Arbitration Links - Linklaters
  • Year: 2018

ICSID releases draft of new rules

16 August 2018 Sadie Buls, Asia-Pacific; Europe; Latin America; Middle East; North America

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The International Centre for the Settlement of Investment Disputes (ICSID) has published the proposed amendments to its rules. The proposals mark the latest development in ICSID’s rule amendment project which aims to modernise the ICSID rules and make the dispute resolution process more time and cost effective and less paper-intensive. ICSID describes the proposed changes as the most far-reaching amendments in 50 years.

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New Ruling by the Madrid High Court of Justice: Arbitration and Public Policy

10 August 2018 Emma Morales, Europe; Spain

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On 5 April 2018, the Civil and Criminal Chamber of the Madrid High Court of Justice (Tribunal Superior de Justicia de Madrid, TSJM) set aside an arbitral award as contrary to public policy, because the challenged award contained “an unreasonable assessment of the evidence and unreasonable failure to apply applicable rules”.

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English commercial court considers requirement for party to be given fair opportunity to respond

07 August 2018 Sadie Buls; Stephen Lacey, England & Wales; Europe

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In the recent decision of Grindrod Shipping v Hyundai Merchant Marine [2018] EWHC 1284, the English Commercial Court considered the degree to which issues relied upon by the tribunal must have been put before it; in particular, whether points raised by one of the parties in one context can be deployed by the tribunal in another. The short answer is that there is no problem with this, provided the issues can be said to have been “in play” so as to give the other a fair opportunity to respond.

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The changing landscape of intra-EU investment protection: latest communication by the European Commission and other post-Achmea developments

31 July 2018 Kirstin Schwedt; Maximilian Reichert, Europe

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In the wake of the Court of Justice of the European Union’s (“CJEU”) judgment in Achmea, the European Commission recently communicated that “EU investors cannot invoke intra-EU BITs” or the Energy Charter Treaty (“ECT”) for intra-EU investments and advertised alternative remedies available under EU law. Meanwhile, ICSID tribunals have continued to render awards on intra-EU investment disputes and a court in Stockholm is considering a preliminary reference to the CJEU with respect to the ECT (for further background see our previous posts on Achmea here, here and here.) But even five months after Achmea and numerous contributions to the debate on its interpretation, the pivotal questions remain unanswered.

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Consultation open for ICCA working group’s draft Cybersecurity Protocol

24 July 2018 Erin Marsh, Africa; Asia-Pacific; Europe; Latin America; Middle East; North America

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The draft Cybersecurity Protocol for International Arbitration has been published by the International Council for Commercial Arbitration (ICCA) Working Group on Cybersecurity in International Arbitration. Accessible here, the protocol does not specify particular measures to be included in arbitration agreements or procedural orders, but instead proposes a framework for developing cybersecurity measures appropriate to each individual case. Written comments should be submitted to cybersecurity@arbitration-icca.org no later than 30 September 2018.

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LCIA announces termination of its Mauritian joint venture and closure of LCIA-MIAC

18 July 2018 Stephen Lacey, Africa; Mauritius

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The LCIA has announced that, as of 27 July 2018, its joint venture with the Mauritian Government which established the LCIA-MIAC arbitration centre will come to an end and that, consequently, as of that date LCIA-MIAC will also no longer be operational.

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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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Enforcement of specific performance awards against sovereign states

12 July 2018 Akshay Sewlikar, India; North America

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A decision of the United States (the “US”) District Court for the District of Columbia (the “Court”) has brought issues around enforcing awards of specific performance into the spotlight. The Court refused to enforce a UNCITRAL award for specific performance obtained by Scottish oil and gas company, Hardy Exploration and Production (India) (“HEPI”), against the Government of India (“GoI”) as being contrary to public policy. This case is the latest in a long-running series of oil disputes involving the GoI, which has been involved in arbitrations relating to 22 out of its 310 production sharing contracts between 2001 and 2015.

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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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LCIA Casework Report

17 May 2018 Sadie Buls; Stephen Lacey, England & Wales

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The LCIA released its 2017 Casework Report on 10 April 2018. The Report analyses the statistics from the LCIA 2017 caseload and contains a range of data broken down by sector, contract type and time elapsed since the underlying agreement was reached.

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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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Interim relief available from Australian Courts in disputes subject to arbitration

02 May 2018 Nick Rudge; Hilary Birks; Jamil Diu, Australia; Singapore

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In an unanimous decision, the New South Wales Court of Appeal in Kawasaki Heavy Industries Ltd v Laing O’Rourke Australia Construction Pty Ltd [2017] NSWCA 291 (“Kawasaki v LORAC”) has upheld an order for an interlocutory injunction against the appellant, subject to an order made by an arbitral tribunal (that had not yet been constituted). Both parties had agreed to have all disputes except interlocutory relief determined by international arbitration with seat in Singapore pursuant to the ICC Rules and governed by Singapore law. Allens Partner Nick Rudge, Managing Associate Hilary Birks and Lawyer Jamil Diu report.

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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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Successful challenge on basis of serious irregularity – A tribunal’s failure to deal with contribution claim

13 April 2018 Sadie Buls, England & Wales

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In P v D & Ors [2017] EWHC 3273 (Comm), London’s Commercial Court upheld a challenge to a London Court of International Arbitration award brought under s.68 Arbitration Act 1996 for serious irregularity. The claimant sought remission of the award on the basis that the Tribunal failed to deal with all the issues that were put to it (in particular, it failed to consider the claimant’s contribution claim in the proceedings), thereby causing the claimant substantial injustice. In its judgment, the Court identified a number of errors in the Tribunal’s award and provided guidance on when a LCIA Tribunal can exercise post-award powers to make corrections or issue additional awards under the LCIA Rules.

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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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To reform or to update? Thoughts from the BICCL 16th Annual Review of the UK Arbitration Act

29 March 2018 Stephen Lacey; Sadie Buls, England & Wales

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The British Institute of International and Comparative Law hosted the 16th Annual Review of the Arbitration Act at the end of last year. At the event, speakers discussed whether the Arbitration Act 1996 (“the Act”) is currently in need of reform. The speakers agreed that a complete overhaul of the Act is not required, but all highlighted different areas that might usefully be revisited due to developments in international arbitration in the past two decades.

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OHADA adopts new texts on arbitration and mediation

20 March 2018 Clément Fouchard; Roland Ziade, Africa

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The revised OHADA Uniform Act on Arbitration (the Arbitration Act) and revised Rules on Arbitration of the Joint Court of Justice and Arbitration (the CCJA) (the Rules), as well as the new Uniform Act on Mediation (the Mediation Act), entered into force on 15 March 2018. The fruit of nearly two years of consultations among the 17 Member States of the Organisation for the Harmonization of Corporate Law in Africa (OHADA), these new acts will apply to all proceedings initiated as of such effective date. These acts had all been approved on 23 November 2017 by the OHADA Council of Ministers.

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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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English High Court considers the impact of third party funding in the context of a challenge to an Award

28 February 2018 Mikhail Vishnyakov, England & Wales

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In Progas Energy Limited et al v the Islamic Republic of Pakistan [2018] EWHC 209 (Comm) the English High Court considered the conditions to be imposed on the Claimants who sought to challenge an award.

The Court ordered security for costs against the Claimants notwithstanding the fact that they had the support of a commercial third party funder. However, third party funding did not impact on the Court’s refusal to order, as a condition of the challenge, the security of sums due under the award being challenged.

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An Introduction to Drafting an Arbitration Clause

21 February 2018 Matthew Weiniger, England & Wales

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What should you be asking yourself when beginning to draft an arbitration clause? In this video, Matthew Weiniger QC, Partner and Global Co-Head of International Arbitration, provides an introduction to the topic and some of the main points for consideration.

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Successful section 68 challenge where no opportunity to make submissions on costs

14 February 2018 Joanne Finnegan, England & Wales

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In Oldham v. QBE Insurance (Europe) Ltd [2017] EWHC 3045 (Comm), the Commercial Court allowed a challenge to an arbitral award under section 68 of the Arbitration Act 1996 on grounds of serious irregularity where the applicant had not been given a reasonable opportunity to make submissions as to costs.

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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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Set aside decision highlights important practice point for Requests for Arbitration under LCIA rules

31 January 2018 Stephen Lacey; Sadie Buls; Matthew Weiniger, England & Wales

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In A v B [2017] EWHC 3417 London’s Commercial Court held that the LCIA rules did not permit a Request for Arbitration filed by the claimant to include related claims under two contracts and their associated LCIA arbitration agreements (thereby denying the tribunal jurisdiction). Claimants in LCIA arbitrations may therefore well wish to consider filing multiple requests in like circumstances in future.

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New 2018 DIS Arbitration Rules – a modern, efficient and flexible frame-work for solving disputes

30 January 2018 Dr. Rupert Bellinghausen; Kirstin Schwedt, Germany

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The German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V. – DIS) has thoroughly revised its arbitration rules. The previous DIS Rules, which have been in force since 1998, functioned well in practice and are very popular in international agreements involving German parties. However, particularly in view of the reform projects of other national and international arbitration institutions, it was time to modernise the rules. Thanks to the revision, the DIS is even better positioned in competition with other arbitration institutions and even more so in competition with state courts.

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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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Changes afoot for tribunal secretaries at the LCIA

16 January 2018 Sadie Buls, England & Wales

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The London Court of International Arbitration (“LCIA”) has recently implemented new guidelines concerning the use of tribunal secretaries with effect from 26 October 2017. The Yukos arbitration and recent English case law concerning an LCIA tribunal secretary has raised interest in their role and there is also an increasing trend amongst institutions to provide greater clarity and transparency of their role (of which the LCIA’s guidelines are part).

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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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