Arbitral Awards and Challenges

This note describes the most significant features of the arbitral process in Germany, including the German law regarding arbitration agreements, the duties and powers of the tribunal, the role of state courts, and the challenge and enforcement of awards.

A tracker outlining anticipated key developments in international arbitration.

The issue of state immunity is relevant not only to whether you or your clients will be able to commence proceedings against a state, but also to procedural issues in the course of proceedings and rights of enforcement. If you are contracting with a party which could be considered a state for these purposes, you should always aim to include provisions in the dispute resolution clause whereby the state expressly waives its immunity in relation to each of these aspects. This practice note addresses the issues which may arise in relation to state immunity, and offers drafting advice.

An article highlighting the key arbitration-related developments in England and Wales in 2012/2013. 

An article highlighting the key arbitration-related developments in India in 2012. 

An article highlighting the key arbitration-related developments in Sweden in 2012/2013. 

An article highlighting the key arbitration-related developments in the UAE in 2012/2013. 

An article highlighting the key arbitration-related developments in Australia in 2012/2013. 

An article highlighting the key arbitration-related developments in Hong Kong in 2012/2013. 

2012 has seen a number of changes in the international arbitration landscape, including rule changes, legislative developments and important caselaw. PLC Arbitration has reviewed the year's developments and selected ten of the most important.

This article summarises the results of the 2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process.

The Country Q&A tool enables subscribers to search the Country Q&A in the PLC Arbitration multi-jurisdictional guide by question and jurisdiction. Simply select the questions and the jurisdictions that you are interested in and click the "submit" button. Please note that the law stated dates for each jurisdiction covered may not be the same. To check the law stated dates for each jurisdiction, please visit the individual article.

A Q&A guide to arbitration law and practice in South Korea. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A number of arbitration related developments are expected in the second half of 2012 and beyond. The key areas to watch are highlighted in this article.

A Q&A guide to arbitration law and practice in Brazil. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Malta. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Turkey. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

In a rare decision, the Higher Regional Court of Frankfurt am Main set aside an arbitral award because the arbitral tribunal had not followed the procedure agreed for submission of briefs and terms of reference for an expert that the court held had been agreed by the parties as set out in procedural orders by the tribunal. The decision has implications for arbitrations with their seat in Germany.

A Q&A guide to arbitration law and practice in Australia. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Canada. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Egypt. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Germany. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in India. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Japan. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in the Russian Federation. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Switzerland. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

The table below provides a high-level summary of the enforceability of arbitral awards in 26 jurisdictions across the globe. This table is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

This chapter outlines how the China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules 2012 differ from the previous rules governing CIETAC, and considers the practical implications of the changes. This article is part of the PLC Arbitration multi-jurisdictional guide. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

An article highlighting the key arbitration-related developments in Brazil in 2011/2012. 

An article highlighting the key arbitration-related developments in France in 2011/2012. 

An article highlighting the key arbitration-related developments in Singapore in 2011/2012. 

A number of arbitration-related developments are expected in 2012. This article highlights key areas to watch.

An examination of developments in international arbitration over the last five years in some of the key jurisdictions across the globe.

An article highlighting the key arbitration related developments in Australia in 2010/2011.

An article highlighting the key arbitration related developments in Germany in 2010/2011. 

An article highlighting the key investment treaty arbitration related developments in 2010/2011. 

A number of arbitration related developments are expected in 2011. The key areas to watch are highlighted in this article.

This note highlights the arbitration related developments expected in the second half of 2009.

An article highlighting the key arbitration-related developments in the Russian Federation in 2011/2012. 

The US Court of Appeals for the Seventh Circuit in Johnson Controls, Inc. v. Edman Controls, Inc. refused to vacate an arbitration award and admonished the appellant for pursuing the appeal, warning that challenges to commercial arbitral awards come with a "high risk of sanctions."

On 31 January 2013, Slovakia requested the Higher Regional Court of Frankfurt to set aside a €22 million award in favour of Dutch health insurer Achmea (formerly Eureko), as Germany’s Federal Court of Justice is considering a challenge to the arbitral tribunal’s earlier award on jurisdiction.

In AI v MT [2013] EWHC 100 (Fam), the High Court explained its approach in making a consent order in terms of an arbitral award by the Beth Din in matrimonial proceedings.

In a French language decision dated 14 December 2012, the Swiss Supreme Court found that it had jurisdiction over a petition for setting aside an unreasoned arbitral award.

The United States Court of Appeals for the Fifth Circuit has affirmed a District Court ruling dismissing a petition to confirm a foreign arbitration award for lack of personal jurisdiction and subject matter jurisdiction.

Dubai's highest court has delivered a powerful message to arbitration users and practitioners across the world that it will enforce foreign arbitral awards in accordance with the UAE's treaty obligations under the New York Convention. Although there is no system of binding precedent in Dubai, the Dubai Court of Cassation's recent decision, in which it enforced a DIFC-LCIA award rendered by a tribunal seated in London, is being hailed as a watershed moment in its development as a major regional and global centre for international arbitration.

The Svea Court of Appeal has dismissed Ukrnafta’s claim for a declaration that the arbitral tribunal, in the dispute with Carpatsky Petroleum Corporation, lacked jurisdiction. Ukrnafta had an extended duty to investigate the identity of the claimant upon receipt of the Request for Arbitration and should have raised its jurisdictional objections in the Statement of Defence. Ukrnafta’s failure to do so, despite its lack of actual knowledge of the circumstances giving rise to jurisdictional objections, precluded it from objecting at a later stage.

The United States Court of Appeals for the Fifth Circuit has affirmed a District Court's order denying a motion to compel arbitration because the party requesting arbitration did not sign the arbitration agreement.

This article summarises the results of the QMUL 2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process.

In a decision dated 30 July 2012, the Higher Regional Court of Munich rejected an application to declare enforceable a Ukrainian award. The court based its decision on two independent grounds. First, that the award had been set aside by the state courts of Ukraine. Second, that enforcement would violate the German ordre public because the award of liquidated damages in the arbitration was in breach of Ukrainian law. (Free access.)

We have updated our quick guides on enforcing arbitration awards and interim remedies to reflect the information contained in the PLC Cross-Border Arbitration multi-jurisdictional guide 2012/2013. (Free access.)

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel) and Daniel J. Hickman (Associate), White & Case LLP The United States District Court for the District of Columbia has denied a request for remand of an ICSID arbitral award, holding that the terms of the award were unambiguous.

Priyanka Gandhi (Consultant) and Shruti Thampi (Associate), Juris Corp In a landmark decision, a five judge Constitutional Bench of the Supreme Court of India has overruled its earlier controversial decision in Bhatia International and held that Part I of the Indian Arbitration and Conciliation Act 1996 would not apply to international commercial arbitrations with their seat outside India.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel) and Daniel J. Hickman (Associate), White & Case LLP The United States Court of Appeals for the Fifth Circuit has held that a petitioner waived the evident partiality objection to vacate an arbitral award by failing to raise potential arbitrator bias concerns during the arbitration proceedings.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel) and Daniel J. Hickman (Associate), White & Case LLP The United States Court of Appeals for the Second Circuit has affirmed a district court’s confirmation of an arbitral award, finding that the arbitration agreement’s incorporation of the UNCITRAL Arbitration Rules demonstrates that the parties "clearly and unmistakably" intended to leave the question of arbitrability to an arbitrator.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In two French-language decisions of 28 June and 23 July 2012, respectively, the Swiss Supreme Court dealt in some detail with the procedural and substantive requirements for the revision of arbitral awards. The second case, which concerned domestic arbitration, raised several issues which are also of interest to international arbitration practitioners, in particular the question of the admissibility of a request for revision based on an expert report established after the award was made.

PD Dr. Nathalie Voser (Partner) and Aileen Truttmann (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 2 July 2012, and published on 27 July 2012, the Swiss Supreme Court ruled that a full translation of the award, originally drafted in English, was not necessary for enforcement purposes.

We have published a collection of waiver of sovereign immunity clauses in a number of key jurisdictions with integrated drafting notes. (Free access).

Andrew Walsh (Partner), Elaine Punch (Solicitor), A&L Goodbody On 24 May 2012, the Irish High Court refused an application to set aside an arbitrator’s award, pursuant to section 6 of the Arbitration Act 2010. The decision reinforces the Irish High Court’s support for the arbitration process in Ireland, and in particular the decision-making power of the arbitrator. It also re-affirms the exceptionally high standard that must be met before an Irish court will set aside or remit an arbitration award. 

PD Dr. Nathalie Voser (Partner) and Elisabeth Leimbacher (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 18 June 2012 and published on 12 July 2012, the Swiss Supreme Court among other interesting observations considered as "convincing" the view that the Court of Arbitration for Sport retains jurisdiction to dismiss an appeal filed after expiry of the time limit, without however decisively settling this issue. The Supreme Court also reiterated that the principle of reverse onus in doping disputes does not trigger "ordre public" in terms of Article 190(2)(e) PILA.

We have published an article on the decision in La Générale des Carrières et des Mines v FG Hemisphere Associates LLC [2012] UKPC 27 in which the Privy Council ruled on the liability of state-owned corporations for debts of the state. (Free access).

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP The United States Court of Appeals for the Fifth Circuit has affirmed a district court's confirmation of an arbitral award, finding that the arbitration agreement's incorporation of the American Arbitration Association rules demonstrates the parties "clearly and unmistakably" intended to leave the question of arbitrability to an arbitrator.

Olof Rågmark (Partner), Advokatfirman Delphi, Stockholm On 2 July 2012, the Svea Court of Appeal in Stockholm (case T611-11) dismissed an appeal by Naftogaz relating to a separate arbitral award issued by an SCC tribunal in 2010 finding that Naftogaz was obliged to deliver gas and pay penalties for undelivered gas.

Silvia Martínez Sastre (Associate), Hogan Lovells International LLP (Spain) The Court of Appeal of Barcelona has upheld an award issued under the auspices of the Consulate of the Sea pertaining to the Barcelona Chamber of Commerce. The award rejected the objections to jurisdiction and found a breach of a supply contract, ordering the respondent to pay damages. In a long judgment, the Court of Appeal of Barcelona considers more than twelve grounds for setting aside the award relating to the alleged non-existence of an arbitration agreement, breach of the agreed procedure and public policy.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP The United States District Court for the Northern District of Texas has denied a motion to remand to state court a dispute between two foreign nationals, both domiciled in the US, over an arbitral award, holding that federal jurisdiction was proper pursuant to the New York Convention.

PD Dr. Nathalie Voser (Partner) and Aileen Truttmann (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 30 April 2012 and published on 16 May 2012, the Swiss Supreme Court confirmed that a party cannot request the revision of an award on the basis of facts discovered after the award was rendered, if the failure to discover the evidence was due to the party's own negligence.

Anne Véronique Schlaepfer (Partner) and Philippe Bärtsch(Partner), Schellenberg Wittmer (Geneva) In a decision of 2 May 2012, the Swiss Supreme Court confirmed that, when an award rendered by an arbitral tribunal in Switzerland is annulled, the same arbitral tribunal remains competent to render a new award (except where the award was annulled on the ground that the arbitral tribunal was constituted irregularly or wrongly accepted jurisdiction over the dispute). In this decision, the Swiss Supreme Court also re-affirmed its established case law that the decision of the competent state court at the seat of the arbitration (the so-called juge d'appui) on the challenge of an arbitrator for alleged lack ofindependence or impartiality is final. Consequently, if the juge d'appui dismisses such a challenge, the same alleged lack of independence or impartiality cannot be invoked in an application to set aside a subsequent award.  Moreover, the Swiss Supreme Court confirmed its restrictive interpretation of the grounds on which an award can be set aside, in particular the public policy ground.

In Latvian Shipping Company v The Russian People's Insurance Company (Rosno) Open Ended Joint Stock Company [2012] EWHC 1412 (Comm), the Commercial Court considered the court’s power, both under CPR 3.1(7) and its inherent jurisdiction, to set aside an order granting leave to appeal an arbitration award under section 69 of the Arbitration Act 1996.

Natalia Belomestnova (Senior Associate) and Tatiana Zakharova (Paralegal), Goltsblat BLP In a recently published decision of 13 March 2012, the Federal Commercial Court of Moscow region took a formalistic approach to the wording of an arbitration clause and confirmed the annulment of an ICAC award because ICAC was not competent to consider the dispute. The court’s conclusion is based on the fact that the arbitration clause in question referred disputes to settlement under the ICAC rules, not to ICAC as an institution.

John Choong (Counsel), Freshfields Bruckhaus Deringer The Hong Kong Court of Appeal has upheld an appeal against a decision of the Court of First Instance to set aside an ICC award.  The Court of Appeal confirmed that, even if there are grounds for setting aside an award under Article 34(2) of the UNCITRAL Model Law, the court still has a residual discretion to refuse to set aside an award, if it is satisfied that the outcome could not have been different. 

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP In a per curiam opinion, the Court of Appeals for the Eleventh Circuit reaffirmed that under the New York Convention public policy objections are inapplicable at the stage of enforcement of arbitration agreement, because public policy arguments cannot be applied neutrally on an international scale.

Andrew Walsh (Partner), Elaine Punch (Solicitor), A&L Goodbody On 27 March 2012, the Irish High Court used its discretion to refuse an application to set aside an arbitrator's award, under section 36 of the Arbitration Act 1954.  This decision highlights the Irish High Court's support for the arbitration process in Ireland. It also endorses the Irish High Court’s reluctance to intervene in arbitration proceedings.  The case also demonstrates the exceptionally high standard that must be met before an Irish court will set aside or remit an arbitration award on the ground that there is a fundamental error of law on the face of the award. 

Brendan Green (Associate), Herbert Smith LLP The Paris Court of Appeal has upheld the execution of an arbitral award rendered in Solingen, Germany.  The appellant had argued that the award should not be enforced because the arbitration clause was invalid and it was unable to fully participate in the proceedings as the language of the arbitration was German.

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman The Queensland Supreme Court has set aside an award where the arbitrator had failed to provide a party with an opportunity to address a point which was crucial in the arbitrator's reasoning.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP The United States District Court for the Southern District of New York has denied without prejudice an application to attach a commercial property of the State of Eritrea in satisfaction of a confirmed default arbitral award because of the petitioner’s failure to comply with notice requirements under the Foreign Sovereign Immunities Act.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In a decision by the Higher Regional Court of Munich dated 14 November 2011, but only recently published, the court held that an arbitral tribunal does not violate the right to be heard if it relies on evidence by a party-appointed expert without appointing a tribunal-appointed expert. As long as the reasoning in the award shows that the arbitral tribunal evaluated the evidence of both party-appointed experts, and gives reasons for why it decided to rely on the evidence of one of the party-appointed experts, the right to be heard will not be violated.

Brendan Green (Associate), Herbert Smith LLP The Reims Court of Appeal has set aside an ICC award rendered in 2002 in a domestic arbitration, finding that there were grounds on which to believe that one of the arbitrators lacked impartiality, and that these had not been disclosed to the non-appointing party. The arbitrator had disclosed the fact that he had been appointed by one of the other parties in the past, but did not disclose the number and regularity of appointments. The decision adds to the growing body of French case law addressing an arbitrator's duty to disclose circumstances relevant to his independence and impartiality throughout the proceedings.

PLC Magazine has published an article on the Court of Appeal's recent decision in West Tankers Inc v Allianz SPA & Generali Assicurazione Generali SPA, written by Kieron O'Callaghan and Julianne Hughes-Jennett, Hogan Lovells International LLP.

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman The New South Wales Supreme Court has allowed the enforcement and recognition of an arbitral award against a company in administration.

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate) and Diego Nocetti (Associate), Mattos Filho Advogados In a decision published on 2 February 2012, the Brazilian Superior Court of Justice (STJ) acknowledged that an arbitration clause inserted in an umbrella agreement is valid for all connected agreements, even if these do not contain any such provision. Additionally, the STJ has, for the first time, partially recognised a foreign arbitral award, on the grounds of res judicata, as some issues addressed by the arbitrators had already been finally settled in judicial proceedings before Brazilian courts.

Brendan Green (Associate), Herbert Smith LLP The Paris Court of Appeal has set aside an international arbitral award on the ground that its enforcement in France would be contrary to international public policy because it would conflict with judgments rendered by courts in Burkina Faso that had been granted exequatur under a bilateral treaty on judicial cooperation.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In a decision dated 11 July 2011, but only recently published, the Higher Regional Court of Munich held that the burden of proof to show that an arbitration agreement constitutes collusion and is therefore invalid lies with the party resisting enforcement of an arbitral award.

PD Dr. Nathalie Voser (Partner) and Eliane Fischer (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 16 December 2011, published on 6 January 2012, the Swiss Supreme Court confirmed that the party against whom the recognition and enforcement of an arbitral award is invoked carries the burden of proof for the objection that it was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present its case.

PD Dr. Nathalie Voser (Partner) and Angelina M Petti, LL.M.(Associate), Schellenberg Wittmer (Zurich/Geneva) In an Italian-language decision dated 18 October 2011, published on 19 December 2011, the Swiss Supreme Court dismissed an appeal to set aside an arbitral award, holding that the parties' right to be heard had not been violated when the sole arbitrator did not forewarn the parties that the evidence advanced was insufficient to establish a decisive fact.

An Ask the team article on whether enforcement of an award will be suspended where there is an application to set aside the award pending in the courts of the seat of arbitration.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP In a recent but unpublished decision, the Singapore High Court upheld an ICC award which dismissed the claims of an airport operator against the Philippines on grounds of illegality.

Mustafa Motiwala (Senior Partner) and Priyanka Gandhi (Associate), Juris Corp In a recent decision, the Supreme Court of India (Supreme Court) allowed the enforcement of a Russian arbitral award against an Indian export company and held that "patent illegality" under the term "public policy of India" must be considered when enforcing or setting aside foreign awards, as well as domestic awards.

Brendan Green (Associate), Herbert Smith LLP In a decision of 2 November 2011, the Reims Court of Appeal has set aside an ICC award originally rendered in December 2007. The same award had previously been set aside by the Paris Court of Appeal. However, the Paris Court of Appeal's decision was then quashed by the French Supreme Court, which referred the matter to the Reims Court of Appeal. The latter found that the chairman's failure to fully disclose dealings between the firm in which he was "of counsel" and the consortium to which one of the parties belonged, raised reasonable doubts as to his independence.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 10 October 2011 and published on 20 October 2011, the Swiss Supreme Court upheld a decision granting recognition and enforcement of a foreign arbitral award, despite the fact that the party seeking enforcement had failed to produce the original or a certified copy of the arbitration agreement, as required by Article IV(1)(b) of the New York Convention.

Giulio Giannini, Herbert Smith LLP In African Fertilizers and Chemicals Nig Ltd (Nigeria) v BD Shipsnavo GmbH & Co Reederei Kg [2011] EWHC 2452 (Comm), the English Commercial Court held that section 66 of the Arbitration Act 1996 can be used in the enforcement of a declaratory award, particularly where the winning party in the arbitration is seeking to establish the primacy of the award over a future irreconcilable court judgment.

Ana Morales (Associate) and Silvia Martinez (Associate), Hogan Lovells International LLP The Court of Appeal of Madrid has recently issued two new decisions on annulment actions, dealing with, among other things, allegations of alleged lack of independence and impartiality of an arbitrator. The decisions provide important lessons for both parties and arbitrators.

PD Dr. Nathalie Voser (Partner) and Hannah Boehm (Associate), Schellenberg Wittmer (Zurich) In a German-language decision of 20 July 2011, published on 2 September 2011, the Swiss Supreme Court upheld an award rendered by a tribunal of the Court of Arbitration for Sport (CAS). The Supreme Court came to the conclusion that the CAS had not violated the petitioner's right to be heard by dismissing his delayed request to hear a new witness.

Natalia Belomestnova (Senior Associate), Goltsblat BLP On 13 September 2011, in Stena RoRo AB v Baltic Plant JSC, the Russian Supreme Commercial Court annulled the decisions of the lower courts and enforced an SCC award for liquidated damages.

Sverker Bonde (Partner), Delphi In a decision dated 27 September 2011, the Svea Court of Appeal has set aside an arbitral award rendered against KPMG, in a dispute over advisory services in connection with a mergers and acquisitions transaction. The court set aside the award on the ground that an arbitrator had a conflict of interest.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 5 July 2011, the Swiss Supreme Court ruled on the distinction between an expert determination and an arbitral award and, for the first time, applied the relevant provisions of the Swiss Code of Civil Procedure to a request to set aside a domestic arbitral award.

Priyanka Gandhi (Associate) and Neha Samant (Trainee), Juris Corp In a recent decision, the Supreme Court of India held that an appeal against an interim order passed by an arbitral tribunal seated outside India is not maintainable as the seat of arbitration was outside India and the arbitration proceedings were governed by foreign law. The court held that Part I of the Indian Arbitration and Conciliation Act 1996 was impliedly excluded.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The District Court for the District of Columbia has granted a motion for summary judgment in an action to enforce an arbitral award, finding that the party challenging enforcement presented no reason to refuse to enforce the award.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In a decision dated 30 June 2011, but only recently published, the Federal Court of Justice held that an application to the court to determine whether or not arbitration is admissible is timely if the application is received by the court prior to constitution of the arbitral tribunal. It is not necessary for the application to be served on the other side prior to constitution of the arbitral tribunal.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP A Bill (S.5798-2011) currently pending in the New York state legislature could amend a relevant arbitration provision found in the New York Civil Practice and Rules, which provides grounds for vacating an arbitral award.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The District Court for the Southern District of New York has found that an arbitral panel did not exceed its jurisdiction where the party resisting enforcement was only challenging the panel’s interpretation of the contract and calculation of damages, to which courts must defer, rather than challenging jurisdiction or arbitrability.

Priyanka Gandhi (Associate) and Sreyash Basu Dasgupta (Associate), Juris Corp On 16 June 2011, the Bombay High Court held that when a finding recorded by an arbitrator is correct, the court should not interfere with the award under section 34 of the Arbitration and Conciliation Act 1996.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Fourth Circuit Court of Appeals has found that the question of which arbitral panel can decide the validity of an agreement, when two arbitrations have been commenced in a dispute involving two agreements providing for arbitration in different places, is a procedural question to be decided by the arbitrators.

Andrew Robertson (Partner), Piper Alderman In a decision dated 21 June 2011, the New South Wales Supreme Court took a matter-of-fact approach to the enforcement of an arbitral award.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Second Circuit Court of Appeals has held that an arbitrator did not exceed her authority when deciding that an arbitration agreement in an employment contract permitted plaintiffs to try to certify a class in an employment discrimination dispute.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore High Court has upheld the decision of an arbitrator that an agreement executed between parties was not illegal under Singapore law, thereby rejecting an application to set aside the award. The High Court confirmed that the scope for challenging an award on the grounds of public policy was limited and that public policy had to be narrowly construed.

In Sovarex SA v Romero Alvez SA [2011] EWHC 1661 (Comm), Hamblen J confirmed that the issue of whether the parties were bound by a valid arbitration agreement could be determined by the court in the context of proceedings to enforce the award under section 66 of the Arbitration Act 1996.

PD Dr. Nathalie Voser (Partner) and Aileen Truttmann (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 16 May 2011 and published on 26 May 2011, the Swiss Supreme Court confirmed that an arbitral tribunal was competent even though contractual pre-arbitral steps had not been complied with. The award was, however, set aside based on the violation of the right to be heard, since the arbitral tribunal had not dealt in the award with an argument raised by one of the parties.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Second Circuit Court of Appeals has found that an arbitrator's failure to disclose experience that goes to predisposition, not partiality, did not fall within the Federal Arbitration Act provision that allows for vacatur of arbitral awards for “other misbehaviour by which the rights of any party have been prejudiced.”

PD Dr. Nathalie Voser (Partner) and Dr. Petra Rihar (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 18 April 2011, published on 8 June 2011, the Swiss Supreme Court dismissed an appeal to set aside an award by the Court of Arbitration for Sport (CAS) for lack of jurisdiction, stating that a reference to an arbitration clause contained in the statutes of an association suffices to establish CAS' jurisdiction.

PLC Arbitration has published a new Practice note, A guide to the CIETAC Arbitration Rules and an accompanying flowchart on China International Economic and Trade Arbitration Commission (CIETAC) arbitration, authored by Herbert Smith LLP. The resources explain and set out the usual steps in a CIETAC arbitration.

PLC Arbitration has published a new Article, The challenges of arbitrating in Africa, authored by the Chairman of Africa Legal Network and Stephenson Harwood. The article sets out the challenges faced when arbitrating in Africa.

PD Dr. Nathalie Voser (Partner) and Dr. Patrick Rohn (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 6 April 2011, published on 26 April 2011, the Swiss Supreme Court confirmed that, as a rule, arbitral decisions on suspension of proceedings qualify as procedural orders, which cannot be challenged before the Supreme Court. Only in exceptional circumstances, if the arbitral tribunal in its decision on suspension also implicitly decides on its jurisdiction to hear the case, can the decision be challenged on the ground that the arbitral tribunal wrongfully accepted or declined its jurisdiction.

Andrew Robertson (Partner), Piper Alderman From 27 to 28 May 2011, the first Chartered Institute of Arbitrators (CIArb) Asia Pacific Conference, entitled Investment and Innovation: International Dispute Resolution in the Asia Pacific, was held in Sydney, Australia. The conference had speakers from 13 countries, including Australia, China, the UK and the US.

Maxim Kulkov (Partner), Goltsblat BLP On 26 May 2011, the Russian Constitutional Court confirmed that the law permitting arbitrability of real estate disputes does not contradict the Russian Constitution.

Natalia Belomestnova (Senior Associate), Goltsblat BLP In a decision dated 21 February 2011, but only recently published, the Russian Supreme Commercial Court in Sberbank v Business-Lada LLC, Lada-Forward LLC et al (case N A55-11220/2010) considered arbitration agreements in standard form contracts. The Supreme Court stated that arbitration clauses included in boilerplate contracts are invalid unless the parties confirm their intent to arbitrate after the dispute arises.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP In response to the Supreme Court’s decision in AT&T Mobility v Concepcion (see Legal update, Supreme Court holds that Federal Arbitration Act preempts California State rule on unconscionability: full update), US Congressmen have introduced the Arbitration Fairness Act 2011, which is intended to amend the Federal Arbitration Act (FAA) to prohibit enforcement of certain mandatory pre-dispute arbitration agreements.

Francisco M. Gutiérrez (Partner) and Federico Campolieti (Senior Associate), M. & M. Bomchil In a decision rendered on 14 May 2010, but not published until 20 April 2011, the National Commercial Court of Appeals, chamber C, seated in the City of Buenos Aires, annulled an arbitration award which granted substantial compensation to the claimant, after finding that the arbitral decision had been preceded by various flaws and departures from the applicable procedural rules.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Southern District of New York has denied a motion to compel arbitration, finding that an agreement to arbitrate cannot be implied from the parties' prior course of dealing when there is no written agreement to arbitrate.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The District Court for the Southern District of New York has refused a party's petition for the court to appoint a replacement arbitrator when the arbitration agreement was silent on replacement. The court refused because the clear intent of the parties was that each be allowed one party-appointed arbitrator.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 11 April 2011 and published on 15 April 2011, the Swiss Supreme Court ruled that the petitioner could still have a legitimate interest in requesting that a CAS award be set aside, even if the sanction for non-payment which was the object of the award had in the meantime been lifted following payment by the petitioner.

PD Dr. Nathalie Voser (Partner) and James Menz, J. D. (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 1 March 2011 and published on 28 March 2011, the Swiss Supreme Court considered, but ultimately did not determine, the issue of independence in connection with the appointment as arbitrator of a close confidante. The petition to set aside was barred by a valid waiver.

PD Dr. Nathalie Voser (Partner) and James Menz, J. D. (Associate), Schellenberg Wittmer (Zurich) In one French and two German-language decisions published in late March and early April 2011, the Swiss Supreme Court, in line with its traditionally restrictive approach, rejected petitions to set aside arbitral awards under Article 190 of the Private International Law Act. The cases reflect no new law but shed light on existing doctrine.

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate) and Débora Auler de Almeida Prado (Associate), Mattos Filho Advogados In a decision dated 16 February 2011, the Superior Court of Justice overruled a preliminary injunction suspending the recognition of a foreign judgment that acknowledged the validity of an arbitration clause. This was on the ground that an ongoing lawsuit in Brazil challenging the validity of the same arbitration clause is not enough to prevent the recognition and enforcement of the foreign judgment.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The US Court of Appeals for the District of Columbia Circuit (DC Circuit) has held that the Foreign Sovereign Immunity Act 1976 (FSIA) does not override a court’s inherent power to impose contempt sanctions on a foreign sovereign.

Maxim Kulkov (Partner), Goltsblat BLP On 10 March 2011 the Federal Arbitrazh Court of the North-West District confirmed the enforcement of a Stockholm Chamber of Commerce (SCC) award in a Norwegian-Russian dispute.

PD Dr. Nathalie Voser (Partner) and Dr. Dorothee Schramm (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 14 February 2011 and published on 25 February 2011, the Swiss Supreme Court clarified that Swiss courts have to examine the recognition of a foreign arbitral award under the New York Convention if one party invokes the res judicata effect of the award.

James Clark (Associate), Herbert Smith LLP The Paris Court of Appeal has refused to set aside the award in the arbitration between Dallah Real Estate & Tourism Holding Co and the Government of Pakistan. The French court found that the arbitral tribunal was right in finding that it had jurisdiction over the matter because the government was a party to the arbitration agreement. The French court’s finding on jurisdiction contradicts that of the UK Supreme Court, which came to the opposite conclusion in Dallah Real Estate & Tourism Holding Co v Pakistan [2010] UKSC 46 and refused enforcement of the award on that basis.

Andrew Robertson (Partner), Piper Alderman The Australian High Court has heard arguments in the Gordian Runoff case which will involve consideration of the effect of the controversial ruling in Oil Basins. The Oil Basins case considered the standard of reasons required in an arbitral award, and, in particular, has been understood to require a standard required in a complex arbitration that is comparable to that required from a judge in litigation.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Ninth Circuit Court of Appeals has affirmed a district court’s decision allowing removal to federal court of a case on the basis that it fell under the New York Convention as the defendant asserted an affirmative defence relying on a foreign arbitral award.

PD Dr. Nathalie Voser (Partner) and Aileen Truttmann (Associate), Schellenberg Wittmer (Zurich) In two French-language decisions dated 12 January 2011 and published on 16 February 2011, the Swiss Supreme Court dismissed two petitions to set aside an award by the Court of Arbitration for Sport (CAS). The Supreme Court held that the petitions, filed more than thirty days after the receipt of a fax copy of the award, were timely as the time period only started running from the receipt of the award by registered mail.

Andrew Robertson (Partner), Piper Alderman In two recent decisions, the Victorian Supreme Court has considered the recognition and enforcement of a Mongolian arbitral award in Australia and, in a subsequent costs decision, the Australian courts' expectation of parties in enforcement proceedings.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), Leah Witters (Associate), White & Case LLP The District Court for the District of Columbia has indicated that it will enforce an award set aside by a Qatari court and upheld by a French court in a long-contested arbitration.

PD Dr. Nathalie Voser (Partner) and Dr. Dorothee Schramm (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 20 December 2010 and published on 17 January 2011, the Swiss Supreme Court refused to set aside an arbitral award and denied a violation of the right to be heard. According to the Supreme Court, the applicant could not claim that the sole arbitrator's decision was surprising.

James Clark (Associate), Herbert Smith LLP The French Supreme Court has reversed a Paris Court of Appeal decision setting aside a partial ICC award delivered in December 2007 on the ground that the tribunal had not been properly constituted.

Joe Kelly (Partner) and Siobhán Kirrane (Associate), A&L Goodbody In one of its first decisions under the Irish Arbitration Act 2010 (2010 Act), the Irish High Court has refused to grant an application which sought to stay High Court proceedings on the basis that a dispute was subject to an arbitration agreement. 

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz The Federal Court of Justice (BGH), the highest German court that deals with arbitration matters, ruled in a decision dated 30 September 2010 but only recently published, that in enforcement proceedings in German courts relating to a domestic or foreign arbitral award, the opposing party/debtor may set off counterclaims if such counterclaims are themselves not subject to an arbitration agreement.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In a decision dated 30 September 2010 but only recently published, the Federal Court of Justice ruled that, based on the most-favoured-nation principle in Article VII paragraph 1 of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), a foreign arbitral award is to be declared enforceable if it complies with the formal requirements relating to domestic awards, stipulated in section 1031 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO), even if it does not fulfil the formal requirements of Article II of the New York Convention.

PD Dr. Nathalie Voser (Partner) and Dr. Dorothee Schramm (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 4 October and published on 10 November 2010, the Swiss Supreme Court confirmed the recognition and enforcement of an arbitral award rendered in the Czech Republic under the auspices of the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic. The Supreme Court rejected, among other things, claims of violation of res judicata and a violation of the parties' arbitration agreement, which provided for arbitration under the auspices of the Czechoslovak Chamber of Commerce and Industry.

PD Dr. Nathalie Voser (Partner) and James Menz, J.D. (Associate), Schellenberg Wittmer (Zurich) In two German-language decisions dated 28 September and 6 October 2010, and published on 11 November and 16 November 2010 respectively, the Swiss Supreme Court rejected petitions for revision of doping-related decisions by CAS tribunals. Both decisions reflect the Supreme Court's very restrictive approach to the revision doctrine and show that parties must exercise considerable "due diligence" to develop, or to determine the existence of, exonerating facts.

Publication of Article, Dallah: the Supreme Court decides. (Free access.)

Alejandro López Ortiz (Senior Associate) and Pablo Martínez (Junior Associate), Hogan Lovells International LLP In a judgment of 7 May 2010 and only recently published, the Court of Appeal of Madrid dismissed an action to set aside an arbitral award on the basis that the tribunal's refusal to accept a res iudicata defence did not constitute, per se, a breach of public policy and that the award had not determined matters that are not capable of settlement by arbitration.

Lawrence Thacker (Partner), Lenczner Slaght Royce Smith Griffin LLP The Ontario Court of Appeal has confirmed that the standard of review which the parties had agreed to at the first level challenge could not be challenged later before a higher court. In this case, the failure to challenge the standard of review before the applications judge barred the respondent from doing so in the Court of Appeal.

Natalia Belomestnova (Associate), Goltsblat BLP In a ruling of 2 September 2010, the Federal arbitrazh court of Moscow region (commercial court of third level) supported the Commercial Court of Moscow in its annulment of an ICAC arbitral award on the ground that the dispute did not fall within the scope of the arbitration clause.

Kamal Shah (Partner) and Jonathan Morton (Trainee), Stephenson Harwood In a decision dated 28 July 2010, but not reported until August 2010, the Supreme Court of India upheld an arbitration award in a dispute between Sumitomo Heavy Industries Limited (SHIL) and the Oil and Natural Gas Commission of India (ONGC) over income tax liability.  SHIL had appealed a judgment of the Bombay High court in 2001 that confirmed a 1999 decision to set aside the original award made in June 1995.  In its decision, the  Supreme Court outlined when it would be appropriate to set aside an award, and what amounted to a "perverse" ruling by an arbitrator.

PD Dr. Nathalie Voser (Partner) and James Menz, J.D. (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 28 July and published on 17 August 2010, the Swiss Federal Tribunal confirmed enforcement of a US arbitral award in Switzerland, rejecting a challenge for impartiality of the sole arbitrator under Articles V(1)(d) and V(2)(b) of the 1958 New York Convention.  Among other things, the Federal Tribunal confirmed the principle, familiar in Swiss setting aside proceedings, that parties must raise any arbitrator independence or impartiality concerns as soon as they are actually or constructively aware of them. Also, in assessing public policy challenges to the enforcement of foreign arbitral awards or judgments, the Swiss Federal Tribunal confirmed that it applies the principle of ordre public atténué.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore High Court has set aside an ICC arbitral award where the tribunal acted in excess of the powers granted to it in the arbitration agreement.

PD Dr Nathalie Voser (Partner) and James Menz, J.D (Associate), Schellenberg Wittmer (Zurich) In a landmark German-language decision dated 13 April 2010 and published on 2 July 2010, the Swiss Federal Tribunal set aside an arbitral award rendered by a tribunal of the Court of Arbitration for Sports (CAS) for violation of the principle of res judicata. This is the first time that the Federal Tribunal has set aside an arbitral award for violation of public policy.

An update on the Civil Procedure Rule Committee's proposals to amend Practice Direction 62 (Applications for permission to appeal under section 69 of the Arbitration Act 1996).

Maxim Kulkov (Partner), Goltsblat BLP On 7 June 2010, the Russian Federation High Arbitration Court rejected a request to grant leave to appeal a decision of the lower courts declining jurisdiction to consider the recognition of an arbitral award.

Publication of updated quick guides on enforcing arbitration awards and interim remedies.

PD Dr. Nathalie Voser (Partner) and Philipp Meier (Associate), Schellenberg Wittmer (Zurich) Three recent decisions of the Swiss Federal Tribunal on matters related to sports arbitration were published in May 2010. In a decision dated 22 March 2010, the Federal Tribunal rejected a petition to set aside an interim award by the Court of Arbitration for Sport (CAS) as the petitioner had failed to show a sufficient "legally protected interest". In a decision dated 12 April 2010, the Federal Tribunal dealt with the legal principles of interdiction of "reformatio in peius", non-retroactivity and "lex mitior" in the context of public policy challenges. Finally, in a decision dated 13 April 2010, the Federal Tribunal held that decisions by the International Council of Arbitration for Sport (ICAS) concerning challenges to arbitrators cannot be brought as such before the Federal Tribunal.

Andrew Robertson (Partner), Piper Alderman A Victorian Supreme Court decision has provided important clarification of the role of the courts in domestic arbitration, by confirming that the courts will not exercise a supervisory jurisdiction over interlocutory orders made in a domestic arbitration. This decision suggests a growing support for the arbitral process from the Australian judiciary.

Neha Vijayvargiya (Associate) and Priyanka Gandhi (Associate) , Juris Corp The Indian Supreme Court recently refused to set aside an order of the Bombay High Court rejecting an application to amend the memorandum of the arbitration appeal (the Memorandum). The application to amend the Memorandum (which in turn was appealing against the district court’s rejection of the challenge to the arbitral award) was rejected. The rejection was on the basis that the amendment sought to add new grounds of challenge to the arbitral award which were not originally raised in the application for setting aside the arbitral award. Further, the application was made outside the applicable time limit.

An update on Continental Transfert Technique Ltd v The Federal Government of Nigeria and others [2010] EWHC 780 (Comm), which concerned an application to stay the enforcement of an arbitration award.

PD Dr. Nathalie Voser (Partner) and Dr. Petra Rihar (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 11 February 2010, published on 29 March 2010, the Swiss Federal Supreme Court dismissed an appeal against a tribunal's decision that it had jurisdiction over a request for a declaration that damages were due for breach of an arbitration clause. The Court dismissed the appeal because it had not been filed in time. However, it also held that the tribunal's declaration concerning damages for breach of an arbitration clause did not violate Swiss public policy.

PD Dr. Nathalie Voser (Partner) and Benno Strub (Senior Attorney), Schellenberg Wittmer (Zurich) In an Italian-language decision dated 10 March 2010, published on 31 March 2010, the Swiss Federal Supreme Court confirmed that it will not re-examine the interpretation by an arbitral tribunal of a legal rule or of a contract on an application to set aside an award as contrary to public policy. In particular, the principle of pacta sunt servanda (agreements must be kept), which is part of Swiss public policy, only constitutes a ground for the setting aside of an arbitral award if the arbitral tribunal renders a decision which is incompatible with its own findings, for instance if it does not apply a contractual clause after having admitted its binding nature.

Eduardo Damião Gonçalves (Partner) and Flavia Mange (Associate), Barretto Ferreira, Kujawski, Brancher and Gonçalves (BKBG) Case SEC N. º 831 was the first case in which an extraordinary appeal (on constitutional grounds) from a decision granting enforcement of an arbitration award by the Brazilian Superior Court of Justice was admitted. However, the Brazilian Supreme Court has now denied the admissibility of that appeal. This decision illustrates that, in most cases, it will be very difficult to avoid enforcement by means of an extraordinary appeal on constitutional grounds.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP On 10 March 2010, the District Court for the Southern District of Texas confirmed a US$640 billion ICDR award, rejecting the defendant's argument that the award was unenforceable under section 202 of the Federal Arbitration Act (FAA). The court held that the principal place of business of a corporation under the FAA is the corporation's "nerve center" and applied the test from the Supreme Court's decision in Hertz Corp v Friend.

PD Dr. Nathalie Voser (Partner) and Sonja Stark-Traber (Associate), Schellenberg Wittmer (Zurich) In a decision dated 15 February 2010 and published on 18 March 2010, the Swiss Federal Tribunal rejected a petition to set aside an ICC award for ultra or extra petita (going beyond what was sought by the claimant or granting relief different from that sought), for violation of public policy and for violation of the right to be heard. The Federal Tribunal held that an intrinsic contradiction in an award does not render the award contrary to substantive public policy such as to justify the annulment of the award under Article 190(2)(e) of the Swiss Federal Statute on Private International Law.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP The District Court for the Southern District of New York has vacated an arbitral award because the arbitrators failed to disclose they were concurrently presiding as arbitrators in a dispute involving similar issues with related parties and which featured the testimony of a common key witness.

PD Dr. Nathalie Voser (Partner) and James Menz, J.D. (Associate), Schellenberg Wittmer (Zurich) In a decision dated 6 January 2010 and published on 3 February 2010, the Swiss Federal Tribunal rejected a petition to set aside an award by a panel of the Court of Arbitration for Sport (CAS) as incompatible with public policy.  The Federal Tribunal considered the petition an appeal on questions of law disguised as an ordre public challenge; moreover, the CAS had in fact properly applied the law.

John Choong (Senior Associate), Freshfields Bruckhaus Deringer The Supreme People's Court (SPC), the highest court in China, has recently issued a notice which reaffirms the enforceability in China of ad hoc and ICC awards made in Hong Kong.  

PD Dr. Nathalie Voser (Partner) and Christopher Boog (Associate), Schellenberg Wittmer (Zurich) In a recent decision dated 6 November 2009 and published on 24 December 2009, the Swiss Federal Tribunal set aside an award by the Court of Arbitration for Sport (CAS) in Lausanne. The Federal Tribunal held that, although it generally adopted a liberal approach to the validity of arbitration agreements, in the present case the mere fact that the appellant had signed an entry form for a specific tournament was not sufficient to constitute a valid arbitration agreement for disputes outside the scope of such tournament.

Sverker Bonde (Advokat and Senior Associate), Delphi On 18 December 2009, the Svea Court of Appeal in Stockholm refused to set aside a 2007 SCC arbitral award in relation to a dispute between US Global Nuclear Services and Supply (GNSS) and the Russian company AO Techsnabexport (Tenex).

Ania Farren (Associate) and Sara Nadeau-Seguin (Intern), Baker Botts LLP In an unpublished decision, the Warsaw Court of Appeal recently enforced the LCIA award in Elektrim v Vivendi, overturning a prior District Court decision that had denied enforcement.

James Clark (Associate), Herbert Smith LLP The French Supreme Court has upheld a Paris Court of Appeal decision confirming that third parties cannot challenge an international arbitration award even if they claim that the award affected their rights.

PD Dr. Nathalie Voser (Partner) and James Menz, J.D. (Associate), Schellenberg Wittmer (Zurich) In a decision dated 6 October 2009 and published on 16 October 2009, the Swiss Federal Tribunal granted an order for the revision of a thirteen year-old international arbitral award that was influenced by fraud. Criminal proceedings in France had established that the arbitral award had been directly influenced by false testimony designed to mislead the arbitrators. The Federal Tribunal rendered a judicium rescindens annulling the arbitral award, and remanded the case either to the original tribunal or a new tribunal to be constituted in accordance with the ICC Arbitration Rules.

Nishit Dhruva (Partner), J. Sagar Associates On 3 September 2009, the Gujarat High Court observed that when an award is challenged by an aggrieved party under the Indian Arbitration Act, that award cannot be enforced during the pendency of those challenge proceedings.

Liina Naaber-Kivisoo (Associate) and Holger Tilk (Associate), Lawin An Estonian party has announced its intention to challenge the enforcement of an SCC award in Estonia on the grounds of breach of good morals and imperative norms of Estonian law. The award was rendered on 20 July 2009, in the dispute between AS Alta Foods and AS Luterma, in respect of Alta Foods' claim for EUR6.6 million, including interest.

An update on Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2009] EWCA Civ 755, in which the Court of Appeal upheld the first instance judgment of Aikens J and refused to give permission to enforce an ICC award.

Olof Ragmark (Partner), Delphi In Joint Stock Company Acron v. Yara International ASA, T 7200-08, 7 April 2009, the Svea Court of Appeal in Stockholm held that there was no basis upon which a tribunal's positive decision on competence could be separately challenged under sections 34 or 36 of the Swedish Arbitration Act (the Act). The case illustrates one of the peculiarities of the the Act, namely that arbitrators' positive findings of competence are declared in procedural decisions, and not in partial awards as is the practice in many other jurisdictions.

John Choong (Associate), Freshfields Bruckhaus Deringer LLP In FG Hemisphere Associates LLC v Democratic Republic of Congo & Ors [2009] 1 HKC 111, the Court expressed a provisional view that, following the handover of Hong Kong to the PRC, the Hong Kong law on state immunity had reverted to the old common law position. The case provides useful provisional guidance on the approach that the courts might adopt in this ambiguous area of the law.

UNCITRAL and the IBA have published a report collating and summarising the results of their investigations into the implementation and interpretation of the New York Convention. Work on the survey started in 1995 with the formulation of a questionnaire which was circulated to states which are party to the Convention. It is recognised that some of the responses may now be out of date. Nevertheless, the report identifies areas where harmonisation is required, including: Methods of implementation of the Convention: in particular, whether states have simply ratified it at an international level, or have adopted internally-binding implementing legislation. Uncertainties as to the date at which the Convention became binding in states, and possible inconsistencies between the Convention and implementing legislation. The effect of reservations under article 1(3) of the Convention, and in particular the fact that official information does not fully reflect states' practices. Interpretation of the Convention by national courts; in particular article II (arbitration agreements). Procedures for enforcement, including the imposition of fees, time limits, and the documentation required to be submitted. The competence of national courts, in particular the availability of appeals from decisions on enforcement. The report and its proposals will be considered at the 41st Session of the Commission (held in New York between 16 June and 3 July). We will report further on the outcome

We have previously reported the Court of Appeal's decision in these proceedings (see Legal update, No security for costs against New York Convention award holder.)Tomlinson J has now dismissed the substantive application to set aside the order of Colman J granting permission to enforce a Russian award. The facts of the case were unusual. The "Brotherhood" gas pipeline, through which Russia supplies gas to other countries, passes through the Ukraine. In return, the defendant's Ukrainian predecessor, U, was permitted to withdraw specified quantities of gas. U was accused of exceeding its contractual entitlement. It was felt to be politically embarrassing for the Russian supplier to pursue claims in its own name, and so an insurance/reinsurance structure was established whereby title to sue vested in a subrogated non-Russian reinsurer. Neither the insurer nor reinsurer bore any risk, as the premiums were equal to the insured loss. The subrogated reinsurer commenced arbitration against U in Russia, and obtained an award in its favour. The benefit of the award was then assigned to the claimant, who obtained an order from the English court granting permission to enforce it.The defendant applied to set aside the order, arguing that the award had been obtained by fraud, or that enforcement was contrary to public policy, because the reinsurer had concealed the true nature of the reinsurance arrangements from the tribunal. Tomlinson J rejected the application, holding that t

The Channel Tunnel Group Ltd and France-Manche SA (the claimants) have received a favourable decision in their arbitration against the British and French governments. Proceedings were brought after considerable losses were incurred as a result of disruption and security expenses which arose when asylum-seekers at the Sangatte camp attempted to smuggle themselves aboard trains bound for the UK. The Tribunal (Lord Millett dissenting in part) found that Britain and France had failed to comply with their obligations under the Concession Agreement which governs operation of the channel tunnel link. The claimants are entitled to losses arising from those breaches which will be assessed at a separate hearing. For a full copy of the Tribunal's decision see here.

In Compton Beauchamp Estates Ltd v Spence [2013] EWHC 1101 (Ch), Morgan J considered, in the context of a challenge under section 68 of the Arbitration Act 1996, whether an arbitrator had provided adequate reasons for his award.

The Swiss Supreme Court has considered whether the principle of reverse onus in sports disciplinary law is contrary to public policy.

The US Court of Appeals for the Sixth Circuit has affirmed a District Court's order vacating an arbitration award due to evident partiality of an arbitrator.

In an Italian language decision, the Swiss Supreme Court reconfirmed case law concerning the standard for review of an arbitrator's anticipatory assessment of evidence.

The Swiss Supreme Court has considered whether an athlete had a legitimate interest in having an award set aside, even though the ban imposed on him by the award expired two days after the petition was filed. It also considered, although leaving the question open, whether issues related to evidence in its widest sense, in sports disciplinary matters, fell under the setting aside ground of public policy.

In German-language decision 4A_407/2012, dated 20 February 2013 and published on 19 March 2013, the Swiss Supreme Court considered a petition to set aside an arbitral award on the ground of a violation of procedural rights, and in particular whether the objection had been raised in a sufficiently unequivocal manner during the arbitral proceedings.

In Svea hovrätt case T2737-11, the Svea Court of Appeal in Stockholm dismissed an appeal by Emfesz against an SCC arbitral award issued in 2011 in favour of Rosukrenergo AG, Zug, Switzerland.

In French-language decision 4A_538/2012 of 17 January 2013, the Swiss Supreme Court provided clarification regarding the scope for challenging awards under the Swiss Private International Law Act (PILA) on the ground of improper constitution of the arbitral tribunal, as well as regarding the arbitrators' duty to warn parties before rendering an award based on an unexpected reasoning.

The Hong Kong Court of Final Appeal has refused leave to appeal in the Pacific China Holdings Limited (In Liquidation) v Grand Pacific Holdings Limited dispute.

In order to comply with a ruling of a supranational body, the Colombian Council of State rendered a decision in which it declared that an omission to seek a preliminary judicial interpretation from the Andean Community Tribunal of Justice regarding certain communitarian provisions, should be added to the grounds for setting aside arbitral awards.

In an Italian-language decision dated 10 December 2012, the Swiss Supreme Court confirmed that a challenge of an award for infra petita will not be possible where there has been a general dismissal of claims in the operative part of the award.

In Cadogan Maritime Inc v Turner Shipping Inc [2013] EWHC 138 (Comm), the court considered an application to set aside an additional award that had been made under section 57 of the Arbitration Act 1996, on grounds of serious irregularity.

In a French-language decision dated 6 December 2012, the Swiss Supreme Court rejected an application to set aside an arbitral award rendered in Court of Arbitration for Sport (CAS) proceedings that involved a dispute between two football clubs and a player over the presumed breach of an employment contract. The applicant had argued that the CAS tribunal, in considering sanctions that had been imposed by FIFA on certain parties, violated material and procedural public policy by failing to take into account facts that had been agreed upon by the parties in their settlement agreement.

In Ases Havacilik Servis Ye Destek Hizmetleri AS v Delkor UK Ltd [2012] EWHC 3518 (Comm), the court considered a challenge to an award on jurisdiction, under section 67 of the Arbitration Act 1996, by a party who had decided not to participate in the arbitration and had also applied to the court to challenge jurisdiction under section 72.

In a decision dated 23 July 2012, but only recently published, the Higher Regional Court of Munich held that Article 31 of the ICC Arbitration Rules 1998 provides a self-contained system of rules for decisions on costs. This means that it is not necessary to refer to the provisions on costs in the domestic legal system, that is, the German Code of Civil Procedure and the German Lawyers’ Compensation Act.

In a decision dated 6 July 2012, but only recently published, the Higher Regional Court of Cologne refused to adjourn enforcement proceedings in respect of an award when set aside proceedings were still pending before the Supreme Court of South Korea. The court also considered denying enforcement (but sensibly refused to do so) on the ground of an alleged breach of a party agreement by the arbitral tribunal.

In a short French-language decision of 16 October 2012, the Swiss Supreme Court confirmed that awards on costs constitute "final awards" capable of being set aside on the grounds listed in Article 190(2) of the PILA. It also reaffirmed its case law regarding the waiver of the right to challenge jurisdiction.

In Terna Bahrain Holding Company Wll v Al Shamsi and others [2012] EWHC 3283 (Comm), the Commercial Court considered an application to challenge an award for lack of jurisdiction and serious irregularity, under sections 67 and 68 of the Arbitration Act 1996, and an application for an extension of time to do so.

On 3 October 2012, the Federal Commercial Court of Moscow region refused to enforce an arbitral award, issued in a domestic arbitration, on public policy grounds. The court referred to the fact that the sum awarded was disproportionate to any damage suffered by the claimant. (Free access).

The Singapore High Court refused to set aside an interim anti-suit injunction ordered by an arbitral tribunal. It rejected the application on the grounds that, in contrast to its ability to set aside awards, it did not have jurisdiction to set aside interlocutory orders. The court discussed, among other things, the scope of the Singapore courts’ powers to set aside arbitral orders and awards and the policy considerations behind the act of balancing judicial intervention with arbitral independence. (Free access).

In Petrochemical Industries Company (KSC) v The Dow Chemical Company [2012] EWHC 2739 (Comm), the court gave guidance on applications to review arbitral awards on the basis of serious irregularity under section 68 of the Arbitration Act 1996.

Freshfields Bruckhaus Deringer The Hong Kong Court of First Instance has refused an application to set aside an HKIAC award under Article 34(2)(a)(ii) of the UNCITRAL Model Law.

Ms. Priyanka Gandhi (Consultant) and Ms. Neha Samant (Trainee), Juris Corp The Delhi High Court has refused to set aside an award on the ground that a party who does not object to the delay in rendering an arbitral award before the arbitral tribunal, waives his right to object to that delay in a petition to set aside the award.

Olof Rågmark (Partner) and Polina Permyakova (Senior Associate), Advokatfirman Delphi, Stockholm On 31 July 2012, an SCC arbitral tribunal issued a final award in a dispute between JSC Gazprom and the Republic of Lithuania relating to the Lithuanian company, AB Lietuvos Dujos. The tribunal ordered Lithuania to withdraw certain claims brought in the state courts of Lithuania in breach of a shareholders’ agreement.

Alastair Henderson (Partner) and Sean Izor (Associate), Herbert Smith LLP The Singapore Court of Appeal has reversed a decision of the High Court and thereby restored three arbitral awards that had previously been set aside. In doing so, the Court of Appeal clarified the circumstances in which matters are said to be within the "scope of the submission to arbitration" such that they may form the basis for an award, even if they are not specifically pleaded.

PLC Arbitration The Supreme Court of India has issued the eagerly awaited decision in Bharat Aluminium Co v Kaiser Aluminium Technical Services Inc, and has overruled the controversial decision in Bhatia International.

In Nestor Maritime SA v Sea Anchor Shipping Co Ltd [2012] EWHC 996 (Comm), Eder J considered an application for an extension of time to challenge an award under section 68 of the Arbitration Act 1996.

In Navios International Inc v Sangamon Transportation Group [2012] EWHC 166 (Comm) (8 February 2012), the court considered an application under section 70(4) of the Arbitration Act 1996 for an order that the tribunal provide fuller reasons for its decision, to enable the court to deal properly with an appeal.

An article highlighting the key arbitration-related developments in the United States in 2011/2012. 

In West Tankers Inc v Allianz SpA and another [2012] EWCA Civ 27, the Court of Appeal considered whether the court has power to enter judgment in terms of a declaratory award. (Free access.)

John Choong (Senior Associate), Freshfields Bruckhaus Deringer In Gao Haiyan v Keeneye Holdings Ltd, the Hong Kong Court of Appeal allowed the enforcement of a Chinese arbitration award, reversing a decision of the Court of First Instance (CFI) to refuse enforcement on public policy grounds, due to apparent bias.

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate) and Diego Nocetti (Associate), Mattos Filho Advogados In a decision rendered on 20 October 2011, the Brazilian Superior Court of Justice (STJ) affirmed the validity of a submission agreement executed following a dispute arising under a public tender contract. The STJ disregarded the respondent’s main argument that the submission agreement was invalid because arbitration was not provided for in the public request for proposals (PRFP).

Andrew Robertson (Partner), Piper Alderman In a decision dated 5 October 2011, the Australian High Court handed down its eagerly anticipated decision on the standard of arbitral reasons in Australian domestic arbitrations. While the court adopted a mainstream approach, rejecting the view that equated the standard of arbitral reasons with a common law judicial decision, it did not take the opportunity to discuss issues of broader arbitral practice relevant to international arbitration.

Kamal Shah (Partner) and Leonie Parkin (Associate) of Stephenson Harwood, and John Miles, Chairman of ALN  In a judgment delivered on 28 September 2011, the High Court of Tanzania dismissed a petition to set aside an ICC arbitration award on the grounds of excess of jurisdiction, public policy and misconduct due to alleged errors of fact and law on the face of the record. The High Court's decision was partly based on the principle that where specific questions of fact or law have been referred to an arbitral tribunal for consideration and decision, the supervising court cannot interfere with the decisions of the arbitral tribunal, even if the court takes a different view of the law.

PD Dr. Nathalie Voser (Partner) and Pierre Ducret, LL.M. (Associate), Schellenberg Wittmer (Zurich/Geneva) In a French-language decision of 22 August 2011, published on 13 September 2011, the Swiss Supreme Court rejected an application for revision of an arbitral award rendered by a tribunal of the Court of Arbitration for Sport (CAS), on the ground that the applicant failed to comply with the 90 day time limit to file its application for revision. The time limit runs from the date the applicant discovers the ground for revision.

John Choong (Senior Associate), Freshfields Bruckhaus Deringer The Hong Kong Court of First Instance has taken the rare step of setting aside an International Chamber of Commerce (ICC) arbitration award because the applicant was unable to present its case and the procedure adopted by the tribunal was not in line with the agreement of the parties.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore High Court has set aside three arbitral awards on the basis that the arbitral tribunal determined an issue which was not formally pleaded by the respondent to the proceedings. Instead the issue was raised by way of a letter addressed to the arbitral tribunal. Accordingly, the arbitral tribunal had decided on an issue beyond the scope of the matters submitted to it.

Sverker Bonde (Partner), Delphi On 1 July 2011, the Swedish Supreme Court decided that a building owned by the Russian Federation, and rental payments from it, may be used for enforcement purposes. The court based its decision on the fact that the building was not used for sovereign purposes by the Russian Federation. The enforcement measures were initiated by a claimant seeking to enforce a Swedish arbitration award. 

Eduardo Damião Gonçalves (Partner), Flávio Foz Mange (Associate) and Débora Auler de Almeida Prado (Associate), Mattos Filho Advogados In a unanimous decision dated 24 May 2011 and published on 1 June 2011, the Superior Court of Justice (STJ) confirmed its decision rendered in a preliminary injunction, which held that an arbitral award administered by the International Chamber of Commerce (ICC), but issued in Brazil, should be considered domestic and does not require homologation by the STJ to be enforceable in Brazil.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore Court of Appeal has upheld the decision of the Singapore High Court that most insolvency-related disputes are not suitable for arbitration due to public interest considerations. The Court of Appeal also dealt with the arbitrability of insolvency-related claims and the proper judicial approach towards an arbitration agreement that expressly includes insolvency-related claims.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a French-language decision of 21 March 2011, published on 19 April 2011, the Swiss Supreme Court refused to enter into the merits of a petition to have an arbitral award set aside, finding that the parties had validly excluded any right of recourse against the award in the arbitration agreement.

John Choong (Senior Associate), Freshfields Bruckhaus Deringer In Gao Haiyan v Keeneye Holdings Ltd, the Hong Kong Court of First Instance refused to enforce a Chinese arbitration award, on the basis that it would be contrary to public policy to enforce the award because it was tainted by apparent bias.

Iain Maxwell, Herbert Smith LLP The English Commercial Court has upheld an order enforcing a declaratory award made in the West Tankers arbitration proceedings. The award declared that West Tankers has no liability to Allianz SpA and Generali Assicurazione Generali SpA (the Insurers), who are currently pursuing court proceedings against it in Italy. The order was upheld on the basis that enforcing the declaratory award under section 66 of the English Arbitration Act 1996 (the Act) may permit West Tankers to establish the primacy of the declaratory award over any subsequent inconsistent judgment in the Italian proceedings. This was despite the ECJ's finding, earlier in the same dispute, that the English court is not permitted to grant an anti-suit injunction to restrain the same Italian proceedings.

Andrew Robertson (Partner), Piper Alderman In two recent decisions, the Federal Court of Australia has considered the enforcement of an ex parte award that was issued out of Uganda and clarified the appropriate form of the orders for the recognition and enforcement of the arbitral award.

The UK Supreme Court has set the hearing date for the appeal against the Court of Appeal's decision in Jivraj v Hashwani [2010] EWCA Civ 712.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore High Court has dismissed an appeal to set aside a court order granting leave to enforce an arbitral award in Singapore.

In Stellar Shipping Co LLC v Hudson Shipping Lines [2010] EWHC 2985 (Comm), the Commercial Court considered an application under section 67 of the Arbitration Act 1996 challenging an arbitration award on the basis that the tribunal lacked substantive jurisdiction because no arbitration agreement had been entered into between the parties.

In Dallah Real Estate and Tourism Holding Co v Government of Pakistan [2010] UKSC 46, the Supreme Court dismissed an appeal against the Court of Appeal's refusal to enforce an ICC arbitration award.

Andrew Robertson (Partner), Piper Alderman The High Court of Australia (Australia's final court of appeal) has granted special leave to appeal the Gordian Runoff decision.  That decision dealt with the controversial ruling in Oil Basins Ltd v BHP Billiton Ltd [2007] VSCA 255 (Oil Basins). That case considered the standard of reasons required in an arbitral award, and, in particular, whether the standard required in a complex arbitration was comparable to that required from a judge in litigation.

In Dolphin Tanker SrL v Westport Petroleum Inc [2010] EWHC 2617 (Comm), the Commercial Court has confirmed the scope and nature of evidence admissible on an appeal under section 69 of the Arbitration Act 1996.

PD Dr. Nathalie Voser (Partner) and Dr. Patrick Rohn (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 3 August and published on 26 August 2010, the Swiss Supreme Court rejected a challenge of an award on the ground of violation of the right to be heard. Among other things, the Supreme Court analysed the interaction between the principles of the right to be heard and jura novit curia (principle that the court knows the law), and confirmed its jurisprudence that, as a rule, the principle of jura novit curia prevails.

Sahaneen Parikh (Partner), Amarchand & Mangaldas & Suresh A Shroff & Co In a judgment dated 29 July 2010, the Bombay High Court held that where an award is set aside, parties are free to arbitrate the dispute afresh.

James Clark (Associate), Herbert Smith LLP The Paris Court of Appeal has upheld a decision of the President of the Tribunal de Grande Instance to grant exequatur (enforcement order) of an ICC award rendered in London and refused to stay enforcement of the award pending the outcome of related criminal proceedings.

Ms. Neha Vijayvargiya (Associate) and Ms. Priyanka Gandhi (Associate), Juris Corp The Bombay High Court recently set aside an arbitral award on the grounds that it was 'contrary to the substantive provisions of law' and 'patently illegal'.

Alvin Yeo, Senior Counsel (Senior Partner) and Andre Maniam (Head of Litigation & Dispute Resolution Department), WongPartnership LLP In Sui Southern Gas Co Ltd v Habibullah Coastal Power Co (Pte) Ltd [2010] SGHC 62, the applicant requested that the Singapore High Court exercise its power of judicial review over an arbitral award. It argued that the court's power to quash the decisions of government officers that are irrational and perverse also applied to decisions of arbitrators. The court disagreed, holding that when the government conferred a power on a government officer to make administrative decisions, it impliedly conferred that power subject to a requirement to act rationally and reasonably. Parties to an arbitration agreement, however, had agreed contractually to abide by the arbitrator's decision and must be held to this agreement, unless one of the statutory grounds for setting aside applied.   

John Choong (Senior Associate), Freshfields Bruckhaus Deringer The Hong Kong Court of Appeal has considered an appeal from a decision of the High Court dealing with state immunity. The Court decided, amongst other things, that the doctrine of restrictive immunity applies in Hong Kong. 

A report about the ECJ judgment in the case of Asturcom Telecommunications SL v Maria Cristina Rodriguez Nogueira, Case C-40/08, in October 2009.

Olof Ragmark (Partner), Delphi In SOCAR v. Frontera, Svea Court of Appeal, T 980-06, 4 April 2009, the Svea Court of Appeal held that in order to avoid waiving the right to challenge the competence of the arbitrators, the respondents were obliged to lodge a protest and dispute the competence in their statement of defence.

A update on Metropolitan Property Realizations Limited v Atmore Investments Limited [2008] EWHC 2925 (Ch) which considered the court's power to set aside an award under section 68 of the Arbitration Act 1996.

In Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2008] EWHC 1901 (Comm), Aikens J set aside an order giving leave to enforce an ICC award, holding that the arbitration agreement was not "valid" for the purposes of section 103 of the Arbitration Act 1996. The case is a relatively uncommon example of a refusal by the court to enforce a New York Convention award, and is particularly notable because the judge reached a different conclusion to the arbitral tribunal on the issue of whether the award debtor was a party to the arbitration agreement. The judgment of Aikens J contains helpful analysis of the scope and meaning of section 103, and the nature of the hearing when an application is made under that section. Note that the Court of Appeal has refused an appeal by Dallah and upheld Aikens J 's decision

In IPCO (Nigeria) Limited v Nigerian National Petroleum Corporation [2008] EWHC 797 (Comm), Tomlinson J considered the court's power to enforce a New York Convention award in circumstances where a challenge to the validity of the award (in the sum of approximately US$ 152 million in favour of the claimant) was pending before the supervisory court in Nigeria, where the arbitration had taken place. At an earlier interlocutory hearing, the English court had already adjourned the enforcement order on terms. The case therefore raises the question of the extent to which the court can revisit an earlier interlocutory decision. The Judge was prepared to vary the order for enforcement so as to allow immediate enforcement of part of the award (approximately US$ 52.5 million). There had been a "catastrophic" change in circumstances in the Nigerian challenge proceedings since the English court's previous decision on enforcement. The substantive resolution of the defendant's challenge to the validity of the award in Nigeria was now going to take several years, rather than months. The court was therefore entitled to consider whether the decision on enforcement remained appropriate. That would not, however, necessarily involve revisiting the court's earlier assessment of the strength of the Nigerian challenge proceedings. However, in this case, the court was prepared to revisit the strength of parts of the challenge to the validity of the award, in connection with which the orig

In Tsavliris Salvage (International) Limited v Grain Board of Iraq [2008] EWHC 612 (Comm), the main question before Gross J was whether an arbitration award could be challenged by a state owned entity on grounds of sovereign immunity. Although he held that on the facts, the award could not be challenged either on jurisdictional or immunity grounds, the significance of this case lies in his consideration of the authorities to distinguish between a department of the government and a separate entity. The case is also of relevance because of the judge's careful analysis of the test to be applied in determining whether the action of a separate entity related to the exercise of sovereign authority.