Baker & McKenzie International Arbitration Yearbook: 2010-2011

Author(s):

Description:

This is the fourth edition of the Baker & McKenzie International Arbitration Yearbook, an annual series established by the Firm in 2007. This collection of articles is comprised of reports in key jurisdictions around the globe on arbitration. Leading lawyers of the Firm’s International Arbitration Practice Group, a division of the Firm’s Global Dispute Resolution Practice Group, report on recent developments in national laws relating to arbitration and address current arbitral trends and tendencies in the jurisdictions in which they practice.

This Yearbook highlights the more important recent developments in international arbitration, without aspiring to be an exhaustive case reporter or a text-book to arbitration in the broad sense. This volume will prove a useful tool for those contemplating and using arbitration to resolve international business disputes.

ISBN:

978-1-933833-78-1

Page Count:

670 pages

Published:

April, 2011

Media Description:

1 Hardcover Volume. Glossary.

Practice Areas:

Authority of the Arbitral Tribunal,

Arbitrators and Arbitral Tribunals,

Arbitral Adjudication,

International Institutions and Rules

Jurisdictions:

International

$0.00

Table of Contents:

Foreword

About the 2010-2011 B&M Yearbook Editors

Glossary

ASIA-PACIFIC

AUSTRALIA

Leigh Duthie, Melbourne; and Sarah Lancaster, Sydney

A. Legislation, Trends and Tendencies

A.1 Legislative Framework

A.2 Amendments to Australia’s Legislative Framework

A.3 Amendments to the International Arbitration Act

A.4 Introduction of the Australian International Disputes Centre

B. Cases

B.1 Restricting Court Interference with Arbitral Awards

B.2 Proportionate Liability

B.3 Opting out of the Model Law under the Amended IAA

C. Insolvency Issues in Arbitration

C.1 Introduction

C.2 The Australian Insolvency Legal Framework

C.3 The Lesser Stay—Voluntary Administration and Winding Up in Insolvency or by the Court

C.4 The Greater Stay—Voluntary Winding Up

C.5 Enforcing a Foreign Award against Assets in Australia

C.6 Enforcing a Foreign Award against Assets of an Australian Insolvent Debtor outside of Australia—Cross Border Insolvency Rules

CHINA

Catherine Mun, Hong Kong; and Shen Peng, Beijing

A. Legislation, Trends and Tendencies

B. Cases

C. Insolvency Issues in Arbitration

HONG KONG

Gary Seib and Catherine Mun, Hong Kong

A. Legislation, Trends and Tendencies

A.1 Recent Developments

A.2 Reform of Hong Kong Arbitration Regime

A.3 Trends

B. Cases

B.1 Sovereign Immunity

B.2 Enforcement

B.3 Abuse of Process

C. Insolvency Issues in Arbitration

C.1 Court Interference in Arbitration Proceedings

C.2 Effect of Winding Up and Appointment of the Provisional Liquidator

INDONESIA

Timur Sukirno and Reno Hirdarisvita, Jakarta

A. Legislation, Trends and Tendencies

B. Cases

C. Insolvency Issues in Arbitration

C.1 Bankruptcy in Indonesia

C.2 The Interaction between Bankruptcy and Arbitration

JAPAN

Haig Oghigian, Mami Ohara and Junya Suzuki, Tokyo

A. Legislation, Trends and Tendencies

A.1 Historical Background

A.2 Main Features of the Arbitration Law

B. Cases

B.1 Court Assistance in Taking Evidence

B.2 Separability of Arbitration Agreement

B.3 Public Policy

B.4 Enforcement Order

C. Insolvency Issues in Arbitration

C.1 Arbitration Proceedings and Bankruptcy Proceedings under Japanese Law

C.2 Arbitration Agreements Executed after the Commencement of Bankruptcy Proceedings

C.3. Commencement of Arbitral Proceedings by Bankrupt Debtors

C.4 Impact of Bankruptcy Proceedings on Pre-existing Arbitration Agreements

C.5 Effect of Bankruptcy Proceedings on Pre-existing Arbitral Awards

C.6 Commencement of Arbitral Proceedings against Bankruptcy Trustees

C.7 Effect of Bankruptcy on Pending Arbitration Proceedings

C.8 Conclusion

PHILIPPINES

Emmanuel S. Buenaventura, Marvin V. Masangkay, Jay Patrick R. Santiago and Camille I. Aromas, Manila

A. Legislation, Trends and Tendencies

B. Cases

B.1 Arbitration in the Philippine Construction Industry

C. Insolvency Issues in Arbitration

SINGAPORE

Timothy Cooke and Shuan Lee, Singapore

A. Legislation, Trends and Tendencies

B. Cases

B.1 Conflict of Dispute Resolution Clauses in Related Contracts

B.2 Arbitral Award Will Not Be Set Aside on Grounds Other Than Those in the IAA

B.3 Arbitral Award Set Aside on Public Policy Grounds—Illegality

B.4 Court’s Exercise of Its Discretion to Refer an Interpleader Issue to Arbitration under the IAA

C. Insolvency Issues in Arbitration

C.1 Mandatory Stay Provisions and Arbitration—Distinction between Foreign and Local Arbitrations?

C.2 Non-Arbitrability of Insolvency and Insolvency-Related Claims

C.3 Requirement of Consent by Companies in Schemes of Arrangement to Accept Commencement of Arbitration

C.4 Third Party Proprietary Interest May Defeat Arbitration Agreement and Stay of Proceedings

TAIWAN

Tiffany Huang and Amber Hsu, Taipei

A. Legislation, Trends and Tendencies

A.1 Overview

A.2 Arbitration Associations

A.3 Recent Developments across the Taiwan Strait

B. Cases

B.1 Definition of a Valid and Effective Arbitration Agreement

B.2 Ad hoc Arbitration

B.3 Appointment of Arbitrators by the Court or Arbitration Association

B.4 Notification of and Intervention in the Arbitration

B.5 Time Limit for Rendering Arbitral Awards

B.6 Enforceability of Arbitral Awards

B.7 Revocation of Arbitral Awards

B.8 Enforcement of Foreign Arbitral Awards

C. Insolvency Issues in Arbitration

THAILAND

Chirachai Okanurak and Timothy Breier, Bangkok

A. Legislation, Trends and Tendencies

A.1 Legislative Framework

A.1.1 Arbitrability

A.1.2 Formalities of the arbitration agreement

A.1.3 Validity of an agreement between a governmental agency and a private party

A.1.4 Stay of legal proceedings

A.1.5 Appointment of arbitrators

A.1.6 Duties and qualifications of arbitrators

A.1.7 Liability of arbitrators

A.1.8 The power of the arbitration tribunal to rule on its own jurisdiction and the separability of the arbitration agreement

A.1.9 Interim relief

A.1.10 The arbitral proceedings

A.1.11 The award

A.1.12 Setting aside the award

A.1.13 Recognition and enforcement of the award

A.1.14 Grounds for refusal of enforcement

A.1.15 Appeal against the order or judgment of the court

A.2 Arbitral Institutions

A.2.1 TAI

B. Cases

B.1 Arbitration Award under Investment Treaty

B.2 Validity of an Arbitration Agreement between a Governmental Agency and a Private Party

B.2.1 Expressway case

B.2.2 ITV case

B.3 Arbitral Proceedings and Appointment of Arbitrators

B.4 Arbitrability of Employment Contracts

B.4.1 Statutory entitlements not subject to arbitration clause

B.4.2 Unfair contracts subject to arbitration

B.5 Stay of Proceedings

C. Insolvency Issues in Arbitration

C.1 Framework for Claiming against Debtor in Bankruptcy

C.2 Treatment of Arbitration Proceedings after Issuance of Absolute Receivership Order

C.3 Treatment of Arbitration Award Ratified by Thai Court Judgment

C.4 Treatment of Foreign Arbitration Aimed at Assets Located outside Thailand

C.5 Treatment of Domestic Arbitration Aimed at Assets Located outside Thailand

C.5.1 TAI declines to proceed with arbitration claim

C.5.2 TAI proceeds with arbitration claim

EUROPE, MIDDLE EAST, CENTRAL ASIA

AUSTRIA

Stefan Riegler, Vienna

A. Legislation, Trends and Tendencies

B. Cases

C. Insolvency Issues in Arbitration

C.1 Introduction

C.2 Impact on the Arbitration Agreement

C.3 Arbitrability of Bankruptcy Matters and Claims

C.4 Effect of Bankruptcy on Pending Arbitral Proceedings

C.5 Practical Consequence of Insolvency on Costs

BELARUS

Alexander Korobeinikov, Almaty

A. Legislation, Trends and Tendencies

A.1 Legislation

A.1.1 International treaties

A.1.2 Domestic legislation

A.2 Trends and Tendencies

A.2.1 Growth of arbitration in Belarus

A.2.2 Development of court-appointed mediation

B. Cases

B.1 Refusal to Enforce an Arbitral Award against a Belarusian Company under Bankruptcy Proceedings

B.2 The Claim of a Bankrupt Company May Not Be Transferred to Arbitration

C. Insolvency Issues in Arbitration

BELGIUM

Arne Gutermann and Joeri Vananroye, Brussels; and Koen De Winter, Antwerp

A. Legislation, Trends and Tendencies

B. Cases

B.1 Court Review of International Awards on Competition Law Issues at the Enforcement Stage

B.2 Arbitrability of Distribution Agreements

B.3 Membership by One Party in the Arbitral Institution Does Not Provide Automatic Grounds for Nullity

B.4 The Unilateral Procedure for Designation of an Arbitrator by a State Court: At Odds with the Rights of Defense?

C. Insolvency Issues in Arbitration

CZECH REPUBLIC

Martin Hrodek and Michaela Koblasová, Prague

A. Legislation, Trends and Tendencies

A.1 Recent Developments in Legislation

B. Cases

B.1 Setting Aside of an Award Ordering a Party to an Unpermitted Performance

B.2 The Arbitrator’s Resolution of Lack of Jurisdiction Binds the Court

B.3 Delivery of Arbitration Awards

C. Insolvency Issues in Arbitration

C.1 Incidental Disputes Relating to Insolvency Proceedings Are Not Arbitrable

C.2 Czech Arbitration and Foreign Bankruptcy

C.3 Foreign Arbitration and Czech Bankruptcy

C.3.1 Czech bankrupt debtor as claimant

C.3.2 Czech bankrupt debtor as respondent

C.4. Conclusion

EGYPT

Hazim Rizkana and Hatem Darweesh, Cairo

A. Legislation, Trends and Tendencies

A.1 Legislative Framework

A.2 Recent Amendments

B. Cases

B.1 Annulment of Arbitral Award for Violation of Public Policy

B.2 Rejection of Annulment Petition on the Basis of Lapse of Date to Issue the Award

C. Insolvency Issues in Arbitration

FRANCE

Eric Boryzewicz, Jean-Pierre Harb and Christophe Lobier, Paris

A. French Legislation

B. French Case Law

B.1 Mandatory Public Policy Issues Do Not Affect the Jurisdiction of Arbitral Tribunals

B.2 Conditions for the Renouncement of the Arbitration Agreement and the Impact of Confidentiality on the Arbitrability of the Dispute

B.3 State Courts May Set Aside an Award in Case of Fraud during the Arbitral Proceedings

B.4 Basing an Award on Legal Concepts Not Raised by the Parties Amounts to Breach of Due Process

B.5 A Party That Refused to Take Part in Arbitration Proceedings May Still Seek to Set Aside the Resulting Award

B.6 French Courts May Not Order a Stay in Ongoing Arbitral Proceedings

B.7 The ICC’s Refusal to Administer a Case Is Insufficient to Render the Arbitration Clause Void

B.8 The French Supreme Court Defines the Concept of Estoppel

B.9 French Administrative and Civil Courts Share Jurisdiction over Set Aside Proceedings

B.10 Violation of the European Convention on Human Rights Becomes Ground for Annulment under French Law

B.11 Res Judicata Is a Question of Admissibility, Not a Ground for Setting Aside an Award

C. Insolvency Issues in Arbitration

C.1 “Non-Arbitrable Disputes”

C.2 Arbitrable Disputes

GERMANY

Ragnar Harbst, Heiko Plassmeier and Jürgen Mark, Frankfurt and Düsseldorf

A. Legislation, Trends and Tendencies

A.1 New Adjudication Rules by the German Institution of Arbitration

A.1.1 DAB as a standing board during the project

A.1.2 Basic elements of the DAB dispute procedure under the DIS Rules

A.1.3 Effect of the DAB decision

A.1.4 Notice of dissatisfaction

A.1.5 Enforcement of DAB decision?

A.1.6 Interim measures

A.1.7 Remuneration of adjudicators

A.1.8 Outlook

B. Cases

B.1 Challenge of an Arbitrator

B.2 Most-favored Treatment and Recognition and Enforcement of Foreign Arbitral Awards

B.3 Admissibility of Set-off Defenses in Proceedings for the Declaration on Enforcement of an Arbitral Award

B.3.1 Confirmation of the established case law that substantive law defense can be raised in enforcement proceedings

B.3.2 Clarification on the court of appeal’s jurisdiction for set-off defenses

B.4 Preliminary Enforcement of Foreign Arbitral Awards in Germany

B.5. Natural Justice—No Obligation for Tribunal to Hear Witnesses on Unsubstantiated Allegations—No Obligations for the Tribunal to Give Hints as to Its Legal Opinion

B.5.1 No obligation to hear witnesses on unsubstantiated allegations

B.5.2 No need for arbitral tribunals to inform parties on their preliminary legal evaluation

C. Insolvency Issues in Arbitration

C.1 Effect of Insolvency on the Validity of Arbitration Agreements

C.1.1 Impecuniosity

C.1.2 Choice of non-performance

C.2 Insolvency before Commencement of Arbitration Proceedings

C.3. Insolvency pending Arbitration Proceedings

C.4. Insolvency after the Award

C.5. Arbitrability of Disputes Following Rescission of a Transaction

HUNGARY

József Antal and Anna Ménes, Budapest

A. Legislation, Trends and Tendencies

A.1 Legislation

A.1.1 Arbitrability of disputes

A.1.2 Arbitration rules

A.1.3 Arbitrators, independence and impartiality of arbitrators

A.1.4 Remedies against arbitral awards

A.1.5 Enforcement

A.1.6 Costs

A.1.7 Confidentiality

A.1.8 Relationship of arbitration courts and ordinary courts

A.1.9. The five main permanent arbitration courts operating in Hungary

A.2 Trends and Tendencies

B. Cases

B.1 Res Judicata Effect of Arbitral Awards—Issue Clarified by the Supreme Court

B.2 Independence and Impartiality of Arbitrators—Working Relationship as a Reason for Exclusion

B.3 Arbitration Clause Contained in General Terms and Conditions—Explicit Acceptance Is Needed

C. Insolvency Issues in Arbitration

C.1 Hungarian Insolvency Law

C.2 Impact on the Arbitration Agreement

C.2.1 Claims raised by the debtor

C.2.2 Claims against the debtor

ITALY

Claudio Camilli and Gaetano Iorio Fiorelli, Milan

A. Legislation, Trends and Tendencies

B. Cases

B.1 Interpretation of Contract Provisions by the Arbitrators and Limitation in the Appeal Procedure

B.2 Effects of One Party’s Bankruptcy on the Arbitration Clause

C. Insolvency Issues in Arbitration

C.1 The Recent Reform of the Insolvency Act

C.2 The Effects of Bankruptcy on Arbitral Proceedings

C.3 Effect of an Award Issued before the Declaration of Bankruptcy

C.4 Stipulation to an Arbitration Agreement after Declaration of Bankruptcy

KAZAKHSTAN

Azamat Kuatbekov and Alexander Korobeinikov, Almaty

A. Legislation, Trends and Tendencies

A.1 Domestic Legislation

A.2 International Treaties

A.3 Recent Amendments concerning Parallel Proceedings, Interim Measures and Issues of Sovereign Immunity

A.4 New Mediation Law

A.5 Trends

B. Cases

B.1 Investment Disputes

B.2 Commercial Arbitration Disputes

C. Insolvency Issues in Arbitration

THE NETHERLANDS

Frank Kroes and Marjon Lok, Amsterdam

A. Legislation, Trends and Tendencies

A.1 Legislation

A.2 Proposed Changes to the Dutch Arbitration Act

A.3 Trends and Tendencies

B. Cases

B.1 Arbitration Proceedings: Intervention Denied Due to Unreasonable Delay

B.2 Arbitration Proceedings: Tribunal Denies Request for Security

B.3 Arbitration Proceedings: Arbitration Agreement in GTC Not Unreasonably Onerous for Consumers

B.4 Court Proceedings: Valid Arbitration Agreement

B.5. Court Proceedings: Right to Full Disclosure versus the Nature of Arbitration

B.6 Court Proceedings: Boundaries of Arbitration versus Court Proceedings; Legal Consequences of Which Parties Cannot Freely Dispose

B.7 Court Proceedings: Summary Court Proceedings versus Summary Arbitration Proceedings

B.8 Court Proceedings: Appeal of Decision to Enforce Foreign Arbitral Awards

B.9 Court Proceedings: Exequator Is Compulsory for Enforcement of Penalty

B.10 Court Proceedings: Enforcement of Foreign Arbitral Award

C. Insolvency Issues in Arbitration

C.1 Relationship between Bankruptcy and Arbitration

C.2 Rights and Obligations Comprised in the Estate

C.3 Procurement of Performance from the Bankrupt Estate

C.4 Circumventing Arbitration by the Distressed Entity

C.5 Cross Border Insolvency

POLAND

Marcin Aslanowicz and Joanna Jasiewicz, Warsaw

A. Legislation, Trends and Tendencies

A.1 Sources of Arbitration Law in Poland

A.2 Arbitrability

A.3 Arbitration Agreement

A.4 Arbitrators

A.5 Jurisdiction of an Arbitral Tribunal

A.6 Proceedings before an Arbitral Tribunal

A.7 Conclusion of Arbitral Proceedings

A.8 Appeals against Arbitration Awards

A.9 Recognition and Enforcement of an Arbitration Award

B. Cases

C. Insolvency Issues in Arbitration

RUSSIAN FEDERATION

Vladimir Khvalei and Ekaterina Solomatina, Moscow

A. Legislation, Trends and Tendencies

B. Cases

B.1 Lugana Handelsgesellschaft mbH v. Ryazansky Zavod Metalloceramicheskikh Priborov

B.2 Ansell S.A. v. MedbusinessService-2000 LLC

B.3 UralEnergoGas CJSC (Russia) v. ABB Electroengineering LLC (The Netherlands)

B.4 Yukos Capital s.a.r.l v. Tomskneft VNK OJSC.

B.5 AIG Europe S.A. and ACE Insurance Company CJSC v. Voskhod LLC

B.6 Sokos Hotels St. Petersburg v. AB Living Design

B.7 Lugana Handelsgesellschaft mbH (Germany) v.Ryazansky Zavod Metalloceramicheskhikh Priborov (Russia)

B.8 Venture Global Engineering LLC (USA) v. Avtotor Holding Group OJSC (Russia)

B. 9 Enforcement of an Award on Debt Recovery under a Loan Agreement

C. Insolvency Issues in Arbitration

C.1 Bankruptcy under Russian Law

C.2 Initiating a Bankruptcy Proceeding

C.3 International Arbitration and Bankruptcy

C.4 Arbitrability of Bankruptcy Disputes

C.5 Influence of Respondent’s Bankruptcy on Arbitration

C.6 Arbitration Proceeding regarding Claims in which the Bankrupt Party Acts as the Claimant

SPAIN

Victor Mercedes, Barcelona; and José Ramon Casado, Madrid

A. Legislation, Trends and Tendencies

A.1 Setting the Reform Agenda of Spanish Arbitration Law

A.2 Procedural Aspects of the Reform

A.3 “Ex Aequo et Bono” Arbitration

A.4 Suitability of Arbitrators

A.5 Challenging of Corporate Resolutions

A.6 Insolvency Aspects in the Reform

B. Cases

B.1 Relevance of the Unequivocal Will of the Parties to Submit Their Disputes to Arbitration over the Terms Inserted in the Agreement

B.2 Judicial Prima Facie Review

B.3 Arbitration Clauses and Arbimanou Clauses and Adhesion Contract (“Contratos de Adhesion”)

B.3.1 The arbitration clause incorporated into an adhesion contract is null and void when one of the parties is a consumer

B.3.2 The arbitration clause incorporated into an adhesion agreement is not null and void if the parties are not consumers

B.4 Interim Relief

B.5 Public Policy

B.6 Domain Names, Bills of Exchange, Debt-Enforcement Actions and Matters Involving Leases

B.7 Arbitration and Consumer-Protection Legislation

B.8 Service of Notice and Refusal to Accept Service

B.9 Flexibility and Oral Nature of Arbitral and Special Proceedings with Reference to “Ex Aequo et Bono” Arbitration

B.10 “Ex Aequo et Bono” Arbitration: Impartiality of the Arbitrators, the Demarcation of the Subject of the Proceedings, and the Scope of the Award

B.11 Relevance of the Time Limit for Making the Award

B.12 Violation of Public Policy Where an Award Is Rendered by Default

B.13 Liability of the Arbitrators, in Particular in “Ex Aequo et Bono” Arbitration

C. Insolvency Issues in Arbitration

SWEDEN

Anders Isgren, Jonas Benedictsson, Stefan Bessman, Magnus Stålmarker and Robert Tischner, Stockholm

A. Legislation, Trends and Tendencies

B. Cases

B.1 Arbitrator’s Impartiality

B.2 Jurisdiction of Swedish Courts Where Arbitration Takes Place in Sweden

B.3 Jurisdiction of State Courts to Decide the Validity of the Arbitration Clause

B.4 Arbitrability of Issues Arising out of Corporate Decisions and Exclusion of Brussels I Regulation

C. Insolvency Issues in Arbitration

C.1 Introduction

C.2 Bankruptcy

C.3 Case Law on Arbitration and Bankruptcy

C.4 Conclusions

SWITZERLAND

Urs Zenhäusern, Joachim Frick and Anne-Catherine Hahn, Zurich; Luca Beffa, Geneva

A. Legislation, Trends and Tendencies

B. Cases

B.1 No Challenge for Interim Measures

B.2 Jurisdiction to Award Damages for Breach of an Arbitration Clause

B.3 Lack of Jurisdiction for Lack of Arbitration Agreement

B.4 Challenge of Arbitrators for Wrong Behavior and Violation of the Right to Be Heard

B.5 Challenge of “In-House” Arbitrators

B.6 Challenge of Arbitrators for Previous Involvement in the Case

B.7 Inconsistent Awards and Public Policy.

B.8 Res judicata and Public Policy

B.9 Minimal Duty to Examine Relevant Issues and Right to Be Heard

B.10 The “Pechstein” Saga

B.11 The Valverde Case

C. Arbitration and Insolvency: Switzerland

C.1 The Challenge: The Vivendi/Elektrim Case

C.2 The Distinction: Foreign Arbitration and Bankruptcy Debtor in Switzerland or Swiss Arbitration and Foreign Bankruptcy Proceedings

C.3 Foreign Arbitration Proceedings and Swiss Bankruptcy Law

C.3.1 Impact on the Arbitration Agreement

C.3.2 Claims raised by the bankrupt debtor

C.3.3 Claims against the bankrupt debtor

C.3.4 No consideration of pending arbitral proceedings

C.4 Swiss Arbitration Proceedings and Foreign Bankruptcy Laws

C.4.1 Commencement of fresh proceedings by a foreign trustee in bankruptcy

C.4.2 Suspension or termination of pending proceedings

C.4.3 No mandatory suspension based on Swiss law

C.4.4 Effect of foreign bankruptcy law rules

C.5 Cost Issues in Relation to Bankrupt or Insolvent Parties

UKRAINE

Svitlana Romanova, Nataliya Demir and Taras Aleshko, Kyiv

A. Legislation, Trends and Tendencies

A. 1 Introduction

A.2 Short Overview of Ukrainian Legislation regarding Arbitration

A.2.1 Arbitrability

A.2.2 Interim measures

A.2.3 Court assistance in taking evidence

A.2.4 Setting aside arbitral awards

A.2.5 Recognition and enforcement

A.2.6 Public policy

A.3 Recently Adopted Ukrainian Legislation regarding Arbitration

A.4 International Commercial Arbitration Court of Ukrainian Chamber of Commerce (“ICAC”)

B. Cases

B.1 Investment Disputes

B.2 Arbitration Disputes against Ukraine

B.3 Shares Sale and Purchase Agreement Is Not a “Corporate Relationship” under Ukrainian Law

B.4 Refusal to Recognize and Enforce an Arbitral Award against a Ukrainian Debtor for Failure of Notice

B.5 Ukrainian State Enforcement Service Refused to Enforce Arbitral Award against a Ukrainian Debtor on a Technicality

C. Insolvency Issues in Arbitration

C.1 Bankruptcy of a Ukrainian Debtor

C.2 Initiation of Bankruptcy of Ukrainian Debtor on Basis of Arbitral Award

UNITED KINGDOM

Edward Poulton, Richard Davies and Katherine Lim, London

A. Legislation, Trends and Tendencies

B. Cases

B.1 Enforcement of Awards

B.1.1 Dallah Estate and Tourism Holding Company v. The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46

B.2 Inoperative Arbitration Agreements: Beware of Local Law

B.2.1 Jivraj v. Haswani [2010] EWCA Civ 712

B.2.2 Accentuate Ltd. v. Asigra Inc. [2009] EWHC 2655 (QB)

B.3 Cases Relating to Sections 67 and 68 Arbitration Act 1996

B.3.1 B v. A [2010] EWHC 1626 (Comm)

B.3.2 Habas Sinai Ve Tibbi Gazlar Isthisal Endustri AS v. Sometal SAL [2010] EWHC 29 (Comm)

B.3.3 Stellar Shipping Co LLC v. Hudson Shipping Lines [2010] EWHC 2985 (Comm)

B.4 Pre-Action Disclosure in Arbitration

B.4.1 Travelers Insurance Company Ltd. v. Countrywide Surveyors Ltd. [2010] EWHC 2455 (TCC)

C. Insolvency Issues in Arbitration

C.1 When English Law Is Relevant

C.2 An Insolvent Debtor Subject to English Law

C.2.1 Impact on the arbitration agreement

C.2.2 Claims by the insolvent debtor

C.2.3 Claims against the insolvent debtor

C.3 English Arbitration Proceedings and Foreign Insolvency Laws

C.3.1 Vivendi/Elektrim

C.4 Costs Issues in Relation to Insolvent Companies

LATIN AMERICA

ARGENTINA

Gonzalo E. Cáceres and Santiago L. Capparelli, Buenos Aires

A. Legislation, Trends and Tendencies

A.1 Legislation

A.1.1 National Code of Civil and Commercial Procedure

A.1.2 International Commercial Arbitration Act of Mercosur

A.1.3 Panama Convention

A.1.4 The New York Convention

B. Cases

B.1 Enforcement and Scope of an Arbitration Agreement

B.2 Judicial Assistance in Aid of Arbitration

C. Insolvency Issues in Arbitration

C.1 Article 134 of Law 24.522—Liquidation Proceedings

C.2 Arbitration Agreements and Debtor Reorganization (U.S. Chapter 11)

BRAZIL

Joaquim de Paiva Muniz, Katherine S. Spyrides, Rio de Janeiro; and Maria da Graça Prado, São Paulo

A. Legislation, Trends and Tendencies

A.1 New Draft Code of Civil Procedure

A.1.1 Articles 69, 164, 206, IV and 236—The Arbitral Letter (Carta Arbitral)

A.1.2 Article 969, III—Interlocutory Appeals

A.1.3 Article 913 et seq.—Recognition and Enforcement of Foreign Awards

A.2 Arbitration in the Agreements regarding Exploration and Production of Oil and Gas in the Pre-Salt Reserves

B. Cases

B.1 Arbitration and Writ of Mandamus

B.2 Conflicts concerning Arbitration Clauses

B.2.1 Conflict arising from the coexistence of an arbitration clause and a venue clause in the same contract: The arbitration clause prevails

B.2.2 Conflict between arbitration clauses provided in related contracts

B.3 Arbitrability of Disputes Arising out of Medical Services

B.4 The Issue of Lack of Motivation in Arbitral Awards

C. Insolvency Issues in Arbitration

C.1 Enforceability of Arbitral Clauses upon Insolvency

C.2 The Effects of Bankruptcy and Judicial Recuperation on Pending Arbitrations

C.3 Participation in the Bankruptcy as a Waiver for Arbitration

CHILE

Antonio Ortúzar, Sr., Rodrigo Díaz de Valdés and Francisco Grob, Santiago

A. Legislation, Trends and Tendencies

A.1 Legislative Framework

A.2 Arbitration in Chile

A.3 Main Features of the Chilean Domestic Arbitration Regulations

A.4 Main Features of the ICA Law

A.5 Enforcement of Foreign Arbitral Awards

A.6 Trends

B. Cases

B.1 Application of the ICA Law

B.2 Enforceability of the Arbitration Clause

B.3 Application to Set Aside an Arbitral Award Rendered under the ICA Law

B.4 Application of the Complaint Appeal in International Arbitration

B.5 Enforcement of Foreign Arbitral Awards

C. Insolvency Issues in Arbitration

C.1 Bankruptcy Declaration and Its Impact on the Arbitration Agreement

C.2 Foreign Bankruptcy Declaration

C.3 Arbitration and Workout Agreements

C.3.1 Preventive compromise

C.3.2 Preventive compromise of corporations subject to the security and insurance agency’s supervision

COLOMBIA

Claudia Benavides, Bogotá

A Legislation, Trends and Tendencies

A.1 Overview of the Arbitral Legal Framework

A.2 Specifics of International Arbitration

A.3 Trends and Tendencies

B. Cases

B.1 Waiver of the Right to File an Action to Set Aside an Award by Reference to Arbitration Rules

B.2 Constitutional Actions for the Protection of Fundamental Rights and Arbitral Awards

C. Insolvency Issues in Arbitration

C.1 Overview of the Legal Framework for Insolvency Procedures

C.2 Arbitration and Insolvency Proceedings in Colombia

MEXICO

Javier L. Navarro Velasco and Jessika Rocha Diaz, Monterrey; and Juan Ygnacio Reyes Retana, Tijuana

A. Legislation Trends and Tendencies

A.1 Obligation of Mexican Courts to Refer the Parties to Arbitration

A.2 Voluntary Non-contentious Jurisdiction

A.3 Court Intervention

A.4 Interim Relief

B. Cases

C. Insolvency Issues in Arbitration

VENEZUELA

Henry Torrealba, Edmundo Martínez, and Gabriel De Jesus, Caracas

A. Legislation, Trends and Tendencies

B. Cases

B.1 Granting Preliminary Injunctions in Arbitration

B.2 Recognizing the Importance of Arbitration

C. Insolvency Issues in Arbitration

NORTH AMERICA

CANADA

J. Brian Casey and Rebecca Murtha, Toronto

A. Legislation, Trends and Tendencies

A.1 Legislation

A.2 Trends and Tendencies

B. Cases

B.1 Yugraneft Corp. v. Rexx Management Corp

B.2 Znamensky Selekcionno-Gibridny Center v. Donaldson International Livestock Ltd

B.3 Wires Jolley LLP v. Wong

B.4 Accentuate Ltd. v. Asigra Inc

C. Insolvency Issues in Arbitration

C.1 Effect of Agreement to Arbitrate

C.2 Effect on Recognition and Enforcement

UNITED STATES

Ethan Berghoff and Kate Ó Súilleabháin, Chicago; James Bailey, New York; and Donald J. Hayden and Heather Ann Frazier, Miami

A. Legislation, Trends and Tendencies

A.1 Arbitration Fairness Act of 2009

A.2 Dodd Frank Act

A.3 Defense Appropriations Act

B. Cases

B.1 Class Action Arbitration

B.1.1 Stolt-Nielsen S.A. v. AnimalFeeds International Corp

B.1.2 Fensterstock v. Education Finance Partners

B.1.3 Omstead v. Dell, Inc.

B.1.4 Brewer v. Missouri Title Loans, Inc

B.2 “Manifest Disregard” Doctrine as a Viable Ground for Challenging Arbitral Awards

B.2.1 Frazier v. CitiFinancial Corporation, LLC

B.2.2 T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc.

B.2.3 Lagstein v. Certain Underwriters at Lloyd’s

B.3 Other Grounds for Vacating Arbitral Awards: Error of State Law

B.3.1 Broom v. Morgan Stanley DW Inc

B.3.2 Pearson Dental Supplies Inc. v. Superior Court

B.3.3 Amerisure Mutual Ins. Co. v. Global Reinsurance Corp. of America

B.4 Opting Out of the Federal Arbitration Act’s Grounds for Vacatur

B.4.1 Ario v. Underwriting Members of Syndicate 53 at Lloyds

B.5 Enforcing Foreign Arbitral Awards under the New York Convention

B.5.1 Republic of Argentina v. BG Group PLC

B.5.2 Polimaster Ltd. v. RAE Systems, Inc.

B.6 Enforcing Agreements to Arbitrate

B.6.1 Rent-a-Center, West, Inc. v. Jackson

B.6.2 Citibank, N.A. v. Stok & Assocs., P.A.

B.6.3 In the Matter of: Mirant Corporation, MC Asset Recovery LLC v. Castex Energy, Inc

B.7 Using Section 1782 Discovery in Aid of International Arbitration

C. Insolvency Issues in Arbitration

C.1 A U.S. Bankruptcy Court’s Discretion to Deny Enforcement of an Arbitration Agreement

C.2 Foreign Arbitration and U.S. Bankruptcy Proceedings

Author Detail:

ABOUT THE 2010-2011 B&M YEARBOOK EDITORS

Executive Editor:

Nancy M. Thevenin is Special Counsel in the New York office of Baker & McKenzie and the global coordinator of the Firm’s International Arbitration Practice Group. She routinely advises on arbitration institutions, mediation, disputes boards and expertise proceedings, ad hoc cases and use of pre-arbitral referee procedures. Her experience includes handling international commercial mediation and arbitration under the auspices of the AAA, ICC and ICDR. Ms. Thevenin has handled disputes in various industries, including construction and engineering, financial services, commercial real estate and aviation, often involving issues concerning M&A, sales, distribution, licensing, technology transfer and leasing agreements. She currently serves as co-chair of the International Arbitration & ADR Committee of the International Law Section of the New York State Bar Association, vice-chair of the Arbitration Law Committee of the Inter-American Bar Association and executive committee member of the American Branch of the International Law Association. Before joining Baker & McKenzie, Ms. Thevenin served as deputy director of arbitration and ADR for North America for the ICC International Court of Arbitration in New York.

ABOUT THE 2010-2011 B&M YEARBOOK EDITORS

Emmanuel Buenaventura is a Partner in the Manila office of

Baker & McKenzie. He is member of the Dispute Resolution and

the International Arbitration practice groups, head of the

Telecommunications, Transportation & Logistics Industry

Group, and lead Lawyer for arbitration/litigation of the Mining

Focus Group. He has advised or represented multinational

corporations in general litigation (commercial, civil and

criminal), tax and customs controversies, corporate rehabilitation

and insolvency, arbitration and alternative dispute resolution,

maritime law, employment appeals, intellectual property litigation,

sanctions proceedings before international organizations, and

administrative proceedings. He is the incumbent Vice-President of

the Integrated Bar of the Philippines-Oriental Mindoro Chapter

(where he previously served as President and Delegate to the IBP

National House of Delegates), and the Executive Vice President

and Trustee of the Maritime Law Association of the Philippines.

Timothy Cooke is a Partner in the Singapore office of Baker &

McKenzie. Mr. Cooke has been practicing in the area of dispute

resolution since 2000. A Barrister called to the English Bar, he

has advised clients in a wide variety of commercial disputes,

particularly in the areas of oil and gas, insurance and

reinsurance, telecommunications, engineering and construction,

banking and trusts. He has represented clients before the High

Courts of England and Wales, before the Judicial Committee of

the Privy Council and in international arbitrations in Singapore,

the United Kingdom, the Cayman Islands and the British Virgin

Islands in accordance with the rules of the major arbitration

institutions, including the ICC, LCIA, LMAA, SIAC, and in ad

hoc arbitration under UNCITRAL Rules.

Grant Hanessian is a Partner in the New York office of Baker

& McKenzie. Mr. Hanessian serves as Co-chair of the Firm’s

International Arbitration Practice Group and Chair of the

Litigation/Dispute Resolution department of the New York

office. He has more than 25 years of experience serving as

counsel and arbitrator in disputes concerning contract, energy,

construction, commodities, financial services, insurance,

intellectual property and other matters. Mr. Hanessian is a

member of the Commission on Arbitration of the ICC and the

ICC Task Force on Arbitration Involving States or State Entities,

as well as the American Society of International Law, American

Bar Association, Association of the Bar of the City of New

York, American Arbitration Association and London Court of

International Arbitration. He is an Editor of this publication and

Co-editor of the Gulf War Claims Reporter (ILI/Kluwer, 1998)

and International Arbitration Checklists (Juris Pub., 2d ed.,

2008).

Jean-Pierre Harb is a Partner in the Paris office of Baker &

McKenzie and a member of the Firm’s International Arbitration

Practice Group. Mr. Harb practices in the areas of international

commercial arbitration, construction law and alternative dispute

resolution, routinely representing clients in ad hoc and

institutional international arbitrations. He has advised major

construction companies on contractual issues arising from

infrastructure projects, and has significant experience working in

jurisdictions beyond France, including China, Saudi Arabia and

Greece. He is a member of the Paris Bar Association.

Vladimir Khvalei is a Partner in the Moscow office of Baker &

McKenzie. Mr. Khvalei is steering committee member of the

Firm’s International Arbitration Practice Group and heads the

Firm’s CIS Dispute Resolution Practice Group in Moscow. He

handles international arbitration cases as Party Counsel and

Arbitrator, particularly with respect to the arbitration rules of the

ICC, ICAC (MKAS), SCC and UNCITRAL. Mr. Khvalei has

extensive experience in dispute resolution in Russia, Kazakhstan,

Belarus and Ukraine. He also serves as a Vice President of the

ICC International Court of Arbitration, a Board member of the

International Arbitration Court at the Belarusian Chamber of

Commerce and Industry and is included in the list of arbitrators

of the arbitration institutions in Russia, Austria, Poland, Belarus

and Kazakhstan. Mr. Khvalei is Chairman of the Arbitration

Commission of the Russian National Committee of ICC and a

registered tutor of the Chartered Institute of Arbitrators. He is a

regular speaker at a number of conferences relating to

international trade law and arbitration.

Frank Kroes is a Partner in the Amsterdam office of Baker &

McKenzie. Mr. Kroes specializes in complex commercial

litigation and national and international arbitration. He represents

clients from a wide variety of industry sectors both before the

state courts and in national and international arbitrations

administered by a range of leading arbitration institutions. His

work includes energy, construction, chemicals, the financial

sector, class actions and private antitrust litigation. Mr. Kroes is

affiliated with the Dutch Association for Procedural Law, Dutch

Association for Civil Law, Association for Corporate Litigation,

Dutch Association for Energy Law and Dutch Bar Association.

In addition to his practice, he is a frequent Lecturer and Presenter

on matters such as product liability, class actions and

international arbitration.

Jürgen Mark is a Partner in the Düsseldorf office of Baker &

McKenzie. Mr. Mark is a member of the Firm’s Europe Dispute

Resolution Practice Group Steering Committee. His practice

covers a wide range of domestic and international disputes

involving both litigation and arbitration in the areas of

commercial and company law, product liability law and

distribution law. He has handled complex litigation, as well as

ICC, DIS and ad hoc arbitrations. Mr. Mark has also acted as

Arbitrator on arbitration panels for the ICC and DIS relating to

corporate and post M&A disputes, major construction projects,

product distribution and product liability. He is a member of the

German Lawyer’s Association, International Bar Association,

German Institution of Arbitration (DIS), London Court of

International Arbitration, Swiss Arbitration Association,

International Law Association, German Association for

Intellectual Property & Copyright, German-American Lawyers’

Association and Canadian-German Lawyers’ Association.

Günter Pickrahn is Partner in the Frankfurt office of Baker &

McKenzie. Mr. Pickrahn is Co-chair of Firm’s International

Arbitration Practice Group and Leader of the European Dispute

Resolution Steering Committee. His arbitration practice is wideranging

and includes all aspects of commercial, domestic and

international disputes. He has acted for clients in more than 50

arbitral proceedings as a Party Representative, mostly in postacquisition

disputes and other commercial matters. He also has

experience as an Arbitrator, both as Chair and Party-Appointed

Arbitrator. He has particular expertise in intellectual property

matters, most notably patent-related disputes, and serves as

Arbitrator in WIPO and other such arbitration proceedings. He is

an active member of the German Institute for Arbitration, the

Swiss Association for Arbitration, the London Court of

International Arbitration, and the German Association for

Intellectual Property Rights and Copyright.

Edward Poulton is a Partner in the London office of Baker &

McKenzie. Mr. Poulton is a member of the Firm’s Dispute

Resolution Practice Group. He focuses his practice in international

arbitration, complex litigation, commercial and investment treaty

arbitration, and public international law. His experience ranges

from contract and M&A disputes to more specialist claims in the

banking sector and investment treaty claims. He has acted as

Advisor and Advocate in many international arbitrations under

the rules of the major arbitral institutions. Mr. Poulton’s client

base covers a wide range of sectors, including financial services,

electronics, aviation and telecommunications. He is a member of

the Law Society of England & Wales, ICC, LCIA, Young

International Arbitration Group and Investment Protection

Forum of the British Institute of International and Comparative

Law.

Mathias Wittinghofer is a Partner in the Frankfurt office of

Baker & McKenzie. Mr. Wittinghofer is a member of the Firm’s

Global Dispute Resolution Practice Group. A member of the

Chartered Institute of Arbitrators and double-qualified as a

German Attorney-at-Law and a Solicitor (England & Wales),

Mr. Wittinghofer routinely handles international arbitration

proceedings, most notably in the areas of post-mergers and

acquisitions and banking and finance dispute resolution. He has

handled a wide variety of disputes both before German state

courts, as well as in national and international arbitrations before

all major arbitral institutions. His clients include international

corporations as well as banks, private equity firms and other

members of the banking & finance industry. Mr. Wittinghofer

has published several articles and spoken extensively on the

topic of international arbitration, and recently completed the

theoretical training required to qualify as a Fachanwalt für Bankund

Kapitalmarktrecht (specialist banking and finance lawyer).

David Zaslowsky is a Partner in the New York office of Baker

& McKenzie. Mr. Zaslowsky practices general commercial

litigation and arbitration and has worked on many cases

involving matters related to the Foreign Sovereign Immunities

Act, enforcement of foreign arbitral awards, Alien Tort Claims

Act, forum non conveniens, obtaining discovery in aid of foreign

proceedings under 28 U.S.C. § 1782 and foreign attachments.

Mr. Zaslowsky has appeared in various federal and state courts –

trial and appellate – throughout the country. He has also

participated in arbitrations, both inside and outside the United

States, under the rules of various arbitral institutions including

the AAA, ICC, Iran-United States Claims Tribunal, ICDR and

NASD, as well as ad hoc arbitrations. Mr. Zaslowsky is also on

the panel of international arbitrators of the ICDR and is a

member of the Association of the Bar of the City of New York,

New York State Bar Association and American Bar Association.

Urs Zenhäusern is a Partner in the Zurich office of Baker &

McKenzie. Mr. Zenhäusern mainly handles commercial,

transactional and intellectual property disputes before state

courts and international arbitral tribunals. He has acted as sole

Arbitrator, Chairman and Secretary of arbitration panels, and as a

Counsel in domestic and international litigation and arbitration.

He also advises clients on antitrust law and sports law, as well as

legal matters related to unfair competition and distribution,

agency and licensing contracts. Mr. Zenhäusern is a frequent

writer and speaker at seminars on litigation and arbitration law,

as well as intellectual property law topics. He is a member of the

Swiss Arbitration Association, German Institution of Arbitration,

International Bar Association, International Law Association,

Licensing Executives Society, AIPPI and INGRES.

Reviews:

"The authors do a creditable job of providing a contemporaneous baseline of knowledge for each of the countries covered and thus a basis for high-level comparative analysis. In summary, and with some important caveats, this is a resource that is likely to provide utility to a range of individuals involved in international commerce, trade and investment. Those engaged in the negotiation of contracts, or the resolution of disputes as counsel or arbitrator, are all likely to find something of use, as are students of the subject matter."
-The Expert and Dispute Resolver (TEDR); review by Craig Kersey