporter for: Germany; Germany |
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Germany |
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AA v. A and B, S.A., Court of Appeal of Coimbra, 152/23.1YRCBR, 07 November 2023 |
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The judgment of the Appeal Court of Coimbra is significant as it addresses a specific authority granted by the Portuguese Arbitration Law: during proceedings to set aside an award, a state court may ask the arbitral tribunal to eliminate the defective part of the award in order to validate. However, in this instance, the Appeal Court ruled that complying with such a request would lead to a revision of the decision's merit, given that the flawed aspect was closely related to the decision's substantive element.
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Author(s): José Miguel Júdice, Independent Arbitrator |
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Source: A contribution by the ITA Board of Reporters
Date: 9 Apr 2024 |
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Reporter for: Portugal |
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Portugal |
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Oriental Power Holdings Limited v. Falconplanet, Lda, Supreme Court of Justice of Portugal, 214/21.0YRCBR.S1, 20 September 2023 |
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This Supreme Court decision highlights the importance of a detailed and reasonable judicial analysis in cases where parties present formalistic objections. The Court of Appeal's failure in both its depth of analysis and reasonableness was rectified by the Supreme Court. The Supreme Court, avoiding a purely formalistic approach, thoroughly examined the dispute. It concluded that having the name of one of the parties on the first page of the award, instead of in the expected section of a contract, sufficiently confirms the authenticity of the award.
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Author(s): José Miguel Júdice, Independent Arbitrator |
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Source: A contribution by the ITA Board of Reporters
Date: 9 Apr 2024 |
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Reporter for: Portugal |
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Portugal |
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