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LG Essen – 2 O 447/22, Regional Court of Essen, 2 O 447/22, 12 April 2024 |
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In its Achmea and Komstroy decisions, the Court of Justice of the European Union (“CJEU”) established that intra-EU arbitration proceedings before the International Centre for Settlement of Investment Disputes (“ICSID”) are not compatible with EU law and that the corresponding arbitral awards, therefore, cannot be enforced in the EU (judgment of September 2, 2021, Case C-741/19 and judgment of March 6, 2018, Case C‑284/16). In its decision of April 12, 2024, the Regional Court of Essen (“Court”) ruled that it does not interpret the aforementioned CJEU case law to state that German courts must prevent the enforcement of this kind of arbitral awards outside of the EU (here: in the U.S.). The Court held that it constitutes an inadmissible anti-suit injunction if a Member State of the European Union (“Member State”) asks a Member State court to prohibit a European investor from enforcing an ICSID award issued against that Member State outside of the EU. According to the Court, such a request is aimed at preventing a non-EU third state from conducting proceedings in accordance with the rule of law and therefore violates the principles of territoriality and essential elements of state sovereignty.
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Author(s): Berta Boknik, Cleary Gottlieb Steen & Hamilton LLP; Harry Nettlau, Willkie Farr & Gallagher LLP |
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Source: A contribution by the ITA Board of Reporters
Date: 2 Oct 2024 |
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Reporter for: Germany; Germany |
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Germany |
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OLG Frankfurt am Main – 26 SchH 8/23, Higher Regional Court of Frankfurt am Main, 26 SchH 8/23, 05 March 2024 |
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A signed arbitration agreement is not valid and does not replace a pre-existing jurisdiction clause if the arbitration agreement does not meet the parties’ agreed form requirements for deviating from the existing contractual terms. It is possible to implicitly waive contractual form requirements. However, for such a waiver, the corresponding will of the parties not to hold on to the form requirements must be evident.
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Author(s): Berta Boknik, Cleary Gottlieb Steen & Hamilton LLP; Harry Nettlau, Willkie Farr & Gallagher LLP |
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Source: A contribution by the ITA Board of Reporters
Date: 2 Oct 2024 |
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Reporter for: Germany; Germany |
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Germany |
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P.M. of K. & A.M. of K. v. Hellenic Public Properties Co. (HPPC), Supreme Court of Greece, Decision No. 533/2024 (A2, Civil), 08 April 2024 |
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An arbitral award may be annulled, either wholly or partially, only by a court decision if the arbitrators, who issued it, exceeded their powers, i.e. they acted beyond the authority granted to them by the arbitration agreement. According to the true meaning of this provision, the term "excess of powers" as a ground for annulment of an arbitral award includes the case where the arbitrators adjudicate on a matter that was not submitted to them by the arbitration agreement or lies beyond its scope. The annulment of the arbitral award can be requested by the parties which entered into the arbitration agreement and any person with a legal interest. Α party is entitled to file both the annulment action and the action for the recognition of the nullity of an arbitral award, provided that they are adversely affected by the grounds cited. In principle, this would be the defeated party to the arbitration, or the successful party who has a legal interest in seeking its annulment (Supreme Court Decision No. 1679/2018). The participation of a third party not covered by the arbitration agreement violates the principle of confidentiality of the proceedings; however, this fact has not been established as an independent ground for annulment or nullity of an arbitral award issued between parties who have lawfully agreed to an arbitration clause and participated lawfully in the arbitration. Arbitrators are appointed from among the senior judges in rotation. This means that the appointment may not always go to the current senior judicial officer, depending on whether the other senior judges have been appointed as arbitrators or not. There is no breach of the principle of the equity of the parties if an Arbitrator participated in another arbitration with the same parties and a similar case file. The arbitral award can be annulled, either in whole or in part, only by a court decision if it is contrary to public order provisions or the principles of morality. Τhe contradiction with public order provisions must arise directly and exclusively from the content of the arbitral award, and therefore, the corresponding ground for annulment of the arbitral award is not established when it has incorrectly interpreted and applied the law or has merely insufficient reasoning.
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Author(s): Ioannis Vassardanis, Ioannis Vassardanis & Partners |
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Source: A contribution by the ITA Board of Reporters
Date: 2 Oct 2024 |
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Reporter for: Greece |
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Greece |
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X v. Y, High Court of Tokyo, Reiwa 4 (NE) 5183, 26 April 2023 |
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Plaintiff/Appellant “X”, a U.S. citizen, filed a lawsuit against Defendant/Appellee “Y” before Tokyo District Court, claiming that he remained the position of an employee at the Defendant and requesting for compensation or salary payment from the date when Plaintiff received Defendant's notice of termination of the contract.
Since Tokyo District Court rejected the claims submitted to the court on the ground that the arbitration agreement was valid, the plaintiff appealed to Tokyo High Court. Tokyo High Court upheld the decision by Tokyo District Court.
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Author(s): Akiko Inoue, Nagashima, Ohno & Tsunematsu; Koki Yanagisawa, Nagashima, Ohno & Tsunematsu |
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Source: A contribution by the ITA Board of Reporters
Date: 2 Oct 2024 |
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Reporter for: Japan; Japan |
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Japan |
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Bathurst Resources Limited v. LMCHB Limited [2024] NZHC 1058, High Court of New Zealand, CIV-2023-485-000575, 03 May 2024 |
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This decision considers whether the costs award in an international arbitration can be set aside on the ground that it is contrary to public policy or given in breach of natural justice. The Judge noted that counsel had not been able to identify any Commonwealth decision where a court had set aside the costs award in an international arbitration. The Judge held the court has the power to set aside a costs award, but found that neither of the submitted grounds were made out. The judgment contains a detailed discussion of the public policy and natural justice grounds for setting aside an award in the context of an international arbitration.
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Author(s): Stephen Hunter, Shortland Chambers |
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Source: A contribution by the ITA Board of Reporters
Date: 2 Oct 2024 |
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Reporter for: New Zealand |
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New Zealand |
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Ministerio Público v. Consorcio MYG : Carlos Vicente Gueyraud s/ Autorización Judicial, Court of First Instance in Civil and Commercial Affairs of Asunción, 475/2024, 05 August 2024 |
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On August 5th, 2024, an Asunción Civil and Commercial First Instance Judge rejected a challenge that requested the removal of the president of an arbitral tribunal in an ongoing proceeding. Invoking Articles 9 and 15 of the Paraguayan Arbitration Law, the Applicant petitioned the removal of the challenged arbitrator due to her lack of disclosure of a close familiar relationship with a governmental official, which is significant since, in the Applicant’s view, the Paraguayan State had an interest in the case’s outcome.
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Author(s): José A. Moreno Rodríguez, Altra Legal |
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Source: A contribution by the ITA Board of Reporters
Date: 2 Oct 2024 |
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Reporter for: Paraguay |
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Paraguay |
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