Waiving the Right to Arbitrate in the United States: Should the Prejudice Requirement be Discarded?

by Jack Wright Nelson

Chinese University of Hong Kong, Faculty of Law,
for YSIAC

The Sixth Circuit Court of Appeals recently ordered a fund management committee (‘SBC’) to arbitrate its dispute with Navistar International (‘Navistar’) – at Navistar’s request – despite the fact that Navistar refused SBC’s own request for arbitration, ignored SBC’s formal notice of arbitration, and then litigated SBC’s claim in court for over a year (Art Shy v Navistar International Corporation, 781 F.3d 820, 2005).

This decision confirms the uncertain state of U.S. law regarding waiving the right to arbitrate. The Federal Arbitration Act (‘FAA’) provides that a court shall stay a court action commenced in the face of a valid arbitration agreement provided that “the applicant for the stay is not in default in proceeding with such arbitration” (9 U.S.C. § 3).

The majority of U.S. circuit courts interpret the FAA as requiring that the party seeking to compel arbitration must not have caused its opponent “prejudice.” This most commonly arises in the form of undue cost or delay. Yet the amount of prejudice required differs greatly from circuit to circuit. The Sixth Circuit’s decision in Art Shy illustrates the difficulties in applying the prejudice standard, and raises the question of whether arbitration waiver should require prejudice at all.

A dispute over data

The dispute between SBC and Navistar arose in 2009 over data provided by Navistar to SBC under an agreement that contained an arbitration clause (‘the Agreement’). Negotiations continued until August 2009 when SBC first requested that Navistar engage in arbitration to resolve the dispute. Navistar demurred, causing SBC to send a formal notice of dispute to Navistar in May 2010. Navistar did not respond. Further requests for information from SBC, and objections by Navistar continued throughout 2011.

By March 2012 SBC had decided to resort to litigation. It sought to intervene in on-going litigation against Navistar in the District Court for the Southern District of Ohio. This litigation had been commenced by the beneficiaries of the fund that SBC managed. SBC’s motion to intervene alleged that Navistar had withheld data that SBC was entitled to under the Agreement. Navistar resisted SBC’s motion, arguing that SBC should commence an independent action. The District Court allowed SBC’s intervention in February 2013, and SBC duly filed its complaint soon thereafter.

In March 2013 Navistar filed its response to SBC’s complaint. The response obliquely referred to the Agreement’s dispute resolution clause. It did not, however, mention the word ‘arbitration,’ not did it allege that the clause was binding. The District Court duly rejected Navistar’s arguments, ordering Navistar to provide the information that SBC sought. In light of the information received from Navistar, SBC amended its complaint in August 2013. Navistar then moved to dismiss the amended complaint on the grounds that it was subject to the Agreement’s arbitration clause.

In March 2014 the District Court found that Navistar had waived its right to arbitrate under the Agreement through its behaviour before and during the litigation. Specifically, the District Court emphasised that Navistar had ignored SBC’s initial request for arbitration; failed to respond to SBC’s formal dispute notice; and failed to raise arbitration as a defence to SBC’s motion to intervene. Navistar appealed.

The Sixth Circuit, which covers Michigan, Ohio, Kentucky and Tennessee, allowed Navistar’s appeal. The majority held that none of Navistar’s actions, taken individually or as a whole, amounted to waiver of its right to arbitrate under the Agreement.

Addressing the District Court’s concerns, the majority explained Navistar’s silence in respect of SBC’s request for arbitration, and subsequent formal notice of dispute, was a mere litigation strategy: an attempt to “stare down” SBC. To the extent that Navistar’s delay caused prejudice to SBC, the majority found that SBC was at least partly to blame, reasoning that SBC should have sought a court order compelling Navistar to arbitrate.

The majority also acknowledged that Navistar did not raise the arbitration clause in a timely manner, and that it waited until after its first substantive submission in the District Court litigation to do so. However, the majority held that Navistar’s failure to raise the arbitration clause while resisting SBC’s intervention was reasonable, as Navistar could have raised the arbitration clause at the beginning of any fresh litigation between it and SBC.

Should waiver require prejudice?

The decision in Art Shy raises many issues about the application of the prejudice standard. Most notably, the majority failed to consider at all the prejudicial effect on SBC of Navistar’s failure to raise arbitration in a timely manner; namely, three additional procedural skirmishes and a delay of 16 months. If this delay and expense did not sufficiently prejudice SBC so as to amount to waiver by Navistar, it is difficult to imagine the level of prejudice that would. Yet, despite the flaws in this decision, the bigger question remains whether waiver should require prejudice at all.

Increasing the requirements for a party to waive its right to arbitrate may be viewed as supportive of arbitration in the United States. But reading extra requirements, such as prejudice, into the FAA does not support arbitration. Rather, it creates uncertainty that is anathema to the efficient resolution of disputes.

First, the prejudice requirement encourages parties to try to litigate disputes first. If the litigation does not appear to be going their way, they can then resort to arbitration. This reinforces out-dated notions of arbitration as a subsidiary form of dispute resolution, to be used only when litigation is not possible or not desirable. Further, if an opposing party challenges recourse to arbitration, the varying prejudice standards applied across (and within) U.S. circuit courts give parties ample grounds on which to allege waiver.

Second, the prejudice standard imposes systemic costs. The desirability of the U.S. as an arbitral seat is not helped by a non-uniform interpretation of the FAA. Yet introducing a normative requirement such as prejudice into the FAA can only serve to fragment arbitration law across U.S. jurisdictions.

Ultimately, the prospect of waiving their right to arbitrate should compel parties to choose a forum at the earliest possible stage. Allowing a party to participate in litigation until they cause prejudice to an opposing party only serves to create expense and delay for all parties.

Conclusion

The Art Shy decision demonstrates that even pro-active plaintiffs who raise arbitration at an early stage cannot always avoid a subsequent, mid-litigation change of forum. More generally, the decision illustrates how the prejudice standard creates uncertainty and hinders arbitration. For these reasons, it should be discarded.


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French Court of Cassation Confirms Invalidity of Unilateral (Asymmetrical) Jurisdiction Clauses

by Deyan Draguiev

On 25 March 2015 the Court of Cassation of France handed down a new decision dealing with the so called “unilateral”, “optional”, “hybrid”, and “asymmetrical” jurisdiction clauses giving choice to one contractual party where to bring action against the other. Earlier in 2012, the same court issued the much discussed Rothschild decision which stated that such jurisdiction clauses are to be deemed invalid as per French law and implicitly supported a line of case law from other countries which treated the issue in the same manner. Now, with its newest judgment, the Court of Cassation in fact confirmed its previous case law and even widened its scope.

The unilateral jurisdiction clauses (see generally D. Draguiev, Unilateral Jurisdiction Clauses: The Case for Invalidity, Severability or Enforceability (2014) 31 Journal of International Arbitration Issue 1, pp. 19–45) are widely used in a number of business sectors, primarily in credit and financing agreements. Such clauses provide that one of the parties to the agreement is granted an option to choose the forum where the dispute between the parties shall be decided, while the other party is entitled to bring action only in a particularly specified forum (e.g. particular arbitral institution or national court). The option is usually granted to the financing party which is entitled to choose to sue in a forum different from the one available to the borrower, and usually such clauses are drafted so that the financing party can bring its claim in any other jurisdiction. The rationale behind the architecture of a unilateral clause is that the lender can pursue the borrower and/or its assets in any jurisdiction it deems appropriate without restriction while the borrower may commence proceedings only in a particular forum.

Some jurisdictions see such clauses as fitting squarely into party autonomy and accept them without much ado. English courts are a good example in this regard (e.g. Mauritius Commercial Bank Ltd. v. Hestia Holdings Ltd. & Sujana Universal Industries Ltd. [2013] EWHC 1328). A number of other jurisdictions have, however, voiced concerns about unilateral clauses (e.g. France, Russia, Bulgaria, etc.). The main objection against unilateral clauses is that they contravene the basic procedural principle of equality of parties. Indeed, one party to the clause is granted under the agreement better opportunities to bring claims against the other. Some jurisdictions consider that this is permitted as it is based on consent while other deem this contrary to the balance between the parties.

The 2012 judgment of the Court of Cassation of France ruled in the case of Mme ‘X’ v. Banque Privée Edmond de Rothschild (the Rothschild case) that a unilateral clause is invalid. The agreement between a French national (natural person), Mme X, and Banque Privée Edmond de Rothschild provided that the disputes shall be referred exclusively to Luxembourg courts while Mme X decided to bring claim in a French court arguing that the jurisdiction clause was invalid. The Court of Cassation confirmed this. A number of reasons support the conclusion of the French court, including that the clause to opt where to bring claim is “potestative” – such clauses are triggered by a party’s own conduct, i.e. are discretionary and dependent only upon the party’s own choice. It was the bank’s choice where to bring claim and this was found “potestative” since the bank could unilaterally impose its forum selection on the lender. Furthermore, the dispute arose in a consumer scenario which was not specifically noted by the Court of Cassation but yet it might have had importance as consumers are treated as “weaker” and “protected” parties.

The judgment of 25 March 2015 concerned a French company and a Swiss bank (Credit Suisse). Under the jurisdiction clause, the French company was restricted in bringing action to the courts in Zurich while the French company could sue in any other competent court. The French claimant commenced proceedings in France in spite of the express forum selection. The forum selection (prorogation) clause was governed by the 2007 Lugano Convention, because the cross-border dispute involved a Swiss party. The main question turned to be: would Art. 23 of the Lugano Convention accommodate such unilateral jurisdiction clause? If so, the claim should have been brought in Switzerland, as this was what the parties chose; otherwise, granted that the clause could be found invalid, there was no prorogation under Art. 23 of the Lugano Convention and instead the default jurisdictional rules should apply. The Paris Court of Appeal held that Art. 23 of the Lugano Convention should apply and that there was express choice of exclusive court jurisdiction of Zurich courts, therefore French courts lacked jurisdiction. The Court of Cassation reversed.

The Court of Cassation succinctly commented that the clause providing for a right of the bank to commence proceedings before “any other competent court” was not based on objective elements and could not meet the requirement for legal certainty and predictability which jurisdiction clauses under Art. 23 of the 2007 Lugano Convention should have. The judgment does not speak further of the nature of the “objective elements” but it implicitly refers to the case law of the Court of Justice of the European Union (CJEU). In a judgment in the case C-387/98 the CJEU emphasised that the jurisdiction (prorogation) clause should state the objective factors on the basis of which the parties have agreed to choose a court or the courts to which they wish to submit disputes which have arisen or which may arise between them. Both Art. 23 of the Brussels I Regulation, now Art. 25 of the Brussels Ibis Regulation, and Art. 23 of the Lugano Convention are part of a single complex jurisdiction regime and are underpinned by one and the same principle: the parties should have sound understanding in which court they should appear if a dispute arises. This is even more important when the dispute has cross-border reach so there should be greater certainty in which countries the competent courts are located. The CJEU sought to imply that a valid jurisdiction clause has to provide sufficiently clear and precise hallmarks and criteria which courts the parties envision as competent under their disputes. If this is placed within the context of the Credit Suisse judgment, this might mean that a clause stating that a claim can be brought in “any competent court” (i.e. effectively everywhere under the respective applicable jurisdictional requirements) is too wide, too uncertain, and too imprecise. This would, then, contravene the requirement for predictability.

There are a number of implications arising out of the Credit Suisse Court of Cassation decision. First, it seems that reliance on unilateral jurisdiction clauses is far from providing certainty. The Rothschild judgment was widely criticised and this gave the impression that it is by no means final and should be revised. There were decisions in favour of unilateral clauses (e.g. in Spain: Decision of 18 Oct. 2013 of Court of Appeal of Madrid) after the ruling in Rothschild and this further supported the view that the reasoning in Rothschild is flawed and isolated. Instead, it was upheld. Second, the judgment of 25 March 2015, unlike Rothschild, deals with a purely commercial dispute in business-to-business settings. Third, the Credit Suisse judgment widens the effect of Rothschild. Typically such a clause has the following structure: one part of it provides for exclusive dispute settlement in a particular arbitral institution or national court if the claim is brought by one of the parties; the second part provides that the other party is not bound by the exclusivity and might, at its own preference, bring suit in any other court having jurisdiction to hear the matter. The very rationale of a unilateral clause is that one of the parties safeguards that it will be able to commence proceedings in any country where it considers that the debtor is located and/or has assets. If the second part of the clause is curtailed, the possibility that a lender traces and attempts to enforce against debtor’s assets might be sufficiently diminished.

The main argument in various decisions against unilateral clauses was that the parties under them are not balanced in their rights. Now, the new Court of Cassation judgment provides a completely new argument against unilateral jurisdiction clauses: that they are not sufficiently precise and predictable. What the Credit Suisse decision suggests is that the sweeping wording of a jurisdiction clause in its second part, e.g. “any court shall be competent”, does not meet the requirements for validity of the clause and renders it invalid. This puts a significant question mark as to how to draft a unilateral clause which aims to safeguard a lender or another “stronger” party and at the same time avoid including wide-reaching and undetermined phrases such as “any court”, etc. This has the potential to bring confusion to the entire area of law concerning prorogation clauses as well.


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Roundtable Report : “Les femmes dans l’arbitrage, Est-ce si différent?”

by Lara Elborno

Winston & Strawn LLP

The views expressed in this article are those of the author alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or the author’s law firm.

In previous posts, contributors have addressed the lack of gender diversity in arbitration. One post discussed the low percentage of women arbitrators in commercial and investment arbitration as well as the inconsistency between the percentage of female law graduates compared to female arbitrators and partners on international arbitration teams. Another blog shed light on the issue from the Brazilian context, and the first Kluwer Arbitration blog poll surveyed its readership for their views on the main factors contributing to the underrepresentation of women in arbitration.

For the purpose of this present post, I will explore some of the issues that were the focus of a recent roundtable on women in arbitration. On 5 May 2015, the Université de Versailles and its Master Arbitrage et Commerce International in cooperation with the ICC and ArbitralWomen organized the roundtable, “Les femmes dans l’arbitrage, est-ce si different?” to contribute to the growing discussions on gender equality within the arbitral community. Taking place at the ICC, more than 75 participants, both women and men, attended the event, which was moderated by Sandrine Clavel and featured leading Paris-based women practitioners and academics including Claire Bouglé-Le Roux, Caroline Duclercq, Laurence Kiffer, Carole Malinvaud, and Mirèze Philippe.

The roundtable commenced with engaging observations on the role of women arbitrators historically. Claire Bouglé-Le Roux recalled that women arbitrators were prohibited under Roman Law but permitted under Canon Law in limited circumstances (often familial disputes). At the time, women were seen as possessing distinct qualities such as favoring “peace” which made them effective arbitrators in those cases.

The discussion quickly evolved to encompass contemporary issues such as the role of women in arbitral institutions. Mirèze Philippe, Special Counsel at the ICC, mentioned that the first time a woman was appointed Counsel at the ICC was in 1995 – a double evolution as it was also around that time when men would start to hold the position of Deputy Counsel (previously reserved only for women). Further, in the 1990s, there was only one woman member of the ICC International Court of Arbitration whereas today 23 out of the 130 members of the Court are women (Ms. Philippe will provide historical facts and information in the TDM issue to be published as indicated below). These numbers show that while we are certainly far from equal representation between genders, progress is being made slowly, with some aspects developing more quickly than others. Ms. Philippe invited the audience to consider, for example, that today the majority of arbitral institutions are led by women (see the interviews with women leaders in ADR in ArbitralWomen Newsletters).

Panelists also invoked the recent gender equality laws in France which may serve to increase the number of women appointed as arbitrators or as lead counsel in arbitrations. One of the laws, « la Loi du 27 janvier 2011 relative à la représentation équilibrée des femmes et des hommes au sein des conseils d’administration et de surveillance et à l’égalité professionnelle » also known as la Loi Copé-Zimmermann seeks to establish quotas (at least 40% women by January 2017) for the boards of directors and supervisory boards of companies employing over 250 people and generating more than €50 million in turnover.

It is also part of a larger trend – Germany recently introduced similar quotas (at least 30% women by 2016) for the boards of large companies. In 2003, Norway became the first country in the world to impose gender quotas for the boards of publicly listed companies. Commentators in the United States have applauded these initiatives and considered whether the U.S. should follow in Europe’s footsteps.

In my view, there are a couple of reasons why legislation like this could be helpful in increasing the number of women appointed as arbitrator or as lead counsel. A previous entry pointed to the tendency of parties to appoint arbitrators “in their own image” as one of the reasons why women are underrepresented in this field. Thus, in the short term, if women become better represented within the leadership positions of companies, they may be able to encourage the appointment of qualified women arbitrators. In the long run, gender parity within the leadership structures of companies would likely create a cultural shift and a more diverse corporate culture overall. This could in turn lead more of the male leadership to break the cycle of appointing mostly male arbitrators in favor of expanding the pool of arbitrators. In this way, the quotas are not only an end goal but also a means to inspire the progression of the corporate culture towards favoring diversity.

Increasing the visibility of women in arbitration will require a pro-active approach from the entire arbitration community. Attorneys and institutions alike should actively seek out competent women arbitrators. Seasoned practitioners should consider mentoring the younger generation of female attorneys in order to simplify their access to the profession and to promote their sustained career development. On the flip side, as young female arbitration attorneys, our own self-marketing becomes an indispensable tool in a profession where success is largely driven by the visibility of our work, quality connections, and a good reputation.

In the meantime, the dialogue continues. This summer, TDM in collaboration with ArbitralWomen will publish an issue on diversity in arbitration, and public forums like this roundtable continue to flourish. We are a far cry from the days when the eminent jurists would ask “can a woman arbitrate?” but we have not reached the point in time where talented women arbitration practitioners are as visible as their male counterparts. The work of raising awareness started mainly by ArbitralWomen years ago must continue through conscious efforts by all to make the arbitral community as diverse as its cases.


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Investing in Cryptocurrencies under the Existing Investment Arbitration Regime

by Paata Simsive

Uppsala University Law School

Over the past few years, the business community has discovered a new form of investment: this new type of capital formation is broadly known as investment in cryptocurrencies. The capital interest in these investments involves large financial institutions such as investment banks, rating services, assets management and consultancy agencies. According to the CoinDesk, the short list of large financial institutions involved in cryptocurrencies’ include: UBS, JPMorgan, Goldman Sachs, Fitch Ratings, Fortress Investment (Pantera) and Silicon Valley. Τhe total amount of investments in the last two years exceeded hundreds of millions of USD. However, despite this growing interest, the legal nature as well as the regulatory framework governing the cryptocurrencies is still unclear.

The first legal uncertainty, at this point in time, is that it is not definite whether economic activities of this newly developed industry can be classified as an ‘investment’ under existing regime at all. Such characterization could be possible under the broad definition of an ‘investment’, provided by the majority of investment treaties. On the other hand, in case where the tribunals follow the so-called ‘double keyhole approach’ taking into account the ‘Salini’ or ‘Salini like’ test, it will be more difficult to argue that investments in cryptocurrencies constitute a form of investment. The weakest point of cryptocurrencies, out of five criteria of Salini test, is the one that refers to ‘contribution to economic development of the host country’. Nevertheless, while this issue is a matter of a separate research, this post is based on the assumption that investments in cryptocurrencies could be characterized as ‘investments’ under the international investment agreements. Also, for the purposes of this post, the term ‘investor’ refers to a legal or natural person who develops certain facilities in the territory of another state in order to get involved in the process of generating cryptocurrencies.

When it comes to regulatory framework, the regulatory policy adopted in the United States offers the most illustrative example of the complexity of the subject. In the past few years, the majority of investments in cryptocurrencies have been made in that country for two main reasons. First, the US developed the relevant regulations and thus provided legal certainty for the treatment of these particular investments. The second reason is that the US Courts, in a number of cases, treated the cryptocurrencies as a form of money. On July 23, 2013, the United States District Court of Texas rendered the first decision (Securities and Exchange Commission v. Trendon T. Shavers and Bitcoin Savings and Trust, Memorandum Opinion Regarding the Court’s Subject Matter Jurisdiction, Case No. 4:13–CV-416) concerning the key issue related to the nature and the legal classification of cryptocurrencies. The Court characterized them as ‘currency or some form of money’. The above position was confirmed by numerous subsequent decisions of the US Courts (see the most recent one, United States District Court, Southern District of New York, United States of America vs. Robert m. Faiella, “BTCKing” and Charlie Shrem, Memorandum Order, 14-cr-243, JSR).

The approach adopted by the US Courts was confirmed by the Financial Crimes Enforcement Network (FinCEN) in early 2013, which issued an interpretive guidance clarifying that cryptocurrencies are a ‘form of money’, and thus any entity operating in money services business (‘MSB’) is subject to FinCEN’s registration, reporting and recordkeeping regulations. However, about one year after this regulatory measure, on March 25, 2014, another authority of the same Country, the Internal Revenue Service (‘IRS’) issued a notice declaring that it will treat cryptocurrencies as property rather than currency for federal tax purposes. For the foreign investor, as defined above, this means different regime of taxation with considerably negative financial effects. In the words of MTD v. Chile tribunal (ICSID Case no. ARB/01/7, Decision on Annulment, March 21, 2007), two different arms of the same state had acted in contradictory manners, setting up different standards for the same subject in a different time frame.

It is an established fact that every investor makes decisions based on the assessment of risks and profits. In the case of cryptocurrencies, in which the geographical and other criteria have no importance, the foreign countries’ legislation seems to be the only decisive factor for the investor. Under the existing investment arbitration regime, laws of a state may be attractive for the investors to make their investments or otherwise, in the words of Total S.A. v. Argentina tribunal, be ‘inherently prospective’ (ICSID Case no. ARB/04/01, Decision on Liability, 27 December 2010, para. 99). But when it comes to investing in cryptocurrencies, is it possible to define which national laws could be characterized as ‘inherently prospective’ in nature? From the perspective of the investor, every legislative act could be ‘inherently prospective’. At the same time, according to the decision in Enron v. Argentina (ICSID Case no. ARB/01/3, Award, 2007, paras. 264 – 268) and CMS v. Argentina (ICSID Case no. ARB/01/8, Award, 2005, para. 274), the state may be held responsible for the breach of the investor’s legitimate expectations when it modifies the laws which were an incentive for an investor to invest.

The concept of ‘inherently prospective’ laws that was endorsed by the Total tribunal could only be understood as a division between the specific investment laws of the state, on one hand, and the general regulatory framework, on the other. In the case of specific investment laws, it could be accepted that these laws entail a certain legal expectation since they refer explicitly to the investors. In the latter case, however, the general regulatory framework is more difficult to be understood as to create such expectations (Total S.A. v. Argentina, para. 122).

The Total case is one of many that seem to move from strict adherence to a ‘stable framework for the investment’ taking into account the opposing rights of the states. One of the main concerns regarding cryptocurrencies, which might justify the change of the regulation by the states, is that the transactions are anonymous. Anonymity means that transactions normally fall outside of the regulatory authorities’ ‘radars’. The Central Banks and the governments around the world are ratcheting up warnings about cryptocurrencies and underlining some major concerns, such as: the cryptocurrencies are used to support criminal activities, for example, money laundering, trafficking, terrorism and the exchange of illegal goods. Moreover, the governments often fear that transactions in cryptocurrencies could underestimate their national currencies, allowing third parties to speculate with the prices of goods and other crucial issues of sovereign nature. Another problem related to the area of cryptocurrencies is that they are an incentive for tax evasion. The tax evasion issues can be traced back again to the cryptocurrencies’ very nature, i.e., their anonymity. Any income related to cryptocurrencies can be potentially concealed, and thus, taxes can be evaded. To date, many governments have already taken the lead to address an emerging legal framework related to the taxation of cryptocurrencies. These measures, however, are not always successful.

Considering the legal uncertainties related to the cryptocurrencies, the need of the state to regulate and protect its principal rights seems even more logical and imperative. These investments are made in an evolving economic and legal environment, and this parameter is a part of the assessment of risk of every investment (ICSID, El Paso Energy Int’l Co. v. Argentine Republic, Case no. ARB 03/15, Award, para. 352). When observing the downsides of investments in cryptocurrencies, the investors are aware firsthand of the particular risks related to their investments. In the words of the tribunal in Continental Casualty Company v. Argentina (ICSID Case no. ARB/03/9, Award, 2008, para. 258), “reasonable expectations presuppose reasonable investors”. Given the high risk arising out of these type of investments, one can conclude that protecting the investments in cryptocurrencies, even under the broadest protection standard such as the Fair and Equitable Treatment, could not, substantively, amount to “freezing” the state’s right to regulate.

In a more general context, the right of a host state to regulate its own laws constitutes the principal manifestation of the sovereignty of the state and its restriction may only be justified by an explicit undertaking by the state (Total S.A. v. Argentina, paras. 117, 429). In other words, the companies or the individuals who have invested in cryptocurrencies can legitimately claim damages as a result of the alteration of the general regulatory framework, only if additional guarantees are made by the host states. Such guarantees could constitute an express contractual commitment, such as a stabilization clause or a specific unilateral declaration attributable to the state. Thus, foreign investors having invested in cryptocurrencies in the US could benefit from the relevant investment treaty provisions, such as NAFTA, by invoking the breach of FET standard of Article 1105, only if, in addition to the FinCEN’s, US national courts’ and IRS’s contradictory regulatory practices, the US government had committed further specific undertakings.

Concluding remarks

In some cases, including that of investment in cryptocurrencies, the competing rights and interests go beyond the traditional conflict between the right of the state to regulate for public interest, on one hand, and the right of the investors to be protected on the other. When the high risk investments are made in a newly developed and unpredictable legal environment, no reasonable investor can expect a general regulatory framework to serve as an inducement to invest, or the promise that certain laws of the state will not change in the future.


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The 2016 Global Pound Conference Series!

by Michael McIlwrath

General Electric Company

Global-Pound_mid_-resolution_finalIn April 1976, an event now known as the Pound Conference ignited modern ADR in the USA, launching discussion of what may have become the “greatest reform in the history of the country’s judicial system”.1 Forty years later, all stakeholders in the dispute prevention and resolution fields around the world are being invited to participate in a series of unique thought leadership events around the globe under the auspices of a Global Pound Conference (“GPC”) series.

The GPC has a remarkable goal: to shape the future of dispute resolution and access to justice in the 21st Century.

An invitation to shape the future of dispute resolution

The bold program, which will generate debate and actionable data from stakeholders through events taking place around the world has been initiated by the International Mediation Institute (IMI), a non-profit organization that does not itself provide any dispute resolution services, but promotes quality and transparency in mediation.2

IMI initiated the GPC as a joint effort by dispute resolution institutions, service providers, users associations, advisors associations and other organisations to enable all stakeholders to participate actively.

Although IMI has initiated the GPC, the series will by no means be focused exclusively on mediation.

The series will include discussions about the full dispute resolution spectrum, including negotiation, mediation, conciliation, arbitration, litigation and hybrid processes.

Who will participate?

All participants, including those attending physical meetings or participating in them online, will be able to express their views and preferences and help to shape the future of dispute resolution in their countries and internationally. A dedicated GPC online platform and physical meetings will permit exchanges of data via smartphone and tablet voting apps accessed by all participants, whether users, providers, advisors, educators, adjudicators, policymakers and other stakeholders in the ADR communities. The data will be streamed in its raw state to all participants in real time.

How the GPC will be conducted?

In the current phase of planning, it is envisioned that most of the questions will be common to all GPC events, and the technology will allow the data to be segmented, for example by stakeholder group (e.g., the perspectives of users, advisors, providers and others) to enable comparison and detailed analysis.

The initial plan for the GPC was for a series of meetings in 15 cities. Initial interest in the GPC, however, suggests that the minimal number is more likely to be 25 and potentially even more.

Thousands of participants will vote, creating by far the most extensive and reliable data record in the dispute resolution field, enabling fundamental change to occur in how dispute resolution is practiced almost everywhere.

Before any voting takes place, many of the world’s leading thinkers and users of dispute resolution services, locally and globally, will have a chance to express inspiring thoughts about what is working well and where there is need for improvement.

How the GPC will change the conversation about dispute resolution?

Currently, the ADR field suffers from a serious deficit of reliable data. Even the letters “ADR” are interpreted to mean different things, from “Alternative Dispute Resolution”, “Amicable Dispute Resolution” and “Appropriate Dispute Resolution” to the rather cynical “Alarming Drop in Revenues” among lawyers who fear that clients settling cases will deprive them of work. Some users believe “ADR” precludes negotiation, litigation or arbitration. Others see it as including all forms of dispute resolution and dispute prevention techniques. Some believe ADR relates primarily to mediation, however that term is defined.3

Regardless of definitions, users’ opinions and needs are rarely collected or expressed, and the service side of the dispute resolution industry is left to make assumptions and guesswork on many critical issues, sometimes relying on advisors who are not necessarily aware of all their clients’ business or relational priorities. The GPC intends to cut through this on a global scale, enabling users, advisers, service providers, mediators, adjudicators, educators and policy makers to agree on common concepts both locally and internationally by generating credible and actionable evidence.

The GPC series may possibly become the most important happening in the dispute resolution field since the US 1976 Pound Conference that it is named after.

How to Participate?

The GPC Series is being co-ordinated by a Central Organising Group (COG) and will be implemented by Local Organising Committees (LOCs) throughout the world in 2016. Current cities where LOCs are already being set up or contemplated include Amsterdam, Barcelona, Beijing, Dubai, Frankfurt, Geneva, Hong Kong, Jerusalem, Johannesburg, Lagos, Lisbon, London, Los Angeles, Madrid, Milano, Moscow, Miami, New York, Paris, San Francisco, Sao Paolo, Shanghai, Singapore, Sydney and Toronto. A leading professional international congress organiser, Kenes Group, with great experience of large-scale data-sharing conferences in the global healthcare sector will be assisting the COG in convening the events and in developing the IT platform that will underpin the GPC Series.

Sponsors, partners and other supporters, including volunteers and media partners, are invited to create or join LOCs for this ground-breaking series. Significant start-up funding for the GPC has already been made available by the international law firm Herbert Smith Freehills, as a platinum sponsor, and global dispute resolution institution JAMS, as gold sponsor. Global partners already include leading international and regional arbitration and mediation institutions, and other organizations that play leading roles in the development of the law.

For more information on the GPC Series, and to get involved, please go to https://imimediation.org/global-pound-conference or contact the COG at GPCSeries@IMImediation.org. You will also be able to follow developments on Twitter@GPCSeries, as well as in other social media to generate a truly global debate and discussion. The goal is to enable the Global Pound Conference to benefit all stakeholders and to help shape the future of dispute resolution, providing appropriate access to justice for all.

Deborah Masucci, IMI Board Chair, Formerly Vice President in the Office of Dispute Resolution at American International Group, Inc.

Michael McIlwrath, Chair of the Global Organizing Committee for the GPC, IMI Board member and Global Chief Litigation Counsel, GE Oil & Gas, Florence, Italy.

1 Hon. Wayne D. Brazil (U.S. Magistrate, N. Dist. Calif), Court ADR 25 Years After Pound: Have We Found a Better Way?, 18 Ohio State Journal on Dispute Resolution 93, at 149 (2002).

2 See http://kluwermediationblog.com/2014/09/25/harvesting-data-to-shape-the-future-of-international-dispute-resolution/; and https://imimediation.org/shaping-the-future-of-adr-the-urgent-need-for-data.download.

3 “Mediation in the European Union and Abroad: 60 States Divided by a Common Word” in Chapter 2 of Manon Schonewille & Fred Schonewille (eds.) The Variegated Landscape of Mediation: A Comparative Study of Mediation Regulation and Practices in Europe and the World, The Hague, The Netherlands: Eleven International Publishing, 2014. See http://schonewille-schonewille.com/data/files/Chapter%20Schonewille-Lack%20from%20The%20variegated%20landscape%20of%20mediation.pdf.


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Are Anti-Suit Injunctions Back on the Menu? Part 2: The CJEU’s Decision in Gazprom

by Stephen Lacey

Linklaters

On 13 May 2015, the CJEU handed down judgment in Gazprom (C-536/13). As readers will recall, the case concerns whether an EU court must refuse to give effect to an anti-suit award granted by an EU seated arbitral tribunal on the basis that such a measure is incompatible with EU Regulation 44/2001 (the “Brussels I Regulation”).

The CJEU’s judgment has been much anticipated not only because that point is important, but also because, in December 2014, Advocate General Wathelet (the “AG”) handed down a surprising opinion in which he (retrospectively) deployed Recital 12 of EU Regulation 1215/2012 (the “Recast”) and argued that it overturned the West Tankers prohibition on intra-EU court anti-suit injunctions in support of arbitration. (Although Gazprom fell to be decided under the Brussels I Regulation, the Recast has, of course, replaced that instrument in respect of proceedings commenced in the EU courts on or after 10 January 2015. Recital 12 therein aims to strengthen the arbitration exclusion in order to address a number of the wider problems raised by West Tankers).

The following post offers a short recap of the AG’s opinion before turning to consider the CJEU’s judgment. For the facts of the case, and further background, readers are referred to my previous post on the AG’s opinion here.

Turning, first, to the AG’s opinion, he considered that there was nothing in the Brussels I Regulation which required the court to refuse to recognise the tribunal’s anti-suit award.

In reaching this view he deployed two, separate, lines of reasoning. The first was surprising. He stated that, although the case fell to be decided under the Brussels I Regulation, Recital 12 of the Recast was still relevant (as it showed how the arbitration exclusion must and always should have been interpreted). Further, in his view, Recital 12 of the Recast made it clear that, contrary to the CJEU’s decision in West Tankers, an EU court could grant an anti-suit injunction against court proceedings elsewhere in the EU in support of arbitration. That being the case, there was also nothing in the tribunal’s award which offended the Brussels I Regulation.

This reasoning, if followed by the CJEU, would not only support the power of an EU seated tribunal to grant an anti-suit award against court proceedings elsewhere in the EU, but would also permit an EU court to do the same.

The AG’s second line of reasoning was more conventional. He said that, in any event, the matters in dispute were simply untouched by the Brussels I Regulation and should be left to national arbitration law to decide; arbitral tribunals not being bound by the Brussels I Regulation, and, likewise, recognition and enforcement of an award simply not being subject to it.

In its judgment the CJEU followed the AG’s second line of reasoning and held that there was nothing in the Brussels I Regulation that precluded an EU court from giving effect to an anti-suit award made by an arbitral tribunal. This should be left to be determined by the national arbitration law applicable in the state of enforcement (including incorporation of any international obligations under, say, the New York Convention). Its reasoning was as follows.

First, the CJEU recalled West Tankers and explained that the reason for the prohibition on intra-EU court anti-suit injunctions established by that case is that the EU courts are to be left to determine their jurisdiction for themselves. Review of one’s decision by another is therefore generally prohibited. In the CJEU’s view, however, this type of conflict was simply not in issue here as the order originated from an arbitral tribunal, not a court (see paragraphs 32-33 and 35-36 of its judgment)

Second, the CJEU pointed out that a further reason for the prohibition on anti-suit injunctions as between the EU courts is that they run counter to the mutual trust between them. Further, they are also liable to bar an applicant who challenges the validity of an arbitration clause from access to the EU court in which it has brought proceedings. In the CJEU’s view, again, there was no violation of these principles here. In the former case because an arbitral tribunal, not a court, had made the order and, in the latter, because the litigant remains free to contest the recognition and enforcement of that award before the relevant court (paragraphs 34,37-39).

Finally, unlike a court-ordered injunction, the consequence of non-compliance with the arbitral award would not be court-ordered penalties. This difference in legal effect, in the CJEU’s view, provided another basis upon which to distinguish its judgment in West Tankers (paragraph 40).

The CJEU’s judgment is a positive one for EU seated arbitrations. The immediate result is to confirm that the Brussels I Regulation does not tie an EU court’s hands in respect of the effect to be given to an anti-suit award issued by a tribunal seated elsewhere in the EU. Of course, whether or not such an award has any effect in that court will depend on an application of that court’s own arbitration law; but taking the Brussels I Regulation out of this equation is an endorsement of the primacy of, in particular, the New York Convention.

Furthermore, although the judgment is, strictly speaking, about the effect to be given to such an award, it is also confirms that any power the arbitral tribunal itself has to grant such relief is not fettered by the Brussels I Regulation. This is clear from the parts of the CJEU’s ruling, cited above, which, in short, reject any argument that the CJEU jurisprudence concerning concurrent court proceedings and mutual trust and confidence under the Brussels I Regulation finds any application when considering the interface between the actions of an arbitral tribunal and an EU court. This is an important finding for proceedings that fall under the Brussels I Regulation not only because it allows the tribunal to make the type of award in issue in the case but because, more generally, the ability of an EU seated tribunal to press on with its proceedings in the face of court proceedings elsewhere in the EU has provided an important antidote to the effect of the West Tankers ruling. The CJEU’s position fortifies a tribunal’s ability to do so free of the Brussels I Regulation (one does not have to look very far for an illustration of the potential mischief that could have been caused by subjecting arbitral tribunals to that instrument’s influence, see here).

Although Gazprom was decided under the Brussels I Regulation (given the timing of proceedings in the case) it is worth observing that the observations made above will remain good under the Recast. This is not least because of the even clearer separation between arbitration and court proceedings established by Recital 12 of the Recast, the thrust of which this decision is very much in line with.

As a final point, returning to Recital 12, what about the controversial issues that the AG’s opinion raised? In particular; (i) whether Recital 12 is applicable in proceedings under the Brussels I Regulation and (ii) whether Recital 12’s scope permits intra-EU court anti-suit injunctions in support of arbitration. In relation to (i), although the CJEU does not refer at all to the AG’s opinion, nor any of the possible competing arguments, it seems clear that it regarded the case as falling to be determined by the Brussels I Regulation without reference to Recital 12. Such a conclusion is supported by paragraphs 3-7 of its judgment where it confirms that the Brussels I Regulation is the applicable instrument and sets out the provisions of it which are relevant to the case with absolutely no mention of Recital 12.

That being so, the CJEU did not address point (ii). This, in turn, would mean that in proceedings falling under the Recast, in which Recital 12 does apply, the AG’s opinion remains as persuasive authority upon which a litigant might argue that an EU court could contemplate resurrection of the anti-suit injunction in the face of court proceedings elsewhere in the EU in breach of an arbitration clause. How long it takes for the point to be taken remains to be seen.

Click here for the judgment.


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UAE Court Annuls Award and Stresses Strict Compliance with Law

by Hassan Arab and Dalal Al Houti

Al Tamimi & Company

The UAE law on arbitration is contained in a dozen provisions in the UAE Civil Procedures Law. Whilst the law is not long, the provisions can often be overlooked by tribunal’s and counsel. Unfortunately the local courts usually take a strict view as to compliance, as illustrated in a recent decision by the Dubai Court of Appeal in Case No. 371-203 dated 14 May 2014.

The facts of the case

The Claimant had entered into a sale and purchase agreement for a plot of land at a purchase price of AED 20 million spread over 14 instalments. The Claimant paid all the instalments on time but the Respondent defaulted in its obligations to provide infrastructure and procure permits, as alleged by the Claimant. As a result, construction of the Claimant’s project was not feasible.

The Respondent also contravened the law by selling the plot to the Claimant whilst it was mortgaged, without notifying the bank of the sale or the Claimant of the mortgage.

In accordance with the arbitration clause in the agreement the Claimant commenced proceedings before the Dubai International Arbitration Centre. An award was rendered by the Tribunal in the Claimant’s favour, with one arbitrator dissenting.

The Claimant filed enforcement proceedings before the Dubai courts. Al Tamimi & Co. represented the Respondent who sought by way of a cross-application to annul the award.

The First Instance Court annulled the award. The judgment was appealed to the Court of Appeal who upheld the annulment due to three reasons:

(1)   the lack of authority of one of the contract signatories to bind a public joint stock company to arbitration

(2)   the tribunal’s failure to sign both the reasoning and the dispositive sections of the award

(3)   the dissenting arbitrator’s refusal to sign the award.

Authority to sign an arbitration clause

Under UAE law (specifically Articles 58 and 203(4) of the Civil Procedures Law) a person who signs an arbitration agreement on behalf of a company must have specific authority to do so. The only exception is in relation to LLCs, whose General Managers are deemed to have the required authority.

In this case the Respondent was a public joint-stock company. The signatory for the Respondent was authorized to sell on behalf of the company but was not authorized to agree an arbitration clause.

The Court of Appeal held that “the conclusion of an arbitration agreement outside the scope of a power of attorney results in relative nullity [i.e. the award is annulled without considering the substance of the award]”. The Court of Appeal explained that the authority to sign an arbitration clause on behalf of a public joint-stock company belongs to its Board of Directors if so authorized in its Articles of Association or else subject to the approval of the General Assembly (as per Article 103 of Law No.8 of 1984).

The Court emphasized that an “arbitration clause implies an agreement to forego proceedings in the UAE courts and the security afforded through litigation”.

Signature of the award

Arbitral awards in the UAE have to be signed (Article 212(7) of the Civil Procedures Law). The Court explained that arbitral awards contain both a section setting out the reasoning for the decision and a section setting out the decision itself (the dispositive or operative part). Arbitrators must sign both the reasoning and the dispositive section of the award or it will be deemed invalid.

An exception to the above rule is when the reasoning of the award, or parts of it, is found on the same page setting out the dispositive section. In this situation the signature will be deemed to cover both the reasoning and the dispositive section, fulfilling the legislator’s objective of requiring the tribunal’s signature on the award.

In this case the reasoning of the award was not signed, only the dispositive section. This was a further reason for annulling the award.

Dissenting arbitrator

The award was signed only by two of the arbitrators. The third arbitrator did not sign but instead issued a dissenting award. Article 212(5) of the Civil Procedures Law states that if one or more arbitrators refuse to sign the award then this shall be stated in the award.

The Court held that although there was a dissenting award, the main award did not explain why there was a missing signature. This was a further reason for annulling award.

Conclusion

What is notable about this case is that each of the issues relied on by the Court to annul the award could have been avoided if the parties and the Tribunal had taken more care to review the local arbitration law and comply with it.[1]

Although not touched upon by the Court in this case, other key requirements are as follows:

  1. The award must contain a reference to the arbitral agreement. Best practice is for either a copy of the arbitration agreement to be attached, or for the Tribunal to have it written in full in the body of the award.
  1. Unless agreed otherwise by the parties, the award must be in Arabic (Article 212(6), civil Procedure Law).
  1. The award must provide a summary of the parties’ case and evidence.
  1. The award must be reasoned.
  1. The award must set out the place and date of its issuance (Article 212(5)).
  1. The award must be issued in the UAE, otherwise it will be considered foreign and the rules laid down with respect to awards issued in a foreign country shall apply (Article 212(4)).

Parties should always check prior to executing an agreement that the signatories have the requisite authority to bind their respective companies to arbitration, and after an arbitral award is rendered the parties should immediately have it reviewed by a UAE lawyer so that, if possible, any flaws can be identified and the Tribunal approached to rectify them (assuming the applicable rules allow such a period, which many do).

*Robert Karrar-Lewsley assisted with the preparation of this


[1] The Court of Appeal’s judgement is final since the Claimant failed to appeal before the Court of Cassation


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The Extension of the Arbitration Clause: Update from Portugal

by Duarte Gorjão Henriques

BCH Advogados

1. I have written elsewhere about the extension of the arbitration clause to non-signatories in situations that have been identified as the doctrines of the “group of companies” and the assumption of debts.1 In that particular case, the circumstances of the facts surrounding a possible extension of the arbitration agreement led me to conclude that the state court should have had a broader perspective and should not have raised the level of the threshold to refer the parties to arbitration. The rationale is quite simple: if the objection consisting of the existence of an arbitration clause is raised before the state court, the court shall apply a lower criterion in referring the parties to arbitration. Indeed, due to the “favor arbitrandum” philosophy of the New York Convention of 1958 and the principle of “Competenz Competenz” in almost every jurisdiction, it is sufficient for there to be a glimpse of connectivity between the parties, the arbitration agreement and the dispute for the court to be compelled to refer the parties to arbitration. On the other hand, if the issue is raised before the arbitral tribunal, the threshold level must be increased and not every connection will suffice to establish the competence of the arbitral tribunal.

The facts at hand in that particular dispute showed that there was a kind of involvement of the “third party” in the performance of the underlying agreement and, therefore, the courts should have resorted the parties to arbitration.

However, the rationale above is far from being accepted by the Portuguese courts. Quite to the contrary

Indeed, in a very recent case, the Lisbon Court of Appeal had the opportunity to revisit this issue and set forth a very strict criterion to assert the extension of an arbitration clause. I am not sure about the factual situation leading to the denial of the extension of the arbitration agreement to a third party. To be more precise, the decision does not state the facts that existed or did not exist to deny or allow such extension. The Lisbon Court of Appeal merely set forth a general and abstract principle related to this issue. In any event, I will try to summarise the case and extrapolate some considerations about the extension of the arbitration agreement.

2. On 21 August 2007, Party A entered into a contract with Party B which apparently was breached by Party B. Such contract contained an arbitration clause with the following (unusual, I must say) wording:

“The Parties grant the arbitrators the vital role of fully deciding any dispute that may arise between them” and “any question that cannot possibly be solved between the Parties, notwithstanding their best efforts to do so, shall be necessarily decided by an arbitral tribunal in a binding way”.

Party A and another undisclosed party (Party C) brought a lawsuit in a state court against Party B claiming compensation. Party B objected to the jurisdiction of the state court, contending that the arbitration clause was valid and binding on all the parties, including Party C. These petitioners contested the validity of the arbitration clause and, more specifically, Party C alleged not to be or have been party to that arbitration clause, and not to have consented to arbitrate any dispute. Therefore, Party C contested that it could not be bound by such arbitration agreement. The court of first instance decided that the arbitration clause was binding on all the parties and referred them to arbitration. Party A and Party C filed an appeal before the Lisbon Court of Appeal.

By a decision rendered on 24 March 2015, the Lisbon Court of Appeal reversed the decision of the lower court as to Party C but upheld the decision regarding Party A. In other words, it considered that Party A was bound by the arbitration clause whereas Party C was not, which meant that the Court of Appeal did not grant the extension of the arbitration clause to that party.

Again, it is not possible to ascertain whether or not that denial of the extension was correctly decided because the report of the decision does not state the entirety of the factual basis of the case. I will not entertain here any speculation and, therefore, I will limit myself to citing the abstract and generic principle that was drawn by the Lisbon Court of Appeal in this respect.

Indeed, the Court of Appeal considered that,

“An arbitration clause contained in a contract binds the signatory parties of such contract only (art. 406 of the Portuguese Civil Code). Notwithstanding, one may admit the extension of such clause to a third non-signatory party if the signatory parties consent to such extension and if the third party has joined whether expressly or implicitly to such arbitration clause.

The implied joinder “(implied consent”)2 must arise from facts that demonstrate such joinder with a considerable level of probability (art. 217(1), final, of the Portuguese Civil Code); in order to conclude for the existence of such implied consent, it will not be sufficient for the third non-signatory to have intervened in the negotiation and performance phases of the contract in which the arbitration clause was inserted; it is necessary that one can ascertain that such third non-signatory party has had actual knowledge of the existence of the arbitration clause and that the third party was aware that any dispute arising from that contract would be referred to arbitration, therefore allowing to infer its accession to that arbitration clause.”

3. I will not elaborate much further on this topic but merely point out that this understanding of the Lisbon Court of Appeal is in line with an ancestral understanding of the validity and efficacy of the arbitration agreement. For instance, it was decided that “the law of arbitration, based on the consensual nature of the arbitration clause, does not allow to extend to third parties, foreign to the contract, the effects of the disputed contract, and bars any forced intervention or guarantee procedures”.3

However, recent commentary and case law has shown us that the extension of the arbitration clause is being admitted under several doctrines, not all of them related to an “implied consent” (let alone to a strict understanding of that “implied consent”). Such are the cases of the doctrines of “agency (actual and apparent), alter ego, (…) group of companies, estoppel, third party beneficiary, guarantor, subrogation, legal succession and ratification or assumption.”4

As said, the report of the factual basis does not allow us to go further in analysing the decision but what it is interesting to point out is that the Portuguese Courts have been adopting a strict understanding in relation to the extension of the arbitration clause to non-signatory parties, requiring the existence of a level of “consent” which is not in line with a more recent and widespread understanding of this issue. More to the point, as a result of this understanding of the Lisbon Court of Appeal, as involved as a non-signatory may have been in the execution and performance of a contract, that will not suffice.

I do not contend to adhere to a liberal approach to this topic, and let alone do I argue that the arbitration clause should apply to whomever wishes to benefit from it or to any other non-signatory only by virtue of a mere application of another signatory party.

However, I think that the arbitral tribunal is the competent entity to decide these issues and whenever there is a link between the parties in dispute (including the non-signatory), the dispute and the underlying legal relationship, the court judge must resort the parties to arbitration after being timely asked to do so, unless of course the arbitration agreement is patently void, null or incapable of being performed, or if it simply does not exist. That is the understanding deriving from the New York Convention of 1958 and in most, if not virtually all, jurisdictions recognising the principle of Competenz – Competenz. Again, the threshold level should be less strict in a court of law and should be increased in the arbitral tribunal.


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  1. “The extension of arbitration agreements: a ‘glimpse’ of connectivity?” 32(1) ASA Bull. 18 (2014).
  2. English expression used in the decision.
  3. Decision of the “Paris Cour d’appel” of 19 December 1986, OIATE v. SOFIDIF, 1987, Rev. Arb. 359, 363.
  4. See Gary Born, International Commercial Arbitration, Vol. I, 2nd Edition, Wolters Kluwer, The Netherlands, 2014, at 1413.

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The Jnah vs. Marriott Case: The Never-Ending Story? Latest Episode with the 18 March 2015 Decision Of The French Cour de Cassation

by Clément Fouchard

Linklaters

The so-called Jnah v. Marriott saga belongs to the category of cases that are seemingly never-ending. It is telling that the contracts which gave rise to the various disputes between the Lebanese company Jnah Development SAL (“Jnah”) and the US company Marriott International Hotels Inc. (“Marriott”) were concluded in 1994.

On 18 March 2015, the French Cour de Cassation added a new chapter to this epic story by quashing the 17 December 2013 Paris Court of Appeal decision. The Court of Appeal had previously set aside an arbitral award rendered on 3 February 2012 that denied jurisdiction over claims brought on behalf of Jnah relating to the termination of a hotel management contract.

The facts of the case are long and complex. Reference is therefore made to an earlier post relating to the 17 December 2013 Paris Court of Appeal decision in which these facts are discussed in more detail.

For the purpose of the present post which will mainly focus on the legal issue addressed by the French Supreme Court, we need simply recall that Jnah and Marriott entered into several agreements relating to the construction and the management of a hotel in Lebanon, all of which contained an ICC arbitration clause. The first dispute goes back to 2001, when Marriott initiated a first arbitration against the owner, Jnah, claiming wrongful interference in the hotel’s management. An award called “Jnah I” was rendered in 2003 in favor of Jnah and, in 2005, Jnah commenced a second arbitration against Marriott, alleging different violations of the agreements. A second award called “Jnah II” was rendered in 2009, also in favor of Jnah. Marriott subsequently filed a claim to set aside the Jnah II award. The Paris Court of Appeal dismissed the request to set aside on 9 September 2010. A few years earlier (in 2007), while the second arbitral procedure was heading towards an end, Marriot decided to terminate the agreements. In 2009, Jnah’s main shareholder sold approximately 80% of Jnah’s shares to another Lebanese company. The new main shareholder then assigned to Mr. F. (principal of the former majority shareholder) all the rights and liabilities relating to the ongoing Jnah II arbitration. At the same time, a power of attorney was also granted to Mr. F., which gave him the power to represent and defend Jnah “in all that is related to the existing dispute with [Marriott and Jnah] and arising out of the relationship that existed with” Jnah before the transfer of the shares to the new shareholder.

Things did not end there. Mr F. initiated a third arbitration against Marriott on the basis of the same ICC arbitration clause, seeking damages for Marriott’s termination of the hotel management contract. In a “Jnah III” award dated 3 February 2012, the arbitral tribunal declined jurisdiction, holding that the scope of Mr. F.’s power of attorney and assignment of rights was limited to the then ongoing Jnah II proceedings and could not possibly be interpreted as including other claims and disputes between Jnah and Marriott that were not settled by the Jnah II proceedings.

Jnah filed a claim before the Paris Court of Appeal to set aside the award on the grounds that the Jnah III arbitration proceedings were validly brought in its name. Jnah contended that the power of attorney given to Mr. F. concerned the “dispute” in general with Marriott arising out of the agreements prior to the transfer of ownership, and was not limited to the then ongoing Jnah II arbitral proceedings. Marriott argued that the arbitral tribunal’s interpretation of the scope of the power of attorney was not a decision on its jurisdiction, but related to the admissibility of claims brought before it by an alleged representative of Jnah. As a consequence, it could not be subject to an in-depth review by the Court of Appeal.

The question to be ruled upon by the Court of Appeal was twofold: first, whether the scope of Mr. F.’s power of attorney was an issue of jurisdiction or admissibility, and second, whether the Jnah III award was open to criticism pursuant to the grounds of annulment provided for by the French Code of Civil Procedure, and if so, what level of review would be conducted by the Court of Appeal. The Paris Court of Appeal decided that the arbitral tribunal’s determination on the scope of the power of attorney was, in fact, a decision on the arbitral tribunal’s jurisdiction and not a decision regarding the admissibility of Jnah’s claim. As a consequence, and following a solution firmly established by the Abela case (Cour de cassation, 6 October 2010, Rev. Arb. 2010, p. 815), the Paris Court of Appeal held that it was entitled to exercise full review of the arbitral tribunal’s decision.

Marriott then filed a pourvoi (appeal) before the French Cour de Cassation. Marriott claimed, most notably, that when the Court of Appeal rules on a request for annulment of an arbitration award, it must analyze the nature of the decision rendered by the arbitral tribunal in order to give, where appropriate, its exact qualification- without being influenced by the terms chosen by the arbitrators and the parties. According to Marriott, the arbitral tribunal interpreted the power of attorney given by Jnah to Mr. F. in a manner that limited its scope to the Jnah II arbitration. As a result, the tribunal deduced that the clause could not be further extended to allow the initiation of new proceedings. In reaching this decision, it was clear that the arbitral tribunal did not rule on its jurisdiction but on the admissibility of Jnah’s claim.

In a concise decision of 18 March 2015 the Cour de Cassation overturned the Paris Court of Appeal’s findings. The Cour de Cassation stated that when the Court of Appeal reviewed the arbitral tribunal’s interpretation of Mr.F’s power of attorney, the Court in fact ruled on a question of admissibility, not jurisdiction. In doing so, the Court of Appeal violated Article 1520 of the French Code of Civil Procedure which provides for five limited grounds for annulment. Jurisdiction is among such grounds but admissibility is not.

This solution does not come as a complete surprise. Many commentators had already sharply criticized the Paris Court of Appeal’s decision for having confused the issues of jurisdiction and admissibility.

French law draws a clear distinction between the notions of jurisdiction (in the present case the lack of jurisdiction) and admissibility (in the present case inadmissibility of a claim for lack of standing), unlike what one can see in many investment arbitration cases: (i) an arbitral tribunal’s jurisdiction must be assessed in the light of the scope of an arbitration agreement and the parties’ claims (a claim for lack of jurisdiction is a procedural plea (exception de procédure)); (ii) the admissibility of a claim relates to whether the claim can be validly submitted to a tribunal having jurisdiction (a claim founded on lack of standing is a plea of non-admissibility (fin de non-recevoir)). Accordingly, a tribunal can only rule on the admissibility of a claim (for instance for lack of standing because of an issue affecting the power of attorney relied upon by the claimant), once the tribunal has ruled on its own jurisdiction.

There are good reasons to draw a firm distinction between these two concepts as it has repercussions on the standard of review of the state court: under French law, the question of the jurisdiction of the arbitral tribunal is fully reviewed by the State judge (Article 1520 mentioned above). Conversely, the decision of an arbitral tribunal regarding a plea of inadmissibility is in principle final, as it forms part of the merits of the case. Any attempt to review such a finding would contradict the principle that prohibits the judicial review on the merits of an arbitral award.

The case has been referred back to the Versailles Court of Appeal which is set to review the question once again. One could expect that it will follow the direction set forth by the Cour de Cassation and, as a consequence, exercise a very narrow review of the arbitral tribunal’s findings. If the Jnah III award was to be upheld, and if Jnah decided to halt the legal battle, this epic, and, to date, never-ending saga would finally be over. All this is possible, but perhaps there remain far too many “ifs” in the equation for this wishful thinking to finally see the light of day.


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In Commercial Arbitration, Should Arbitrators Be Exclusively at the Service of the Parties?

by Mercédeh Azeredo da Silveira

Derains & Gharavi

On the ground that arbitration is a consensual and neutral means of dispute resolution, it has been suggested that arbitrators ought to be wholly and exclusively at the service of the parties and that they are not entrusted with a mission to defend public interests.

There may be reasons to call this view into question.

It is true that the selection of arbitration instead of court litigation has an impact on the manner in which the applicable law is identified in the absence of choice of law by the parties: the seat of the arbitration is no forum and reliance on conflict-of-laws rules of the seat is therefore not mandatory. This does not imply, however, that arbitrators are bound to disregard entire categories of laws which may be substantively relevant to settle the parties’ claims. In the words of the US Supreme Court,

“[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum. It trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration” (Mitsubishi Motors Corporation v. Soler Chrysler-Plymouth, Inc., 473 US 614 (1985), at 628).

It is, today, beyond question that disputes involving rules which serve public interests – such as disputes over securities issues or disputes involving antitrust laws, “RICO” (US Recketeer Influenced and Corruption Organizatons Act) claims, or economic sanctions – are arbitrable. Accordingly, if such a dispute falls within the scope of matters that parties have agreed to arbitrate, the deciding arbitral tribunal will take these rules into consideration to settle the claims. In fact, just like local courts, arbitrators even have the authority to give effect to rules that both serve public interests and are external to the applicable law – provided, of course, that such rules fit into the category of overriding mandatory rules (or “lois de police”). The latter are rules that purport to respond to crucial needs, and therefore proclaim themselves applicable to all situations falling within their scope irrespective of the law governing each one of these situations.

Provisions such as Article 9(3) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations (the “Rome I Regulation”) lay down the conditions under which local courts may give effect to overriding mandatory rules foreign to the applicable law. Although such provisions are not directly applicable to arbitration, they are considered to be applicable by analogy or, at least, to set out general guidelines also for arbitrators. Article 9(1) of the Rome I Regulation defines overriding mandatory provisions as “provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organization.” Article 9(3) prescribes, inter alia, that in considering whether to give effect to overriding mandatory provisions that are foreign to the applicable law, “regard shall be had to their nature and purpose and to the consequences of their application or non-application.”

Guided by these prescriptions, arbitrators may well resolve to give effect to an overriding mandatory rule foreign to the applicable law. They may do so without the parties’ consent, perhaps even against their will.

The fact that arbitration is a consensual means of dispute resolution does not imply that the parties may effectively agree that substantively relevant overriding mandatory rules – for instance, antitrust rules – be disregarded, when the purpose of such rules in fact requires that they be taken into account. Similarly, it is not because the jurisdiction of an arbitral tribunal stems from the parties’ agreement to arbitrate their dispute that the parties may derogate from mandatory provisions of the applicable law. Otherwise, selecting arbitration as a means of dispute resolution would simply be a freeway for the parties to escape any and all mandatory obligations. In the same vein, interpreting a choice of law by the parties as implying an exclusion of all rules that are not part of the law they have selected amounts to an improper interpretation of party autonomy. Party autonomy only affords the parties room to select the law applicable to matters that stand at their disposal.

As to the fact that arbitration is a neutral (i.e. State-independent) means of dispute resolution, this does not imply that arbitrators are prohibited from giving effect to provisions which serve public interests and which are foreign to the applicable law. What ensures the preservation of arbitration’s neutrality is that arbitral tribunals never have an unconditional duty to take into account an overriding mandatory rule merely because of its origin. Unlike domestic courts, which are State organs that must act as guardians of their State’s public policy and are bound to give effect to the forum State’s overriding mandatory rules, arbitral tribunals owe no allegiance to any State and must subject to the same test all overriding mandatory rules foreign to the applicable law.

This being said, the argument has been made that in order to fulfill their duty to ensure the effectiveness of the award (see, for instance, Article 41 of the ICC Rules of Arbitration, which provides that an arbitral tribunal “shall make every effort to make sure that the Award is enforceable at law”), arbitrators ought to give effect to the overriding mandatory rules of the State where the award is to be rendered and of States where the award may be enforced. Although this assertion is not without merit, it must be tempered.

Under the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), recognition and enforcement of an award may be refused if it has been set aside by a competent authority of the country in which or under the law of which that award was made (Article V(1)(e)). If, for instance, the seat of the arbitration is in Switzerland, the award may be set aside if it collides with principles of public policy (Article 190(2)(e) of the Swiss Private International Law Act). Under the New York Convention, recognition and enforcement of an award may also be refused if this would be contrary to the public policy of the State in which recognition and enforcement are sought (Article V(2)(b)). Disregarding overriding mandatory rules of the place of arbitration or of the State where enforcement is sought may therefore lead to enforcement concerns.

The intensity of such concerns, however, does vary. If enforcement of an award is, for instance, sought before a Swiss court, the latter will rely on a narrow concept of public policy (“ordre public atténué”) to decide whether the conditions of Article V(2)(b) of the New York Convention are satisfied, and only rarely will enforcement be denied under this provision. Similarly, US courts have interpreted restrictively the concept of public policy under this provision and have in some instances refused to deny enforcement of arbitral awards which were clearly in conflict with the country’s foreign policy. In any event, places of enforcement may not be known to the arbitrators at the time the award is rendered. And even if they are, the risk that enforcement be refused is one element among others to be considered, when the benefits of giving effect to a certain overriding mandatory rule that is external to the applicable law are weighed against the benefits of disregarding it. The arbitrators’ duty to strive to render awards that are enforceable should therefore not be deemed to imply that all overriding mandatory rules of the place of arbitration or of the State where enforcement could be sought must imperatively be taken into account.

Considering the above, one may conclude the following. The fact that the parties have selected arbitration as their means of dispute resolution does not, by itself, constitute a ground to systematically disregard overriding mandatory rules foreign to the applicable law or, more generally, any rule serving public interests. The inclination to ensure the enforceability of an award may in fact create an incentive for arbitrators to take into account overriding mandatory rules of the place of arbitration as well as those of the States in which enforcement may be sought. The origin of such rules is, however, no sufficient ground to give them effect: their nature and purpose and other possible consequences of their application/non-application must also be considered.


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