Arbitration News

211 Pages·2010·2.3 MB·English

A rbitration News
N ewsletter of the International Bar Association Legal Practice Division
V ol 15 No 1 March 2010
Newsletter Editor
Julie Bédard
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square, New York, 10036-6522
United States
Tel: [phone]
Fax: [phone]
[email protected]
Editorial Board
Philippe Bartsch Schellenberg Wittmer, Geneva
Kyo-Hwa (Liz) Chung Kim & Chang, Seoul
Samaa Haridi Crowell & Moring, New York
Ignacio Minorini Lima M & M Bomchil, Buenos Aires
Lucy Martinez Freshfields Bruckhaus Deringer LLP,
New York
This newsletter is intended to provide general
information regarding recent developments in
international arbitration. The views expressed
are not necessarily those of the International Bar
Association.
Terms and conditions for submission of articles
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the article and the material should be clearly identified and acknowledged within
the text. The article shall not, to the best of the author’s knowledge, contain
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in this issue
In this issue
From the Co-Chairs  5 Development of a Model BIT 46
editor’s note  8 Setting the bar: The Glamis Gold Tribunal
Committee Officers  10 sticks to the 1926 Standard for ‘Minimum
Treatment’ of Foreign Investors 49
Conference reports – Madrid
Moral damages in investment treaty
Arbitration Committee annual dinner 12
arbitration and Desert Line v Yemen 52
Dispute Resolution Scholarship 12
Provisional measures in investment
Options for the resolution of international
disputes – are damages sufficient? 55
commercial disputes, including the
There is nothing more permanent than
drafting of dispute resolution clauses 13
temporary – A critical look at ICSID Article
Sovereign immunity in international
52(5) on stay of enforcement in cases
litigation and arbitration 15
against Argentina 58
Arbitration & litigation: is there
Uruguay may face its first investment
a clear winner? 17
treaty claim 62
Coordinating the chaos – a global
Country developments
update on mass claims: can litigation,
Africa and the Middle East 65–84
arbitration and government remedies
work together? 19 Arbitration in Egypt: the need
for a systemic review
Investment treaty arbitration 21
Khaled El Shalakany
Fast-track arbitration: an idea whose
The Egyptian Evidentiary Law No 25 of
time has come? 24
the year 1968 – applicability and impact
The IBA Guidelines on Conflicts of
on arbitral proceedings under Egyptian
Interest in International Arbitration
Arbitration Law No 27 of the year 1994
– five years later 26
Anne-Marie Storch
Is arbitration failing the reinsurance
Establishment of a new regional
community? 27
arbitration institution – ‘Africa ADR’
Hot topics – Open forum on the review Shane Voigt and Peter Ramsden
of the IBA Rules on the Taking of
Considerations in shifting towards a
Evidence in International Arbitration 29
more inclusive policy to allow non-
New York Convention workshop 31 signatory third parties into arbitration
Conference report – Barcelona in cases where there are multiple parties
and multiple contracts
Barcelona Arbitration Court’s
Essam Al Tamimi and
First Congress of Corporate
Mohammed Abdrabboh
Arbitral Institutions 34
Enforcement of international arbitration
investment arbitration
awards and potential pitfalls – the
The Lisbon Treaty and its implications
Dallah Trust case
for investment protection 35 Khawar Qureshi QC
Investor-state arbitration, court Overview of enforcement of domestic
intervention and the ICSID Convention and foreign arbitral awards under
in Canada 37 UAE Law
Investor-state disputes on the rise in the Karim J Nassif
Arab world 40 The road ahead: the future of
Toto Costruzioni Generali S p A v The arbitration in the UAE
Republic of Lebanon, ICSID Case No Hassan Arab
ARB/07/12, Decision on Jurisdiction,
11 September 2009 42
2  InternatIonal Bar assocIatIon legal PractIce DIvIsIon
in this issue
Asia Pacific 85–112 Court of Appeal denies enforcement of
Overview – Australia to update an ICC award because the defendant was
arbitration laws not a party to the arbitration agreement
Alex Baykitch Matthew Weiniger
and Joanne Greenaway
Australia’s new arbitration regime
enhances efficiency in arbitration Commentary on the CEDR Rules for the
procedures facilitation of settlement in international
Peter Megens arbitration
Jacob Grierson
Enforcement and recognition of foreign
arbitral awards in China is the rule, not The written form requirement for the
the exception recognition of foreign arbitral awards in
Jessica J Fei Germany
Prof Dr Wilhelm Haarmann
A v R: Indemnity costs as the likely price
for any unsuccessful challenge to an New arbitration rules of the German
award in the Hong Kong courts Institution for Arbitration (DIS)
Paul Mitchard QC and Calvin Chan Dr Richard Happ and
Dr Katrin Haberkamm
The unique features of Arbitration Law
in Japan The German Federal Court of Justice
Haig Oghigian returns to the principle that there is no
double exequatur for arbitral awards in
Supreme Court rules on the standard for
Germany
refusing to enforce arbitration awards
Stephan Wilske and Todd J Fox
allegedly obtained by fraud
Byung-Chol (BC) Yoon Supreme Court rules arbitral tribunal not
required to disclose hearing notes
From backstage into the spotlight: the
Eelco Meerdink and Niels Dekker
rise of international arbitration in Korea
Kevin Kim, Sue Hyun Lim An arbitration agreement contained in
and James Morrison a contract does not cover the renewal of
such contract
Pakistani arbitration: towards the
Alexander Gurkov
Model Law
Shahid Jamil Impartiality test for arbitrators
Roman Zykov
Singapore reinforces international
arbitration Pavan S R L v Leng D’Or: The Spanish
Lawrence Teh position on the enforcement of foreign
awards when an action to set aside the
Arbitration conference held in Taipei
award is pending at the seat of the
on commercial and treaty arbitrations
arbitration
Ting Sun
Ana Morales
Europe 113–149
Where there’s smoke, there’s fire?
Arbitrability, due process and public
Proving illegality in international
policy in setting aside proceedings
arbitration
Olivier Caprasse
Noradele Radjai
Has the door been opened for
New ruling by the Swedish Supreme
substantive amendments to arbitral
Court opens the way for judicial review
awards? How a recent decision of the
of arbitrators’ compensation determined
English court erodes the principle of
by arbitration institutions
finality of awards CNH Global N V v
Christer A Holm
PGN Logistics Limited & Ors [2009]
Enforcement of foreign arbitral awards
EWHC 977 Comm
in Turkey
Richard Bamforth and
Bennar Balkaya
Katerina Maidment
The arbitrability of shareholder disputes
Timur Bondaryev and Markian Malskyy
ARBITRATION NEWSLETTER March 2010 3
in this issue
Latin America 150–180 North America 181–209
Can governmental entities submit Vancouver 2010 – At the crossroads
commercial disputes to arbitration? of international Arbitration
An overview of ‘arbitrability’ under Gerry Ghikas, QC
Argentine law What renders an arbitration agreement
Santiago L Capparelli ‘inoperative’: clarification may be
Multi-party and multi-contract coming from the Supreme Court of
international arbitration in the Canada
southern cone Barry Leon and Andrew McDougall
Jose Martinez de Hoz To harmonise or not – that is the
Comverse Inc v American question: Whether ‘tis nobler in Canada
Telecommunications Ltda: Superior to ignore the spirit and words of
Court of Justice denies interim relief the New York Convention or to take
to secure enforcement of foreign arms against a sea of troubles and by
arbitral award pending its recognition legislating end them
Valeria Galindez Babak Barin
Impartiality and independence of the Examining the enforceability of
arbitrator – borrowing and departing arbitration agreements in the context
from judicial practices of bankruptcy proceedings
Gilberto Giusti and Guilherme Sanchez Edna Sussman
‘Impediments’ and ‘suspicions’, Third-party funding update: New York
critical judicial thinking and local court narrowly applies champerty law
arbitral institution initiatives while Florida court holds investors can
Fernando Eduardo Serec and be liable for costs
Eduardo Rabelo Kent Coes James M Hosking and
Recent international arbitration Andreas A Frischknecht
developments in the Chilean courts Aurelis Capital Partners, LP v The
Dyala Jimenez Figueres and Republic of Argentina: A further step
Johanna Klein Kranenberg in our understanding of the Foreign
Five years after the enactment of the Sovereign Immunities Act
Model Law, Chilean courts continue to Baiju S Vasani and Daniel Ginzburg
support international arbitration Increasing efficiency in international
Felipe Ossa and Jacob Stoehr arbitration: use of common law
Colombia’s adoption of the Model Law: dispositive motions
almost there? Nancy M Thevenin and John A Basinger
Nicolas Gamboa Morales Arbitrators have the power to award
The future of international arbitration fees and costs notwithstanding
in Ecuador: the boomerang effect contractual provision providing that
Cesar Coronel-Jones each party bear its own expenses
Phoebe A Wilkinson
The autonomy of the additional award
and Thomas N Pieper
Leonel Pereznieto Castro
and James A Graham New York’s Federal Court of Appeals
addresses jurisdictional requirements
Federal decisions support arbitration
for recognition and enforcement of
Eduardo Siqueiros T
New York Convention Awards
The new Peruvian Arbitration Law of
Ank Santens and Damien Nyer
2008
Manifest disregard of the law after Hall
Carlos A Soto
Street Associates: considerations in the
The arbitration pendulum in Venezuela
enforcement of international arbitration
Fulvio Italiani and Jose H Frias
awards rendered in the United States
Arbitration and the judiciary in Bruce G Paulsen and Jeffrey M Dine
Venezuela
Pedro Luis Planchart Pocaterra
4  InternatIonal Bar assocIatIon legal PractIce DIvIsIon
FrOM the CO-Chairs
Judith Gill QC
looking forward to an
allen & overy llP,
london
judith.gill@ exciting 2010
allenovery.com
Guido santiago 
a
tawil s we initiate a new year, we wish to dedicated sessions addressed current
extend to our committee members issues in investment treaty arbitration,
M & M Bomchil,
and colleagues our best wishes for the relevance of fast-track arbitration
Buenos aires,
2010. After a strong end to 2009 in resolving commercial disputes, the
argentina
with the IBA Annual Conference that took status of the IBA Guidelines on Conflicts
guido.tawil@
place in Madrid, Spain from 4-9 October of Interest, important developments in
bomchil.com 2009 and the 5-6 December 2009 conference arbitral practice (including the review of
co-hosted with the ICC International Court of the IBA Rules on the Taking of Evidence
Arbitration in New Delhi, India, we are once in International Commercial Arbitration)
again off to a very exciting start. and the New York Convention workshop
with updates and country reports on the
global implementation of the New York
13th annual iBa international arbitration 
Convention.
Day, London
The Arbitration Committee also jointly
By the time that you receive this newsletter, organised with other IBA Committees
our Committee will be holding its 13th and Fora five additional sessions in which
Annual IBA International Arbitration Day we explored options for the resolution
on 5 March 2010 at the Lancaster London of international commercial disputes,
Hotel in London, England. Under the theme including the drafting of dispute resolution
‘The agreement to arbitrate: what did you clauses; sovereign immunity in international
bargain for?’, distinguished practitioners and litigation and arbitration; government and
academics will address a host of issues such judicial responses to transnational remedies
as essential and non-essential elements of the for mass claims; the interaction between
arbitration agreement, pathological clauses, arbitration and litigation; and whether
states’ consent to arbitrate and the impact arbitration is failing the reinsurance
of administrative law, whether consent can industry.
be implied, and courts’ interference with As has become a tradition, several parallel
agreements to arbitrate. The event will also arbitration events took place during the IBA
include a lively debate on the issue of whether Annual Conference with the sponsorship,
states are getting what they bargained for assistance or participation of members of
in treaty arbitration and a novel interview your Committee. Among those, we would like
format, in which attendees will meet three to note the very successful meeting hosted
senior figures in the world of international in cooperation with the Madrid Bar and
arbitration. We expect our London the Spanish Arbitration Club on 7 October
International Arbitration Day to be a unique 2009. Among the social events, many of us
and memorable event and look forward to will always remember our Committee dinner
seeing many of you there. at the Pedro Larrumbe restaurant, where
the Tuna of the Universidad Complutense
de Madrid and our departing chair, Pierre
Madrid annual Conference
Bienvenu, delighted us with their musical
With a record attendance of more than 5,600 talents.
lawyers and legal professionals from around The Madrid Annual Conference
the world, the IBA Annual Conference proved evidenced once more the relevance of
once again to be an excellent opportunity personal exchanges and interaction. We
to get together and debate relevant issues would like to extend our special thanks to
for arbitration practitioners. More than all the Spanish members of our Committee,
650 members of the Arbitration Committee headed by our departing Vice-Chair Juan
attended the conference, the largest Fernández Armesto, for their hospitality
representation of any committee in Madrid. and hard work, elements that once again
Your Committee hosted ten sessions proved crucial in order to achieve such
during the IBA Annual Conference. Five success.
ARBITRATION NEWSLETTER March 2010 5
FrOM the CO-Chairs
new Delhi Conference Seoul, Korea. The event will take place on
4 March 2011. Further information on this
At the beginning of December, Delhi played
conference will be available shortly on the
host to a very well-attended conference
IBA website.
entitled ‘Arbitration in the 21st Century:
Making it work’. The conference was co-
presented by your Committee and the ICC Other conferences
International Court of Arbitration, with the
Planning of other conferences is underway.
support of the IBA Asia Pacific Regional
The Arbitration Committee will be hosting
Forum and ICC India.
an arbitration conference together with the
With over 180 participants, the timing,
Mexican Bar and the ICC International Court
topic and location of the conference attracted
of Arbitration on current issues in investment
an impressive array of speakers and attendees
treaty arbitration in Latin America to be held
from across the world and an atmosphere
in Mexico City on 14 June 2010.
of congenial, healthy and learned debate
Your Committee has also teamed up with
prevailed. Speakers included the Chief
the Section on Energy, Environment, Natural
Justice of India and other senior judges and
Resources and Infrastructure Law (SEERIL)
advocates of India and from around the
in order to support a regional conference
world.
in Lagos, Nigeria on 24-25 June 2010,
entitled ‘Resolving International Energy and
Plans for Vancouver and seoul Infrastructure Disputes’.
Finally, the Arbitration Committee will
Planning for the next IBA Annual
be assisting the Milan Arbitral Chamber in
Conference, to be held on 3-8 October 2010
hosting a conference that will take place on
in Vancouver, Canada is now well underway.
19 November 2010, in Milan, Italy on the
Your Committee will be hosting, exclusively or
topic of interaction between arbitration and
jointly with other IBA Committee and Fora,
the courts. Be sure to monitor the IBA website
nine sessions.
for further information on these events.
Those sessions will include a Dispute
Resolution Section session on ‘The art
and science of persuasion’, dedicated to review of the iBa rules of evidence
examining what it takes and how persuasion
Since their adoption in 1999, the IBA Rules
should be used in international dispute
on the Taking of Evidence in International
resolution; a session focused on the resolution
Commercial Arbitration (‘the IBA Rules’)
of disputes arising out of M & A transactions,
have gained wide acceptance and support
to be jointly held with the IBA Corporate and
within the international arbitral community,
M & A Committee and the IBA Litigation
becoming one of the Arbitration Committee’s
Committee; a session on Arbitration and
major achievements.
Insolvency jointly hosted with the IBA Section
After almost ten years of use, some minor
on Insolvency, Restructuring and Creditors’
adjustments needed to be made in order for
Rights (SIRC); and a joint session with the
the IBA Rules to continue reflecting best
IBA North American Regional Forum
practices and understandings in international
on ‘Third parties in arbitration. What are
arbitration.
the limits?’ that will address the always
Precisely because of their success and
relevant topic of third party intervention,
wide acceptance, any change in the IBA
with particular focus on NGOs, First
Rules has to be undertaken with particular
Nations and the increasing demands for
care. For such purpose, three years ago your
greater transparency and access to arbitral
Committee created a Rules of Evidence
proceedings.
Review Subcommittee entrusted with the task
Your Committee’s dedicated sessions
of analysing the IBA Rules and proposing
will focus on investment treaty arbitration,
eventual revisions.
hot topics in international arbitration, our
The Subcommittee submitted its proposed
traditional New York Convention workshop,
revisions in November 2009, and after minor
a session revisiting established practices
adjustments by the Arbitration Committee
of arbitral tribunals and a debate on the
leadership, the draft revised IBA Rules
ideology of international arbitration.
were circulated for public consultation last
The Arbitration Committee will be hosting
December.
its 14th International Arbitration Day in
The comments received were duly
6  InternatIonal Bar assocIatIon legal PractIce DIvIsIon
FrOM the CO-Chairs
considered and the resulting document The task force was chaired by Paul Friedland
has been submitted for approval of the IBA and was composed of Doak Bishop, Karim Hafez,
Council. You will find a copy of this document Adriano Chavez Juca Rolim, Carole Malinvaud,
on your Committee’s web page. Sundaresh Menon, Jean Claude Najar, William
Members of the Subcommittee were Park, Anne-Véronique Schlaepfer, Eduardo
Richard H Kreindler (Chair), David Arias, Silva Romero, Stephen E Smith and Matthew
Mark C Baker, Pierre Bienvenu, Antonias Weiniger. We thank each of them very much for
Dimolitsa, Paul Friedland, Nicolás Gamboa, their hard work in this respect.
Judith Gill QC, Peter Heckel, Hilmar We extend special thanks to Julie Bédard,
Raeschke-Kessler, Stephen Jagusch, Xiang the Committee’s new Publications and
Ji, Kap-You (Kevin) Kim, Toby T Landau Newsletter Editor for accepting the task
QC, Alexis Mourre, David W Rivkin, Georg of coordinating this publication, so well
von Segesser, Essam Al Tamimi, Guido S performed by her predecessor, Larry Schaner.
Tawil, Hiroyuki Tezuka, Ariel Ye and Amy F This excellent issue confirms that this
Cohen (secretary). We would like to express responsibility is in good hands.
our gratitude to all the members of the As this year’s Co-Chairs, we would like to
Subcommittee and of the original Working express our very special thanks to our out-
Party that assisted them in this task. going Co-Chair, Pierre Bienvenu, for his
extraordinary contributions to the Committee
over the past years. We also are very grateful
Guidelines for Drafting international 
to the other officers who completed their
arbitration Clauses
terms in 2009. We thank Dushyant Dave, Juan
As mentioned in our March 2009 newsletter, Fernández-Armesto, Kaj Hobér, Ilya Nikiforov
your Committee established in late 2008 and Julius Ejikonye for their invaluable
a task force in order to consider and, support and welcome the new officers that
as the case may be, prepare guidelines have joined us this year. A full list of the
on arbitration agreements for use by a current officers of your Committee can be
non-expert audience. The task force has found on page eight.
completed its work by submitting proposed We send our best wishes to all members for
Guidelines on Drafting International a very happy and prosperous 2010 and look
Arbitration Clauses, which are currently forward to seeing many of you in early March
being reviewed by your Committee. in London.
Past chairs and co-chairs of
the arbitration committee
2007–2009 2002–2003
Pierre Bienvenu Henri Alvarez
2006–2008 2001–2002
Sally Harpole Bernardo Cremades
2005–2007 1998–2001
Audley Sheppard David W Rivkin
2004–2006 1995–1998
Claus Von Wobeser Wolfgang Kuhn
2003–2005 1992–1995
Dominique Brown-Berset Philippe Nouel
2002–2004 1992–1994
Bernard Hanotiau David St John Sutton
ARBITRATION NEWSLETTER March 2010 7
eDitOr’s nOte
Julie Bédard
onwards and upwards
skadden, arps, slate,
Meagher & Flom llP,
new York
F julie.bedard@
or all the trouble in the world, a glance institutions including the new CEDR Rules for
at the table of contents of this new the Facilitation of Settlement in International skadden.com
decade’s first edition of IBA Arbitration Arbitration; new arbitration rules from the
News shows that many international German Institution for Arbitration (DIS); and
arbitration practitioners and arbitrators the establishment of Africa ADR, a brand new
give their favourite subjects a clean bill of regional arbitration institution.
health. I hope you will forgive us if the titles
of several articles echo one another – we
a word of caution
tried to avoid the repetition of ‘positive
developments’, without much success. Given Several articles in this edition warn
the record length of this issue, which features international arbitration practitioners of traps
sixty-eight articles, I will start by thanking the for the unwary including the controversial
distinguished contributors from thirty-four denial of interim relief to secure the
countries throughout the world for sharing enforcement of an award in Brazil; the ability
their knowledge and thoughts. of state entities to submit to arbitration in
Argentina; the possibility of a court order
that an arbitral tribunal disclose the informal
new section on investment arbitration
notes of its secretary; the price to pay for
I draw your attention to the new section of an unsuccessful challenge to an award in
IBA Arbitration News on investment arbitration, Hong Kong; a US court decision permitting
which deals with the Lisbon Treaty and its arbitrators to award fees and costs despite
implications for investment protection; contractual provisions to the contrary; a new
Canada’s pending ratification of the ICSID Swedish ruling that allows judicial review of
Convention; the rise of investor-state disputes compensation for arbitrators as determined
in the Arab world; the jurisdictional ruling by arbitral institutions; an English decision
against Lebanon involving the attribution that may erode the principle of finality of
of state entities’ actions to the state; the awards and drafting to avoid the possibility
Colombian model bilateral investment that an arbitral award will be subject to appeal
treaty; the Glamis Gold Tribunal ruling on the on points of law in English courts.
‘minimum treatment’ of foreign investors;
the award of moral damages and provisional
the fundamentals
measures; the stay of enforcement of awards
under Article 52(5) of the ICSID Convention; Other core issues discussed in this edition
and the possibility of the first treaty claim continue to be salient for the international
against Uruguay. arbitration community including the
independence and impartiality of arbitrators;
questions related to non-signatories to an
issues of the day
arbitration agreement; multi-party and
A variety of ‘hot topics’ in the arbitration multi-contract arbitration in Latin-America;
world are addressed in this issue including the the scope of the arbitration agreement; state
impact of bankruptcy on arbitration; third- immunity; tools to increase efficiency in
party funding; the arbitrability of shareholder international arbitration; potential pitfalls
disputes; supplemental awards; and proving a related to enforcement of arbitral awards;
claim of illegality in international arbitration. the grounds for judicial review of awards; the
There is arbitration-related news from standard for refusing to enforce an award
several jurisdictions including favourable allegedly obtained by fraud; due process and
enforcement of foreign arbitral awards in public policy in proceedings to set aside an
China; Australia’s reform of its arbitration award; the avoidance of double exequatur;
laws; suggestions for improved arbitration law and enforcement in the face of annulment
in Egypt; a new arbitration law in Pakistan; proceedings.
and the way forward for enforcement of
awards in the United Arab Emirates. Some
contributors also bring news from arbitration
8  InternatIonal Bar assocIatIon legal PractIce DIvIsIon
eDitOr’s nOte
Look to the future European front from Geneva, Switzerland,
Philippe Bärtsch (Schellenberg Wittmer);
One contributor looks ahead to the IBA
organising the collection of Asian articles
Annual Conference in Vancouver, in October
from Seoul, Korea, Liz Kyo-Hwa Chung (Kim
2010. Others report on, among other things,
& Chang); marshalling the North American
the modern and stable arbitration regime in
articles from New York, USA, Lucy Martinez
South Korea; the enduring support of Chilean
(Freshfields Bruckhaus Deringer LLP);
courts in favour of international arbitration;
orchestrating the Latin American production
Singapore’s continued and now long-standing
from Buenos Aires, Argentina, Ignacio
promotion of international arbitration; a
Minorini Lima (M&M Bomchil); and steering
promising regime in Peru based on its 2008
from New York our ambitions in the Middle
arbitration law; increasing judicial support
East – where the IBA will for the first time
for arbitration in Mexico; and Colombia
host its Annual Conference in 2011 – Samaa
getting closer to adoption of the Model Law.
Haridi (Crowell & Moring, New York). We
This issue also looks at the rise and fall of
are grateful to Amanda Raymond Kalantirsky,
arbitration in Ecuador and Venezuela.
Skadden, Arps, Slate, Meagher & Flom LLP,
for her able support to the entire team, and
the team to Andrew Kavesh, Legal Assistant, for his
vigilance.
Allow me to introduce the new editorial team
of IBA Arbitration News: Coordinating on the
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