Arbitration Agreements

After the enactment of the Brazilian Arbitration Act of 1996 (BAA 1996) and the growth of the Brazilian economy, Brazil has become an important venue for arbitration in Latin America. This note considers the framework for arbitration in Brazil, as set out by the BAA 1996, taking into consideration some applicable provisions of the Civil Code of Procedure and recent case law. It deals with all aspects of arbitration by describing the main features of a Brazilian arbitral process, from the preparation of a valid arbitration agreement to the enforcement of arbitral awards.

This note identifies factors that parties should consider when drafting an arbitration agreement calling for arbitration in the US.

This practice note highlights the points that need to be considered when finalising an arbitration agreement, and offers guidance on the best approach to drafting.

This practice note considers the different forms that so-called "hybrid", "multi-tiered" (or "escalation") and "carve-out" dispute resolution clauses may take. Although a short form, standard arbitration or jurisdiction clause will suffice in the majority of contracts, certain complex projects may require more complicated dispute resolution provisions. This note focuses on the issues that may arise in using complex clauses and highlights the potential pitfalls a lawyer may face in drafting these types of clauses.

What remedies are available where a party commences court proceedings in breach of an arbitration agreement, or initiates arbitration in breach of a valid jurisdiction clause? This note considers the power of the English court to grant an anti-suit injunction to restrain foreign court or arbitration proceedings where these have been commenced in breach of an arbitration agreement. The effect of the ECJ decision in Allianz SpA v West Tankers Inc (Case C-185/07) is analysed, and guidance is given on practice and procedure.

A note providing links to institutional standard recommended arbitration clauses, with integrated drafting notes.

This note outlines the use of waiver of sovereign immunity clauses, in connection with arbitrations in the People’s Republic of China (PRC) and Hong Kong. Note: The law on immunity under both PRC and Hong Kong law is complex, and is still developing. The below represents a simplified overview of some key principles. Parties are advised to seek a more detailed explanation of the position when dealing with specific circumstances.

This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcinghandbook. This article outlines some key issues companies should consider regarding the processing of personal information in UK outsourcing transactions. In particular, it explains: The principles of the Data Protection 1998 Act concerning the processing of personal data, the key rights that the Data Protection Act gives to data subjects, the consequences for companies of breaching the Data Protection Act and the key issues that arise in outsourcing transactions as a result of the Data Protection Act's requirements.

A draft ad hoc agreement conferring on the tribunal the power to rule finally on its jurisdiction.

For an example claim form for an anti-suit injunction under section 44 of the Arbitration Act 1996 or section 37 of the Senior Courts Act 1981 (or both), in support of arbitration proceedings, please click here.

For an example witness statement in support of a claim for an anti-suit injunction under section 44 of the Arbitration Act 1996 or section 37 of the Senior Courts Act 1981 (or both), please click here.

A boilerplate clause for an ad hoc arbitration in which the parties determine the rules most appropriate for the arbitration.

A sample waiver of sovereign immunity clause for commercial matters in Argentina. This standard clause includes integrated drafting notes, with explanations and drafting tips.

An arbitration clause for an administered arbitration under the auspices of CIETAC, based on CIETAC's suggested wording but with a number of amendments and additions for parties to consider.

A clause containing language parties may insert into a corporate or commercial agreement to expressly prohibit class arbitration or the consolidation of claims brought by more than one plaintiff. This Standard Clause has integrated notes with important explanations and drafting tips.

A sample waiver of sovereign immunity clause for England and Wales. This standard clause has integrated notes with important explanations and drafting tips.

A sample ad hoc arbitration clause providing for arbitration in France; in English and French.

A sample ad hoc arbitration clause providing for arbitration in India.

A sample ad-hoc arbitration clause providing for arbitration in Latvia, in English and Latvian.

The London Court of International Arbitration's (LCIA) standard recommended arbitration clauses, with integrated drafting notes.

A sample ad-hoc arbitration clause providing for arbitration in Mauritius (for GBL companies).

A sample ad hoc arbitration clause providing for arbitration in Poland, in English and Polish.

A sample waiver of sovereign immunity clause for Singapore. This standard clause has integrated notes with important explanations and drafting tips.

A resource providing the text of and drafting notes for the standard recommended arbitration clauses of the American Arbitration Association (AAA), International Centre for Dispute Resolution (ICDR), International Chamber of Commerce (ICC) and the United Nations Commission on International Trade Law (UNCITRAL).

A sample waiver of sovereign immunity clause which acknowledges the jurisdiction of an arbitral tribunal and waives immunity from the jurisdiction of state courts. The clause further waives immunity in respect of enforcement measures against state property in Sweden.

A sample waiver of sovereign immunity clause for Thailand. This standard clause has integrated notes with important explanations and drafting tips.

A flowchart setting out the stages when applying for a stay of court proceedings in England and Wales. For more detailed guidance, see Practice note, Remedies for breach of the arbitration agreement: stays of English court proceedings.

A resource providing sample arbitration clauses in a number of key jurisdictions with accompanying drafting notes. The resource is drafted by experts in those jurisdictions.

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

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

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

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. 

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

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 France in 2011/2012. 

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

PLC Arbitration has selected some of the most significant developments from 2011. This article highlights our top five tips.

An examination of arbitration as a way of resolving disputes between parties to a joint venture.

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

These training materials focus on 15 defective arbitration clauses, and provide an overview of the possible pitfalls when drafting arbitration agreements.

An article highlighting the key arbitration related developments in India in 2010/11.

More and more companies have begun to source related functions to multiple providers. This practice, know as "multi-sourcing", or "best-in-breed sourcing", has become popular with companies in their second or third generation of outsourcing. This article describes single and multi-sourcing models, looking at the advantages and disadvantages of each, reviews governance issues, describes methods of risk mitigation, and explores the impact of cloud computing on outsourcing. This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents visit www.practicallaw.com/outsourcinghandbook.

An article which analyses the English Court of Appeal's decision in Jivraj v Hashwani [2010] EWCA Civ 712 and explains the common misconceptions surrounding the case.

Arbitral institutions have reported a significant caseload rise over the past few years, which shows that arbitration is an increasingly popular dispute resolution mechanism. Its effectiveness depends largely on whether the underlying arbitration agreement is drafted properly.

This article addresses the concept of "anti-arbitration" injunctions, made to restrain arbitrations. Consideration is given to the important case of Weissfisch v Julius, against the background of previous caselaw and academic commentary.

The US Court of Appeals for the Third Circuit clarified in Guidotti v. Legal Helpers Debt Resolution the standard to be applied for motions to compel arbitration.

In GGNSC Omaha Oak Grove, LLC v Payich, 2013 WL 776811 (8th Cir. Mar. 4, 2013), the US Court of Appeals for the Eighth Circuit considered whether a third party beneficiary was bound by an arbitration agreement.

The US Department of Justice has submitted an amicus curiae brief to the US Supreme Court in the In re American Express Merchants' Litigation dispute. The Department of Justice argues that a class action arbitration waiver should be deemed unenforceable because its practical effect is to foreclose the effective vindication of federal statutory rights.

In proceedings for the enforcement of a foreign award, the Bombay High Court has held that the arbitration agreement was valid under the terms of the Arbitration and Conciliation Act 1996, even though the contracts had not been signed by the parties. Therefore, enforcement of the foreign award could not be refused.

The US Court of Appeals for the Third Circuit has held that ultra vires challenges to the formation of a contract with an arbitration clause are non-arbitrable.

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.

PRIME Finance has published draft model arbitration clauses for use with the ISDA Master Agreement.

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

The Singapore High Court has considered whether an arbitration clause in a contract bound a third party who subsequently entered into supplemental agreements with the original parties. Rather than viewing the supplemental agreements (which did not expressly refer to the arbitration clause in the original contract) in isolation, the High Court found that, based on an objective interpretation of the agreements together, the parties must have intended that the arbitration clause in the original contract should apply to the supplemental agreements as well.

The United States Court of Appeals for the Third Circuit has reversed an order compelling arbitration, based on a finding that a defendant waived its rights to arbitrate when it actively litigated the case in federal court for more than ten months prior to demanding arbitration.

The United States Court for the Southern District of Florida has granted a motion to compel arbitration after determining that the parties' agreement to arbitrate was enforceable. (Free access).

We have updated our collection of ad hoc arbitration clauses to include a sample clause for Switzerland, with integrated drafting notes. (Free access).

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.

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate), Natalia Bacelar de Rezende Belliboni (Associate), Mattos Filho Advogados The Brazilian Superior Court of Justice has issued a new precedent (No. 485) on the retroactivity of the Brazilian Arbitration Act 1996, expressing its application to arbitration clauses contained in contracts that pre-date the enactment of the Act. With this precedent, the court settled a long standing debate on the status of arbitration clauses entered into before the Act entered in force.

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.

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman The Federal Court of Australia has ordered court proceedings to be stayed and the matter to be referred to arbitration in Milan in accordance with an agreement between the third applicant and the first respondent in a dealership agreement. All related proceedings were stayed pending the outcome of the arbitration.

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

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

Henry Quinlan (Partner) and Natalie Wainwright (Trainee), DLA Piper Middle East LLP The DIFC Court has declined to stay proceedings in favour of an LCIA arbitration in London, despite finding that the arbitration clause was valid. In rendering its judgment, the court concluded that the presently drafted DIFC arbitration law failed to implement the New York Convention.

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.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In an eagerly awaited decision dated 10 May 2012, the Higher Regional Court of Frankfurt am Main confirmed the interim award on jurisdiction in the arbitration proceedings between Eureko BV and the Slovak Republic (PCA Case No. 2008-13, UNCITRAL). The court held that the arbitration clause in the bilateral investment treaty between the Netherlands and Slovakia was valid and did not violate EU law. Accordingly, Slovakia’s application to set aside the arbitral tribunal’s interim award on jurisdiction was dismissed. Slovakia has filed a notice of appeal against the decision.

Alejandro López Ortiz (Counsel) and Silvia Martínez Sastre (Associate), Hogan Lovells International LLP (Spain) In a recently published judgment, the Superior Court of Justice of Madrid (SCJ) ruled on the applicable law of the validity of an arbitration agreement and rejected opportunistic allegations of violation of public policy on the basis of the principle of good faith.

In Joint Stock Asset Management Company "Ingosstrakh Investments" v BNP Paribas SA [2012] EWCA Civ 644, the Court of Appeal considered whether to restrain Russian proceedings, the subject of matter of which fell within the scope of an arbitration agreement.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP The Second Circuit has affirmed the denial of a motion to compel arbitration by a purported third-party beneficiary of the contract when the plain language of the arbitration agreement did not contemplate third-party participation.

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.

In West Tankers Inc v Allianz SpA & Anor [2012] EWHC 854 (Comm) (04 April 2012), the court considered whether EU law deprived an arbitral tribunal of jurisdiction to award damages for breach of an obligation to arbitrate. (Free access)

Andrew Robertson (Partner) and Ryan Kuss (Law Clerk), Piper Alderman On 9 March 2012, the Western Australia Supreme Court of Appeal considered the effect of amendments to the International Arbitration Act (IAA) on pre-amendment arbitration agreements. This case clarifies the application of section 21 of the IAA and also elucidates several issues of procedure under Australian arbitral legislation. 

PD Dr. Nathalie Voser (Partner) and Elisabeth Leimbacher (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 13 February 2012 and published on 2 March 2012, the Swiss Supreme Court confirmed its liberal case law regarding arbitration agreements by reference in sports arbitration, otherwise referred to as "mandatory arbitration". The Court ruled that in sports-related disputes, the issue as to whether a non-signatory to the arbitration agreement can challenge the arbitral tribunals' decision relates to the standing of a party (qualité pour agir), which is a procedural question. It also confirmed previous case law regarding the challenge of decisions on the suspension of arbitral proceedings before the Swiss Supreme Court.

Natalia Belomestnova (Senior associate), Goltsblat BLP On 30 January 2012, the Supreme Commercial Court of the Russian Federation supported the conclusions of the lower courts in Novolipetsky Steel Mill v Maximov (case No. A40-35844/2011-69-311) that corporate disputes are not arbitrable in Russia.

Joanne Greenaway, Professional Support Lawyer, Herbert Smith LLP Smith J has ruled that, where the English court has supervisory jurisdiction, it has "overlapping or concurrent" jurisdiction, alongside an arbitral tribunal, to grant an anti-arbitration injunction restraining an arbitration from going ahead.  However, this power is subject to the court's discretion, which the court declined to exercise in this instance.  This case is an interesting illustration of the relationship between the powers of the court and arbitral tribunals.  It also provides useful clarification of when a party can rely on section 9 of the Arbitration Act 1996 to stay proceedings in favour of an arbitration agreement.

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate), Diego Nocetti (Associate), Mattos Filho Advogados In a long-awaited decision dated 7 December 2011, the Court of Appeals of the State of Paraná (TJPR) overturned one of the most criticised arbitration-related court decisions in Brazil, according to which the execution of a submission agreement was a necessary step before initiating arbitral proceedings, even when the parties had entered into a valid arbitration clause and had participated in ICC proceedings without objecting to the tribunal’s jurisdiction.

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.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP The United States Supreme Court has vacated a Ninth Circuit Court of Appeals decision that upheld a District Court’s dismissal of a motion to compel arbitration, finding no statutory intent to override the Federal Arbitrational Act.

PD Dr. Nathalie Voser (Partner) and James Menz, J. D. (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 9 December 2011 and published on 22 December 2011, the Swiss Supreme Court considered an agreement to waive setting-aside proceedings pursuant to Article 192 PILA where one party to the agreement had died and its successor-in-interest claimed not to be bound by the arbitration agreement. Despite the waiver clause, which it found valid, the Swiss Supreme Court first engaged in an inquiry whether the successor-in-interest was bound by the arbitration clause.

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 granted a request for assistance in appointing an arbitral panel where the parties could not agree on the selection of the arbitrators.

On 12 December 2011, the Ministry of Justice published the responses to its consultation and call for evidence, Review of Brussels I Regulation - how should the UK approach the negotiations?

PD Dr. Nathalie Voser (Partner) and Eliane Fischer (Associate), Schellenberg Wittmer (Zurich) In a French-language decision dated 20 September 2011 and published on 19 October 2011, the Swiss Supreme Court held that a tribunal of the Court of Arbitration for Sport (CAS) had rightly interpreted an arbitration clause contained in a licence agreement to also apply to claims based on purchase agreements closely linked with the licence agreement.

PLC Arbitration has published a case study of an application to the English court for an injunction restraining proceedings brought in breach of an arbitration clause under section 44 of the Arbitration Act 1996 or section 37 of the Senior Courts Act 1981 (or both). (Free access.)

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 to compel arbitration that was filed by a third party defendant. The court found that a disagreement about the extent of contribution and indemnification fell within an arbitration clause requiring arbitration of all disputes, when the agreement included an indemnification clause, and set forth the duties on which the contribution clause was based.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In a decision dated 14 July 2011, but only recently published, the Federal Court of Justice confirmed that an arbitration agreement is not inoperative even if the parties erroneously agreed on an institutional arbitral tribunal which does not exist, as long as a supplementary interpretation of the contract demonstrates that the parties wanted to agree on arbitration.

Gavin Chesney, Associate, Herbert Smith LLP In Deutsche Bank AG v Tongkah Harbour Public Company Ltd [2011] EWHC 2251 (Comm), the UK Commercial Court was asked to consider a suite of finance contracts. The two key contracts both contained English court jurisdiction clauses, but gave the lender bank an option to refer disputes to LCIA arbitration.

Peter Yuen (Partner), Freshfields Bruckhaus Deringer In a recent decision, the Hong Kong Court of First Instance stayed a Hong Kong court proceeding in favour of arbitration in Shanghai under the rules of the International Chamber of Commerce (ICC).

Eduardo Damião Gonçalves (Partner), Débora Auler Almeida Prado (Associate) and Diego Nocetti (Associate), Mattos Filho Advogados In a decision rendered on 18 August 2011, the Court of Appeal of the State of Rio de Janeiro (TJRJ) reaffirmed the negative effect of arbitration agreements. The TJRJ upheld the lower court’s decision, dismissing the lawsuit filed by the claimant, in which the latter alleged the abusive nature of the arbitration agreement contained in an adhesion contract (standard form contract) entered into with the respondent. The TJRJ confirmed the legality of arbitration agreements in adhesion contracts, provided that the applicable legal conditions were met.

Deborah Wilkie, Associate, Herbert Smith LLP In Jivraj v Hashwani [2011] UKSC 40, the UK Supreme Court clarified the status of arbitrators and confirmed that they are not employees, but rather "independent providers of services who are not in a relationship of subordination with the person who receives the services". Arbitration agreements do not, therefore, fall within the scope of the UK anti-discrimination legislation, including the UK Equality Act 2010.

The European Parliament's Committee on Legal Affairs has published a draft report commenting on the legislative proposal to amend the Brussels Regulation, including the arbitration exception. (Free access).

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

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP 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).

Eduardo Damião Gonçalves (Partner), Flávio Spaccaquerche Barbosa (Associate), and Débora Auler de Almeida Prado (Associate), Mattos Filho Advogados In a decision rendered on 31 March 2011, the Court of Appeals of the State of Rio Grande do Sul (TJRS) denied the defendant's motion to dismiss an action due to the existence of an arbitration clause contained in invoices issued by the claimant. TJRS based its decision on the pathological character of the arbitration agreement and the absence of proof of consent of the parties to arbitrate disputes. TJRS held that the structure of the clause, the pathological terms of the clause and the defendant's arguments that the invoices were not accepted and signed by them, meant that there was no evidence that the parties unequivocally intended to submit the dispute to arbitration.

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 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.

Francisco M. Gutiérrez (Partner) and Federico Campolieti (Senior Associate), M. & M. Bomchil In a decision rendered on 5 October 2010 and published on 28 February 2011, the National Commercial Court of Appeals, chamber C, seated in the City of Buenos Aires, declared that a dispute between two mining companies which required the interpretation and application of the Argentine Code of Mining cannot be submitted to arbitration.

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.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In a decision dated 25 January 2011, but only recently published, the Federal Court of Justice held that an arbitration agreement contained in a contract for investment services between a foreign broker and a German consumer is invalid if the arbitration agreement is not contained in a separate document personally signed by the parties.

Francisco M. Gutiérrez (Partner) and Federico Campolieti (Senior Associate), M. & M. Bomchil In a decision rendered on 19 October 2010 and published on 10 February 2011, the National Commercial Court of Appeals, chamber C, seated in the City of Buenos Aires, confirmed that a guarantor could invoke and benefit from the negative effect of an arbitration agreement even though the guarantor is not a party to the underlying contract.

PD Dr. Nathalie Voser (Partner) and Dr Patrick Rohn (Associate), Schellenberg Wittmer (Zurich) In a German-language decision concerning a domestic arbitration case dated 1 December 2010 and published on 19 January 2011, the Swiss Supreme Court overturned a decision of the Appeal Court of the Canton of Zurich and held that the operator of the Swiss Stock Exchange (that is, the SIX Swiss Exchange AG), does not have the legislative power to (unilaterally) provide in its Listing Rules for arbitration of disputes over listings and de-listings of equity securities. The applicable Securities Exchange Act provides that such disputes are to be referred to a civil court, and a submission to arbitration requires a formally valid arbitration agreement.    

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), Leah Witters (Associate), White & Case LLP The District Court for the Eastern District of Missouri ruled that when the agreement requires disputes over the existence or validity of the agreement be submitted to arbitration following Singapore International Arbitration Centre (SIAC) rules, the court should not decide claims related to the agreement.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), Leah Witters (Associate), White & Case LLP The Second Circuit Court of Appeals has held that courts must decide whether a valid contract exists even when the party contesting the agreement to arbitrate has requested an arbitral body to decide the issue.

Priyanka Gandhi (Associate) and Ankur Kashyap (Associate), Juris Corp In a recent decision the Supreme Court of India (Supreme Court) held that once the issue of validity of an arbitration agreement is in dispute, such issue has to be finally decided by the court or its designate (any person or institution designated by the Chief Justice), and not the arbitration tribunal.

PLC Arbitration has held a seminar on enforcing and upholding London arbitration clauses, hosted by Berwin Leighton Paisner LLP. Free access.

Alejandro López Ortiz (Senior Associate) and Silvia Martínez (Junior Associate), Hogan Lovells International LLP The Court of Appeal of Madrid, in a recently published judgment of 20 September 2010, set aside an award on the basis that the arbitration agreement had lost its force and effect as mandated by the Spanish insolvency legislation, since one of the parties' to the agreement had been declared insolvent.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), Leah Witters (Associate) ,White & Case LLP On 9 November 2010, the Supreme Court heard oral arguments on whether a state may refuse to enforce an arbitration agreement that does not allow class arbitration.

Ms. Priyanka Gandhi (Associate) and Mr. Ankur Kashyap (Associate), Juris Corp. In a recent decision, the Indian Supreme Court refused to appoint an arbitrator in an international arbitration on the ground that the arbitration agreement excluded the application of Part I of the Indian Arbitration and Conciliation Act 1996 (Act)  (which contained the provision for appointment of arbitrators). The Supreme Court reached this decision despite the fact that the arbitration agreement did not contain an express exclusion of Part I of the Act but rather provided for the arbitration to be conducted outside India and governed by a foreign 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 ruled that it must decide whether an arbitration agreement exists and may not stay the proceedings to allow a concurrent ICC tribunal to rule on the issue. 

Marina Danilova (Junior Associate), Goltsblat BLP The Federal arbitrazh court of the Far-East district (commercial court of third level) has recently held that disputes relating to rights to real estate in Russia are subject to the exclusive competence of the Russian courts. Therefore, the court found it was competent to hear the dispute despite the arbitration clause in the relevant contracts.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP The District Court for the Southern District of Texas has stayed a civil action pending the outcome of a related international arbitration, even though several of the plaintiffs were not signatories to the arbitration agreement. 

Francisco M. Gutiérrez (Partner) and Ignacio J. Minorini Lima (Senior Associate), M. & M. Bomchil In a decision rendered on 7 May 2010 and published on 4 August 2010, the National Commercial Court of Appeals, chamber C, seated in the City of Buenos Aires, confirmed that a dispute covered by an arbitration agreement deprives the courts of jurisdiction over the matter, but that arbitration agreements must be construed restrictively.

Neha Vijayvargiya (Associate) and Priyanka Gandhi (Associate) , Juris Corp In a recent judgment, the Delhi High Court refused to exercise jurisdiction in a dispute relating to international commercial arbitration on the ground that the provisions of the Arbitration and Conciliation Act 1996 were excluded (both expressly and impliedly) by the arbitration agreement.

PD Dr Nathalie Voser (Partner) and Philipp Meier (Associate), Schellenberg Wittmer (Zurich) Ruling on an appeal in civil matters, the Swiss Federal Tribunal confirmed that under the legal framework for domestic arbitration an employee suing his former employer was not bound by an arbitration clause contained in the employment contract as the parties could not "freely dispose" of the specific claims asserted by the employee.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), White & Case LLP On 21 June 2010, the United States Supreme Court issued an important decision which limits the judicial review of arbitral agreements. The court’s decision is a victory for businesses that favours arbitration to litigation of complaints by consumers and employees, but its impact is uncertain. 

Neha Vijayvargiya (Associate) and Priyanka Gandhi (Associate), Juris Corp In two recent decisions, the Supreme Court of India considered contracts containing arbitration clauses which had been entered into for the benefit of a non-party.  In one case, the Court decided that a non-signatory to an arbitration agreement cannot be bound by an agreement.  In the other decision, the court held that a company that was not in existence at the time the arbitration agreement had been executed, but had been incorporated afterwards, could not be bound by that agreement.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Lauren Mandell (Associate), Stephanie Early (Associate), White & Case LLP On 24 May 2010, the US Supreme Court granted certiorari in a case which questions whether the Federal Arbitration Act (FAA) preempts states from conditioning the enforcement of an arbitration agreement on the availability of particular procedures (in this case, class-wide arbitration) when those procedures are not necessary to ensure that the parties to the arbitration agreement are able to vindicate their claims.

Ivan Lischchyna (Counsel), ENGARDE Attorneys at Law, (Ukraine) The Higher Commercial Court of Ukraine has allowed court proceedings to continue despite the contracts at dispute containing an arbitration clause referring all disputes to the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry.

Ruth Byrne (Solicitor Advocate) and Joanne Greenaway (Professional Support Lawyer), Herbert Smith LLP The English Court of Appeal has granted an anti-suit injunction restraining Tunisian proceedings brought in breach of an arbitration agreement. The Court confirmed that court proceedings which seek negative declaratory relief can amount to a repudiatory breach of the arbitration agreement and, as such, can be restrained by injunctive relief.

Alvin Yeo, Senior Counsel (Senior Partner) and Andre Maniam (Head of Litigation & Dispute Resolution Department), WongPartnership LLP It is not uncommon for transactions involving multiple related agreements to contain different dispute resolution clauses. In such cases, when a dispute in relation to the transaction arises, determining which clause applies to the dispute can become a thorny issue. This was the case in the recent Singapore High Court decision of Transocean Offshore International Ventures Ltd v Burgundy Global Exploration Corp [2010] SGHC 31 where there were two related contracts: one containing an arbitration clause and the other containing a submission to the jurisdiction of the Singapore courts. The court held that, in the event of a claim for breach of contract, it would consider which contract the dispute was more closely related to and apply the relevant dispute resolution clause accordingly.

Andrew Robertson (Partner), Piper Alderman The Honourable Justice Byrne, Senior Judge Administrator of the Supreme Court of Queensland, has refused an application for a stay of proceedings to allow for the domestic arbitration of a dispute despite the presence of an arbitration agreement between the parties.  His Honour held that "there is no reason to suppose that arbitration offers a better way" for resolving the dispute. While the decision in question relates to a domestic arbitration agreement which is governed by State legislation rather than Commonwealth legislation based on the Model Law, it nevertheless provides a useful insight into some of the attitudes of the Australian courts towards arbitration.

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.

Alejandro López Ortiz (Senior Associate) and Silvia Martínez (Junior Associate), Lovells LLP In its Order 38/2009 of 27 January, the Court of Appeal of Madrid has considered whether a letter amounted to a waiver of an arbitration agreement.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Christopher P. DeNicola (Law Clerk), Paul, Weiss, Rifkind, Wharton & Garrison LLP The Colorado Supreme Court has held that a person possessing a power of attorney may lawfully sign an arbitration agreement on behalf of an incapacitated patient.  

Elena Trusova (Head of group), Goltsblat BLP The Presidium of the High Arbitration Court of the Russian Federation has given an interesting interpretation of an arbitration clause which contained a misdescription of the arbitral institution.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Christopher P. DeNicola (Law Clerk), Paul, Weiss, Rifkind, Wharton & Garrison LLP On 6 October 2009, the Eighth Circuit held that a credit card agreement with an arbitration clause inserted by amendment was not unconscionable. 

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Paul, Weiss, Rifkind, Wharton & Garrison LLP The California Fourth District Court of Appeal has held that an arbitration clause in contracts between an investment company and its customers requiring a three-arbitrator panel was unconscionable and therefore unenforceable where the company failed to justify it. 

Alejandro López Ortiz (Associate) and Sonia Pérez (Associate), Lovells LLP In a decision published in June 2009, the Spanish Supreme Court ruled that breach of a choice of court clause contained in a contract may give right to damages in favour of the non-breaching party. The judgment reversed a previous ruling of the Court of Appeal of Barcelona, which rejected the claim for damages.

Daniel J. Leffell (Partner), Marc Falcone (Partner) and Jeffrey D. Kleinman (Associate), Paul, Weiss, Rifkind, Wharton & Garrison LLP In 14 Penn Plaza LLC v. Pyett, 129 S.Ct. 1456 (2009), the U.S. Supreme Court held (5-4) that provisions of a collective bargaining agreement under the National Labor Relations Act (NLRA) that clearly require union members to submit age discrimination claims under the Age Discrimination in Employment Act (ADEA) to arbitration are enforceable. The decision reflects the court's increasing comfort with arbitration as a suitable forum for resolving a broad range of disputes traditionally addressed by courts.

Publication of an Article, Arbitration clauses: avoiding the pitfalls.

An update on the LMAA's new intermediate claims procedure and related arbitration clause.

On 4 September 2008, Advocate General Kokott delivered her opinion that anti-suit injunctions against proceedings in another member state brought in breach of an arbitration agreement are incompatible with EC law.

As highlighted on our arbitration events calendar, on 11 July 2007 BIICL hosted a seminar on the subject of anti-suit injunctions in the light of the West Tankers case, currently pending before the ECJ. For information on future events, see the arbitration events calendar.

In Noble Assurance Company and another v Gerling-Konzen [2007] EWHC 253 (Comm) the court considered whether to continue an anti-suit injunction restraining the defendant from pursuing proceedings in Vermont, brought in breach of a London arbitration agreement. The court considered that the defendant's conduct had been vexatious, oppressive and an abuse of process and/or unconscionable. The defendant had had the opportunity to raise the allegations made in the Vermont proceedings before the arbitral tribunal and had decided not to. Further, the Vermont proceedings were based on a false reading of the award. The judge emphasised the importance of avoiding the appearance of interfering with a foreign court. Instead of continuing the anti-suit injunction, he made a declaration confirming the scope and validity of the award, on the basis that this might best serve the ends of justice, by providing a basis on which the Vermont proceedings could be dismissed.

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

This chapter provides an overview of the 2012 revisions to the Swiss Rules of International Arbitration and the ICC Rules of Arbitration. In particular, it: summarises the main amendments to the two sets of rules that deal with efficiency considerations; examines mechanisms aimed at complex arbitrations; and discusses provisions relating to the emergency arbitrator. 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 Indonesia. 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 Sweden. 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 United States. 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 Australia. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

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

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

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

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

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

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

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

This article examines the recent decisions of the US Supreme Court and the Supreme Court of Canada on the enforceability of mandatory arbitration clauses in consumer contracts. In reaching their decision both courts purported to protect the same policy objectives, but arrived at somewhat different conclusions. The article discusses the issues raised by the cases, the reasoning behind each court's decision and the possible effect the rulings may have on future arbitrations. 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.

Drafting notes to accompany the ad hoc agreement on jurisdiction.

Drafting notes to accompany the draft order in support of an application for an anti-suit injunction under section 44 of the Arbitration Act 1996 or section 37 of the Senior Courts Act 1981 (or both).

This note considers and comments upon several specific arbitration agreements, including commonly adopted institutional clauses.

In Beijing Jianlong Heavy Industry Group v Golden Ocean Group and others [2013] EWHC 1063 (Comm), the Commercial Court considered the validity of the arbitration clauses contained in guarantees that were unenforceable for illegality.

The Colombian Council of State has considered the extent to which the execution of an arbitration clause implies a waiver of the right to submit certain disputes to court.

The Court of Appeal of the State of California has affirmed an order denying a motion to compel arbitration, by upholding the trial court's conclusion that the arbitration provision was unenforceable under state law.

The US Court of Appeals for the Fourth Circuit has held that the Supreme Court's decision in AT&T Mobility LLC v Concepcion applies not only to state laws, but also to contractual provisions.

In Jutaí 661 Equipamentos Eletrônicos Ltda v PSI Comércio e Prestação de Serviços em Telefones Celulares Ltda, the Brazilian Superior Court of Justice (STJ) considered that bankruptcy proceedings are outside the scope of arbitration and, therefore, no arbitration clause can prevent a party filing bankruptcy in court.

In its recently published decision dated 4 April 2012, the Turkish Supreme Court considered whether an arbitration clause in a pro-forma invoice was only binding on the parties who signed it.

In Hyundai Merchant Marine Company Ltd v Americas Bulk Transport Ltd [2013] EWHC 470 (Comm), Eder J considered a jurisdictional challenge to an award, based on arguments that there had been no consensus between the parties and that the "subjects" or conditions precedent to the underlying charterparty had never been lifted. 

In HKL Group Co Ltd v Rizq International Holdings Pte Ltd [2013] SGHCR 5, a Singapore Court considered the enforceability of a potentially pathological arbitration clause that referred to a non-existent arbitral institution.

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 Interserve Industrial Services Ltd v ZRE Katowice SA [2012] EWHC 3205 (TCC), HHJ David Grant (sitting as a judge of the High Court) considered whether disputes under a settlement agreement were subject to the arbitration clause contained in the underlying construction contracts.

In Assaubayev and others v Michael Wilson & Partners Ltd [2012] EWHC 90223 (Costs), the court considered an application to stay proceedings under section 9 of the Arbitration Act 1996 or under the court’s inherent jurisdiction.

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.

In Joint Stock Company "Aeroflot Russian Airlines" v Berezovsky and others [2012] EWHC 1610 (Ch), the court considered applications to challenge jurisdiction on the basis of an exclusive jurisdiction clause and to stay the proceedings in favour of arbitration, under section 9 Arbitration Act 1996 or under the court's inherent jurisdiction. 

In Nomihold Securities Inc v Mobile Telesystems Finance SA [2012] EWHC 130 (Comm), Andrew Smith J considered whether to grant an anti-arbitration injunction on the basis that the issues raised in the proposed arbitration gave rise to an issue estoppel.

In Abuja International Hotels Ltd v Meridien Sas [2012] EWHC 87 (Comm), the Commercial Court considered a challenge to the validity of an arbitration agreement under section 67 of the Arbitration Act 1996 and proceeded on the basis of the tribunal's finding that the law governing the arbitration agreement was the law of the seat, rather than the law of the host contract.

Brendan Green (Associate), Herbert Smith LLP In a decision dated 17 November 2011, the Grenoble Court of Appeal upheld the decision of the Commercial Court to decline jurisdiction over a dispute involving an agency contract that contained an arbitration clause.  In doing so, the Court of Appeal found that the arbitration clause was valid despite provisions of Spanish law (the governing law of the contract) that would have arguably invalidated it.

The Commercial Court has granted a stay of proceedings that concerned claims that were, in substance, the same as disputes that had already been referred to arbitration.

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.

The Supreme Court has unanimously allowed the appeal in Jivraj v Hashwani [2011] UKSC 40, finding that arbitrators are not employees within the ambit of the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660).

In Excalibur Ventures LLC v Texas Keystone Inc and others [2011] EWHC 1624 (Comm), the Commercial Court considered whether to grant an injunction restraining an arbitration with its seat in New York and whether to grant the claimant's application to stay Commercial Court proceedings.

In JSC BTA Bank v Ablyazov and others [2011] EWHC 587 (Comm) Christopher Clarke J considered whether the court should determine issues relating to the validity of an arbitration agreement in the context of a stay application brought pursuant to section 9 of the Arbitration Act 1996.

H Jayesh (Founding Partner) and Priyanka Gandhi (Associate), Juris Corp The Supreme Court of India has held that an arbitrator is bound to give reasons for his award and if he does not do so, the award will be rendered invalid.

In Noble Denton Middle East and another v Noble Denton International Ltd [2010] EWHC 2574 (Comm), the High Court considered the standard of proof required in an application for the appointment of an arbitrator under section 18 of the Arbitration Act 1996.

James Clark (Associate), Herbert Smith LLP The French Supreme Court has confirmed a decision of the Versailles Court of Appeal holding that the parties' ICC arbitration agreement was effective to refer tortious claims brought under a mandatory rule of French law to arbitration. The courts thereby confirmed their robust and arbitration-friendly approach to the interpretation of arbitration agreements.

An update on Habas Sinai Ve Tibbi Gazlar Isthisal Endustri AS v Sometal SAL [2010] EWHC 29 (Comm), in which the court considered the incorporation of an arbitration clause.

Alvin Yeo, Senior Counsel (Senior Partner) and Andre Maniam (Head of Litigation & Dispute Resolution Department), WongPartnership LLP The validity of a "hybrid" arbitration clause (that is, a clause providing that an arbitration is to be carried out before one arbitral institution but using the rules of another arbitral institution) was recently considered by the Singapore Court of Appeal in Insigma Technology Co Ltd v Alstom Technology Ltd [2009] SGCA 24. The appellant, Insigma Technology Co Ltd (appellant), had sought to challenge the validity of such an arbitration clause. The clause was upheld by the High Court, and on appeal, was also upheld by the Court of Appeal.

In Mobil Cerro Negro Ltd v Petroleos de Venezuela SA [2008] EWHC 532 (Comm), Walker J set aside a freezing injunction which had been granted in support of claims to be determined in a New York arbitration. Walker J held that, in the absence of factors connecting the defendants with the jurisdiction (such as residence or the presence of assets within the jurisdiction), the English court should not intervene. Furthermore, the evidence had failed to establish that it would be just and convenient to grant the injunction, or that the requisite degree of urgency existed. The case is significant in a number of respects. It confirms that the court's power, under section 44 of the Arbitration Act 1996, to intervene to support a foreign arbitration is analogous to the court's power under section 25 of the Civil Jurisdiction and Judgments Act 1982 in respect of foreign litigation, and that similar principles apply in each case. In non-fraud cases, a clear connection with England and Wales is required before the English court will exercise its long-arm jurisdiction under either provision. However, the judgment of Walker J leaves open a number of unanswered questions in connection with the exercise of the court's discretion under section 44.