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.

The UK Supreme Court has issued a decision relating to the enforcement of state assets in SerVaas Incorporated v Rafidain Bank and others [2012] UKSC 40. This decision provides guidance on the scope of the "commercial purposes" exception from immunity from execution.

The Privy Council ruled on the liability of state-owned corporations for debts of the state in La Générale des Carrières et des Mines v FG Hemisphere Associates LLC [2012] UKPC 27 (17 July 2012) (Gécamines). The case provides a statement of the law that will be decisive in many jurisdictions. The Privy Council gave a very restrictive reading of the circumstances in which a state-owned entity may be vulnerable to enforcement action by a creditor of the state. A state-owned entity will only be equated with the state for this purpose in specific extreme circumstances. This makes finding and enforcing against state assets even more difficult than it was. Parties should consider the implications of Gécamines carefully when contracting with state bodies.

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.

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.

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

An article highlighting the key arbitration-related developments in England and Wales in 2011/2012. 

An article highlighting the key arbitration-related developments in Hong Kong in 2011.

An article highlighting the key arbitration-related developments in Sweden 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 Admiralty and Commercial Courts Guide was revised on 28 March 2013. The amendments affect claims made under the Arbitration Act 1996.

In Freeman v Pittsburgh Glass Works, LLC, 2013 WL 811884 (3d Cir. Mar. 6, 2013), the US Court of Appeals for the Third Circuit considered a motion to vacate an award for evident partiality, on the ground that the arbitrator had not disclosed an election campaign contribution from one of the parties.

The Paris Court of Appeal has refused to enforce an arbitral award rendered by a sole arbitrator seated in New York, on the ground that a party that had refused to participate in the arbitration had not received various procedural notices, in violation of principle of procedural fairness (the adversarial principle or "principe de contradictoire").

The French Supreme Court (Cour de Cassation) has quashed a decision of the Grenoble Court of Appeal involving the extension of an arbitration clause to a non-signatory to an underlying contract.

In a decision dated 8 February 2012, but only recently published, the Turkish Supreme Court Assembly of Civil Chambers held that tax-related issues are part of public order in Turkey. Therefore, a decision of the First Instance Court, which involved tax-related issues and was given without having the necessary expert reports, was contrary to Turkish law and public policy.

The United States District Court for the District of New Jersey has upheld an arbitrator's finding that an arbitration agreement implicitly authorised class arbitration.

The United States Court of Appeals for the Eleventh Circuit has affirmed a District Court decision applying collateral estoppel to bar re-litigation of certain factual allegations that had been resolved in prior arbitration proceedings.

On 23 November 2012, the Swedish Supreme Court dismissed an appeal by the Moscow City Golf Club OOO relating to an SCC arbitral award issued on 11 May 2010. In the award, the Golf Club was ordered to repay Nordea Bank AB a bank loan originating from 1990, together with interest and costs. The court rejected arguments relating to arbitrability and the validity of the arbitration agreement.

In a French-language decision dated 1 October 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 teams over the transfer of a player. The applicant had argued that the CAS tribunal violated its right to be heard, as well as public policy, by (among other things) not considering a closely related set of claims brought in a separate CAS arbitration alongside the claims in the arbitration at hand.

The Singapore High Court has rejected attempts to resist the enforcement of SIAC awards, on grounds of lack of jurisdiction, where those grounds were raised only after the expiry of the time limit for challenges to the awards.

In PEC Ltd v Asia Golden Rice Co Ltd [2012] EWHC 846 (Comm), the court considered the time limit for jurisdictional challenges to first tier GAFTA arbitration awards. 

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel) and Daniel J. Hickman (Associate), White & Case LLP The United States District Court for the Southern District of New York has confirmed an ICC arbitration award and dismissed objections based on personal jurisdiction, forum non conveniens and assertions of non-arbitrability and due process violations.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel) and Daniel J. Hickman (Associate), White & Case LLP The United States District Court for the Eastern District of Virginia has refused to dismiss an ICSID enforcement proceeding filed in the wrong forum, instead transferring the case to the proper venue.

PD Dr. Nathalie Voser (Partner) and Aileen Truttmann (Associate), Schellenberg Wittmer (Geneva) In a French-language decision dated 20August 2012, and published on 7 September 2012, the Supreme Court, applying general contract interpretation rules, upheld the sole arbitrator's reasoning that the forum selection clause in a contract did not prevail over the arbitration clause contained in the same contract. The court confirmed that the parties must have reasonably understood that the forum selection clause concerned matters which the contract excluded from the scope of the arbitration clause.

Brendan Green (Associate), Herbert Smith LLP The Paris Court of Appeal has dismissed an application by the Republic of Congo to set aside a partial award on jurisdiction rendered by an ICC tribunal on 20 August 2010. The decision arises out of a long running dispute involving multiple contracts and attempts at resolution.

PD Dr. Nathalie Voser (Partner) and Aileen Truttmann (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 12 July 2012, and published on 6 August 2012, the Swiss Supreme Court ruled that the arbitral tribunal had not failed to take one of the petitioner’s arguments into account and was entitled to refuse a site inspection. Therefore, the parties' right to be heard had not been violated. Moreover, the arbitral tribunal had not violated the principles of pacta sunt servanda and bona fides.

PD Dr. Nathalie Voser (Partner) and Hannah Boehm (Associate),  Schellenberg Wittmer (Zurich) In a German language decision of 23 May 2012, published on 25 July 2012, the Swiss Supreme Court clarified that the issue of the arbitrability of the matter in dispute is, as a rule, exclusively governed by Article 177(1) PILA. Only in exceptional circumstances may ordre public reasons justify the application of foreign statutory provisions.

We have published an article on the UK Supreme Court's decision in SerVaas Incorporated v Rafidain Bank and others [2012] UKSC 40, which gives guidance on the scope of the "commercial purposes" exception to immunity from execution.

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate) and Diego Nocetti (Associate), Mattos Filho Advogados In a decision regarding recognition of a foreign arbitral award, the Brazilian Superior Court of Justice (STJ) decided that the arbitral tribunal presiding over proceedings held under the American Arbitration Association rules in New York had jurisdiction over a non-signatory subsidiary of the respondent. This is a rare example of the STJ making a decision expressly based on the New York Convention.

Andrew Walsh (Partner), Elaine Punch (Solicitor), A&L Goodbody In a decision issued on 21 June 2012, the Irish Supreme Court considered the issue of what constitutes taking a "step" in proceedings, such as to prevent a party from relying on an arbitration clause. The case centred on the ability of one contracting party to rely on an arbitration clause to stay court proceedings pending arbitration, in circumstances where the court proceedings between the parties had progressed to some extent. The decision in this case highlights the importance of ensuring at a very early stage in negotiations that all disputes are resolved using the same forum. 

PD Dr. Nathalie Voser (Partner) and Elisabeth Leimbacher (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 2 May 2012 and published on 20 June 2012, the Swiss Supreme Court confirmed that a challenge based on a breach of the principle of equal treatment and the right to be heard is only admissible if it has been raised during the arbitral proceedings. The Supreme Court also rejected the petitioner's motion that the granting of punitive damages infringed public policy (ordre public), although without examining the merits of the motion.

Ms. Priyanka Gandhi (Consultant) and Neha Samant (Trainee), Juris Corp In a recent decision, the Delhi High Court set aside an arbitral award as patently illegal and contrary to public policy as the arbitrator had failed to take note of evidence and had erroneously rejected a claim.

PD Dr. Nathalie Voser (Partner) and Hannah Boehm (Associate), Schellenberg Wittmer (Zurich) In a German language decision dated 18 June 2012 and published on 9 July 2012, the Swiss Supreme Court emphasised again that it will only consider the merits of the case if the petitioner has a legitimate and current interest in having an award set aside.

We have published a tracker outlining the key arbitration related developments expected in the forthcoming months and years.

Ms. Priyanka Gandhi (Consultant) and Neha Samant (Trainee), Juris Corp   In a recent decision, the Delhi High Court refused to set aside an award passed against Steel Authority of India in view of the court’s limited scope for judicial interference under section 34 of the Indian Arbitration and Conciliation Act 1996. The decision paves the way for the award to be enforced. The court also re-iterated that it cannot, on appeal, re-assess the evidence before the tribunal.

Stephan Wilske (Partner) and Christian Leisinger (Associate), Gleiss Lutz In a decision by the Higher Regional Court of Karlsruhe dated 4 January 2012, and only recently published, the court commented, among other things, on the issue of a sleeping arbitrator. The decision concerned the enforcement in Germany of a foreign arbitral award that was subject to the provisions of the New York Convention, which is part of German law (section 1061 of the German Code of Civil Procedure).

Natalia Belomestnova (Senior Associate), Goltsblat BLP In June 2012, the Supreme Commercial Court of the Russian Federation published the full text of its decision of 29 March 2012 which annulled the judgments of the lower courts enforcing an arbitral award issued by an arbitral institution at the Legal society “Femida” CJSC.

In Yukos Capital SARL v OJSC Rosneft Oil Company [2012] EWCA Civ 855, the Court of Appeal considered an appeal against a Commercial Court decision on issue estoppel and the applicability of the act of state doctrine in proceedings to enforce international arbitration awards.

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.

Andrew Robertson (Partner), Piper Alderman The Court of Appeal division of the Victorian Supreme Court has heard an appeal from the decision in Altain Khuder LLC v IMC Mining Inc & Anor.

Andrew Robertson (Partner), Piper Alderman In a decision dated 1 April 2011, the New South Wales Supreme Court has held that a dispute relating to patents was arbitrable and that the arbitrator had jurisdiction to resolve disputes even on facts which had not yet occurred.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore High Court has dismissed an appeal against an order staying proceedings in favour of foreign arbitration. The High Court rejected the argument that there was no dispute between the parties warranting a stay of proceedings, holding that the courts would readily find that a dispute exists unless the defendant admitted the claim was due and payable. This was regardless of whether the defendant had mistakenly made an admission to the claim previously.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The US Supreme Court has found that California’s Discover Bank Rule (DBR), which was applied to prohibit the enforcement of an arbitration agreement with a class action waiver, frustrates the purposes and objectives of the Federal Arbitration Act (FAA).

PLC Cross-Border Arbitration Handbook 2011-12 has been published and consequential amendments made to PLC Arbitration quick guides on enforcing arbitration awards and interim remedies. (Free access).

Alejandro López Ortiz (Counsel), Hogan Lovells International LLP In a recently published judgment of 26 November 2010, the Court of Appeal of Madrid ruled that the opening of criminal proceedings for forgery of documents produced in arbitration does not allow for a stay of the proceedings to set aside an arbitral award and does not constitute a reason to set aside the award on the grounds of a breach of public policy.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Southern District of New York has granted a motion to dismiss a petition to confirm a foreign arbitral award because the parties' agreement included a forum selection clause specifying where arbitral awards could be executed.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The Second Circuit Court of Appeals has reversed a district court’s grant of a motion to permanently stay an arbitration, relying on a broad interpretation of an arbitration clause to find that the court could not decide issues of timeliness.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In an Italian-language decision of 10 February 2011, published on 7 April 2011, the Swiss Supreme Court rejected a request for revision of an arbitral award. In so doing, it set out the requirements which must be fulfilled in order for facts or evidence to be considered as "new" and to therefore serve as a basis for a request for revision.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP In AT&T Mobility LLC v Concepcion, No. 09-893 (Apr. 27, 2011), the US Supreme Court reversed a Ninth Circuit Court of Appeals decision applying California law to find an arbitration provision waiving class arbitrations unconscionable.

H Jayesh (Founding Partner) and Priyanka Gandhi (Associate), Juris Corp In a recent decision, the Bombay High Court (High Court) conditionally stayed the enforcement of a foreign arbitral award under section 48 of the Arbitration and Conciliation Act 1996 (the Act). The High Court ordered that security be provided by the respondents, given that the respondents were challenging the award in another court in India under section 34 of the Act.

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 ruled that a court may not grant a motion relying on the Federal Rules of Civil Procedure (FRCP) to extend the statutory time limit to file a motion to vacate or modify an arbitral award.

Christopher Mainwaring-Taylor (Counsel) and Noor Kadim (Associate), Allen & Overy LLP (Dubai) The Dubai World Tribunal has ordered a Dubai World company to pay damages and interest pursuant to a Dubai International Arbitration Centre (DIAC) award.

PD Dr. Nathalie Voser (Partner) and Eliane Fischer (Associate), Schellenberg Wittmer (Zurich) In a recent French-language decision dated 7 January 2011, published on 21 February 2011, the Swiss Supreme Court (Supreme Court) confirmed an award rendered by the sole arbitrator of the World Intellectual Property Organization's (WIPO) Arbitration and Mediation Center. The Supreme Court considered that the sole arbitrator had been justified in awarding interest on the sum due by X while refusing it on the sum due by Y, on the grounds that Y had formally requested the payment of "at least" a certain amount and had asked for interest payments in its submissions, whereas X had only formally requested a fixed amount and had not mentioned the payment of interest.

PD Dr. Nathalie Voser (Partner) and Aileen Truttmann (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 7 February 2011 and published on 2 March 2011, the Swiss Supreme Court (Supreme Court) dismissed a petition to set aside an award and confirmed that the arbitral tribunal was competent to rule on preliminary questions even if these questions were not covered by the arbitration clause.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) The Swiss Arbitration Association (ASA) annual conference was held on 28 January 2011 in Basel, Switzerland. Arbitration practitioners met to discuss the theoretical and practical issues which may arise after a final arbitral award has been rendered and the arbitral tribunal has become functus officio. For example, an arbitral tribunal may be called upon to revisit its decision or to re-open the proceedings. Arbitrators must also decide on practical matters, such as the preservation of the file after the arbitration has come to a close, and may, in some cases, be required to fulfil further duties, for example in the context of subsequent proceedings before state courts. The speakers addressed these issues from various angles, providing valuable insights into the practice of different jurisdictions and arbitral tribunals.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In a decision dated 30 July 2010, but only recently published, regarding the enforcement of a domestic arbitral award, the Higher Regional Court of Stuttgart held that it is not a violation of the right to be heard if an arbitral tribunal does not issue directions that provide the parties with its legal opinion before the proceedings are closed.

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 granted a motion to confirm and enforce an arbitral award, ruling that alleged violations of national policy do not fall within the public policy exception for refusing to enforce arbitral awards under the New York Convention.

PD Dr. Nathalie Voser (Partner) and Sonja Stark-Traber (Associate), Schellenberg Wittmer (Zurich) In two French-language decisions dated 3 January 2011 and published on 16 February 2011, the Swiss Supreme Court rejected two appeals against decisions rendered by the Court of Arbitration for Sport (CAS) in the doping case of Spanish cyclist Alejandro Valverde Belmonte. The Supreme Court denied, inter alia, that the arbitral tribunal had been improperly constituted when rendering its award and that it violated the principle of ne bis in idem, which was held to form part of public policy.

The Paris Court of Appeal has upheld the ICC award in the dispute between Dallah Real Estate and Tourism Holding Co and the Government of Pakistan.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz The Federal Court of Justice, the highest German court dealing with arbitration matters, ruled in a decision dated 16 December 2010, that a party can rely on the objection of lack of a valid arbitration agreement in enforcement proceedings in Germany even if it did not initiate setting aside proceedings at the seat of arbitration within the relevant time limits.

PD Dr. Nathalie Voser (Partner) and Dr. Patrick Rohn (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 10 November 2010 and published on 22 November 2010, the Swiss Supreme Court confirmed that arbitral decisions on advances on costs and on suspension of the proceedings qualify as procedural orders, and that such procedural orders cannot be challenged before the Supreme Court. The Supreme Court further held that arbitrators lack the power to rule on their own claim for fees and expenses because their claim for remuneration does not arise from the parties' agreement to arbitrate and, as a matter of principle, the arbitrators are not allowed to rule on their own claims. If a tribunal "orders" the parties to pay the arbitrators' fees, such an "order" only qualifies as an invoice to the parties and an invitation to pay the fees agreed under the receptum arbitri.   

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.

A Q&A guide to arbitration law and practice in Hong Kong. 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 Singapore. 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 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.

It may be very difficult, if not impossible, to obtain an anti-suit injunction preventing a party from commencing or continuing proceedings before another court (or arbitral tribunal), in order to enforce an arbitration agreement. An alternative to the anti-suit injunction is the anti-enforcement injunction: an order enjoining a party to an arbitration agreement from enforcing an award or a court judgment. This article considers both anti-suit injunctions and anti-enforcement injunctions, including: anti-suit injunctions issued by state courts; anti-suit injunctions issued by arbitral tribunals; and a review of the anti-enforcement injunctions as a variant of anti-suit injunction. 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.

A Q&A guide to arbitration law and practice in Austria. 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 China. 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 France. 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 Hungary. 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 Italy. The 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 Lithuania. 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 South Africa. 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 UK (England and Wales). 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.

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.

In Oxford Health Plans LLC v. Sutter, No. 12-135, 2013 WL 151235 (U.S. June 10, 2013), the US Supreme Court considered an application to vacate an arbitrator’s decision, that allowed class arbitration, on the basis of a misinterpretation of the parties’ intent under section 10(a)(4) of the Federal Arbitration Act (FAA).

In Paranapanema SA v Banco Santander SA and Banco BTG Pactual, Interlocutory Appeal n. 0036343-44.2013.8.26.0000, the Court of Appeals of the State of Sao Paulo dismissed an interlocutory appeal filed against a lower court's decision to stay the enforcement of an arbitral award, pending a challenge to the award. The challenge was made on the ground that the process of constituting the arbitral tribunal breached the principle of equal treatment of the parties.

In decision 4A_669/2012, the Swiss Supreme Court examined whether a sole arbitrator had breached the petitioner's right to be heard by not dealing with certain arguments put forward in the arbitration.

In Timegate Studios, Inc. v. Southpeak Interactive, LLC, No. 12-20256, 2013 WL 1437710 (5th Cir. Apr. 9, 2013), the Fifth Circuit considered whether an arbitrator had exceeded his authority when issuing an unconventional remedy in furtherance of the "essence" of the underlying agreement.

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 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.

Philippe Bärtsch (Partner) and Anne-Carole Cremades (Associate), Schellenberg Wittmer (Geneva) In a decision dated 31 January 2011 but only recently published, the Swiss Supreme Court set aside an award for breach of one of the parties' right to be heard on the ground that the sole arbitrator had not taken into account that party's post-hearing brief and did not address in his award two of the arguments set out in the brief which were material to the outcome of the dispute.

In Chantiers de l'Atlantique SA v Gaztransport et Technigaz SAS [2011] EWHC 3383 (Comm), the Commercial Court considered a challenge to an award on the ground that the award was obtained by fraud, under section 68(2)(g) of the Arbitration Act 1996.

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman In a decision dated 1 December 2011, the High Court of Australia allowed an appeal, holding that it was not an abuse of process for a litigant to hold a judgment which was inconsistent with a foreign arbitral award delivered in an arbitration between different parties, regardless of whether there is a principal and accessory relationship involved.

Mustafa Motiwala (Senior Partner) and Shruti Thampi (Trainee), Juris Corp In a recent decision, the Supreme Court of India (Supreme Court) set aside a domestic arbitral award on the ground that the decision of the arbitral tribunal was contrary to public policy and incorrect in law. The tribunal had held that a letter sent by the government to its department was an Act of legislature and therefore the contract was void ab initio.

In ED & F Man Sugar Ltd v Belmont Shipping Ltd [2011] EWHC 2992 (Comm), Teare J considered whether section 33 of the Arbitration Act 1996 obliged a tribunal to alert parties of potential arguments of law that may support their case.

PD Dr. Nathalie Voser (Partner) and Aileen Truttmann (Associate), Schellenberg Wittmer (Zurich) In a French-language decision of 3 October 2011, the Swiss Supreme Court ruled that an athlete's right to be heard was not violated by the fact that she had not been assisted by the tribunal-appointed lawyer at the initial stage of the proceedings. The Supreme Court also re-affirmed that the CAS was entitled to investigate a case itself and thus remedy any possible inappropriate conduct in first instance proceedings.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore Court of Appeal has overturned a High Court judgment setting aside an arbitral tribunal's decision on public policy grounds. The tribunal had found that a settlement agreement entered into between the parties was legal and enforceable. The High Court set aside the arbitral tribunal's decision on the basis that the settlement agreement was illegal and, by enforcing the illegal agreement, the tribunal breached the public policy of Singapore. The Court of Appeal ruled that the alleged conflict with Singapore's public policy did not entitle the High Court to re-open the arbitral tribunal's findings of fact and overturned the High Court's ruling. 

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman In a decision dated 22 August 2011, the Court of Appeal division of the Victorian Supreme Court allowed an appeal from a decision to enforce a Mongolian arbitral award and set aside indemnity costs orders against the appellant.

Joe Kelly (Partner) and Andrew Walsh (Associate), A&L Goodbody On 23 May 2011, the Irish High Court used its discretionary power under section 45 of the Irish Arbitration Act 1954 to grant an application to extend the time for commencing arbitration that was stipulated in the arbitration agreement.

PD Dr. Nathalie Voser (Partner) and Dr. Petra Rihar (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 14 June 2011, published on 7 July 2011, the Swiss Supreme Court dismissed an appeal to set aside an arbitral award, holding that the right to the appointment of an expert by the arbitral tribunal had not been violated, as the request was not made in time (that is, before the tribunal at the relevant stage of the proceedings) and in proper form.

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.

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.

James Clark (Associate), Herbert Smith LLP The Paris Court of Appeal has upheld an arbitral tribunal's decision holding that it did not have jurisdiction over the dispute.

Polina Permyakova (Senior Associate), Delphi  On 12 November 2010, the Swedish Supreme Court confirmed jurisdiction of Swedish courts to rule on the Russian Federation’s request for a declaratory judgment concerning the arbitral tribunal’s lack of jurisdiction in the Yukos arbitration. The Supreme Court also confirmed that the Russian Federation’s request complied with the requirements regarding declaratory claims under the Swedish Procedural Code.

The High Court has considered whether parties could agree to appeals from arbitration awards on questions of fact in Guangzhou Dockyards Co Ltd v ENE Aegiali 1 [2010] EWHC 2826 (Comm).

The Supreme Court has unanimously dismissed the appeal in Dallah Real Estate and Tourism Holding Company v Government of Pakistan [2010] UKSC 46. (Free access.)

The High Court has ordered enforcement of an arbitration award despite payment having purportedly having been made, as the defendant had failed to note the claimant's instructions regarding payment and had paid an unauthorised agent: Razcom CI v Barry Callebaut Sourcing AG [2010] EWHC 2598.

PD Dr. Nathalie Voser (Partner) and Dr. Petra Rihar (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 29 July 2010, published on 16 September 2010, the Swiss Federal Supreme Court dismissed an appeal to set aside a decision of the Tribunal of the Fédération Equestre Internationale (FEI Tribunal) and an award by the Court of Arbitration for Sport (CAS).

PD Dr. Nathalie Voser (Partner) and Dr. Dorothee Schramm (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 26 May and published on 10 September 2010, the Swiss Supreme Court set aside an arbitral award based on a violation of the right to be heard. According to the Supreme Court, the arbitral tribunal had not taken into consideration a relevant allegation of the respondent in the arbitration. The Supreme Court, however, denied a violation of a right to be heard with regard to other complaints of the respondent.

Nicholas Peacock (Partner) and Chris Ross (Senior Associate), Herbert Smith LLP The Singapore High Court has set aside an arbitral award made by a SIAC tribunal on the basis that upholding the award would have involved enforcing an illegal agreement. Accordingly, the award was contrary to public policy.

Eduardo Damião Gonçalves (Partner) and Flavia Mange (Associate), Barretto Ferreira, Kujawski, Brancher e Gonçalves Sociedade de Advogados In a decision dated 22 April 2010, the State of Rio Grande do Sul Court of Appeals upheld a decision rejecting the court's jurisdiction to rule on the validity of an arbitration clause.  In so doing, the Court of Appeals expressly confirmed the kompetenz-kompetenz principle even in the context of consumer contracts.  Moreover, the court had the opportunity to underline the non-abusive nature of an arbitration clause in consumer agreements.

PD Dr. Nathalie Voser (Partner) and James Menz, J.D. (Associate), Schellenberg Wittmer (Zurich) In a decision dated 16 December 2009 and only published on 15 March 2010, the Swiss Federal Tribunal rejected a petition to set aside an arbitral award, further defining the restrictive contours of its jurisprudence on challenges on public policy and right-to-be-heard grounds.

PD Dr. Nathalie Voser (Partner) and Philipp Meier (Associate), Schellenberg Wittmer (Zurich) In a decision dated 29 January 2010 (published online on 17 March 2010), the Swiss Federal Tribunal rejected a petition to set aside an award rendered by a sole arbitrator appointed by the Geneva Chamber of Commerce. The dispute before the sole arbitrator related to contracts for the supply of steel products governed by the UN Convention on the International Sale of Goods (CISG). A (the seller) had claimed to be in a force majeure situation and subsequently tried to impose higher prices. Relying on Article 72 CISG, B (the buyer) had terminated the contracts, entered into substitute transactions with another supplier and claimed compensation from A. In the award, B's claims were upheld. In its petition against the award, A had raised challenges based on substantive ordre public and its right to be heard.

Detty Davis (Senior Associate), Juris Corp Advocates On 16 December 2009, the Bombay High Court, in an unreported decision, held that the courts have discretion under section 34 of the Arbitration Act 1996 to set aside an award, in whole or in part, depending on the facts of the case. The High Court was asked to consider whether the doctrine of severability, as statutorily incorporated in the proviso to section 34(2)(a)(iv), can be applied to an award while dealing with an application under section 34 generally or whether its application is restricted to section 34(2)(a)(iv) alone. 

An update on Shell Egypt West Manzala GmbH and anor v Dana Gas Egypt Ltd [2009] EWHC 2097 (Comm), which concerned the issue of whether rights of appeal against an arbitration award had been contractually excluded.

An update on CNH Global NV v PGN Logistics Ltd and Ors [2009] EWHC B8 (Comm), which concerned the power to correct awards under the ICC Arbitration Rules and challenging awards on grounds of serious irregularity under the Arbitration Act 1996.

An update on NNPC v IPCO (Nigeria) Ltd [2008] EWCA Civ 1157, in which the Court of Appeal held that it had power to order partial enforcement of a New York Convention award.

In R v V [2008] EWHC 1531 (Comm), David Steel J dismissed an application challenging an award under section 68 of the Arbitration Act 1996, alternatively challenging enforcement of the award under section 81 of the Act. The claimant argued that the effect of the award was to enforce a contract for the sale of personal influence, which was contrary to English public policy. Dismissing the application, David Steel J held that this argument was not open to the claimants, as it involved reopening the tribunal's express findings that the contract in question was not one for the sale of personal influence, and was not contrary to English public policy. Even had that argument been open to the claimants, he would have rejected it on the facts and as a matter of law. The judgment contains a helpful summary of the principles which apply when issues of public policy are raised in connection with an award. It also contains discussion of the difficult issue of whether there are any circumstances in which a court may go behind the tribunal's award.

In Royal & Sunalliance Insurance PLC v BAE Systems (Operations) Ltd and others [2008] EWHC 743 (Comm) the court had to consider whether permission to appeal an award under section 69(2)(b) of the Arbitration Act 1996 (the Act) was required where the parties had agreed a provision in the underlying contract that an appeal could be made on a question of law, but that provision was silent as to whether permission from the court was still required. Mr Justice Walker held that on a true construction of the relevant provision in the underlying contract, permission was not required to bring the appeal. Whilst the case really turned on the construction of the clause in question, it serves as a reminder to practitioners of the importance of clear and precise drafting of arbitration agreements. Whilst the claimant was ultimately successful in demonstrating leave was not required, this issue could have been avoided altogether had the provision expressly provided so.

The Court of Appeal in Gater Assets Ltd v Nak Naftogaz Ukrainiy [2007] EWCA Civ 988 has held that the English court should not award security for costs against a claimant who seeks to enforce a New York Convention award pursuant to section 101 of the Arbitration Act 1996. Overturning the first instance decision of Field J, the Court of Appeal held by a majority that to order security for costs in such circumstances would involve an impermissible discrepancy between New York Convention awardholders and domestic awardholders (against whom security for costs could not generally be ordered). The Court of Appeal's majority decision gives effect to the expectations of international commercial parties and to the general scheme of the New York Convention. Unfortunately, however, the juridical basis of the Court of Appeal's decision is somewhat unclear, because the majority differed as to whether the order for security for costs should be refused as a matter of jurisdiction or discretion. Note: The defendant's substantive application, pursuant to section 103 of the Act, to set aside the order of Colman J granting permission to enforce the award was refused by Tomlinson J (see Gater Assets Ltd v Nak Naftogaz Ukrainiy [2008] EWHC 237 (Comm)