30th Anniversary of the School of International Arbitration Live Streamed at Kluwer Arbitration Blog

by Gloria Alvarez (Associate Editor)

SIA30image

We are pleased to announce the 30th Anniversary of the School of International Arbitration, Queen Mary University of London. To commemorate its anniversary, the School of International Arbitration will be presenting in London a Celebration Conference on the “The Evolution and Future of International Arbitration: The Next 30 Years”.

Kluwer Arbitration Blog will be live streaming on the 20th & 21st April, both days from 9:15 am to 6:00 pm British Summer Time (here).

The event features some of the School of International Arbitration Academics: Professor Julian Lew QC, Professor Loukas Mistelis, Professor Stavros Brekoulakis, Norah Gallagher and Dr Remy Gerbay.

The Anniversary will also have the participation of Professor Gabrielle Kaufmann-Kohler, Professor Sébastien Besson, 
Professor Luke Nottage, 
Dr Laurence Shore, Claus von Wobeser, Professor Andrea Bjorklund, Professor Stefan Kroell, Gerry Lagerberg, Professor Bernard Hanotiau, John Fellas, Philippe Pinsolle, Audley Sheppard, Professor Nathalie Voser, Lord Lawrence Collins, Professor Frédéric Bachand
, Dr Crina Baltag
, Dr Roman Khodykin, Donald Donovan, Dr Mohamed Abdel Raouf
, Andrea Carlevaris, Paul Friedland, Dr Fan Kun, Fidelis Oditah QC, Eduardo Zuleta, Professor Catherine Kessedjian, Michael Hwang, Alexis Mourre, Michael Schneider, Rob Smit, Professor Linda Silberman, Dr Patricia Shaughnessy, Professor Jack Coe, Professor Janet Walker, Dr Jan Kleinheisterkamp, Professor Christophe Seraglini, Professor Thomas Stipanowich, Dr Romesh Weeramantry, Professor Christopher Drahozal, Dr Michael Waibel and Dr Thomas Schultz.

You can follow the full programme here .

To follow the event on social media

#SIA30

#‎30SIAAnniversary‬


• Leave a comment on 30th Anniversary of the School of International Arbitration Live Streamed at Kluwer Arbitration Blog

More from our authors:

Arbitrating under the 2014 LCIA Rules. A User's Guide Arbitrating under the 2014 LCIA Rules. A User's Guide
by Maxi Scherer, Lisa Richman, Remy Gerbay
€ 160
The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials
by Despina Mavromati, Matthieu Reeb
€ 175
Interaction and Conflict of Treaties in Investment Arbitration Interaction and Conflict of Treaties in Investment Arbitration
by Ahmad Ali Ghouri
€ 160
Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition
by Klaus Peter Berger
€ 110
Yearbook Commercial Arbitration Volume XXXIX 2014 Yearbook Commercial Arbitration Volume XXXIX 2014
by Albert Jan van den Berg (ed.)
€ 271



• Leave a comment on 30th Anniversary of the School of International Arbitration Live Streamed at Kluwer Arbitration Blog

The New Slovak Arbitration Act Applicable From January 2015: Has It Progressed Sufficiently?

by Peter Plachy

Paneuropean University

The new Slovak Arbitration Act (“SAA”) was adopted by the Parliament (Act. No. 336/2014 Coll.), and is in force as of January 1, 2015. In order to see whether the SAA will promote Slovakia as an arbitration venue, main novelties and amendments brought by this new act are analysed in this blog entry.

Arbitrability: Under the old law, parties were allowed to arbitrate disputes, which were subject to settlement in courts under art. 99 of the Slovak Code on Civil Procedure. The amendment provides under art. 1(2) that arbitrable disputes are those, which are related to legal relations and “can be settled by an agreement of the parties [under art. 585 of the Slovak Civil Code (“SCC”)] including disputes regarding the declaration whether there is a right or a legal relation or not”. The second part of the definition, related to the validity of legal acts, was prompted by several Slovak court decisions, which held that parties to an arbitration agreement cannot apply for a declaratory relief regarding the validity of the arbitration agreement to an arbitral tribunal (Case No. 26 Cob 161/2009 of 21 December 2009, Regional Court of Nitra and 2 Cob 178/2008 of 18 December 2008, Regional Court of Bratislava). It was held that a civil court must, in turn, decide such a question. These decisions were in a direct conflict with the Kompetenz-Kompetenz doctrine, incorporated in art. 21(1) of the SAA, which explicitly states that the tribunals have the capacity to decide upon the validity of arbitration clauses. The clarification in the new SAA is thus welcomed, but the decisions of the Slovak courts will need to be tested against this amendment.

Moreover, one of the main changes in the Slovak arbitration regime is the exclusion of consumer disputes from the application of the SAA. For this purpose a brand new Act. No. 335/2014 Coll., which focuses exclusively on consumer disputes, was adopted.

Permanent Courts of Arbitration: Under art. 12 of the SAA, Permanent Courts of Arbitration (“PCAs”) may only be established by a civil association (under Act. No. 83/1990 Coll.), an association of legal entities under the SCC and by chambers of commerce. This change aims to dissuade regular corporations from establishing PCAs for profit, and in turn ensures independent arbitral awards. The existing PCAs must have complied with this change within three months after the SAA came into force.

The regime of the PCAs in Slovakia was (and still remains) the most glaring problem of the legislation. The old law led to the establishment of more than 170 PCAs because their constitution was not regulated at all. The change of the SAA, in all fairness, seems only to partially address this issue. A the same time, the Czech Arbitration Act (Act No. 216/1994 Coll.) allows only the existence of arbitral institutions established by law, and the Czech Chamber of Commerce enjoys a significant amount of arbitrations in the Czech Republic. Nevertheless, it is worth to wait and see whether the SAA is to provide a ground for the establishment of a reliable institution in Slovakia.

Arbitration Clause: In this matter, the SAA reflects the decision of the Slovak Supreme Court (2 Cdo 245/2010 of 30 November 2011, Slovak Supreme Court), which was later followed by lower courts and which stated that the requirement of a “written” arbitration clause is a more formal requirement than the one contained in the SCC. More specifically, the Supreme Court held that an arbitration agreement incorporated by reference into a loan agreement between a bank and its corporate client was invalid due to lack of written form. Consequently, the SAA now explicitly states in art. 4(4) that an arbitration clause can be incorporated by reference without a signature on the incorporated document. Addressing the concern of a recent post, this reference does not need to be specific, i.e. it can be general. Additionally, under a new provision of art. 4(7) of the SAA, the Slovak legislator has finally expressly adopted a practice of considering a valid arbitration clause to be constituted when respondent submits its first memorandum without objecting to the tribunal’s jurisdiction. This addition should also guide the civil courts away from the overly formalistic approach towards the “written” arbitration clause requirement described above.

Interim Orders: The legislator opted to incorporate an extended version of art. 17 of the UNCITRAL Model Law on interim measures and preliminary orders into the SAA. In line with the model legislation, the arbitral tribunal is now competent to order a party to:
• “provide a means of preserving assets out of which a subsequent award may be satisfied”,
• “maintain or restore the status quo pending determination of the dispute”,
• “take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself” and to
• “preserve evidence that may be relevant and material to the resolution of the dispute”.

Importantly, under art. 22a of the SAA, if the parties agree, an interim order may be rendered even before the arbitral tribunal is constituted and without any submission from the respondent (ex parte). Such an interim order, however, is not enforceable through the courts unlike other interim measures (art. 22c of the SAA). All interim orders are, nevertheless, subject to the review of civil courts pursuant to art. 22d of the SAA.

Annulment of an Arbitral Award: A significant amendment was adopted in art. 40(1) of the SAA which is a verbatim adoption of the grounds for the annulment of an arbitral award from art. 34 of the UNCITRAL Model Law. The reasons now include the ground of public policy pursuant to art. 40(1)(b) in conjunction with art. 50(2) of the SAA, which was not a ground for annulment in the old law. For this reason, there were cases when the Constitutional Court took it upon itself to annul an arbitral award due to lack of the public policy ground for annulment (Case No. III. ÚS 162/2011 of 31 May 2011). The empowerment of the civil courts with this ground is, therefore, welcomed. Additionally, the period for the initiation of the annulment proceedings is prolonged to 60 days (from 30) under art. 41 of the SAA.

The Slovak legislator did not choose to follow the solutions of the French and Belgian arbitration acts according to which the parties can waive their right to seek recourse at the national courts against an arbitral award since this is still prohibited in art. 42 of the SAA. Nevertheless, more efficiency in annulment proceedings is ensured because only three district courts now have the competence to deal with arbitration matters. This was achieved by an accompanying amendment of the Act No. 371/2004 Coll. on courts’ districts.

Conclusion

In conclusion, the SAA is a big step made in the pro-arbitration direction, but a long journey still lies ahead. Art. 43(1) of the SAA still states that if a court annuls an award because the arbitration clause was not valid or due to lack of arbitrability, the court will continue in the proceedings as if the claim was made there originally. Ultimately, there is no reason why a verbatim adoption of the UNCITRAL Model Law would not be more efficient. In fact, that is essentially what happened with the reform of the provisions on interim orders and the grounds for annulment.


• Leave a comment on The New Slovak Arbitration Act Applicable From January 2015: Has It Progressed Sufficiently?

More from our authors:

Arbitrating under the 2014 LCIA Rules. A User's Guide Arbitrating under the 2014 LCIA Rules. A User's Guide
by Maxi Scherer, Lisa Richman, Remy Gerbay
€ 160
The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials
by Despina Mavromati, Matthieu Reeb
€ 175
Interaction and Conflict of Treaties in Investment Arbitration Interaction and Conflict of Treaties in Investment Arbitration
by Ahmad Ali Ghouri
€ 160
Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition
by Klaus Peter Berger
€ 110
Yearbook Commercial Arbitration Volume XXXIX 2014 Yearbook Commercial Arbitration Volume XXXIX 2014
by Albert Jan van den Berg (ed.)
€ 271



• Leave a comment on The New Slovak Arbitration Act Applicable From January 2015: Has It Progressed Sufficiently?

From Iura Novit Curia to Zeno’s Paradox of Motion

by Daniela Paez-Salgado (Assistant Editor for South America)

The recent annulment decision in Tza Yap Shum v. Peru (ICSID Case No. ARB/07/6) has brought back the discussion regarding the ‘pure’ adversarial nature of investor-state arbitration system.

Mr. Shum, a Chinese investor claimed indirect expropriation under the Agreement on Promotion and Reciprocal Protection of Investments (APPRI) between the Governments of Peru and China arising out of several measures taken by Peru’s tax authority SUNAT. Peru challenged the jurisdiction of the tribunal arguing that the claim regarding the unlawfulness of the expropriation was not within the scope of the offer to arbitrate. However, the tribunal upheld its jurisdiction, found a violation of the APPRI and ruled in favor of the investor. Subsequently, Peru requested the annulment of the award before ICSID.

One of the grounds for annulment raised by Peru was article 52(1)(d) of the ICSID Convention (serious departure from a fundamental rule of procedure) because the Tribunal had failed to (i) analyze the evidence presented by the parties, (ii) state reasons on which it based its decision and (iii) denied the State the opportunity to express its opinion about the interpretation adopted by the Tribunal of article 8(3) of the APPRI which contained a “fork in the road” provision. See, ¶114-121.

This post will address the later claim in the light of the Latin legal maxim iura novit curia (the court knows the law). Under this principle, a decision-maker (either a judge or arbitrator) is deemed to know the law beforehand and, therefore, can reach its legal reasoning on the outcome of the case, independently from the legal theories defended by the parties. Hence, if the claimant argued ‘A’ and the defendant argued ‘B’, under iura novit curia the tribunal can perfectly decide under legal reasoning ‘C’.

The Supreme Court of Switzerland was the first body to uphold the application of iura novit curia in arbitration in 1994. The Court explained that by virtue of the principle iura novit curia if a conclusion reached by the tribunal is given sufficient reasoning, the arbitral tribunal can apply the law ex-officio without limiting itself to the arguments advanced by the parties. See, Westland Helicopters Ltd. v. The Arab British Helicopter Company (ABH) and the Arbitral Tribunal, point 3.-a).

In a similar way, the UK Arbitration Act allows arbitrators to decide a dispute in accordance with considerations ‘determined by the tribunal’. See, article 46(1)(b). This view seems to have been adopted also by the arbitration rules of the LCIA, which grant power to the tribunal to take the initiative itself to identify the relevant issues of the case, ascertain relevant facts, the law applicable to the arbitration agreement, to the arbitration and to the merits of the dispute. Yet, the Rules expressly limit this prerogative to “giving the parties a reasonable opportunity to state their views”. Article 22(1)(iii).

The reasoning behind the later approach is that an adjudicator of rights always has to permit the parties to point their views about new arguments that the tribunal might be considering to decide a case. An ‘interference’ by the arbitrator in the procedural debate of the case without counting with the parties participation may contravene the parties’ rights of contradiction and defense, and result in judgments that are not congruent with the arbitral proceeding.

In Tza Yap Shum v. Peru the tribunal took the opposite approach following the reasoning of the Annulment Committee in Klockner v. Republic of Cameroon (ICSID Case No. ARB/81/2). In this case, the arbitral tribunal decided the case undertaking an intermediate position (different from those advanced by the parties) on the interpretation of a provision of the Protocol of Agreement. On the annulment stage, the Annulment Committee held that arbitrators must be free to rely on arguments addressed and not addressed by the parties:

Even if it is generally desirable for arbitrators to avoid basing their decision on an argument that has not been discussed by the parties, it obviously does not follow that they therefore commit a ‘serious departure from a fundamental rule of procedure’. Any other solution would expose arbitrators to having to do the work of the parties’ counsel for them and would risk slowing down or even paralyzing the arbitral solution to disputes. ¶91.

In Tza Yap Shum v. Peru, the legal discussion was focused on the interpretation of the phrase “a controversy that involves the amount of compensation” of Article 8(3) of the APPRI. The Peruvian State argued that the jurisdiction of the tribunal was limited to the amount of the compensation sought by the investor and not to the lawfulness or not of the expropriation. The arbitral tribunal disagreed opting for its own interpretation of the relevant provision.

In the annulment phase, Peru contended that the tribunal did not permit the parties to discuss on that specific issue. ¶ 52. The Committee first held that since the tribunal had to consider the relevant provisions of the APPRI to decide on its own competence, the Peruvian State should have reasonably anticipated that the interpretation of that phrase would be the key question for any decision relating to the scope of that rule. ¶ 129.

Furthermore, the Committee expressed a practical concern regarding the argument sustained by Peru which would create an extraordinary burden on the tribunal by having to submit their legal reasoning to a discussion between the parties which would result in that no award could ever be adopted before the parties had had the chance of submitting arguments about the relevancy of the tribunal’s legal reasoning. ¶ 130.

At this point, the Committee brought up ‘Zeno’s paradox of motion’ to illustrate its reasoning. The paradox proposes that time is comprised by a number of moments and that when someone throws an arrow; the arrow is seen as being motionless during each of its positions; leading to the conclusion that since the arrow is static in each moment of motion, it will never hit the target. The Committee compared each moment that the arrow is deemed to be static and impaired from advancing towards the target to every time an arbitrator would have to submit his legal reasoning to the parties in order to obtain their observations. Consequently, the arbitrator would never reach a final award. See, 131.

Finally, the Committee concluded that the tribunal did not have an obligation to get back to the parties to ask them about the last sentence of article 8(3) which the parties had not focused on. Even if the parties did not specifically address the argument regarding the interpretation of article 8(3), the State did not prove that it could have not reasonably anticipated that the argument was going to be taken into consideration by the arbitrators. See, ¶141.

In sum, in the annulment decision in Tza Yap Shum v. Peru, the iura novit curia principle was implicitly endorsed. The only issue the Committee addressed was whether the parties had the right to defend their views on the interpretation undertaken by the tribunal. Nevertheless, the Committee did not discuss whether the tribunal was entitled or not to adopt a legal reasoning other than the one presented by the parties in its pleadings.

 


• Leave a comment on From Iura Novit Curia to Zeno’s Paradox of Motion

More from our authors:

Arbitrating under the 2014 LCIA Rules. A User's Guide Arbitrating under the 2014 LCIA Rules. A User's Guide
by Maxi Scherer, Lisa Richman, Remy Gerbay
€ 160
The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials
by Despina Mavromati, Matthieu Reeb
€ 175
Interaction and Conflict of Treaties in Investment Arbitration Interaction and Conflict of Treaties in Investment Arbitration
by Ahmad Ali Ghouri
€ 160
Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition
by Klaus Peter Berger
€ 110
Yearbook Commercial Arbitration Volume XXXIX 2014 Yearbook Commercial Arbitration Volume XXXIX 2014
by Albert Jan van den Berg (ed.)
€ 271



• Leave a comment on From Iura Novit Curia to Zeno’s Paradox of Motion

Indirect Enforceability of Emergency Arbitrator’s Orders

by Paata Simsive

Uppsala University Law School

In recent years, arbitration institutions have made significant progress by adopting the provisions on emergency arbitrators (“EA”). One of the biggest appeals of the new mechanism is that it allows parties to obtain interim relief before a case is referred to the arbitral tribunal. The main purpose of EA is to protect assets and evidence that might otherwise be altered or lost. No party can disobey the orders provided under EA rules without impunity. However, in an international setting, this is easier said than done. Since the orders of an EA are of a contractual nature, deprived of finality, they are not enforceable under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“NY Convention”). This post argues that there are number of mechanisms that makes the orders indirectly enforceable. As such, the orders issued by an EA, even if not directly enforceable, remain an effective means of emergency relief.

Indirect Enforceability by Analogy

Many legal scholars are trying to determine whether the order provided under EA rules has the same legal effect as an order for the interim measures of an arbitral tribunal. This parallel is drawn in order to suggest the enforceability of the EA orders under Article 17H of the 2006 revised UNCITRAL Model Law, which includes provisions for the recognition and enforcement of interim measures granted by arbitral tribunals. The main drawback of this approach, however, is that Article 17H requires interim measures to be ordered by the ‘arbitral tribunal’. The major interesting question thereafter is whether an EA can be characterised as a ‘tribunal’? The correct answer, I would suggest, is “no”. Even if it was so characterised, however, it would still not benefit from Article 17H. What is meant by ‘arbitral tribunal’ in Article 17H is not any arbitral tribunal, but particularly the same tribunal which will render the final award. The EA however, unlike the main tribunal, never renders the final award.

The lack of finality seems to confirm the non-enforceability of EA orders. The final award is the last award determined by the tribunal, and the one that resolves the subject matter of the dispute and terminates the tribunal’s mandate. On the contrary, the institutional rules, for instance the one of Article 29 (3) of ICC, expressly specifies that the arbitral tribunal is not bound by the decision made during EA. According to that Article, the tribunal ‘may modify, terminate or annul the order or any modification thereto made by the emergency arbitrator’. Consequently, being not-final means not-enforceable under the NY Convention.

Indirect Enforceability in Judicial Practice

Despite this predominant view, some scholars argue that EA decisions are enforceable because they are ‘final’ in terms of the issues they intend to address (A. Yesilirmak, Provisional Measures in International Commercial Arbitration, Kluwer Law International, The Netherlands, 2005, paras 4–38). This view is endorsed by US case law, which has accepted that interim measures have sufficient finality for the purposes of their enforcement. This is not because those measures are, in fact, final by nature, but because they are ordered with the intention of protecting the final award.

The similar approach was adopted in a 2013 case before the District Court of New York concerning the EA order in Yahoo! Inc. v. Microsoft Corporation case (Yahoo! Inc. v. Microsoft Corporation, United States District Court, Southern District of New York, 13 CV 7237, October 21, 2013). In that case, Yahoo’s motion to vacate an EA award was rejected. The court found that the relief awarded by the EA was, “in essence final” and therefore confirmed it for the purposes of recognition and enforcement. The court followed the established view with respect to interim measures, reasoning that the possibility of having a final award on the merits does not prevent the EA from awarding final relief for the purposes of preserving the status quo of the subject of the dispute.

However, in 2011, Southern District Court of California came to the opposite conclusion in Chinmax Medical Systems v. Alere San Diego (Chinmax Medical Systems Inc., v. Alere San Diego, Inc., Southern District of California, Case No. 10cv2467 WQH (NLS), May 27, 2011). In this case, the court addressed a request to vacate a decision of an emergency arbitrator. The court denied jurisdiction purporting that the decision was not final and binding for the purposes of the NY Convention. Therefore, finality seems to be recognized as the ‘weakest point’ of the EA orders even before the US national courts.

Due to the parties’ voluntary compliance, there is, and probably will continue to be, a comparative lack of decisions available in this matter. One could assume, however, that due to the substantive differences between the interim measures and EA procedures as explained above, national courts will find it difficult to expand their previous pro-interim measures attitude on EA orders. Thus, as far as the enforceability of EA orders is concerned, the argument that ‘the orders are final with respect to the issues they address’ will, even before the US courts, be more difficult to support.

It seems that the only definite way to secure the enforceability of the EA is to provide an express provision in national legislation. Over the past few years, some states, such as Singapore and Hong Kong, have adopted an express rule for the recognition and enforcement of EA orders. On 9 April 2012, the Singapore Parliament introduced amendments to the International Arbitration Act. From the date the amendments entered into force, the orders of the EA had the same legal status as those handed down by regularly constituted arbitral tribunals.

The inclusion of such provisions may affect enforceability not only within that particular state’s territory but also outside of it. An illustrative example comes from India, where in 2014 the EA decision was upheld through the interim relief granted by the Bombay High Court in HSBC v. Avitel case (HSBC PI Holdings (Mauritius) Ltd v. Avitel Post Studioz Ltd and others, Arbitration Petition No. 1062/2012, Judgment of 22 January 2014) (“HSBC Decision”). The case concerned an arbitration agreement in which the parties had preserved the right to seek interim relief before the national courts of India, even though the arbitration was conducted outside of the Country. One of the parties obtained the order from the EA seated in Singapore and sought to enforce it under the interim measures provisions in India. Even though Part II of Indian Arbitration Act states that only final awards are enforceable, the Bombay High Court passed interim reliefs in similar terms to those in the EA order. In the view of the court, the ‘…petitioner has not bypassed any mandatory conditions of enforceability…’ since it was not trying to obtain a direct enforcement of the interim award (HSBC Decision, para. 89). Instead, it was independently asking for interim measures against the respondent, by virtue of parties’ agreement set out in the contract (HSBC Decision, para. 89). Although the court did not directly enforce the EA order, this case provides an additional example of the indirect enforceability of the EA orders.

Voluntary Mechanisms of Enforcement

EA practice suggests that even if there is no enforceability mechanism in place, for numerous reasons, parties typically comply with the decisions of EA. Moreover, the parties themselves can create some formal mechanisms through which the EA orders can be enforced. More specifically, it is possible to include a term in the arbitration clause that specifies the EA right to incorporate a statement in their decision outlining the consequences of failing to comply with the orders. These consequences may be in the form of a penalties or fines. In such a case, a contractual penalty would later be included in the tribunal’s award as part of its substantive issue in dispute. As such, even if the EA orders themselves are not enforceable, the breach of any term may be included in the final and binding award.

Concluding Remarks

Emergency arbitration has become an essential component of international commercial arbitration. Despite the inherent lack of enforceability, some national courts have adopted a position that enables direct or indirect enforcement of the EA orders. The EA orders are also enforceable under the express provisions contained in national legislation, such as those in Singapore and Hong Kong. This means that the benefits offered by the EA procedure are not undermined by uncertainty over enforceability. At the end of the day, the EA orders, even if not directly enforceable, remain an effective means of emergency relief.


• Leave a comment on Indirect Enforceability of Emergency Arbitrator’s Orders

More from our authors:

Arbitrating under the 2014 LCIA Rules. A User's Guide Arbitrating under the 2014 LCIA Rules. A User's Guide
by Maxi Scherer, Lisa Richman, Remy Gerbay
€ 160
The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials
by Despina Mavromati, Matthieu Reeb
€ 175
Interaction and Conflict of Treaties in Investment Arbitration Interaction and Conflict of Treaties in Investment Arbitration
by Ahmad Ali Ghouri
€ 160
Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition
by Klaus Peter Berger
€ 110
Yearbook Commercial Arbitration Volume XXXIX 2014 Yearbook Commercial Arbitration Volume XXXIX 2014
by Albert Jan van den Berg (ed.)
€ 271



• Leave a comment on Indirect Enforceability of Emergency Arbitrator’s Orders

Dubai Court of Cassation further consolidates pro-NYC enforcement practice

by Gordon Blanke

Baker & McKenzie Habib Al Mulla

The Dubai Court of Cassation stays firmly on course in its enforcement of foreign arbitration awards under the 1958 New York Convention for the recognition and enforcement of foreign arbitral awards (NYC) and hence keeps consolidating its pro-NYC enforcement practice. This has most recently been demonstrated by the Court’s pro-Convention approach in Case No. 434/2014 (Al Reyami Group LLC v. BTI Befestigungstechnik GmbH & Co KG, ruling of the Dubai Court of Cassation of 23rd November 2014), in which the Court embraced the terms of the NYC à la lettre and confirmed in their wording the previous enforcement rulings of the Dubai Court of Appeal (see Case No. 1/2013, ruling of the Dubai Court of Appeal of 9 July 2013, on which I reported in a previous blog) and the Dubai Court of First Instance (see Case No. 681/2012) in the same matter.

By way of reminder, this case deals with the ratification and enforcement of an ICC award rendered by a sole arbitrator in ICC Case No. 15977/JHN in Stuttgart, Germany, and awarding the award creditor, BTI Befestigungstechnik, a German company that specializes in the production and distribution of roofing systems and power tools, an amount of EUR 300,000 in compensation for violation by Al Riyami Group, a UAE incorporated company, of an agency agreement concluded between the parties for the exclusive distribution in the UAE of BTI’s products. The Dubai Court of Cassation was emphatic in its endorsement of the pro-Convention approach previously taken by the Court of First Instance and the Court of Appeal. The Court of Cassation was satisfied that the terms of the NYC found application to the enforcement of the underlying award without reservation. In doing so, the Court emphasized in reliance on Article 238 of the UAE Civil Procedures Code, which gives precedence to the application of international enforcement instruments over the principles of reciprocity otherwise applicable to the enforcement of foreign judgments, and Article 125 of the UAE Constitution, which give domestic force of law to international conventions binding on the UAE, that the Convention formed part of domestic UAE law by virtue of Federal Decree No. 43 of 2006, which implemented the provisions of the Convention at the municipal level. Having satisfied itself that Germany, the jurisdictional origin of the award subject to enforcement, qualified as another Convention country, the Court of Cassation confirmed the overall restrictive grounds of challenge admissible under Article V of the Convention and the corresponding provisions of Article 5 of the Federal Decree No. 43 of 2006.

The Dubai Court of Cassation rejected all the award debtor’s attempts at challenging the award on procedural grounds. More specifically, the Court did not entertain any challenges of public order on the ground of the purported non-arbitrability of exclusive distribution agreements, challenges on the basis of the chosen venue of the arbitration being France (despite the arbitral seat being Stuttgart, Germany), challenges of the improper administrative processing of the arbitration by the ICC International Court of Arbitration in Paris. The Court fully endorsed the findings of the Dubai Court of First Instance, quoting from that Court’s ruling in relevant part:

“[The arbitration] has fulfilled all legal requirements in general and formal terms; it observed the principle of adversarial proceedings between litigants; it did not violate the rights of defense; it did not defeat any previously given award between the same parties; and it did not infringe the public order or public morals. Hence, it fulfilled all requirements and must be ratified.” (my translation)

The Court further confirmed the submission of a duly authenticated copy of the foreign arbitral award and the exclusive distribution agreement, including the arbitration agreement, and emphasized a supervisory court’s obligations of review in the following terms:

“Whereas the judicial supervision of such court over the foreign arbitral award, when considering the request for recognition of a foreign award, is limited to ensuring that the award does not violate the provisions of Federal Decree No. 43 of 2006 and fulfills the formal and substantive elements of an arbitral award prescribed in Articles 4 and 5 of that Decree [corresponding to Articles IV and V of the NYC], as the arbitral award, subject matter of the action, is duly authenticated.” (my translation)

By way of conclusion, the straightforward approach taken by the Dubai Court of Cassation to the application of the terms of the NYC to the enforcement of foreign awards, even against a UAE national award debtor, is an encouraging development, which deserves unreserved support from local arbitration practitioners and the international arbitration community more generally. Slowly but surely, the Dubai courts are building a credible track record of NYC enforcement, which no doubt will continue to encourage the inflow of foreign investment into the UAE economy and the Emirate of Dubai more specifically in years to come.


• Leave a comment on Dubai Court of Cassation further consolidates pro-NYC enforcement practice

More from our authors:

Arbitrating under the 2014 LCIA Rules. A User's Guide Arbitrating under the 2014 LCIA Rules. A User's Guide
by Maxi Scherer, Lisa Richman, Remy Gerbay
€ 160
The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials
by Despina Mavromati, Matthieu Reeb
€ 175
Interaction and Conflict of Treaties in Investment Arbitration Interaction and Conflict of Treaties in Investment Arbitration
by Ahmad Ali Ghouri
€ 160
Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition
by Klaus Peter Berger
€ 110
Yearbook Commercial Arbitration Volume XXXIX 2014 Yearbook Commercial Arbitration Volume XXXIX 2014
by Albert Jan van den Berg (ed.)
€ 271



• Leave a comment on Dubai Court of Cassation further consolidates pro-NYC enforcement practice

State Courts’ Decisions on Reduction of Arbitrators’ Fees: Comparing Apples to Apples or Apples to Oranges?

by José Miguel Júdice

PLMJ – Sociedade de Advogados, RL

and Rute Alves, PLMJ Sociedade de Advogados

1. Legal and practical background

Pursuant to Article 17(3) of the Portuguese Voluntary Arbitration Law (Law no. 63/2011 of 14 December – hereinafter “LAV”), any party may request the competent state court to reduce the amount of the fees fixed by the arbitrators if they were not agreed before the constitution of the Arbitral Tribunal.

This provision, which is similar to Section 28 (2) of the English Arbitration Act, tries to avoid situations of conflict of interest between the parties and the tribunal, as it may be difficult to refuse excessive values for fees decided quite often unanimously by an acting tribunal.

This rule only applies to ad hoc arbitration because in institutional arbitration the rules of the centres typically regulate this matter (and therefore the parties agree with the fees before the constitution of the arbitral tribunal).

In Portugal, business players are progressively engaging with “institutional arbitration”. However, ad hoc arbitrations are still very common. This situation may give rise to requests to reduce arbitrators’ fees in state courts because ad hoc arbitration clauses do not typically provide any guidance on arbitrators’ fees.

The problem comes up most commonly in the case of arbitration subject to Law no. 62/2011 of 12 December. This law created “mandatory arbitration” for disputes when a party invokes industrial patent rights related to brand name medicines when generic medicines want to enter the market. Normally one of the parties would prefer to use the state courts and when not allowed to do so, is unhappy with the arbitration arrangements. This paves the way for refusing to use institutional arbitration and it is less likely they will look at arbitrators’ fees as a fact of life, but rather as a cost they would prefer to avoid. Hence, this represents one of the scenarios where parties have frequently requested the state courts to intervene in order to reduce arbitrators’ fees that have been unilaterally fixed by arbitral tribunals, in the absence of agreement between the parties before the constitution of the Tribunal.


2. Facts in dispute in Judgment no. 1068/13.5YRLSB-6 of the Lisbon Court of Appeal

In Judgment no. 1068/13.5YRLSB-6 of the Lisbon Court of Appeal, as consequence of a request for authorisation submitted to INFARMED (the Portuguese Medicines and Health Products Regulatory Authority) to introduce several generic medicines onto the market, the Claimants initiated a mandatory arbitration in order to prevent the Respondents from carrying out any activities that might violate the alleged rights of the Claimants over a registered European Patent.

Once the Arbitral Tribunal had been constituted, the parties agreed that, in the absence of agreement between the parties, the Arbitral Tribunal should fix the amount of these fees. As the parties did not reach an agreement, the Arbitral Tribunal, taking into account the amount in dispute, as well as the complexity of the case, including the time spent, fixed the three arbitrators’ fees at a total amount of EUR 60,000.00.

Consequently, the Respondents filed an application with the Lisbon Court of Appeal asking for the reduction of the arbitrators’ fees to a total amount of EUR 15,000.00 pursuant to Article 17(3) of the LAV.

The essential question was to decide whether a total amount of EUR 60,000.00 for arbitrators’ fees fixed by the Arbitral Tribunal itself within the arbitral proceedings with an amount of EUR 14,000,000.00 in dispute should be reduced.

The argument of the Appellants (Respondents in the arbitral proceedings) was essentially anchored in aspects such as (i) the lack of complexity of the dispute, (ii) the amount of fees agreed in other equivalent arbitral proceedings and, (ii) the amounts fixed in the most recent awards of the Lisbon Court of Appeal on the reduction of arbitrators’ fees.

On the other hand, the Arbitral Tribunal and the Claimants considered that EUR 60,000.00 was a reasonable remuneration principally because of (i) the amount, the relevance and the complexity of the issues in dispute, (ii) the high academic levels of the arbitrators and (iii) the fact that the Respondents had not proposed any alternative amount for the fees. Furthermore, the Arbitral Tribunal pointed out that the Respondents had not notified the Arbitral Tribunal regarding their intention to apply to a state court for a reduction in the fees, thus undermining any chance of the arbitrators to resign as they would have done.

The Lisbon Court of Appeal decided that, although arbitral tribunals do not fall within the definition of state courts as sovereign authorities, they should be considered in accordance with the Portuguese Constitution true “courts”, even though in an autonomous category.

In light of the above, arbitral tribunals are not exempt from applying constitutional principles, namely respect of the application of proportionality criteria, as well as the fundamental constitutional principle of prohibition on going beyond what is necessary (proibição do excesso) provided in Article 2 of the Constitution. Hence, arbitral tribunals are forbidden from fixing amounts for the fees that are clearly inappropriate in view of the service provided. The reason for this is that it may jeopardise the “equivalency” of the service provided, even if the amount in dispute is significantly high, as was the case here.

Therefore, the Lisbon Court of Appeal decided that, even taking into consideration the high economic value of the dispute and the technical quality of the arbitrators, the advantages that the legislator intended with the intervention of an Arbitral Tribunal, as well as the procedural activities already completed – all factors tempered by the application of the proportionality criteria – that the appropriate amount of the arbitrators’ fees would be EUR 10,000.00 for each arbitrator.

3. The risk of replicating appeal court’s argument in ad hoc arbitral proceedings

Although the decision summarised relates to a “mandatory arbitration”, it represents a trend that may be replicated mainly in ad hoc arbitrations.

Consequently, there is a potential risk that Portuguese courts, reflecting a trend of lack of sensitivity to arbitration and an alleged pursuit of constitutional principles such as the proportionality criteria, will unconsciously choose the path of comparing judges’ remuneration with arbitrators’ fees in these cases.

This approach deserves criticism.

Firstly, while establishing the three criteria to be taken into consideration in order to fix the amount of fees – i.e. (i) the complexity of the issues decided, (ii) the amount in dispute and (iii) the time spent or to be spent on the arbitral proceedings – Article 17(2) of the Arbitration Law is inherently already intended to give effect to the principle of proportionality. As such, it is in the real world application of these three criteria that courts are requested to assess whether a reduction of arbitrators’ fees should be granted.

Secondly, although the application of constitutional principles to arbitral proceedings is not under discussion, this should not be converted into a simplistic measurement of the functions that fall within the competence of judges and arbitrations tempered by the application of the proportionality criteria. Actually, the application of the proportionality criteria is founded on the very essential assumption that one is comparing “apples to apples” and not “apples to oranges”. Hence, the proportionality criteria must be applicable taking into consideration that the service provided by arbitrators may be “equivalent” to the service provided by judges in the sense that both systems resolve disputes. However, we must never ignore the fact that the mechanisms are intrinsically different and that the remuneration of arbitrators and professional judges are not requested or supposed to be equivalent.

The obvious solution is for the parties to agree to refer the fixing of arbitrators’ fees to a specific institutional centre’s rules or to fix the fees on their own (with the agreement of the arbitrators) before the tribunal is formed. Besides this, it may also be the role of arbitral tribunals, when notified to reply in court to any party’s request for a reduction in fees, to bring to the judicial proceedings all the information that can guarantee a well-grounded decision by the state courts. This information should specifically detail: (i) the complexity of the case, (ii) the amount in dispute, (iii) the time spent and the tasks performed in relation to the case, as well as (iv) relevant information about the best national and international practices on arbitrators’ fees, including the hourly rates of equivalent professionals when acting as counsel in similar disputes. As an example, a very quick research on the leading Portuguese institution (Arbitration Centre of the Portuguese Chamber of Commerce and Industry) website shows that, according to the Rules of Arbitration of the Centre in effect, a case with an amount of EUR 14,000,000.00 in dispute with an arbitral tribunal of three members represents a total amount of EUR 169,875.00 in arbitrators’ fees (VAT excluded).


• Leave a comment on State Courts’ Decisions on Reduction of Arbitrators’ Fees: Comparing Apples to Apples or Apples to Oranges?

More from our authors:

Arbitrating under the 2014 LCIA Rules. A User's Guide Arbitrating under the 2014 LCIA Rules. A User's Guide
by Maxi Scherer, Lisa Richman, Remy Gerbay
€ 160
The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials
by Despina Mavromati, Matthieu Reeb
€ 175
Interaction and Conflict of Treaties in Investment Arbitration Interaction and Conflict of Treaties in Investment Arbitration
by Ahmad Ali Ghouri
€ 160
Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition
by Klaus Peter Berger
€ 110
Yearbook Commercial Arbitration Volume XXXIX 2014 Yearbook Commercial Arbitration Volume XXXIX 2014
by Albert Jan van den Berg (ed.)
€ 271



• Leave a comment on State Courts’ Decisions on Reduction of Arbitrators’ Fees: Comparing Apples to Apples or Apples to Oranges?

Egypt: New Investment Law – ADR for Investor-State Disputes

by Fatma Salah

Ibrachy & Dermarkar

On 12 March 2015, substantial amendments were introduced to the Egyptian Investment Law no. 8/1997 (Investment Law). The amendments generally aim at attracting new investments to Egypt through offering further incentives and guarantees, removing obstacles, and streamlining the procedure.

Incentives include, for example, trimming sales tax to 5% from as high as 10%, and setting customs duties on equipment used for production at 2%. Further non-tax incentives are offered to labor-intensive projects or investments in remote areas or in certain sectors such as energy, agriculture and transportation.  One of the long waited guarantees was shielding companies’ executives from criminal prosecution for legal violations committed by the company.

The amendments authorized the General Authority for Investment (GAFI) to act as a one-stop-shop from which investors, in certain sectors, can get all licenses and approvals needed to establish and run their business. In addition, a new system for allocation of state land, pricing and zoning is introduced.

The amendments are dependent on a significant number of executive regulations to be issued in the near future to provide details on how it will be administrated.

In relation to dispute resolution, the amendments tried to limit Egypt’s recent exposure to investor-state arbitration. The number of cases initiated against Egypt before ICSID alone has reached 14 since the 2011 uprising. Accordingly, a new chapter is added to the Investment Law creating alternative out-of-court forums to amicably settle investor-state disputes. Furthermore, the reference in the Investment Law to investor-state treaty arbitration or the ICSID has been removed.

Alternative Forums for Investor-State Disputes

A new Chapter Seven is added to the Investment Law under title “Investment Disputes Settlement”. The chapter created three out-of-court forums to encourage amicable settlement of investment disputes with the government.

The Complaint Committee

The Complaint Committee is competent to consider challenges against administrative decisions issued by GAFI in connection with the implementation of the Investment Law and its executive regulations.

The head of the committee shall be one of the vice presidents of the Conseil d’Etat. Members shall include two judges from the Conseil d’Etat, and two outside consultants with relevant expertise to be selected by the Investment Minister.

The investor shall submit its challenge to the committee within 15 business days from the date of being aware of the challenged decision. The Committee is authorized to order examination of the parties and the witnesses and to compel submission of documents. The enforceability of such orders is however doubtful.

The committee will issue its decision within 60 days from the date of submitting the challenge. The lapse of the 60 days without a reply is considered a refusal of the challenge. The decision of the committee will be final and binding on GAFI.

Resorting to the committee is voluntary and its decisions are not binding on the investor. In the meantime, the committee is not required to disclose the reasons beyond its decisions; it may even take a passive stance by not replying to the challenge for 60 days which will automatically be considered a rejection. This means that there will be no subsequent review of the committee’s decisions. All this would render the effectiveness of this committee questionable.

The Committee for Resolution of Investment Disputes

A ministerial committee will be created at the Cabinet of Ministers to consider requests, complaints or disputes that may arise between an investor and a governmental body in connection with the implementation of the Investment Law. The familiar short name of this committee is the Dispute Resolution Committee (DRC) (Arabic: لجنة الفض).

The committee shall issue its decision with the reasons thereof within 30 days from finalizing the hearings. If approved by the Cabinet of Ministers, the decision shall be binding on the governmental party only. Investor, conversely, retains the right to resort to state courts or arbitral tribunals to initiate the claim anew.

The executive regulations to be issued in the near future are expected to provide details on the administration of the committee, the procedures and fees for submitting the request, and the appealability of its decisions.

It is worth mentioning that a similar committee was created at GAFI in 2012 by virtue of the Prime Minister Decree no. 1115/2012. The jurisdictional and functional boundaries between the two committees are not clear yet.

The Committee for Settlement of Investment Contract Disputes

This ministerial committee will be established and charged with settling disputes between investors and governmental bodies arising out of investment contracts. This committee is known as the Dispute Settlement Committee (DSC) (Arabic: لجنة التسوية).

The establishment of the committee is motivated by helping the parties to reach a fair and mutually acceptable settlement to their dispute. In carrying out its job, the committee can reschedule the financial dues, rectify inaccurate formalities taken to enter into the contract, or extend limitation periods specified in the contracts.

If a settlement is reached between the parties, it will be effective and binding only when approved by the Cabinet of Ministers. If no settlement is reached, each party can commence litigation or arbitration as the case may be.  Submission to the committee is not a pre-requisite for commencement of a litigation or arbitration case.

Again, the DSC is quite similar to a committee that was established in 2012 by virtue of the Prime Minister Decree no. 1067/2012 for settlement of investor-state disputes. Differences between the two committees are unclear.

No More Legislative Offers to Arbitrate

Egypt, like many developing countries transitioning to open market economy, used to adopt special laws regulating foreign investments. These laws usually address international dispute resolution mechanism between the state and the foreign investor, and normally refer to arbitration under ICSID.

The first investment law Egypt adopted after acceding to ICSID Convention was Law 43/1974 concerning the Investment of Arab and Foreign Funds and the Free Zones. Article 8 of this law listed the methods of dispute resolution with clear reference to ICSID.  In the landmark ICSID case of Southern Pacific Properties v. Arab Republic of Egypt (SPP v. Egypt), Article 8 raised particular problems. It was interpreted to constitute a unilateral legislative consent by the Egyptian government to the ICSID jurisdiction. The tribunal concluded that reference to ICSID jurisdiction was formulated in mandatory terms focusing on the ‘shall be settled’ language used in the article. The ‘consent’ requirement was held to be fulfilled without the need to a subsequent agreement between the parties.

After the decision on jurisdiction in SPP v. Egypt, Egypt issued a new Investment Law 230/1989, referring again to ICSID, but this time in a more optional formulation. A quite similar language was imported to Article 7 of the current Investment Law no. 8/1997. The use of expressions such as ‘may be settled’ and the ‘may agree’ indicated that a further consent between parties is required before a dispute can be brought before the forum. Reference to ICSID was intended for ‘declaratory’ purposes only. The Egyptian legislator simply wanted to assure potential investors that Egypt respects its commitments under investment agreements and the ICSID Convention.

Nevertheless, skepticism continued as to whether the language of Article 7 is sufficient to shield Egypt from potential unconsented ICSID arbitration. Although consent to ICSID arbitration should never be presumed, the past years showed that if the domestic law is not crystal-clear in requiring a subsequent ‘agreement’, tribunals tend to interpret the ‘consent’ requirement too broadly to assume jurisdiction. This could be argued under several theories like ‘good faith’, the ‘reasonable expectations’ of an investor and the ‘duty to avoid ambiguity’.

It is understood that the usage of investment legislation as the basis to establish jurisdiction for ICSID arbitration has significantly declined with the rapid proliferation of investment treaties. However, consent to ICSID included in investment legislation still has an importance for investors whose states have not entered into a BIT with Egypt or in cases where the BIT imposes some restrictions or limitations on investor-state arbitration jurisdiction.

In view of that, the new amendments to the Investment Law modified Article 7 to delete any reference to investment treaty arbitration or the ICSID.  The Article now makes reference only to the methods of dispute resolution agreed between the parties as well as to the Egyptian Arbitration Law.

This amendment should not be construed as if Egypt is seeking to limit the protection offered to foreign investors. Egypt is rather willing to confirm that it does not offer a free-standing consent to international arbitration. Consent could rather be established on BITs or investment contracts. Egypt is a signatory to more than 100 BITs, most of them provide for alternative dispute resolution mechanisms, usually through international arbitration, and in particular arbitration at ICSID or ad hoc proceedings under the rules of UNCITRAL or other international arbitration centers.


• Leave a comment on Egypt: New Investment Law – ADR for Investor-State Disputes

More from our authors:

Arbitrating under the 2014 LCIA Rules. A User's Guide Arbitrating under the 2014 LCIA Rules. A User's Guide
by Maxi Scherer, Lisa Richman, Remy Gerbay
€ 160
The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials
by Despina Mavromati, Matthieu Reeb
€ 175
Interaction and Conflict of Treaties in Investment Arbitration Interaction and Conflict of Treaties in Investment Arbitration
by Ahmad Ali Ghouri
€ 160
Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition
by Klaus Peter Berger
€ 110
Yearbook Commercial Arbitration Volume XXXIX 2014 Yearbook Commercial Arbitration Volume XXXIX 2014
by Albert Jan van den Berg (ed.)
€ 271



• Leave a comment on Egypt: New Investment Law – ADR for Investor-State Disputes

Dubai Issues Judgment in Support of International Arbitration

by Hassan Arab and Dalal Al Houti

Al Tamimi & Company

In a ruling from November 2014 which has recently come to light, the Dubai Court of Cassation confirmed the Court of Appeal’s decision and, inter alia, granted recognition of a foreign arbitral award pursuant to the provisions of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. 

Summary of facts

In summary of the facts, the dispute arose out of and in connection with a distribution agreement concluded between Claimant (German Company) and Respondent (UAE Company) providing for arbitration under the auspices of the ICC. The seat of arbitration was Stuttgart, Germany.

The Claimant successfully filed a claim before the Dubai Court of First Instance seeking the recognition of a foreign arbitral award rendered in Stuttgart, Germany. The Respondent subsequently appealed to the Dubai Court of Appeal, which upheld the decision of the Court of First Instance. The Respondent challenged the appeal court’s decision before the Dubai Court of Cassation.

The Dubai Court of Cassation

On 23 November 2014, the Dubai Court of Cassation upheld the decision of the Dubai Court of Appeal and addressed three different elements to the appeal worth highlighting.  These are as follows:

1) Arbitrability of distribution agreements

2) Distinction between ‘venue’ and ‘seat’ of arbitration

3) Applicability of the NY Convention in the UAE

Arbitrability of distribution agreements

The UAE Civil Procedures Law expressly excludes certain types of disputes as being non-arbitrable as a matter of UAE law, disallowing arbitration ‘in matters where no conciliation may be reached’. Disputes may be deemed non-arbitrable either by existing legislation or as a matter of public policy by the courts. The UAE courts, by law, have a duty to intervene and investigate the irregularity even if such irregularity is not one of the grounds for setting aside the arbitral award under Article 216 of the Civil Procedures Law. As public policy, by definition, governs issues that are of fundamental concern to society and the basis for the social, political, economic or ethical laws of the State and therefore any contravention to the status quo must be determined by the courts.  Hence, the list is essentially non-inclusive. However, matters that have been deemed non-arbitrable in the past include disputes arising out of commercial agency, distributorship, labour agreements, bankruptcy and issues such as forgery and criminal activity.

In its ruling, the Court of Cassation however rejected, among other things, the argument that distribution agreements are non-arbitrable according to the UAE laws and denied that the arbitrability of such dispute is a matter of public policy. However, the fact that there is no doctrine of binding precedent in the UAE makes it difficult to predict with certainty the scope of its public policy application in the future and whether distributorship remains arbitrable.

Seat of Arbitration

It is well established that the seat of an arbitration is a crucial factor. It directly influences a number of issues, such as but not limited to the determination of the lex arbitri, arbitrability of the dispute, determination of the place of the annulment proceedings of the arbitral awards and the courts with supervisory jurisdiction over the arbitral process.

The Dubai Court of Cassation in this instance recognized the difference between ‘venue’ and ‘seat’ of arbitration.  The Court, in conformity with modern standards, held that convening the hearing in Paris did not change the legal seat of arbitration which remained Stuttgart, Germany.

Applicability of NY Convention in the UAE

Since the UAE ratified the New York Convention in 2006, the provisions for recognition set out in the Convention have become mandatory laws of the state notwithstanding its contradiction to previous laws (including Articles 235-238 of the Civil Procedures law).  However, in the past, the local courts have applied provisions of the UAE Civil Procedures Law instead of the New York Convention.

The Court explained that since its ratification, the New York Convention is deemed an ‘applicable domestic law’ in the UAE and the judiciary should apply the provisions of the Convention to any and all disputes relating to the execution of foreign awards. It was therefore held that the provisions of the New York Convection were applicable to the dispute in question.

What is more, the Court held that the first few articles of the New York Convention constitute a positive obligation for a contracting state to recognize and enforce foreign arbitral awards, i.e. arbitral awards made in the territory of another State. A party seeking enforcement of a foreign award needs to supply to the court (a) the arbitral award and (b) the arbitration agreement (Article IV).

The Court recognized the objection of a party against whom enforcement of a foreign award is sought be limited to one of the grounds for refusal of enforcement which are set out in Article V(1) of the New York Convention. The award was thus recognized by the Dubai Court of Cassation.

Conclusion

There is no doubt that the above ruling is a positive step towards solidifying the UAE’s commitment to the New York Convention, and arbitration more generally.

This judgment is of particular significance as it represents a reconfirmation of the position found in the previous line of judgments which held that the recognition of foreign arbitral awards in the UAE is subject to the New York Convention and suggests strongly that the 2013 judgment whereby a foreign award was denied recognition was an exception of this standard approach.

 


• Leave a comment on Dubai Issues Judgment in Support of International Arbitration

More from our authors:

Arbitrating under the 2014 LCIA Rules. A User's Guide Arbitrating under the 2014 LCIA Rules. A User's Guide
by Maxi Scherer, Lisa Richman, Remy Gerbay
€ 160
The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials
by Despina Mavromati, Matthieu Reeb
€ 175
Interaction and Conflict of Treaties in Investment Arbitration Interaction and Conflict of Treaties in Investment Arbitration
by Ahmad Ali Ghouri
€ 160
Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition
by Klaus Peter Berger
€ 110
Yearbook Commercial Arbitration Volume XXXIX 2014 Yearbook Commercial Arbitration Volume XXXIX 2014
by Albert Jan van den Berg (ed.)
€ 271



• Leave a comment on Dubai Issues Judgment in Support of International Arbitration

Are All Institutional Rules Now Basically The Same?

by Jonathan Lim

Wilmer Cutler Pickering Hale and Dorr LLP,
for YSIAC

Most institutional rules share a common procedural framework for arbitral proceedings—the origins of which are traceable to the first set of ICC Rules in 1922. This skeletal framework broadly describes the lifecycle of the arbitration, and provides for the order of pleadings, constitution of a tribunal, conduct of proceedings, and making of the award, in a manner that accords parties and arbitrators substantial leeway to tailor the process to their needs.

Certain other features are by now common to virtually all modern institutional rules, whether they are promulgated in Cairo, Vienna or Singapore. Convergence here, as in the field of international arbitration more generally, has seemed inevitable. Most if not all rules contain provisions that guarantee a basic level of fairness to parties or the process; and also provisions that reduce the risk of technical defects that can frustrate proceedings, such as rules on competence-competence or corrections to awards.

That is not to say that all institutional rules are the same. Arbitral institutions are ultimately competitors, both as quasi-regulators and as service providers, and this has driven innovation amongst institutions that have encouraged appreciable differences between rules.

This post maps out, based on a sample of four leading arbitral institutions—the ICC, ICDR, LCIA, and SIAC—some key practical differences between institutional rules, in terms of speed, cost, and professional oversight.

Need for Speed

Speed and efficiency have traditionally been regarded as advantages enjoyed by arbitration over national court proceedings. In recent years, however, arbitral proceedings have attracted criticism for more-significant-than-expected expense and delay.

Some of this criticism may not always be justified—but institutions have nevertheless responded with a range of new offerings to address this perception. These include provisions ranging from full expedition of the arbitral process to emergency arbitrator provisions.

Among the institutional rules surveyed, only the ICDR and SIAC Rules contain expedited procedures. The ICDR’s International Expedited Procedures were recently introduced in 2014. They apply either where “no disclosed claim or counterclaim exceeds US$250,000”, or where parties agree to their application (ICDR Rules, Art. 1.4). There is a presumption that cases up to US$100,000 will be decided on documents only, without the need for an oral hearing. Where they apply, the parties get by default, unless agreed otherwise: the expedited appointment of a sole arbitrator within 10 days of ICDR’s transmission of a list of arbitrators, an expedited timetable for pleadings and/or a hearing within 60 days of the arbitrator’s procedural order, and an award within 30 calendar days of the close of hearings/submissions (International Expedited Procedures, Art. E-6-10). This high-speed, truncated process seems appropriate for small and relatively straightforward cases.

The SIAC Expedited Procedure has a potentially wider scope of application. Under the SIAC Rules, at any time before the constitution of the tribunal, any party may apply to the Registrar in writing for the arbitral proceedings to be conducted in accordance with the Expedited Procedure. This is available so long as any one of three criteria is satisfied—that is, where: (a) the aggregate amount in dispute[1] does not exceed SGD$5,000,000; (b) the parties agree; or (c) in cases of “exceptional urgency” (Rule 5.1).

Compared to the ICDR procedure, the SIAC Expedited Procedure provides a greater role for the arbitral institution and tribunal, thus allowing for a more flexible process. The determination as to whether the procedure applies is left to the discretion of the President of the SIAC Court (Rule 5.2). A sole arbitrator is appointed by default, although the President may choose to appoint otherwise. The SIAC Rules do not specify timelines for each stage of the expedited process, besides stipulating that an award needs to be rendered within 6 months of the tribunal’s constitution, and that the Registrar may shorten any time limits under the SIAC Rules. All this leaves the control of arbitral proceedings largely in the hands of the arbitral tribunal, supported by the SIAC as necessary.

The SIAC Expedited Procedure has been around since July 2010, and has been relatively popular with parties.  From July 2010 to December 2014, the SIAC received a total of 159 applications, of which 107 requests for the Expedited Procedure were granted.  In 2014 alone, the SIAC received 44, and granted 23, applications (Annual Report).

The ICC and LCIA Rules contain no such fast-track procedures. The ICC rules do, however, incorporate procedures that are designed to enhance efficiency, such as its trademark Terms of Reference procedure, and provisions requiring parties and the arbitral tribunal to “make every effort to conduct the arbitration in an expeditious and cost-effective manner” (Arts 22.1, 23). The LCIA Rules include provisions allowing for the expedited formation of the arbitral tribunal in a case of “exceptional urgency,” and the expedited appointment of a replacement arbitrator (Arts. 9A, 9C).

Emergency arbitrator provisions allowing parties to obtain interim relief before the constitution of a tribunal are available under all the institutional rules surveyed.

Among the institutions surveyed, the ICDR was the first to introduce the emergency arbitrator provisions (2006), followed by the SIAC (2010), the ICC (2012) and then the LCIA (2014).  The ICDR and SIAC have had the most experience. Indeed, as of December 2014, the SIAC has seen 42 applications, with emergency arbitrators appointed in all 42 cases, and interim relief granted in whole or in part in 24 cases (Annual Report).

There are only nuanced differences between the emergency arbitrator provisions, which are otherwise similar. Only the SIAC and ICDR Rules fix a timeframe for appointing of the emergency arbitrator, with the ICDR committing that it “shall appoint” an emergency arbitrator “[w]ithin one business day” (Art. 6.2), and the SIAC Rules providing that the President “shall… seek to appoint” an emergency arbitrator “within one business day” (Schedule 1, para. 2). The LCIA Rules merely state that the LCIA Court “shall determine the application as soon as possible” (Art. 9B), and the ICC Rules provide for an emergency arbitrator to be appointed “within as short a time as possible, normally within two days” (Appendix V, Art. 2).

As for the emergency arbitrator’s decision, the ICDR, LCIA and SIAC Rules provide that this may be either take the form of an “order” or “award,” while the ICC Rules provide that the emergency arbitrator’s decision may only take the form of an “order.”

Counting the Cost

The choice of an arbitral institution has obvious implications on the costs of the arbitration. In addition to the arbitrators’ fees, the costs of an institutional arbitration include the institutions’ administrative fees, filing fees and the costs of any expert or other assistance the tribunal may require.

Institutional rules incorporate different cost structures, and use one or a combination of two methods for calculating and fixing costs: a defined hourly rate; or a rate calculated by reference to the amount in dispute (ad valorem). Costs vary depending on the institution, the size and complexity of the dispute, and whether or not the dispute goes to a hearing.

Under the ICC Rules, the ICC International Court of Arbitration (the “ICC Court”) fixes both the arbitrators’ and the institution’s fees on an ad valorem basis according to a fee scale, or alternatively at the ICC Court’s discretion where the amount is not stated (Art. 37.1, Appendix III, Arts. 2.1, 2.5, 4). The ICC Court has the discretion to depart from the fee scale, but only where it is “deemed necessary due to the exceptional circumstances of the case” (Art. 37.2). Under the ICC Rules, decision-making on the arbitrators’ fees lies exclusively with the ICC Court (Art. 37.3); there is no provision for party agreement to override the ICC Court’s determination on costs.

The SIAC Rules likewise adopt an ad valorem remuneration scheme for the arbitrators’ and the institution’s fees. As a recent survey on Global Arbitration Review demonstrates, the SIAC costs on the ad valorem scale are lower than the ICC’s for any and all amounts in dispute. Also, unlike the ICC Rules, the arbitrators’ fees are calculated ad valorem only by default under the SIAC Rules. There is flexibility for parties to opt out by agreeing to “[a]lternative methods of determining the tribunal’s fees” prior to the constitution of the tribunal (Rule 30.1).

Among the institutional rules surveyed, the LCIA Rules uniquely provide for both the arbitrators’ and the institution’s fees (with the exception of the one-time registration fee) to be determined based on hourly rates, which are capped in the Rules’ Schedule of Arbitration Costs (Art. 28.1). Arbitrators are to agree in writing on their hourly rate before they are appointed by the LCIA Court. The LCIA Rules also provide for a refund of the deposit paid by the parties if the actual arbitration costs are less than the amount of deposit provided (Art. 28.7).

Like the LCIA Rules, the ICDR Rules provide for arbitrators to be compensated on a daily or hourly rate (Art. 35.2). Unlike the LCIA Rules, however, the ICDR Rules do not provide a cap for the hourly rate. Also, the determination of the rate under the ICDR Rules is made after the constitution of the tribunal (Art. 35.2), rather than at the pre-appointment stage under the LCIA Rules. As for the administrative fees, the ICDR adopts an ad valorem system in accordance with its Administrative Fee Schedules, and has two options for claimants and counterclaimants: a standard fee schedule with a two-payment schedule, and a flexible fee schedule, which has a three-payment schedule that offers lower (but non-refundable) initial filing fees but with potentially higher total administrative costs if the case proceeds to hearing.

The ad valorem system adopted by the SIAC and ICC has the advantage of transparency and certainty for the end-user; there is upfront clarity about what the fees would look like for any given arbitration.[2]

One potential downside, however, is that the amount in dispute does not necessarily correlate with the complexity of the dispute, and so the arbitrator and/or institution may be under-compensated in a low-value but complex dispute, or over-compensated in a simple but high-value dispute. Institutions such as the SIAC and ICC address this by assessing the actual costs of the arbitration at the end of a case, based on factors such as complexity, number of hearings, the arbitrators’ efficiency and so on (Rule 32.1, 2014 Practice Note, at para. 15). According to the SIAC, actual costs tend to fall within 75-80% of the initial estimated fee cap based on the sum in dispute, and any excess deposits after this assessment are refunded to parties.

In contrast to the ad valorem system, a fixed hourly rate for the arbitrators’ fees, as set by the LCIA or ICDR, may be fairer in compensating arbitrators in relation to the complexity and scale of a case; it may also ultimately be cheaper for parties than ad valorem fees in a big case. However, the downsides of an hourly rate are that it may not encourage efficiency on the part of the arbitrators, and that it does not give the parties much upfront certainty about the likely cost of their arbitration.

Professional Assistance and Oversight

One of the strengths of institutional arbitration is the access to professionalised supervision by the arbitral institution, which is usually staffed by specialised professionals capable of giving input or deciding on important issues such as challenges to arbitrators, the selection of a seat and so on. Different institutions do this in varying degrees.

The ICC’s supervisory role is organized around a professional Secretariat and the ICC Court, with the former staffed by qualified and experienced lawyers who are specialists in the field, and the latter comprising experienced arbitration professionals from all over the world.  Under the ICC Rules, awards can only be rendered after they have been scrutinized, for issues of not just form but also substance, and then approved by the ICC Court as to their form (Art. 33). This review and scrutiny process has been cited as a key attraction of ICC arbitration, and is often used to justify the ICC’s higher fees.

The SIAC’s organizational structure is similar to the ICC’s. It has a Court of Arbitration that also comprises leading arbitration professionals from the world over, and an experienced Secretariat with specialist qualified lawyers to manage the administration of cases. Similar to the ICC, under the SIAC Rules, all SIAC awards are scrutinized in draft by the Registrar for issues of both form and substance, and can only be rendered by the tribunal if approved by the Registrar as to their form (Rule 28.2). Under the SIAC Rules, the Registrar manages the formal review and scrutiny process, although the Registrar may, where appropriate, consult the SIAC Court before approving the draft award as to its form (2014 Practice Note, at para. 31). According to the SIAC, timelines for scrutiny are shorter than at the ICC: 2 to 4 weeks for draft final awards, and 2 days in the case of emergency arbitrator orders and awards.

In contrast, the LCIA and ICDR Rules do not expressly contemplate any formal review or scrutiny.[3] However, while not expressly required under their rules, the LCIA and ICDR offer a reduced form of professionalised assistance and oversight. The ICDR’s practice, for instance, is to have a case manager assigned to every case, who would review the award for any clerical, typographical or arithmetical errors, or whether it contains all necessary elements for enforcement, before it is finalized and signed.[4] Similarly, the LCIA Secretariat provides “proofreading” services if required by the arbitral tribunal.

Conclusion

There are many other differences, besides those mentioned above, between the institutional rules of leading arbitral institutions. These include important innovations such as the Arb-Med-Arb clause[5] developed jointly by the SIAC and the Singapore International Mediation Centre, as well as the new Article 18 and Annex to the 2014 LCIA Rules that purport to regulate professional conduct. Despite the general trends towards convergence and harmonization, it is clear that points of divergence between institutional rules remain. That should be seen as a good thing; after all, such differences expand the range of choices available to corporate counsel and other users of arbitration.

The author is grateful to Mr. Aleksandr Frolov for his able research assistance.


[1] That is, the aggregate of the claim, counterclaim and any set-off defence. See 2013 SIAC Rules, Art. 5.1(a).

[2] Under the fee schedule, the SIAC caps its administration fees at SG$95,000, where the sum in dispute is above SG$100 million, and caps the arbitrator’s fees at SG$2 million, where the sum in dispute is above SG$500 million.  See 2013 SIAC Rules, Schedule of Fees.

[3] See LCIA Frequently Asked Questions; S. Wade and Ors, Commentary on the LCIA Rules 2014, (2015, Sweet & Maxwell), (“LCIA Commentary”), at para. 26-017; M.F. Gusy, J.M. Hosking, and F. Schwarz, A Guide to the ICDR International Arbitration Rules, (2011, Oxford), (“ICDR Guide”), at para. 27-02.

[4] See ICDR Guide, at paras. 1.98, 1.113 and 27.02.

[5] Arb-Med-Arb is a tiered process where a dispute is first referred to arbitration before mediation is attempted. If parties are able to settle their dispute through mediation, their mediated settlement may be recorded as a consent award. The consent award is generally accepted as an arbitral award, and, subject to any local legislation and/or requirements, is generally enforceable in approximately 150 countries under the New York Convention. If parties are unable to settle their dispute through mediation, they may continue with the arbitration proceedings.

 


• Leave a comment on Are All Institutional Rules Now Basically The Same?

More from our authors:

Arbitrating under the 2014 LCIA Rules. A User's Guide Arbitrating under the 2014 LCIA Rules. A User's Guide
by Maxi Scherer, Lisa Richman, Remy Gerbay
€ 160
The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials
by Despina Mavromati, Matthieu Reeb
€ 175
Interaction and Conflict of Treaties in Investment Arbitration Interaction and Conflict of Treaties in Investment Arbitration
by Ahmad Ali Ghouri
€ 160
Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition
by Klaus Peter Berger
€ 110
Yearbook Commercial Arbitration Volume XXXIX 2014 Yearbook Commercial Arbitration Volume XXXIX 2014
by Albert Jan van den Berg (ed.)
€ 271



• Leave a comment on Are All Institutional Rules Now Basically The Same?

Canada, China, and the Anti-BIT

by Catherine H. Gibson (Assistant Editor for North America)

If the Canada-China BIT is any guide, then the US-China BIT may prove to be profoundly state-friendly. Unlike Canada’s 2004 model investment agreement and the investment chapter of the 2014 Canada-European Union Comprehensive Trade and Economic Agreement (CETA), the Canada-China BIT offers only negligible establishment-phase protections and lacks disciplines on state-owned enterprises. With such provisions, the Canada-China BIT (and perhaps the US-China BIT) may prove to be an anti-BIT which, rather than promoting new investment, simply asserts states’ ability to regulate existing investments.

Three provisions contribute to the Canada-China BIT’s weak establishment-phase protections: (1) a weak performance requirements provision; (2) the exclusion of pre-investment approval from dispute settlement; and (3) the omission of establishment-phase protections from the national treatment clause.

The BIT’s performance requirements provision provides only that “[t]he Contracting Parties reaffirm their obligations under the WTO Agreement on Trade-Related Investment Measures (TRIMS)” and incorporates TRIMS Article 2 and the Annex, which relate to national treatment, quantitative restrictions, and domestic content requirements. For Canada, TRIMS appears to be a fall-back position on performance requirements – similar references are in Canada’s FTAs with Costa Rica, Thailand, and Venezuela.

The weakness of this performance requirements provision is apparent, however, when compared with Canada’s model agreement and CETA. The analogous model agreement provision bars domestic content requirements, export minimums, localization of intellectual property, and similar actions when imposed in connection with the establishment of an investment, as well as when imposed as a condition for the continuance of an investment benefit. CETA’s investment chapter includes a performance requirements provision along these lines, and also contains a separate “market access” provision. Like GATS article XVI, CETA’s “market access” provision forbids limits on the number of enterprises, operations, or natural persons, or the value of transactions or foreign capital that may be involved in an investment. Thus, Canada’s model treaty provides strong performance requirements, while CETA provides double protection at the establishment phase. The strength of these agreements’ pre-investment protection contrasts strongly with the sparse coverage offered in the Canada-China BIT.

The BIT also excludes pre-investment approval (or disapproval) from both investor-state and state-to-state dispute settlement. Under Annex D.34, neither dispute-resolution method applies to a state’s decision to “initially approve an investment that is subject to review” or “permit an investment that is subject to national security review” under its own laws. This exclusion guarantees states broad latitude to refuse the establishment of investments, and such decisions may be reviewed only within the respective domestic systems. Neither Canada’s model agreement nor CETA contains an analogous provision, and due to both countries’ relatively onerous investment approval processes, the inclusion of such a provision in the Canada-China BIT will likely have a substantial impact on investment decisions.

Finally, the Canada-China BIT is weak in establishment-phase protection because it does not provide national treatment protection at that phase. In article 6 of the BIT, national treatment protection applies to the “expansion, management, conduct, operation and sale or other disposition of investments.” Canada’s model treaty and CETA, by contrast, both apply national treatment protection to all these phases of investment, as well as to the “establishment” and “acquisition” of an investment. The absence of these words in the national treatment provision of the Canada-China BIT significantly limits the protections offered by that clause, and excludes any protection whatsoever at the establishment phase.

This omission of pre-investment protection from the national treatment clause, in combination with the weak performance requirements provision and the exclusion of pre-investment approval from dispute settlement, make it unlikely that the BIT will encourage new investments in either state because pre-investment expenditures would receive no protection.

The BIT also exempts state-owned enterprises (SOEs) from several substantive requirements. Because these entities are generally acknowledged as dominant in the Chinese market, these exemptions – like the lack of pre-investment protection – also render the BIT less likely to encourage new investment.

Article 8 of the BIT exempts SOEs in the process of privatization from most-favored nation (MFN) and national treatment (NT) obligations, as well as from the obligation not to restrict the nationalities of management personnel in investments. This provision – which has no counterpart either in Canada’s model agreement or CETA – effectively permits China to exclude foreign investors from participating in the privatization of SOEs. This exclusion is significant because participation in these entities’ privatization might otherwise have attracted Canadian investors.

The BIT also omits a provision from the Canadian model agreement which requires SOEs exercising delegated government authority to act in a manner not inconsistent with the agreement. Without this provision, both states have more latitude to engage in discriminatory or other anti-competitive conduct via SOEs without violating the BIT. CETA, by contrast, contains an entire chapter on SOEs, and requires SOEs to act in accordance with “commercial considerations” in purchasing and selling goods, forbids SOEs from treating investments in a discriminatory fashion, and requires SOEs to comply with CETA’s competition policy chapter. When contrasted with these CETA and model treaty provisions, the absence of any such disciplines on SOEs in the BIT – particularly given the prominence of SOEs in China’s economy – is telling.

It remains to be seen whether the Canada-China BIT’s state-friendly terms will affect investment flows. It seems certain, however, that Canadians seeking to invest in China and Chinese seeking to invest in Canada can take little comfort in this treaty. Looking forward, investors seeking protection in the US-China BIT may be wise to temper their expectations. Although China has already agreed to provide establishment-phase protections in its BIT with the US, the novel provisions in the Canada-China BIT demonstrate the myriad of ways in which states can structure BITs to protect their own interests, and make these agreements anti-BITs.


• Leave a comment on Canada, China, and the Anti-BIT

More from our authors:

Arbitrating under the 2014 LCIA Rules. A User's Guide Arbitrating under the 2014 LCIA Rules. A User's Guide
by Maxi Scherer, Lisa Richman, Remy Gerbay
€ 160
The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials
by Despina Mavromati, Matthieu Reeb
€ 175
Interaction and Conflict of Treaties in Investment Arbitration Interaction and Conflict of Treaties in Investment Arbitration
by Ahmad Ali Ghouri
€ 160
Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition Private Dispute Resolution in International Business. Negotiation, Mediation, Arbitration - Third Edition
by Klaus Peter Berger
€ 110
Yearbook Commercial Arbitration Volume XXXIX 2014 Yearbook Commercial Arbitration Volume XXXIX 2014
by Albert Jan van den Berg (ed.)
€ 271



• Leave a comment on Canada, China, and the Anti-BIT
Follow seachangenoosa on Twitter
Subscribe to our Newsletter
Sign up here for our Monthly Newsletter.