Arbitration Links - Linklaters
  • Jurisdiction: Europe

Linklaters’ recent contributions to Kluwer Arbitration Blog

18 July 2018 Matthew Weiniger; Akshay Sewlikar; Stephanie Tang, Europe; Hong Kong; United States of America

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Linklaters has recently contributed two articles to the Kluwer Arbitration Blog.

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Arbitration Links turns 1!

09 July 2018 Africa; Asia-Pacific; Europe; Latin America; Middle East; North America

In summer 2017 we launched Arbitration Links, our blog (and Linklaters’ first) dedicated to reporting on developments in international commercial arbitration and investment arbitration. Please do watch, and share, this short video celebrating Arbitration Links's first birthday.

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Dutch Supreme Court applies strict interpretation of the (alternative) time limit for filing for the annulment of an arbitral award

06 July 2018 Marc Noldus; Caroline De Ruiter-Vleggaar, Europe; The Netherlands

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The Dutch Supreme Court has ruled in favour of a strict application of the (alternative) time limit for filing for the annulment of an arbitral award. If the first time limit of three months after the deposit or dispatch of the award has lapsed, a claim for annulment cannot be filed until the start of the second time limit of three months after service of the award and leave for enforcement.

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Intra-EU court anti-suit injunctions in support of arbitration under the Brussels I Recast? – The English Commercial Court says no.

29 June 2018 Stephen Lacey, England & Wales; Europe

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In Nori Holdings and others v BOFC [2018] EWHC 1343 (Comm) the Commercial Court has declined an opportunity, in the context of the Brussels I Recast, to resurrect intra-EU court anti-suit injunctions in support of arbitration from the graveyard of the West Tankers ruling. Whilst many may shrug (the prevailing view being in line with this), the decision may be a little more of a missed opportunity then some think.

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Françoise Lefèvre appointed to the ICC International Court of Arbitration

26 June 2018 Asia-Pacific; Europe; Latin America; Middle East; North America

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Linklaters is delighted to announce that partner Françoise Lefèvre has been appointed to the International Chamber of Commerce’s (ICC) International Court of Arbitration, one of the world's most experienced and renowned international arbitration institutions.

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An introduction to the relationship between smart contracts and international dispute resolution mechanisms

19 June 2018 Matthew Weiniger, Africa; Asia-Pacific; Europe; Latin America; Middle East; North America

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In this video blog, Matthew Weiniger QC, our Global Co-Head of International Arbitration, takes a look at one of the oft-cited advantages of smart contracts and distributed ledger technology; namely their ability to reduce, or even eliminate, the potential for disputes. Matthew examines whether this is really true, and why parties should still be thinking about building conventional dispute resolution mechanisms into such structures.

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Interview with Matthew Weiniger and Campbell McLachlan on International Investment Arbitration – Substantive Principles, Second Edition

14 June 2018 Matthew Weiniger, Africa; Asia-Pacific; Europe; Latin America; North America

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Last month, Dispute Resolution Partner and Global Co-Head of International Arbitration, Matthew Weiniger was interviewed, together with Professor Campbell McLachlan of the Victoria University of Wellington, by The Arbitration Station.  They were discussing the second edition of their book International Investment Arbitration – Substantive Principles, co-authored with Laurence Shore. In the interview, Matthew and Campbell describe their objectives behind the text and how developments have shaped investment arbitration in the 10 years since the first edition was published.

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English Court of Appeal considers grounds for removing an arbitrator

06 June 2018 Alex Hannington, England & Wales; Europe

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The English Court of Appeal in Halliburton Co v Chubb Bermuda Insurance Ltd (and others) [2018] EWCA Civ 817 accepted that an arbitrator’s acceptance of multiple appointments concerning overlapping subject matter, without disclosure, did not provide grounds for his removal under s.24(1)(a) of the Arbitration Act 1996 (the “Act”).

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English Court of Appeal considers “public policy” exception to enforcement of an Award

29 May 2018 Mikhail Vishnyakov, England & Wales; Europe

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In RBRG Trading (UK) Limited v Sinocore International Co Ltd [2018] EWCA Civ 838 an Award debtor (“RBRG”) argued that enforcement of an international arbitration award (an “Award”) under the New York Convention would be contrary to English “public policy”.

Finality is one of the key advantages of arbitration. However, if enforcing an Award would offend English public policy then enforcement may be refused by the English Courts. For example, Awards obtained by perjury or fraud can be susceptible to challenge. If an Award is otherwise tainted by illegality (for example, if the underlying contract is illegal), its enforcement may also offend English public policy. The determination of illegality and its effect on enforcement is a matter on which judicial guidance is always welcome.

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Award need not be deferred pending determination of same issues in another forum

21 May 2018 Mikhail Vishnyakov, England & Wales; Europe

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In SCM Financial Overseas Ltd v Raga Establishment Ltd [2018] EWHC 1008 the English High Court held that a Tribunal’s decision not to defer its Award pending judgment from a foreign court on the same issues did not render the Award susceptible to challenge for “serious irregularity” pursuant to Section 68 of the Arbitration Act 1996.

Although the Tribunal could have deferred its Award, the decision on whether to do so fell within the Tribunal’s legitimate discretion. In this case, the Tribunal properly exercised its discretion and the challenge was therefore dismissed.

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English Commercial Court considers arbitration clause in implied contract in s.67 challenge

09 May 2018 Stephen Lacey; Sadie Buls, England & Wales; Europe

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In SEA2011 Inc v ICT Ltd [2018] EWHC 520 (Comm), London’s Commercial Court rejected three challenges to an arbitrator’s jurisdiction, two based on the identification of the parties to the arbitration clause and one based on the nature of the contract. The judgment is an interesting illustration of how, when English law applies, ordinary rules of contract can assist in identifying both the parties to a contract and whether an arbitration clause is incorporated where that contract is “implied”.

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Announcing the launch of TradeLinks, the Linklaters international trade law blog

03 May 2018 Matthew Weiniger, Africa; Asia-Pacific; Europe; Latin America; Middle East; North America

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The Linklaters International Trade Practice has launched a regular blog that will look at a wide range of topics that span the area of international trade including Brexit and its impact on the UK’s international trade position, trade wars, tariffs and trade disputes.

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Intra-EU investment arbitration post-Achmea: A look at the additional remedies offered by the ECHR and EU law

24 April 2018 Guillaume Croisant; Xavier Taton, Europe

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In its landmark Achmea case, the Court of Justice of the EU (“CJEU”) found the arbitration provision of the bilateral investment treaty (“BIT”) between the Netherlands and Slovakia to be incompatible with EU law (see our previous post for a first analysis).

This decision potentially affects the roughly 200 BITs concluded between the EU Member States, although its overall implications are far from clear. Against that background, however, investors in EU Member States who object to State measures which have impacted their investments elsewhere in the EU might be expected to look for additional routes to a remedy. What might these be? Two which stand out for closer analysis in particular are the European Convention on Human Rights (“ECHR”) and the fundamental principles of EU law.

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Does a slip buy more time? English High Court considers the relationship between corrections of awards and time limits for appeal

05 April 2018 Stephen Lacey, England & Wales; Europe

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In DSMG v Songa [2018] EWHC 538 (Comm), the English High Court has examined whether an application to the tribunal to make straightforward corrections to an award extends, under the English Arbitration Act 1996 (the “Act”), the period for bringing a challenge in court against the award. It appears that it is only where an application for corrections is material - in the sense of enabling a party to know whether it has grounds to challenge an award - that it will do so.

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CJEU judgment in Slovak Republic v. Achmea BV: intra-EU BITs incompatible with EU law

13 March 2018 Julia Grothaus; Rupert Bellinghausen, Europe; Germany

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In the much anticipated judgment of 6 March 2018 (Case C-284/16), the Court of Justice of the European Union (“CJEU”) found the arbitration provision of the bilateral investment treaty (“BIT”) between the Netherlands and Slovakia to be incompatible with EU law. As the decision potentially affects not less than 196 BITs between EU Member States (“intra-EU BITs”), it is likely to have significant consequences for the world of intra-EU BIT arbitration. Yet, its overall implications are far from clear, so that the judgment will loom large for some time to come.

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Brexit and International Arbitration in London

08 February 2018 Matthew Weiniger, England & Wales; Europe

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Matthew Weiniger QC, Dispute Resolution Partner & Global Co-Head of International Arbitration, has produced a short video discussing the impact of Brexit on the practice of international arbitration in London. 

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Mauritius Convention on transparency enters into force

25 January 2018 Sadie Buls, Asia-Pacific; Europe; North America

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The United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (the "Mauritius Convention") entered into force on 18 October 2017. An important development in investor-State dispute settlement (“ISDS”), the Mauritius Convention significantly expands the circumstances in which new transparency provisions – concerning arbitration commencement, publication of documents, third-party input, public hearings and confidential information – may apply. While it will be some time before the Mauritius Convention has broad application, it represents an important evolution for ISDS which has significant implications for States and investors alike.

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Do arbitration clauses catch cartel damages claims? First German court decision answers this question in the affirmative

09 January 2018 Dr. Rupert Bellinghausen; Julia Grothaus, Europe; Germany

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Whilst the CJEU’s 2015 landmark decision in CDC v. Akzo Nobel et al. considered whether cartel damages claims fall within the scope of jurisdiction clauses in favour of EU Member States, what about arbitration clauses? The first German court decision on this issue, handed down by the Regional Court of Dortmund (Landgericht Dortmund), has concluded that, where German law applies to the clause, they do – irrespective of whether the clause is worded broadly or narrowly (judgment of 13 September 2017, case no. 8 O 30/16 [Kart]).

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French Cour de Cassation puts an end to the “Tapie-saga”

01 November 2017 Clément Fouchard, Europe; France

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Earlier this year, the French Cour de Cassation brought the long-running “Tapie-saga” to an end. Mr Tapie and his former bank were in dispute over a 2008 arbitral award ordering the bank to pay Mr Tapie over €400 million in damages. This award was successfully challenged by the bank before the Paris Court of Appeal in 2015 which annulled the decision on the basis of fraud. The Cour de Cassation confirmed the decision of the Paris Court of Appeal.

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The European Commission proposes a move towards a Multilateral Investment Court System

27 October 2017 Guillaume Croisant; Matthew Weiniger, Europe

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The European Commission has recently requested authorisation to launch negotiations to establish a permanent Multilateral Investment Court, which would hear investment disputes under existing and future trade agreements entered into between the EU Member States and third countries. This new court could also replace the Investment Court System provided for by CETA, whose compatibility with EU law will be reviewed by the European Court of Justice following a request introduced by Belgium on 6 September 2017.

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English High Court considers meaning of giving “proper notice” of an arbitration

24 October 2017 Antonia Adebambo, England & Wales; Europe

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In Ekran OAO v Magneco Metrel UK Ltd [2017] EWHC 2208 (Comm), a respondent sought relief from the English Commercial Court in respect of the enforcement of an award. It argued that it had not received “proper notice of the arbitration” under the English Arbitration Act 1996 (the “Act”), as the documentation that it received was not in its home language. The Court decided that, on the facts, the respondent had nonetheless been given “proper notice”. 

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New LCIA Report highlights movement towards cheaper and faster proceedings

18 October 2017 Jacqueline Chaplin, Europe

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A recent London Court of International Arbitration (“LCIA”) report (the “Report”) suggests that LCIA arbitration costs are generally less than arbitration costs at other institutions at all levels of dispute (for the purposes of the Report, arbitration costs means tribunal fees and administrative charges). The cost savings offered by the LCIA may be explained by its commitment to time efficiency and its use of hourly rates to calculate most of its costs.

The Report analyses the cost and duration of all 224 cases administered under the LCIA Arbitration Rules that had reached a final award between 1 January 2013 and 31 December 2016.

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Linklaters contributes to International Comparative Legal Guide to Arbitration 2017

11 October 2017 Joost Verlinden; Matthias Schelkens, Belgium; Europe

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Linklaters’ Dispute Resolution team has contributed to the 2017 edition of the International Comparative Legal Guide to International Arbitration. The Guide is a practical cross-border insight into international arbitration work and an overview of arbitration legislation and practice in 44 jurisdictions.

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CIArb Consultation on Cost-Controlled Rules

05 October 2017 Sadie Buls, Asia-Pacific; Europe; Latin America; Middle East; North America

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On 25 September 2017, the Chartered Institute of Arbitrators (CIArb) opened a consultation period relating to a revised draft of its Arbitration Rules. The revision to the rules aims to incorporate a proposed additional appendix on the use of CIArb’s Cost-Controlled Expedited Arbitration Rules. The current version of those rules is dated 2014 and CIArb has stated that updates to other institution procedures, as well as developments in the sphere of cost controls in arbitration generally, have prompted it to review and update its existing rules. 

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Advocate General Wathelet endorses intra-EU BITs

27 September 2017 Julia Grothaus; Dr. Rupert Bellinghausen, Europe; Germany

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In a much anticipated opinion in Slovak Republic v Achmea BV (Case C-284/16), Advocate General (“AG”) Wathelet has fostered investor-state arbitration under bilateral investment treaties (“BITs”) between EU Member States (“intra-EU BITs”) by concluding that the arbitration clause in Article 8 of the 1991 Netherlands-Slovakia BIT is compatible with EU law, and that arbitral tribunals established thereunder may refer issues of EU law to the Court of Justice of the European Union (“CJEU”) for preliminary rulings.

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Post-award challenges to impartiality and independence in Germany

13 September 2017 Julia Grothaus; Rupert Bellinghausen, Europe; Germany

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Both the setting aside of arbitral awards and the impartiality and independence of arbitrators and experts are recurring topics in international arbitration. They particularly converge when facts giving rise to doubts about impartiality and independence become known only after an arbitral award has been rendered. In a recent decision, the German Federal Court of Justice abandoned long-standing German case law and set aside an award after an expert nominated by the arbitral tribunal had failed to disclose facts relating to his impartiality and independence. As the relevant statutory provisions apply to both experts and arbitrators, the decision will be highly relevant for challenge and enforcement proceedings in Germany.

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Some reflections on unmeritorious challenges to arbitrators

22 August 2017 Christian Albanesi, Europe; Latin America; United States of America

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There is a general perception that unmeritorious challenges to arbitrators are on the rise. Is this really the case, how can they be identified and what can be done about them? Christian Albanesi, our Head of Latin American Arbitration, offers some thoughts.

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ICSID Rule Amendment Project

27 July 2017 Sadie Buls, Asia-Pacific; Europe; Latin America; Middle East; North America

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The International Centre for Settlement of Investment Disputes (“ICSID”) recently launched a webpage for a rule amendment project. The page will track the progress of the latest round of ICSID rule amendments, the process for which began in October 2016 when ICSID sought comments on potential amendments from member states. This was followed by ICSID’s invitation to the public in January 2017 for suggestions for rule amendments.

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English Commercial Court rejects suggestion that appointment of an arbitrator in related arbitrations constitutes apparent bias

06 July 2017 Charlotte Luker-Coombs, England & Wales; Europe

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The recent case of H v L & Others [2017] EWHC (Comm) 137 confirms that the appointment of an arbitrator in related references (and his/her failure to disclose those appointments) will not of itself create an appearance of bias so as to justify his/her removal under s.24(1)(a) Arbitration Act 1996 (the “Act”). The judgment summarises the test for apparent bias in an English seated arbitration and emphasises the integrity and impartiality of arbitrators as a central tenet of the same.  Separately, Popplewell J has also confirmed that orders granted pursuant to powers under the Act cannot be varied under CPR 3.1(7).

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Luxembourg court of appeal refuses enforcement of annulled Pemex award

08 June 2017 Katrien Baetens, Europe; Luxembourg

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In a judgment dated 27 April 2017, the Luxembourg Court of Appeal has confirmed its earlier jurisprudence by refusing the enforcement of a US$300 million ICC award against the Mexican state oil and gas company Pemex that was set aside at the seat of arbitration.

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The parties’ ability to terminate proceedings for the annulment of an arbitration award: recent developments in Spain

06 June 2017 Emma Morales, Europe; Spain

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On 4 April 2017, the Madrid High Court of Justice ("TSJM"), the court in Spain that handles appeals for the annulment of awards, issued two decisions (case numbers 43/2016 and 63/2016) in which it confirms the doctrine already advanced by means of a previous judgment rendered by the same court (judgment of the TSJM dated 28 February 2017 [JUR 2017/ 89938]).

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English High Court rejects attempt to obtain disclosure from arbitrators in support of an application to remove them

18 May 2017 Adrien Canivet, England & Wales; Europe

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In P v. Q & Others [2017] EWHC 148 (Comm), a party to an arbitration sought an order, in support of its application to remove two arbitrators, that the tribunal disclose material to it. The High Court dismissed this request; it recognised that arbitrators’ adjudicative materials are, like judges’, immune from disclosure.  It also clarified the scope of that immunity.

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State Immunity from Enforcement in The Netherlands

25 April 2017 Marc Krestin; Sebastiaan Barten, Europe; The Netherlands

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In its judgment of 30 September 2016, the Dutch Supreme Court ruled that assets of foreign states cannot be subject to attachment and enforcement in The Netherlands, unless those assets are used for non-governmental purposes.

In its judgments of 14 October 2016, the Dutch Supreme Court confirmed this general presumption of sovereign immunity from enforcement of judgments and arbitral awards against a foreign state’s assets.

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First-ever ICC European Conference

25 April 2017 Roland Ziade; Pierre Duprey, Europe; France

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International arbitration in Europe takes centre stage this month with the first-ever ICC European Conference, which launches Paris Arbitration Week today.  Paris Arbitration partners Pierre Duprey and Roland Ziadé take us through the close relationship the region has with the popular dispute resolution process and discuss the relevance of the much anticipated event.

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UK Supreme Court on security and challenging enforcement of arbitral awards

20 April 2017 Rebecca James, England & Wales; Europe

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The UK Supreme Court has recently overturned a ruling of the Court of Appeal which effectively required the Nigerian National Petroleum Corporation (“NNPC”) to provide security as a condition to challenging the enforcement of an award on public policy grounds pursuant to section 103(3) of the Arbitration Act 1996 (the “Arbitration Act).  This decision represents the latest development in a long-running legal saga involving protracted proceedings to challenge the award in Nigeria as well as enforcement proceedings in England.

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The High Court rules on the English court's powers in support of arbitral proceedings against non-signatories

12 April 2017 Joanne Finnegan, England & Wales; Europe

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The English court’s powers in support of arbitral proceedings in section 44 of the Arbitration Act 1996 are not exercisable against non-parties to an arbitration

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A heightened level of review of arbitral awards in the context of money laundering allegations

11 April 2017 Johanne Brocas, Europe; France

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The Paris Appeal Court has annulled an arbitral award rendered against the Kirghizstan Republic for violation of the BIT between Latvia and Kirghizstan on the ground that the enforcement of the award in France would result in allowing the investor to benefit from fraudulent money laundering activities.

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“Adverse inference” doctrine endorsed by the Paris Appeal Court

11 April 2017 Pierre Duprey, Europe; France

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In a decision of 28 February 2017, the Paris Appeal Court held that the IBA Rules on the Taking of Evidence in International Arbitration 2010 (the IBA Rules of Evidence) were applicable as long as the rules were agreed upon by the parties in the Procedural Order n°1.  Further, the court ruled that the tribunal was entitled to apply the adverse inference doctrine provided at Article 9(5) of the IBA Rules of Evidence.

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Micula brothers’ ICSID award stayed in the UK following the European Commission state aid decision

17 March 2017 Duncan Hedar, England & Wales; Europe

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Following an application by Romania and the European Commission (as intervener), the English High Court has stayed enforcement of an ICSID award in favour of Swedish business magnates the Micula brothers.  The case will be determined following the decision of the General Court of the European Union in connected proceedings brought by the Micula brothers to annul the Commission’s determination that the payment of the ICSID award by Romania would amount to illegal State aid.    The case raises important questions about the effectiveness of ICSID awards in circumstances where the awards clash with Member States’ obligations under EU law.

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Escalation Clauses: no longer a tripping hazard for arbitrations with seat in Germany?

01 December 2016 Julia Grothaus; Dr. Rupert Bellinghausen, Europe; Germany

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Escalation clauses need careful drafting to be enforceable and commercially useful. There is uncertainty as to the consequences of the parties’ non-compliance with escalation clauses providing for ‘final’ dispute resolution by means of arbitration. Will it affect the jurisdiction of the arbitral tribunal or the merits of the claim and can an arbitral award even be set aside? In two recent decisions, the German Federal Court of Justice (Bundesgerichtshof) clarified that, in arbitral proceedings seated in Germany, an arbitral tribunal is entitled to assume jurisdiction irrespective of whether the parties complied with the escalation clause.

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Who should know the law: the arbitrators or the parties?

03 October 2016 Cezary Wisniewski; Alicja Zielinska-Eisen, Europe; Poland

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What could be done at an early stage in the proceedings to apply the principle of iura novit curia in a way that would be acceptable to both common law and civil law practitioners and prevent or limit challenges to the arbitral award?

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