International Arbitration and Public Policy

International Arbitration and Public Policy includes articles that originally appeared in the Stockholm Arbitration Report (SAR) and the Stockholm International Arbitration Review (SIAR). The articles have been revised and updated for this publication. The authors and articles selected include a wide range of perspectives and include judges, arbitrators, seasoned practitioners and well-respected scholars that can account for the first-hand practice-orientated developments of international arbitration. The book is set out in two parts.

In the first part of the book the authors tackle the daunting task of articulating the architecture and function of international public policy, highlighting its domestic and transnational dimensions as well as procedural and substantive contours. In the second part of the book, the authors tease out specific manifestations of the international public policy concept, addressing issues commonly seen in the application of the public policy concept in various jurisdictions and regions of the world, including the United States, Sweden, Switzerland, Ukraine, and East Asia, as well as under New York Convention.

About the Editors

About the Authors

Foreword

Part I: Public Policy - An Overview

Chapter 1

An Introduction to International Public Policy

Lord (Peter) Goldsmith

Chapter 2

Standards of Procedural International Public Policy

Richard Kreindler

Chapter 3

Issues of Substantive Transnational Public Policy

Stephen Jagusch

Part II: Specific Manifestations

Chapter 4

The SNF v. International Chamber of Commerce Case and the Obligation to Conduct Arbitration Proceedings with "Expected Dispatch"

Elie Kleiman

Chapter 5

Navigating in the Archipelago of Swedish Due Process Safeguards: A Sea Chart Indicating a Few Treacherous Reefs

Finn Madsen

Chapter 6

Recent Swiss Developments on Exclusion Agreements

Laurent Lévy and Tetiana Bersheda

Chapter 7

Public Policy in Swiss International Arbitration Law: For Once, Adjectives Make a Difference

Pierre A. Karrer

Chapter 8

Dispute Resolution of Shareholder Agreements in Ukraine: For Better or Worse?

Timur Bondaryev and Markian Malskyy

Chapter 9

The Scope of Review in Annulment Proceedings

Piero Bernardini

Chapter 10

Public Policy as Ground for Annulment of or Non-recognition of Enforcement of Arbitral Awards in East Asia

Michael Hwang and Shaun Lee

INDEX

About the Editors

Devin Bray is an international arbitration counsel, OAS Academic Scholarship and SSHRC Doctoral Fellowship recipient, and a SJD Candidate in the International Trade & Business Law Program at the University of Arizona. Mr. Bray is a Barrister and Solicitor of the Law Society of Upper Canada.

Heather L. Bray is a PhD Researcher at the Max Planck Institute for Comparative Public Law and International Law for the Lex Mercatoria Publica Project. She is an international arbitration counsel and a SJD Candidate in the International Trade and Business Law Program at the University of Arizona. Ms. Bray is a Barrister and Solicitor of the Law Society of Upper Canada.

About the Authors

Elie Kleiman, born in 1963, is admitted as an Avocat à la cour in France

and qualified as a Foreign Legal Consultant in the State of New York.

He joined Freshfields Bruckhaus Deringer LLP’s dispute resolution

group in August 2000 as partner of the litigation and arbitration groups

and is now managing partner of the Paris office. He specialises in

international commercial arbitration and litigation. He has intervened in

disputes involving investment, trade, joint ventures, long-term contracts,

representation and warranties, licensing, distribution and construction in

a wide range of sectors such as aeronautics, energy and natural resources,

chemicals, infrastructure and transport, financial institutions,

telecommunications, pharmaceuticals, media and technology. His

arbitration practice also includes accelerated proceedings in conjunction

with court proceedings, in a variety of areas. He also has experience as

an arbitrator in international and domestic commercial disputes and as

counsel in mediations. Elie often speaks at seminars and conferences on

arbitration and litigation and teaches at the Université de Paris. He has

also published widely in the field of international dispute resolution. He

has been recognized by, among others, Who’s Who Legal in Commercial

Arbitration and Chambers Global. Elie Kleiman graduated from

Universités de Paris X and II—Panthéon-Assas with an undergraduate

degree in private law and a post-graduate degree in private international

law. A native French speaker, he is also fluent in English. Contact:

elie.kleiman@freshfields.com.

Finn Madsen has a LL.B (Swe: jur kand) in 1980 and a LL.D. (Swe:

Juris Doctor honoris causa) in 2011 from Lund University, Sweden for

his contribution to International Arbitration Law. Mr. Madsen is the

author of Commercial Arbitration in Sweden, published by Oxford

University Press (3rd edition), 2007 and in Mandarin by Law Press China

2008. Mr. Madsen has held a number of positions, including Service in

Swedish District Courts and Court of Appeal (1980 – 1986) and the Head

of Legal Department, Gota Bank, Southern Region (1992 – 1993), and

Advokatfirman Vinge KB (1993 – 1995), of which he has been a partner

since 1995. Mr. Madsen is also admitted to CIETAC’s list of arbitrators,

a Fellow of the Chartered Institute of Arbitrators, a Swedish member of

International Chamber of Commerce (ICC) network of lawyers

(FraudNet) specialising in asset tracking and recovery and Chairman of

the Arbitration Association of Southern Sweden 2008 to 2011. Mr.

Madsen is referred to in a number of Law Directories and he has acted as

counsel in numerous domestic arbitrations, co-arbitrator for domestic

arbitral tribunals in numerous cases, Chairperson in numerous domestic

arbitrations, Sole Arbitrator appointed by the Arbitral Council of the

Chamber of Commerce and Industry of Southern Sweden and by the

Institute of the Stockholm Chamber of Commerce (SCC), and

Chairperson appointed by the SCC. He has also acted as counsel and coarbitrator

in a number of cases under the ICC, the SCC, The Danish

Institute of Arbitration and the UNCITRAL Rules, appointed Sole

Arbitrator by the ICC International Court of Arbitration, Paris and

appointed Sole Arbitrator and chairperson by the SCC. Mr. Madsen has

extensive experience in commercial litigation (including, but not limited

to, areas such as trade and finance, joint ventures and industrial

cooperation, mergers and acquisitions, company law, agency and

distribution, intellectual property rights, construction, finance and

banking) in the courts of law in Sweden. A number of cases have been

brought before the Supreme Court. Mr. Madsen is a member of the

Swedish Bar Association since 1993 and member of the International Bar

Association.

Laurent Lévy, Founding Partner, Lévy Kaufmann-Kohler, Geneva. A

dual Swiss and Brazilian national, Dr. Lévy studied law in Paris and

Geneva. Dr. Lévy is admitted to the Geneva Bar. Prior to co-founding

Lévy Kaufmann-Kohler in 2008, he was a founding Partner at

Schellenberg Wittmer, Geneva and Zurich. He is a visiting professor at

the School of Law, Queen Mary, University of London since 2007. Dr.

Lévy is a Vice President of the ICC Arbitration Court, a Council member

of the ICC Institute of World Business Law, a member of the Institut pour

l’arbitrage international, the Comité français de l’arbitrage, the Association

suisse de l’arbitrage and the Milan Club of Arbitrators. He is also a former

member and Vice-President of the London Court of International

Arbitration and a former member of the Arbitration Committee of the

Geneva Chamber of Commerce and Industry. Dr. Lévy is an experienced

international arbitrator and has handled more than 200 arbitration

proceedings, mostly as an arbitrator.

Markian Malskyy is an attorney-at-law, Dr. jur., specializes in

providing legal support in investment projects (commercial, real estate

and corporate law matters) as well as representing clients’ interests

before judicial authorities of Ukraine and dispute settlement under the

procedures of commercial and investment arbitration. He has extensive

experience in corporate dispute settlement in the energy sector,

contractual disputes, trade and real estate disputes, enforcement of

foreign court judgments and arbitral awards, real estate and M&A

transactions. As an attorney-at-law he represented one of the major oil

producing company of the Russian Federation in a dispute on collection

of more than 200 million USD of losses caused by improper execution of

the shareholders agreement. He handled cases under the Arbitration

Rules of ICSID, ICC, SCC, UNCITRAL, LCIA and ICAC. In total

Markian Malskyy has been involved in settlement of over 300 disputes.

Since 2010 Mr.Malskyy is a Head of Alternative Dispute Resolution

Desk at Arzinger. Prior to joining Arzinger attorney-at-law Malskyy

worked as a lawyer in the international arbitration team in the firm

Freshfields Bruckhaus Deringer in Paris. In 2012 Markian Malskyy has

obtained his doctoral degree (Dr. jur.) with thesis: “Arbitration

agreement as condition for dispute resolution in international commercial

arbitration” at the Kyiv National Taras Shevchenko University. Markian

Malskyy is the author of two books on commercial dispute settlement,

published more than 70 legal articles. Mr. Malskyy has managed the

German translation of the Rules of the International Commercial

Arbitration Court at the Ukrainian Chamber of Commerce and Industry.

The monograph "ARBITRATION AGREEMENT. Theoretical and

Practical Aspects" (in Ukrainian) by Markian Malskyy has been

published in 2013. The Chambers Global 2013 anв Chambers Europe

2013 recommended Markian Malskyy in dispute resolution. The Legal

500 - Europe, Middle East & Africa 2013 recognized Markian as

experienced ADR practitioner in the Dispute resolution chapter.

Michael Hwang, a Senior Counsel (“S.C”) of the Supreme Court of

Singapore (the equivalent of Queen’s Counsel in England), and Chief

Justice of the Dubai International Financial Centre Courts, received his

undergraduate and postgraduate legal education at Oxford University

where he was a College Scholar and Prizewinner. He has taught at the

Faculty of Law at the University of Sydney and the National University

of Singapore (“NUS”) and, until recently, was an Adjunct Professor at

NUS. Hwang is active in international dispute resolution as arbitrator

(under ICC, CIETAC, UNCITRAL, LCIA, ICSID, AAA, ICDR, BANI,

Swiss, HKIAC and SIAC Rules) as well as mediator. His arbitrations

and mediations have involved disputes in a host of countries all over the

world. He has conducted arbitrations in over 34 cities and spoken at

conferences in over 40 cities. He is an accredited arbitrator of more than

22 arbitration centres and has also conducted arbitrations under the

auspices of the Permanent Court of Arbitration and ICSID. Hwang has

served in various capacities, including as a Judicial Commissioner of the

Supreme Court of Singapore; Singapore’s Non-Resident Ambassador to

Switzerland; President of the Law Society of Singapore; Vice Chairman

of the International Court of Arbitration of the International Chamber of

Commerce; Vice-President of the International Council for Commercial

Arbitration (“ICCA”); Court Member of the London Court of

International Arbitration (“LCIA”); Council Member of the International

Council of Arbitration on Sports (“ICAS”); and as a Commissioner of

the United Nations Compensation Commission (“UNCC”), a body set up

under the Security Council to assess claims against Iraq arising from the

Gulf War. Hwang, who currently practices as a Barrister and

International Arbitrator in Singapore, has many publications on

arbitration to his credit. His publications on arbitration have appeared in

books and journals published in 10 countries.

Lord (Peter) Goldsmith QC, PC, Chair of European and Asian

Litigation, joined Debevoise as European Chair of Litigation in

September 2007. Lord Goldsmith served as the UK’s Attorney General

from 2001-2007, prior to which he was in private practice as one of the

leading barristers in London. Lord Goldsmith has a long practice in

arbitration and in the interface between arbitration and litigation. He

appears as counsel for leading cases in a number of jurisdictions and

different arbitral institutions, including ICC, LCIA and ad hoc in

London, Paris, Singapore and India. He also sits as an arbitrator in

London, Paris and Singapore. He is a member of the Council of the Hong

Kong International Arbitration Centre, on the panel of arbitrators for the

Dubai International Arbitration Centre, on the emergency panel for the

Singapore International Arbitration Centre, and is closely connected with

both the LCIA and the ICC. He recently co-Chaired a Task Force on ICC

arbitration involving States and State entities which recommended

changes to the ICC rules of arbitration to take account of special issues

faced by States in ICC arbitrations. Lord Goldsmith regularly speaks on

arbitration issues. Engagements include teaching international arbitration

at the University of Milan Summer School. He is a member of the

European Commission Expert Group on the interface between Brussels I

Regulation and Arbitration. He graduated in law from Cambridge

University with double first class honours and a Master’s from

University College London. He was admitted to the Bar of England and

Wales in 1972 and New South Wales in 2010. Lord Goldsmith was made

a Life Peer in 1999 and Privy Counsellor in 2001. In 1996, he founded

the Bar of England and Wales’ Pro Bono Unit, of which he is now

President. He is a Bencher of Gray’s Inn.

Piero Bernardini is currently Of-Counsel for Studio Legale Ughi e

Nunziante in Rome, Italy. Prof. Bernardini has more than four decades of

legal experience. He was the Head Legal Counsel AGIP SpA and Ente

Nazionale Idrocarburi (ENI) and he also served as the General Counsel

and Member of the Board and Executive Committee of ENI (Rome -

Milan). Prof. Bernardini’s arbitration experience is extensive and

includes over three hundred arbitration cases relating to construction

mergers and acquisitions, financial transactions, State contracts,

investment protection under BITs. He is currently engaged as arbitrator

and chairman in various ICSID and non-ICSID investment treaty

arbitration cases and in several commercial arbitration cases (ICC and ad

hoc). He has also participated as an annulment committee member in

various ICSID cases. Prof. Bernardini is author of several articles in the

field of arbitration, investment and state contracts, published in Rivista

del Diritto del Commercio Internazionale, Rivista dell’arbitrato, ICSID

Review - Foreign Investment Law Journal, The Journal of World

Investment, Arbitration International, Revue de l’Arbitrage, ICC Court

Bulletin and others. He is also author of several books including, among

others: “Arbitration Law”, Laterza, 1998 (in Italian). “The Italian Law on

Arbitration”, Kluwer 1998 (in English), Italy, ICCA Handbook on

Commercial Arbitration, Kluwer 2000 and 2006 (in English),

“Arbitration Code”, Giuffrè, 2000 (with A. Giardina), “The international

commercial arbitration”, Giuffrè, 2000 (in Italian), Conciliation, EGEA

2001 (in Italian) and “Arbitration in International Trade and

Investments” Giuffrè, 2008 (in Italian). Prof. Bernardini received a

Doctor of Jurisprudence, Magna cum laude from the University “La

Sapienza” of Rome, Italy. His professional memberships include: Vice-

President until 31.12.2005: ICC International Court of Arbitration;

President: Italian Arbitration Association; Panel of ICSID conciliators

and arbitrators (by Italian government appointment); Member: London

Court of International Arbitration (until mid-2005); Member: ICCA –

International Council for Commercial Arbitration, Milan Chamber of

Arbitration attached to the local Chamber of Commerce until 2010; and

Rome Chamber of Arbitration attached to the local Chamber of

Commerce until 2010. Prof. Bernardini is fluent in Italian, English,

French and Spanish (working knowledge).

Pierre A. Karrer has been in private practice for over 40 years and

practices as a full-time arbitrator from his “boutique” premises in Zurich.

He has been chairman and arbitrator in well over 300 international

commercial arbitrations all over the world. He is former Honorary

President of the Swiss Arbitration Association, former Court Member of

ICC, former Vice President of the Stockholm Institute, former Vice

President of the LCIA, FCIArb, and listed arbitrator in numerous arbitral

institutions worldwide. After studies in Zurich, Göttingen, Padova, and

The Hague, he obtained a Dr.iur. from the University of Zurich, and an

LL.M. from Yale. He taught at the Tulane University School of Law in

New Orleans, Louisiana, and at other universities. He chairs arbitrations

in English, French, German, and Italian. He also speaks Dutch and some

Spanish. Contact: Karrer@pierrekarrer.com

Richard Kreindler, Cleary Gottlieb Steen & Hamilton LLP, Frankfurt.

Richard is a professor of law and a full-time advocate, acting as counsel,

arbitrator and expert in major commercial and investment arbitration and

litigation matters throughout the world for the past 28 years. He is a

member of the New York and Paris Bars. He is also an Honorary

Professor of Law at the University of Münster, Germany, where he has

taught for well over a decade. Richard is a graduate of Harvard, Munich,

Columbia and Münster Universities. He is a Fellow and Chartered

Arbitrator of the Chartered Institute of Arbitrators, London. Richard

delivered the lectures in Private International Law at the Hague Academy

of International Law in Summer 2012, which were published in the

Recueil des cours, Vol. 361, in 2013. He has also published several

other treatises and over 400 other publications and lectures on

international arbitration, litigation and compliance/anti-corruption issues.

He has been a member of the Editorial Board or Advisory Board of

leading arbitral publications and institutions; he is also a Council

Member of the ICC Institute of World Business Law. Richard was

Chairman of the IBA working group resulting in the 2010 IBA Rules on

the Taking of Evidence in International Arbitration.

Shaun Lee is an associate in the Arbitration & Dispute Resolution

practice at Olswang Asia LLP. Shaun started his pupilage and practice

under Mr. Michael Hwang S.C. and has experience as an arbitral

secretary on various SIAC, LCIA and ICC claims involving, amongst

others, mis-selling of derivative/hedging financial products, breach of

joint venture contracts, breach of confidentiality and general commercial

disputes. He has assisted, advised and represented clients in the

Technology, Media & Telecommunications, oil & gas, energy, domestic

security, real estate and construction industry on issues concerning

regulatory compliance; breach of contract; misuse of confidential

information; delay and disruption on projects; breaches of escrow

agreements; employment and tenancy disputes; freezing injunctions;

search orders and dispute settlement strategy. Shaun has also advised and

represented clients on cross-border restructuring & insolvency exercises

within the ASEAN region and has conducted several compliance and

investigatory exercises involving, inter alia, breaches of the FCPA, UK

Anti-Bribery Act and other foreign anti-corruption legislation. He is

currently blogs at the Singapore International Arbitration Blog

(http://singaporeinternationalarbitration.com/) and contributes regular

articles and commentaries to Singapore Law Watch and the Singapore

Law Gazette.

Stephen Jagusch is Global Chair of Quinn Emanuel's International

Arbitration Practice. He specialises in international commercial and

investment treaty arbitration, having acted as adviser and advocate in

dozens of ad hoc and institutional international arbitrations, conducted in

many countries around the world, and subject to a wide variety of

governing substantive and procedural laws. A great many of Stephen's

cases have been for or against sovereign states or substantial multinational

organizations, and he has been lead counsel in many of the world's

leading investment treaty cases. Stephen is recognised as a leading

expert in the field of international arbitration and disputes arising under

contacts and bilateral or multilateral investment treaties, and is highly

ranked by all international and domestic legal publications in

international arbitration and public international law. Leading directories

recognise Stephen as a leader in his field. Stephen routinely speaks at

leading conferences and seminars, and is widely published, on the

subject of international arbitration. Prior to joining Quinn Emanuel,

Stephen was Chair of the Global International Arbitration Practice of

Allen & Overy LLP. Stephen regularly sits as an arbitrator and has sat as

Chair, Sole or Co-Arbitrator in dozens of cases around the world.

Tetiana Bersheda is a Swiss lawyer practicing in Geneva, Switzerland

and in Monaco. She received her master degree in law (magna cum

laude), with specialization in European law, from the University of

Fribourg (Switzerland) in 2004 and a PhD (summa cum laude) in 2007

from the same University. Her PhD thesis in the field of corporate and

insolvency law has been awarded the prize of the Swiss Insolvency Law

Association in 2008. She has also obtained an LL.M. in commercial law

from the University of Cambridge (UK) and a master in international

private law from the Institute of International Relations of the University

of Kiev (Ukraine). After her traineeship with one of the most prominent

Geneva-based law firms, she passed her bar exam in Geneva and then

worked as an associate and later as a partner in several law firms in

Geneva specialized in commercial law and international arbitration. She

founded the firm Bersheda Avocats on 1st January 2011, before joining,

as a partner, the firm Canonica Valticos de Preux + Associés in

November 2013. Tetiana Bersheda is specializing in settlement of

international disputes and in business law. She acts both as counsel and

arbitrator in international commercial disputes. She also exercises as a

legal advisor in the Principality of Monaco. Tetiana Bersheda publishes

extensively peer-reviewed articles in international legal journals and

speaks at international conferences on various topics of commercial law

and international arbitration.Tetiana Bersheda is a member of the Ordre

des Avocats of Geneva, the Swiss Bar Federation, the Swiss Arbitration

Association (ASA), the London Court of International Arbitration

(LCIA) and of the International Chamber of Commerce in Paris (ICC).

She speaks English, French, Russian, Ukrainian, German and Spanish.

Timur Bondaryev is an Attorney, Managing Partner and Head of the

Real Estate and Construction Practice at Arzinger. Timur specializes in

advising on real estate and construction transactions; mergers &

acquisitions and is an expert on antitrust and privatization issues. He has

extensive experience in working at state authorities and large

corporations. He was Head of Division in the Legal Department at the

State Property Fund of Ukraine and Head of the Legal Department at

Ukrainian Aluminium, a subsidiary of Russian Aluminium Company.

Timur Bondaryev is a highly respected law practitioner enjoying an

excellent reputation in the local and international market. Timur

Bondaryev is a senior lecturer at the Department of Specialised Legal

Sciences at the National University Kyiv-Mohyla Academy, one of the

country’s best universities and oldest higher education institution in

Eastern Europe (founded in 1632). Timur is also an advisor to the mayor

of Lviv on attracting foreign investment as well as public-private

partnership; a regular lecturer on Ukrainian law at the Austrian Chamber

of Commerce. He is the Board Member of the Ukrainian Bar Association

and European Business Association. Timur Bondaryev is a Young

Members liaison officer within the Real Estate Committee of the

International Bar Association (IBA). He is also a co-author of the first

Ukrainian scientific and practical commentary to the Law of Ukraine

“On Protection against Unfair Competition” (October 2013) composed in

cooperation with Gennady Androshchuk, Deputy Head of the Laboratory

for Legal Support to the Science and Technology Development at the IP

Scientific and Research Institute of the National Law Academy of

Ukraine, D.Sc., assistant professor, Sergiy Shklyar, Founding Partner at

Arzinger, Dr. jur., attorney-at-law, and Natalia Ivanytska, Senior

Associate at Arzinger, Dr. jur., attorney-at-law. Best Lawyers 2013

highly recommends Timur Bondaryev in the sphere of arbitration and

mediation, corporate law and management, compliance, mergers and

acquisitions, and real estate. Chambers Europe 2013 recommends Timur

Bondaryev in real estate sphere.

Author/Editor Detail: