Stockholm International Arbitration Review (SIAR)

The Stockholm International Arbitration Review is an independent law journal published in close cooperation with the Arbitration Institute of the Stockholm Chamber of Commerce (SCC). SIAR fulfils the important purpose of profiling, analyzing, and encouraging discussion on developments affecting arbitration law in Sweden and internationally. It also provides a forum for publishing court cases affecting arbitration and SCC arbitration awards.

The SIAR format is unique. Unlike most other legal journals, its material is not limited to articles. Typically, SIAR issues contain two to three articles covering topics of international relevance and written by leading authorities. In addition, each SIAR issue offers published court decisions and arbitral awards of particular interest to the international arbitration community. These decisions and awards are commented on by leading practitioners or academics (usually, two differing perspectives are given for each decision or award). SIAR also contains a special investment section for court decisions, arbitral awards, and other materials covering developments affecting this new, but rapidly expanding discipline. Each SIAR issue also contains a book review and notes section.

SIAR has adopted the policy that it publishes counsel and arbitrator details when reporting on arbitral awards and court decisions, and its focus on providing commentary directly alongside awards and commentaries is groundbreaking.

SIAR previously existed as the Stockholm Arbitration Report (SAR). As part of an effort to highlight its truly international character, in 2005, it was re-named SIAR.

About the Arbitration Institute of the Stockholm Chamber of Commerce (SCC)

The SCC, based in Stockholm, Sweden, has hosted and facilitated arbitral proceedings in international disputes since 1917. The current SCC Rules, adopted in 2007, are modern and up-to-date. The Rules provide international businesses with the structure for an efficient arbitral procedure that can be implemented worldwide. In 2009, a record 215 cases were filed with the SCC.

Volume 2009:2

TABLE OF CONTENTS

ARTICLES

Amici Curiae in Investment Treaty Arbitrations: Authority and Procedural Fairness
Boris Kasolowsky and Caroline Harvey

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

Obtaining Revision of "Swiss" International Arbital Awards: Whence after Thalès?
Dr. Charles Poncet

Manifest Lack of Jurisdiction? A Selection of Decisions of the Arbitration Institute of the Stockholm Chamber of Commerce concerning the Prima Facie Existence of an Arbitration Agreement (2005-2009)
David Ramsjö and Siri Strömberg

Preventing the Multiple and Concurrent Arbitration Proceedings: Waiver Clauses
Antoine Romanetti

Waiving the Right to Arbitrate by Initiating Court Proceedings
Bengt-Åke Johnsson and Ola Nilsson

COURT DECISIONS ON ARBITRATION

Sweden

Supreme Court of Sweden Decision in Case No: Ö 13-09 on April 16, 2010

Subject Matter:

Application seeking recognition and enforcement of a foreign award. Service of a request for arbitration at an address mentioned in the parties' contract but which was no longer valid at the time of service. Respondent not otherwise notified of the arbitration proceedings' existence. Whether respondent was duly notified of arbitration proceedings' existence within the meaning of Section 54 Subsection 2 of the Swedish Arbitration Act.

Supreme Court of Sweden Decision in Case No: B 156-09 on June 9, 2010"Korsnäs AB vs. AB Fortum Värme Samägt Med Stockholms Stad"

Subject Matter:

Whether one of the arbitrators in the arbitral tribunal did not meet the impartiality requirements imposed by the Swedish Arbitration Act. Whether the arbitrator in question had such ties to the law firm representing the respondent so as to unauthorise him from participating in the proceedings. Question of to which extent an arbitrator can accept appointments as arbitrator by the same law firm without creating the impression of having attachments to the law firm.

Swedish Svea Court of Appeal in Case No: T 4548-08 on December 12, 2009 "Systembolaget AB VS. V&S Vin & Sprit AB"

Subject Matter:

Whether the Arbitral Tribunal took a decision based on circumstances that had not been invoked by the parties and, consequently, the Arbitral Tribunal has exceeded its mandate (Section 34, first paragraph, subsection (2) of the Swedish Arbitration Act).

Volume 2009:1

Table of Contents

EDITORIAL

Stephen R. Bond, General Editor

ARTICLES

The Future of Manifest Disregard
Christopher R. Drahozal

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

INVESTMENT DISPUTES

Award on Preliminary Objections Rendered in 2009 in SCC Case No. Arbitration V (024/2007), Renta 4 S.V.S.A. and Others v. The Russian Federation (includes observations)

Subject Matter:

Whether the arbitral tribunal has subject-matter jurisdiction under Articles 10 and 5 of the Spain/Russia BIT, whether it has personal jurisdiction over the seven claimants, whether the claimants had made investments and, if so, whether their claims are admissible:

(i)   Whether Article 10 of the Spain/Russia BIT, which creates arbitral jurisdiction over any "dispute between one Party and an investor of the other Party relating to the amount or method of payment of the compensation due under article 6 of this Agreement" includes the jurisdiction to decide on matters other than quantum for established expropriation?
(ii)   Whether Article 5 of the Spain/Russia BIT, which provides most favoured nation guarantees of fair and equitable treatment, permits the expansion of jurisdiction under Article 10 of the Spain/Russia BIT.
(iii)   Whether certain Claimants qualified as "investors" under Article 1 of the Spain/Russia BIT?
(iv)   Whether American Depository Receipts qualified as "investments" under Article 1 of the Spain/Russia BIT?
(v)   Whether the Claimants had sufficiently demonstrated ownership over their investments?
(vi)   Whether the claims were admissible?

Yukos and Some of Its Progeny
Observations by Lucia Raimanova

ARBITRAL AWARDS

Final Arbitral Award Rendered in December 2007 in SCC Case No. 30/2003(includes observations)
Subject Matter:
Issue of jurisdiction. Did Clamant and Respondent sign the arbitration agreements and their capacity as agents under United Arab Emirates law?
Observations by Ania Farren

Separate Award Rendered in December 2008 in SCC case No. 33/2007(includes observations)
Subject Matter:
Applicable law.
Observations by Therese Isaksson and Natalie Holm
Observations by Niklas Åstenius and Lisa Björk

COURT DECISIONS ON ARBITRATION

Canada

Alberta Court of Appeal Decision in Case no: 0701-0230-AC on August 5, 2008 "Yugraneft Corporation vs. Rexx Management Corporation" (includes observations)
Subject Matter:
Limitation period governing application seeking the recognition and enforcement of a foreign arbitral award. Musings on the Yugraneft Decision and the Limitation Period for Recognition and Enforcement Proceedings
Observations by Gerald W. Ghikas, Q.C.

Canada and Germany

Court of Appeal of Quebec Decision in Case No: 500-09-016097-057 on March 11, 2008 "Smart Systems Technologies Inc. vs. Domotique Secant Inc."
Subject Matter:
Whether a foreign award should be denied recognition and enforcement on the grounds that it was unreasoned, that the arbitrators exceeded their jurisdiction and that one of the arbitrators improper communicated with one of the parties. Whether the respondent is estopped from resisting the application on the ground that it failed to challenge the award before the courts of the seat of arbitration.

Federal Court of Justice of Germany Decision in Case No: III ZB 97/06 on April 17, 2008(includes observations)
Subject Matter:
Circumstances under which a party may be estopped from invoking one of the defenses set out in Article V of the New York Convention—Whether the respondent is estopped from resisting an application seeking the recognition and enforcement of a foreign award on the ground that it failed to challenge the award before the courts of the seat of arbitration.

The Principle of Good Faith in Enforcement of Foreign Awards - the Taming of Another "Unruly Horse" in German Law
Observations by Dr. Stefan Kröll & Dmitry Marenkov

The Netherlands

Decision of the Amsterdam Court of Appeal Rendered on April 28 2009 in Case No. 200.005.269/01 "Yukos Capital S.A.R.L. vs. OAO Rosneft"(includes observations)
Subject Matter:
Application seeking the recognition and enforcement of arbitral awards made in Moscow under the rules of the International Court of Commercial Arbitration at the Chamber of Trade and Industry the Russian Federation—Awards subsequently annulled by Russian Courts—Whether awards can nevertheless be recognized and enforced in the Netherlands.

Zombie Awards: Annulled But Not Dead
Observations by Eric A. Schwartz

Supreme Court (Hoge Raad), The Netherlands Decision On 5 December 2008 in Case No. C07/166HR (LJN: BF3799; NJ 2009, 6) (includes observations)
Subject Matter:
Annulment of an arbitral award made in the Netherlands due to defective signature. The award was signed only by two of the three arbitrators, while the declaration that the third arbitrator had refused to sign the award, was not signed by these two arbitrators.

Dutch Courts Uphold Signature Requirements
Observations by Diederik de Groot

NOTES & INFORMATION

SCC Strengthens Its Arbitration Rules: By Making Interim Measures Available When Needed

Recent Amendments to Ukraine’s Arbitration Law
Markiyan Kliuchkovskyi and Olga Glukhovska

BOOK REVIEW - Handbook of ICC Arbitration,
Michael W. Bühler and Thomas H. Webster, 2nd ed. (2008)
Reviewed by Matthew Secomb

BOOK REVIEW - Arbitration Institute of the Stockholm Chamber of Commerce: A Handbook with Commentary on Arbitration Rules (Stockholms Handelskammares Skiljedomsinstitut: en handbok och regelkommentar för skiljeförfaranden)
Marie Öhrström
Reviewed by Claes Zettermarck

Volume 2008: 3

TABLE OF CONTENTS

General Editor
Stephen R. Bond

Assistant General Editor
Marie Öhrström

Editorial Assistant
David Ramsjö

Articles

Chinese Investment Treaties and the Dispute Resolution Opportunities Offered by Most-Favoured Nation Provisions

John Savage & Elodie Dulac

Bilateral Investment Treaties and EU Law

Thomas Eilmansberger

Recent Swiss Developments on Exclusion Agreements

Laurent Lévy & Tetiana Bersheda

Recent Developments concerning Dispute Resolution of Shareholder Agreements in Ukraine: For Better or for Worse?

Timur Bondaryev & Markian Malskyy

INVESTMENT DISPUTES

Decision of the Swedish Supreme Court, judgment rendered 28 March 2008 in Case No. T 2113-06, “The Petrobart Case”(includes observations)

Subject Matters:

Challenge of an arbitral award terminating the arbitration for lack of jurisdiction.

The scope of application of the so-called “doctrine of assertion” in arbitration.

The Petrobart Saga

Observations by Erik Karlsson

Comments on the Swedish Supreme Court’s Recent Judgment on the So-called “Doctrine of Assertion” and the Arbitrators’ Jurisdiction in Investment Disputes

Paulo Fohlin

Comments on the “Petrobart v. Kyrgyz Republic” Case

Decision of the Svea Court of Appeal, judgment rendered 13 April 2006 in Case No. T 3739-03, “Petrobart Limited v. Kyrgyz Republic”

Decision of the Svea Court of Appeal, judgment rendered 19 January 2007 in Case No. T 5208-05, “Kyrgyz Republic v. Petrobart Limited”

COURT DECISIONS ON ARBITRATION

United Kingdom

Decision of the England and Wales Court of Appeal, judgment rendered 12 March 2008 in Case No: 2007 FOLIO 1521, “Emmott v. Michael Wilson & Partners Limited” (includes observations)

Subject Matters:

Confidentiality of documents produced for the purposes of an arbitration in London—Distinction between privacy and confidentiality—Limits to duty of confidentiality.

Observations by Stewart Boyd

Sweden

Decision of the Svea Court of Appeal, judgment rendered 25 September 2006 in Case No. Ö 1952-05, “The Soyak Case”(includes observations)

Subject Matter:

Can a decision on fees to the arbitrators made by an arbitral institution be appealed?

Arbitrator Fees in Institutional Arbitration Subject to Substantive Review in Court

Observations by Patrik Schöldström

The “Soyak” Case – Judicial Terrorism or Justified Cost Control?

Observations by Marie Öhrström

Finland

Decision of the Supreme Court of Finland, judgment rendered 2 July 2008 in Case No.: S2006/716, “Werfen Austria GmbH v.

Polar Electro Europe B.V., Zug Branch”(includes observations)

Subject Matters:

Whether—by awarding damages on the basis of a legal doctrine that neither party invoked nor had an opportunity to comment on—the arbitral tribunal exceeded its authority or failed to provide the parties a sufficient opportunity to present their cases.

Finality of Arbitral Awards – Common Grounds?

Observations by Petra Kiurunen

Observations by Sophie Nappert

NOTES & INFORMATION

IN MEMORIAM: Mohamed Aboul-Enein

Ulf Franke

IN MEMORIAM: Gunnar Lagergren

Kaj Hobér

BOOK REVIEW: The Principles and Practice of International Commercial Arbitration, Professor Margaret L. Moses

Christopher R. Seppälä

LIST OF BOOKS RECEIVED

Olga Mouraviova

Volume 2008:2

TABLE OF CONTENTS

EDITORIAL

Stephen R. Bond, General Editor

ARTICLES

International Arbitration is not Arbitration
Jan Paulsson

Why Choose Stockholm: Reflections of an English Lawyer After Two Years of Practising International Arbitration in Sweden
James Hope

Emergency and Pre-Tribunal Arbitral Relief: Current Approaches of the Key Arbitral Institutions
Peter Hillerström

An Update on SCC Arbitration Cases
Linn Bergman

SPECIAL FORUM: PUBLIC POLICY IN INTERNATIONAL ARBITRATION ASSOCIATION CONFERENCE ON PUBLIC POLICY IN INTERNATIONAL ARBITRATION, SEPTEMBER 4-5, 2008

Preface: Public Policy: Still the Unruly Horse?
Hans G. Bagner

The Scope of Review in Annulment Proceedings
Professor Piero Bernardini

An Introduction to International Public Policy
Lord Goldsmith QC

The Common Law Approach to Public Policy in International Arbitration
Jeffrey M. Hertzfeld

Public Policy as Ground for Annulment of or Non-recognition of Enforcement of Arbitral Awards in East Asia
Michael Kwang S.C. and Shaun Lee

Issues of Substantive International Public Policy
Stephen Jagusch

Public Policy in Swiss International Arbitration Law: For Once, Adjectives Make a Difference
Pierre A. Karrer

Standards of Procedural International Public Policy
Dr. Richard H. Kreindler

The Public Policy Exception to the Enforcement of International Arbitral Awards
David W. Rivkin

INVESTMENT DISPUTES

Germany
Sedelmayer v. Russian Federation: Court Decisions in Germany in January and March 2008

Observations by Friederike Stumpe

COURT DECISIONS ON ARBITRATION

The Netherlands

District Court of the Hague, The Netherlands, Decisions on 1 August 2007, Case No. LJN: BB1424, 255948 / HA ZA 05-3983

Observations by Diederik de Groot

NOTES & INFORMATION

Book Review: Comparative Law of International Arbitration, Second Edition, Professor Jean-François Poudret and Dr. Sebastien Besson
Christopher R. Seppällä

Thomas Wälde (1949- 2008) In Memoriam
Devashish Krishan

List of Books Received

Olga Mouraviova

Volume 2008:1

TABLE OF CONTENTS

EDITORIAL

Ulf Franke, Secretary General, SCC

ARTICLES

SCC Practice: Challenges to Arbitrators - SCC Board decisions 2005-2007
Helena Jung

Hall Street Associates, LLC v. Mattel, Inc.: - A New Englander’s Tale of Statutory Supremacy in Arbitration Law

Thomas E. Carbonneau

COURT DECISIONS ON ARBITRATION

Ukraine

Court Recommendations in December 2007 by the Presidium of the Highest Commercial Court of Ukraine "Ukrainian Court Edict"

Subject Matters:

1)   Activities of and corporate relations concerning a Ukrainian joint stock company shall be governed
      exclusively by the laws of Ukraine.
2)   Agreements providing for the application of foreign law to Ukrainian corporate relationships including
      the relationships between shareholders are null and void and violate Ukrainian public policy.
3)   Agreements limiting the scope or effect of Ukrainian mandatory legal provisions (such as competition law
      and rules regarding the invalidity of agreements) are null and void.
4)   Shareholders’ agreements, even under foreign law and entered into by, for instance, non-Ukrainian holding
      companies cannot govern questions of corporate governance in a Ukrainian company and, hence,
      cannot be enforced to the extent they are at variance with Ukrainian company law.
5)   The Recommendations seek to exclude Ukrainian corporate disputes from determination by international
     arbitration (paragraph 2 of Section 6.2).

Observations by Serhii Sviriba and Olga Glukhovska
Observations by Tatiana Slipachuk and Per Runeland
Observations by Alexander Vaneev

USA

Supreme Court of the United States Court Decision in case no. 06-989 on March 25, 2008
"Hall Street vs. Mattel"

Subject Matter:
Judicial review of awards — Enforceability of clauses providing for expanded judicial review under the U.S.
Federal Arbitration Act.

Observations by Jonatan Gass
Observations by Davor Babić

INVESTMENT DISPUTES

UNCITRAL Arbitral Award on Jurisdiction, made on 28 January, 2008 in Washington D.C., U.S. "Canadian Cattlemen for Fair Trade vs. United States of America"

Subject Matter:
Jurisdiction of Tribunal to hear a claim brought under Chapter Eleven of the NAFTA (North American Free Trade Agreement). Territorial location requirement for protected investments and investors.

Observations by Jean-François Hébert

ARBITRAL AWARDS

Separate Arbitral Award in SCC Arbitration V (113/2007) made in Stockholm "First Award on Advance on Costs under the new SCC Rules"

Subject Matter:

Separate award on costs - Claimant had paid the full Advance on Costs and requested the arbitrator to issue a separate award ordering the Respondent to reimburse the Claimant for its share.

Observations by Christer Söderlund

NOTES & INFORMATION

Monetizing Natural Gas: A Contribution to the Problem of Emissions and Climate Change - Anthony Connerty

The Willem C Vis International Commercial Arbitration Moot - Hew R. Dundas

New rules for international arbitration in Ukraine: Improved structure, changes in procedure and substance - Tatyana Slipachuk and Per Runeland

The SCC and its China-Related Cases - Sigvard Jarvin

Hans-Gunnar Solerud in Memoriam - Johan Munck, Chief Justice of the Supreme Court of Sweden, Leif Thorson, Justice of the Supreme Court of Sweden

BOOK REVIEW - Anthony Connerty
Manual of International Dispute Resolution

Volume 2007:3

TABLE OF CONTENTS

EDITORIAL

Sigvard Jarvin, General Editor

ARTICLES

Arbitrators: Private Judges, Service Providers, or Both? CIETAC’s Perspective

Mr. Yu Jianlong

The Swedish Rules Limiting the Right to Appeal Against a Court Judgment in a Challenge or Avoidance Action - a Comparative Study

Martin Wallin and Katarina Mild

COURT DECISIONS ON ARBITRATION

Australia

Victoria Court of Appeal, Melbourne, Australia in case No. [2007] VSCA 255, rendered in November 2007 “The Oil Basins v BHP Billiton case”

Subject Matters:

Challenge due to:

a) manifest error on the face of the award

b) technical misconduct by members of the arbitral tribunal

Observations by Doug Jones

Austria

Court Decisions from the Austrian Supreme Court, in case No. 9 Ob 126/04a and case No. 6 Ob 207/06v, rendered in June 2005 and November 2006 “The B-Bank and Manfred S cases”

Subject Matter:

The nature of the relationship between the parties of an arbitration

and the arbitrators.

Observations by Fatima-Zahra Slaoui

Observations by Gerold Zeiler

Egypt

Judgment by Egypt’s Court of Cassation in the case No. 4729 of Judicial Year 72 rendered in June 2004 “The group of companies doctrine in Egyptian law”

Subject Matter:

Extension of the arbitration agreement to a non-signatory company, in domestic proceedings, based on criteria of economic unity and identity of economic management; the extent to which theories of extension in groups of companies are in conformity with Egyptian Law.

Observations by Karim Youssef

England

Judgment by the Supreme Court of Judicature Court of Appeal (Civil Division), London, in case No. [2007] EWCA CIV 20 rendered in January 2007 and Judgment by the House of Lords of Appeal, London, in case No. [2007] UKHL 40, rendered in October 2007

Subject Matters:

1) Interpretation of arbitration agreements

2) Scope of separability principle

Observations by Gilles Cuniberti

France

Judgment by the Supreme Court in France, in case No. JCP, 2007 I 168, rendered in February 2007 “UOP v BP”

Subject Matter:

Validity or applicability of an arbitration agreement simultaneously designating two arbitration institutions and/or rules.
Observations by Emmanuelle Cabrol

Sweden

Judgment by the Swedish Supreme Court, case No. T 2448-06, rendered in November 2007 “The Lind Case”

Subject Matter:

Disqualification of arbitrator for appearance of lack of impartiality/independence.

Observations by John Fellas

Observations by Patrik Schöldström

INVESTMENT DISPUTES

Arbitral Award in SCC Arbitration V (080/2004), rendered in Stockholm in April 2006 “the Berschader Award under the Luxembourg/

Belgium-Russia BIT”

Subject Matters:

a) Do the Claimants (two Belgian physical individuals) who own shares in a company incorporated in Belgium, BI, which owns assets in the territory of the Russian Federation qualify as investors within the meaning of the Luxembourg/ Belgium-Russia BIT (the Treaty)?

b) Have the Claimants carried out an investment within the meaning of the Treaty?
c) To what extent can the Claimants rely on the most favoured nation (MFN) clause contained in the basic Treaty to import a more favourable dispute settlement mechanism contained in a third party treaty concluded by the Russian Federation to establish the jurisdiction of the Arbitral Tribunal?

Observations by Domenico di Pietro

NOTES & INFORMATION

BOOK REVIEW – Finn Madsen

Commercial Arbitration in Sweden

BOOK REVIEW – Kreindler, Schäfer and Wolff

Schiedsgerichtsbarkeit - Kompendium für Die Praxis

BOOK REVIEW – Riegler, Petsche, Fremuth-Wolf, Platte, Liebscher

Arbitration Law of Austria: Practice and Procedure

LIST OF BOOKS RECEIVED

Volume 2007:2

TABLE OF CONTENTS

EDITORIAL

Sigvard Jarvin, General Editor

ARTICLES

The Application and Scope of Attorney-Client Privilege in International Arbitration

Peter Rosher

The Need for Establishing a Perfect Balance Between Confidentiality and Transparency in Commercial Arbitration

Dr. Mohamed Aboul-Enein

SNF v Cytec Industrie: National Courts Within the EC Apply Different Standards to Review International Awards Allegedly Contrary to Article 81 EC

Pierre Heitzmann and Jacob Grierson

The “Minimalist” and “Maximalist” Approach to Reviewing Competition Law Awards: A Never-Ending Saga

Gordon Blanke

COURT DECISIONS ON ARBITRATION

Belgium

Decision by the First Instance Court of Brussels Rendered on 8 March 2007 in case No. 2005/7721/A “The Belgian SNF Case”

Subject Matter:

Whether an arbitral award should be set-aside on the ground that the award violated public policy consisting of EC Competition Law (Art 81 of the EC Treaty).

France

Decision by the Paris Court of Appeal, rendered on 23 March 2006 in case No. 04/19673 “The French SNF case”

Subject Matter:

Whether an arbitral award should be set-aside on the ground that the award violated public policy consisting of EC Competition Law (Art 81 of the EC Treaty).

USA

Decision by the United States District Court for the District of New Jersey in 2007 case No. Misc 06-82-GEB 2007 U.S. Dist. LEXIS 24061 the “Oxus Gold” case

Subject Matter:

Whether a U. S. court may compel testimony and production of documents from third parties residing in the U.S. for use in an arbitration undertaken

pursuant to an investment treaty.
Observations by Grant Hanessian

United States Court of Appeals for the District Court of Columbia Circuit in 2007 case No. 06-7058 The Termorio Case

Subject Matter:

Enforcement in the United States of an international arbitration award set aside in the country of origin.

Observations by Daniel Schimmel and Christopher Ryan

INVESTMENT DISPUTES

Order of Canada’s Federal Court on 13 January 2004 in the Attorney General of Canada v S.D. Myers, Inc.(USA). Docket T-225-01, T-81-03 161

Observations by Rajeev Sharma

ARBITRAL AWARDS

Final Arbitral Award Rendered in SCC case 090/2004 in 2006

Subject Matters:

(1) Truncated Tribunal – Subsequent to the oral hearing the SCC informs the arbitral tribunal that the arbitrator appointed by the claimant had resigned and could not be reached.

(2) Interpretation of an international purchase agreement under the CISG.

Observations by Teresa Giovannini

Interlocutory Arbitral Award Rendered in 2006 in SCC case 10/2005

Subject Matters:

(1) Jurisdiction

a) Pathological arbitration agreement lacking a clear identification of any arbitration institution

b) Two-tier clause (negotiation before arbitration)

c) Whether entry into a new arbitration agreement before arbitrating the dispute was necessary

(2) Arbitrability – The arbitration agreement was allegedly against public policy in the respondents’ country.

(3) Were the claimant and the second respondent parties to the arbitration agreement?

(4) Applicable law as to the arbitration agreement.

(5) Applicable law as to the substance of the dispute.

Observations by Phillip Capper

NOTES & INFORMATION

Canada Signs the Washington Convention – Frédéric Bachand

5th Petersberger Arbitration Days 2007: Arbitration in Construction and Industrial Plant Contracts –
Dr. Alfred Escher, LL.M. and Dr. Götz Reichert, LL.M.

Recent Ratification of the 1965 Washington Convention (ICSID)

BOOK REVIEW – Tobias Zuiberbühler & Christian Oetiker (Eds.)

Practical Aspects of Arbitrating EC Competition Law

LIST OF BOOKS RECEIVED

Volume 2007:1

TABLE OF CONTENTS

EDITORIAL

Sigvard Jarvin, General Editor

ARTICLES

Denial of Jurisdiction: Form, Consequences and Review Under the Model Law, National Arbitration Laws and Case Law

Polina Permyakova

Lis Pendens in International Arbitration – The Newly Adopted Swiss Approach

Manuel Arroyo

INVESTMENT DISPUTES

Investment Treaty Arbitration: Mapping the Non-ICSID Universe

Luke Eric Peterson

COURT DECISIONS ON ARBITRATION

England

Decision by the English Court of Appeal, Civil Division in 2006 in case no. B6/2005/2737 (Svenska Petroleum Exploration AB v. Government of the Republic of Lithuania and AB Geonafta)

Subject Matters:

(1) Where a foreign state, which had agreed in writing to submit a dispute to arbitration within s.9(1) of the English State Immunity Act 1978, could claim immunity in respect of English proceedings under s.101(2) of the Arbitration Act 1996 to enforce a foreign arbitration award.

(2) Contract interpretation under Lithuanian law.

(3) Whether a party that does not challenge an arbitral award at the place of arbitration within a reasonable time will be precluded from attacking the award later at the place of enforcement of the award.

Observations by Per Runeland and Julia Zagonek

Observations by William McKechnie

European Court of Justice

Judgment of the European Court of Justice (First Chamber) rendered in 2006 in case C-168/05 (The Mostaza Claro case)

Subject Matter:

Whether a failure to raise the unfair nature of a term during arbitration proceedings precludes the possibility to raise that objection in the context of an action brought against the arbitration award.

Observations by Roman Jordans

Finland

Decision of the Finnish Supreme Court rendered in 2005 (case KKO 2005:14)

Subject Matter:

Liability in damages of an arbitrator

Observations by Matti S. Kurkela

Sweden

Judgment by the Svea Court of Appeal, Stockholm, Sweden, on 7 December 2006, in case no. T 5044-04 (The Rapla Invest v TNK Trade case)

Subject Matters:

(1) Failure by the arbitral tribunal to apply legal rules or principles -jura novit curia in Swedish arbitration.

(2) Failure by the arbitral tribunal to examine an invoked ground.

(3) Disqualification of an arbitrator due to previous connection with a party.

Observations by Martin Wallin and Katarina Mild

ARBITRAL AWARDS

Final Arbitral Award, rendered in 2006 in SCC case 7/2005

Subject Matters:

(1) Jurisdiction under an arbitration clause not expressly referring to the SCC Institute

(2) Failure of respondent to appear (procedural default)

(3) Applicable substantive law

(4) No oral hearing

(5) Application sua sponte (ex officio) of contractual penalty provisions to claimant’s potential detriment

(6) Recovery of arbitration costs when claim partly withdrawn

Observations by Patrik Schöldström

Arbitral Award rendered in SCC case 21/2005 in 2005 and Judgment by the Svea Court of Appeal in case no. T2265-06

Subject Matters:

(1) Has the buyer’s notice of termination of a sale of goods contract governed by Swedish law been served in a timely fashion (within “a reasonable period of time”)?

(2) Has the seller, who negotiated with the buyer “without prejudice”, forfeited its right to object to the purported untimely notice of termination?

(3) Could the limitation of liability clause be modified with the application of Section 36 of the Swedish Act on Contracts and thereby entitle the buyer to consequential damages since the clause purportedly was unfair?

(4) Could the Court of Appeal set aside the award on the basis that the objection to the purported untimely notice of termination was raised against the seller’s better judgment?

Observations by Torgny Håstad

Observations by Pontus Ewerlöf

Final Award rendered in 2006 in SCC Expedited Arbitration O53/2005

Subject Matter:

The law applicable to determining the jurisdiction of the Arbitral Tribunal when Respondent in liquidation invokes non-arbitrability inter alia under its national legislation.

Observations by Carita Wallgren, Helle Lindegaard and Per Franke

Observations by Eric M. Runesson

DOCUMENTS

ILA Recommendations on Lis Pendens and Res Judicata and Arbitration

NOTES & INFORMATION

Ukraine Establishes a Commission for Pre-Trial Settlement of Investment Disputes
– Markiyan Kliuchkovskyi and Olga Glukhovska

The 1958 New York Convention – List of Contracting States (June 2007)

BOOK REVIEW – Gordon Blanke

The Use and Utility of International Arbitration in EC Commission Merger Remedies

BOOK REVIEW – Paul Griffin, Consulting Editor

Liquefied Natural Gas: The Law and Business of LNG

LIST OF BOOKS RECEIVED

Volume 2006:3

TABLE OF CONTENTS

EDITORIAL

Sigvard Jarvin, General Editor

ARTICLES

Is the Arbitral Tribunal Bound by the Parties’ Factual and Legal Pleadings?

Giuditta Cordero Moss

The 2007 Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce

Annette Magnusson & Patricia Shaughnessy

US Investors and Expropriation Under the AUSFTA – Is the Protection Afforded to Investors Illusory?

Annie L. Phillips

INVESTMENT DISPUTES

Arbitral Award rendered in 2005 in SCC case 93/2004

Subject Matters:

(1) Jurisdiction under a Bilateral Investment Treaty.

(2) Application of the principle of iura novit curia and failure of Respondent to appear (procedural default).

(3) Application of the fair and equitable treatment standard.

(4) Reimbursement of moral damages.

Observations by Jeremy Wilson

ICSID Arbitral Award rendered in 2006, case no. ARB/04/15 (Telenor v. Hungary)

Subject Matters:

(1) Challenge of the Tribunal’s jurisdiction grounded on the fact that the relevant BIT limited recourse to international arbitration for claims of expropriation only.

(2) Indirect expropriation

(3) The scope of application of Most Favoured Nation clauses.

(4) Allocation of costs

Observations by Domenico Di Pietro

Decision of the ad hoc Committee on the Application for Annulment of the Award rendered in 2006 in Mr. Patrick Mitchell v. The Democratic Republic of Congo (ICSID Case No. ARB/99/7)

Subject Matters:

(1) Annulment under Article 52 of the ICSID Convention

(2) Jurisdiction and definition of investment under a Bilateral Investment Treaty

(3) Jurisdiction and definition of investment under the ICSID Convention

Observations by Reza Mohtashami

COURT DECISIONS ON ARBITRATION

Canada

Judgment of the Court of Appeal of Alberta rendered on 18 January, 2006 in case 2006 ABCA 18 (“The Jardine Case”)

Subject Matter:

Whether the assistance that an arbitral tribunal may request from a court in taking evidence, pursuant to Article 27 of the UNCITRAL Model Law on International Commercial Arbitration, as implemented in Alberta, can include compelling the pre-hearing oral examination for discovery of third party witnesses.

Observations by Henri Alvarez

Observations by Janet E. Mills

DOCUMENTS

Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce

NOTES & INFORMATION

East, Meet West: Report on the International Arbitration Congress in Almaty, Kazakhstan – Matthew C. Bate

The Treatment of Investment Arbitration Awards by Courts in Uzbekistan – Yulia Khvan

Interpretation on Several Issues Concerning the Application of the (PRC Arbitration Law) 4500/06.08.23 – Michael J Moser and Friven Yeoh

The Cairo Regional Centre Is Amending Its Arbitration Rules – M.I.M. Aboul-Enein

NEW ACCESSIONS TO THE 1958 NEW YORK CONVENTION: Bahamas, Gabon and Marshall Islands

BOOK REVIEW – David St. John Sutton and Judith Gill

Russell on Arbitration

LIST OF BOOKS RECEIVED

Volume 2006:2

TABLE OF CONTENTS

EDITORIAL

Sigvard Jarvin, General Editor vii

ARTICLES

Deliberations of the Arbitral Tribunal — Analysis of Reasoned Awards From a Swedish Perspective

Finn Madsen & Peter Eriksson

Contractual Exclusion of Annulment Actions Against International Arbitral Awards Made in Switzerland

Laurent Hirsch

The Missing Bits — To Be Substituted by BITS

Max Gutbrod & Steffen Hindelang

Overview of the Revised Rules of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (the ICAC)

A.S. Komarov

The New Russian International Arbitration Rules (The Rules of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation)

Ivan Marisin &Timur Aitkulov

INVESTMENT DISPUTES

Mr William Nagel (United Kingdom) v. the Czech Republic Decision by the Svea Court of Appeal (Sweden), rendered on 26 August 2005

Subject Matters:

(1) Did the Arbitral Tribunal rule on all of the issues that were submitted to it?

(2) Was the decision taken by the Arbitral Tribunal a jurisdictional decision, or a decision on the substance of the parties’ dispute?

Observations by Michael Polkinghorne & Matthew Secomb

ARBITRAL AWARDS

Arbitral Award rendered in 2005 in SCC case 143/2003

Subject Matters:

(1) Whether an entity that was not named as a respondent in the Request for Arbitration and therefore did not take part in the formation of the arbitral tribunal may be counted as a respondent in the arbitration.

(2) Whether, by application of the alter ego doctrine to “pierce the corporate veil” of one entity, an arbitral tribunal may exercise jurisdiction over another entity that is not a party to the arbitration.

(3) Whether an assignment merely of the proceeds from a cause of action, or rather an assignment of the cause of action itself, is effected by the following language: “The Assignor assigns to Assignee the right title of interest and sums of money recovered of the Defendant in the proposed action [Assignor] -v- [Defendants].”

(4) Whether an aggrieved entity’s cause of action against a state and against a corporation designated by the state to administer the outstanding debts of a company liquidated by state decree is a dispute that would fall within the scope of an arbitration clause in a contract between the aggrieved entity and the company liquidated by state decree.

(5) Allocation of costs.

Observations by David Goldberg & Gordon Blanke

COURT DECISIONS ON ARBITRATION

Latvia

Judgment by the Riga Regional Court, Civil Cases Board Rendered on 19 August 2004 in case: CA-4208/20.2004 (Forscan Timber Export AB v. Interwood)

Subject Matters:

(1) Determination of the jurisdiction in case of similar names of arbitral institutions.

(2) Arbitrator’s knowledge of the language agreed in the arbitration agreement

(3) Competence – competence

(4) Issuance of the writ of execution

Observations by Ziedonis Ūdris & Inga Kačevska

The Netherlands

Judgments rendered by the District Court of The Hague on 27 May 2004 in (1) case KG/RK 2002-979 and 2003-1617 and by the Court of Appeal of the Hague on 24 March 2005 in (2) case 04/694 and 04/695 (Marketing Displays International Inc. v. VR Van Raalte Reclame B.V.)

Subject Matters:

(1) Leave for enforcement under the New York Convention

(2) Art. 81 EC

(3) (International) public policy

Observations by Diederik de Groot

Switzerland

I. Judgments by the Swiss Supreme Court rendered 4 February 2005 in case 4P.236/2004 and

II. 7 September 2006 in case 4P.114/2006

I. Subject Matter:

(1) Exclusion of annulment action in arbitration clause

II. Subject Matters:

(1) Exclusion of annulment action in Bilateral Investment Treaty

(2) Scope of jurisdiction of an arbitral tribunal

DOCUMENTS

Amended Rules of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (ICAC) in English and Russian

NOTES & INFORMATION

SCC Institute Adopts New Arbitration Rules

CONFERENCE REPORT: International Conference on ICSID: “Taking Stock after 40 Years” (Frankfurt am Main, Germany,26–28 April, 2006)
– Dr. Alfred Escher and Dr. Götz Reichert

IN MEMORIAM: Professor Lars Hjerner – Ulf Franke

NEW ACCESSION TO THE 1958 NEW YORK CONVENTION: United Arab Emirates

BOOK REVIEW – O. P. Malhotra and Indu Malhotra

The Law and Practice of Arbitration and Conciliation, 2nd Edition

BOOK REVIEW – Andreas Reiner

Das neue österreichische Schiedsrecht 2006/The New Austrian Arbitration Law 2006

BOOK REVIEW – Alexis Mourre

Les Cahiers de l'arbitrage, Volume III

BOOK REVIEW – Lars Heuman & Sigvard Jarvin

The Swedish Arbitration Act of 1999, Five Years On: A Critical Review of Strengths and Weaknesses

LIST OF BOOKS RECEIVED

Volume 2006:1

TABLE OF CONTENTS

EDITORIAL

Sigvard Jarvin, General Editor

ARTICLES

“Separability” in the United States Supreme Court

Alan Scott Rau

The Place of Arbitrators in Combating Money Laundering

Tatiana Minaeva

The New Danish Arbitration Act

Joseph Lookofsky & Karsten Kristoffersen

Parties’ Contribution to the Arbitral Award: Submission of a Synopsis of the Award

Jean-Georges Betto

INVESTMENT DISPUTES

Mr. Franz Sedelmayer (Germany) v. the Russian Federation Two Decisions by Germany’s Supreme Court

Subject Matters:

(1) Can the Russian State’s claims against the German State or a German company be attached to secure payment of a German private individual’s award against Russia?

(2) Does an arbitration clause in a bilateral investment treaty constitute a waiver by the State of its immunity from enforcement of the award?

Observations by Hilmar Raeschke-Kessler

COURT DECISIONS ON ARBITRATION

Canada

Judgment of the Court of Appeal of Québec rendered on May 30, 2005 in case [2005] R.J.Q. 1448 (on appeal before the Supreme Court of Canada)

Subject Matter:

Whether an arbitration clause found in a consumer contract concluded on the internet can affect the jurisdiction of Québec courts over a class action.

Observations by Frédéric Bachand

England

Decision by High Court of Justice, Queens’s Bench Division, Commercial Court, rendered in 2005 in case No. 2004/536

Subject Matter:

Whether an arbitral award against a state, rendered in ICSID arbitration pursuant to a Bilateral Investment Treaty, may be enforced by obtaining from an English court so-called Third Party Debt and Charging Orders against certain cash and securities held in London by third parties pursuant to a an agreement between these third parties and the central bank of the state in question.

Questions of state immunity from enforcement pursuant to the State Immunity Act of 1978.

Observations by Judith Gill

France

Decision by the French Cour de Cassation, First Civil Chamber rendered on 6 December 2005 in case 1660 FS-P+B 149

Subject Matter:

Liability of arbitrators who have failed to render an award before the deadline for the arbitral proceedings.

Observations by Louis Degos

Switzerland

Judgments by the Swiss Supreme Court rendered on 10 November 2005 in (1) case 4P.98/2005/svc and (2) CASE 4P.154/2005/svc (The “Republic of Lebanon v. FTMI & FTML” Cases)

Subject Matter:

(1) Validity of an exclusion agreement (excluding applications to courts to set aside an award). Effects of a partial exclusion agreement, namely the waiver to challenge an award due to lack of competence.

(2) Effects of an exclusion agreement on correction awards.

Observations by Laurent Lévy

USA

Decision by the Supreme Court of the United States rendered on 21 February 2006 in case no. 04-1264 (Buckeye Check Cashing, Inc. v. Cardegna et al.)

DOCUMENTS

ICSID Amended Rules and Regulations

NOTES & INFORMATION

New Amendments to ICSID’S Arbitration Rules – Mark Kantor

Recognition and Enforcement of Foreign Arbitral Awards in Brazil: Recent Developments – Katherine Spyrides

L’Arbitrage aux Jeux Olympiques d’Hiver de Turin 2006 – Mathieu Maisonneuve

CONFERENCE REPORT: Arbitration as One of the Means of Resolution of Disputes (Lyon, France, 18 November 2005) – Grégory Levy

CONFERENCE REPORT: International Investment Law at a Crossroads (Harvard Law School, USA, 3 March 2006)
– Laurie Achtouk, Rostislav Pekar, Sabina Sacco & Jorge Viñuales

CONFERENCE REPORT: Arbitration in Investment Disputes, Petersberger Schiedstage 2006 (Königswinter, Germany, 3 and 4 March 2006) – Jan K. Schaefer

CONFERENCE REPORT: Where Is the Law of the Investment Going? (Tunis, 3 and 4 March 2006) – Rym Ben Khelifa

New International Board of the SCC Institute – Sara Adolfsson

Recent Ratification of the 1965 Washington Convention (ICSID)

The 1958 New York Convention, List of Contracting States

BOOK REVIEW – Lawrence W. Newman

Leading Arbitrators’ Guide to International Arbitration

BOOK REVIEW – Tobias Zuberbühler, Christoph Müller, Philipp Habegger, eds.

Swiss Rules of International Arbitration: Commentary

Volume 2005:3

TABLE OF CONTENTS

EDITORIAL

By Sigvard Jarvin, General Editor

ARTICLES

The Guarantee of “Full Protection and Security” in Investment Treaties Regarding Harm Caused by Private Actors

Helge Elisabeth Zeitler

The New CIETAC Arbitration Rules: Two Steps Forward, Still More to Go

Michael J. Moser

INVESTMENT DISPUTES

Final Arbitral Award Rendered in 2005 in SCC Case 126/2003 Petrobart Ltd v. The Kyrgyz Republic

Subject Matters:

(1) Is the Energy Charter Treaty (ECT) applicable to a company registered in Gibraltar?

(2) Are the conditions for application of Article 17(1) of the ECT present?

(3) The potential res judicata effect after the domestic litigation and the UNCITRAL Arbitration.

(4) Doctrine of collateral estoppel.

(5) Whether Petrobart qualifies as an investor under the ECT?

(6) Did Petrobart make an investment in the Kyrgyz Republic?

(7) Whether the Kyrgyz Republic violated its obligations under Articles 10(1), 10(12), 13(1) and 22(1) of the ECT.

Observations by Georgios Petrochilos & Noah Rubins

COURT DECISIONS ON ARBITRATION

China

Judgments on Jurisdiction by Beijing Second Intermediate People’s Court Rendered on 13 September 2001 and Beijing High People’s Court Rendered on 12 December 2001

Subject Matter:

Jurisdiction—Whether a contract between a joint venture and one party to the joint venture, which has no arbitration clause, shall be subject to the arbitration clause of the joint venture contract.

Observations by Liu Ping

Egypt

Judgment of the Supreme Constitutional Court of Egypt Rendered on 9 May, 2004 in Case No. 15 of the Judicial Year 24 (The “El Motahidah v. Shell Case”)

Subject Matters:

(1) Whether the Egyptian Arbitration Law violates the constitutional principle that a party is entitled to litigate on two levels by giving the court of appeal exclusive jurisdiction over actions for setting aside arbitral awards.

(2) Whether the Egyptian Arbitration Law violates the constitutional principle of equality by providing for disparate treatment of parties resorting to arbitration and those resorting to litigation.

Observations by M.I.M. Aboul-Enein

France

Decision by the Paris Court of Appeal on 29 September 2005 in Direction Générale de l’Aviation Civile de l’Emirat de Dubaï v. International Bechtel Co., LLP (The “DAC Dubai v. Bechtel” case)

Subject Matters:

(1) Enforcement of an arbitral award set aside in the country of origin.

(2) Law applicable to the effectiveness of an arbitral award.

Observations by Philippe Pinsolle

Observations by Alexis Mourre

Switzerland

Decision by the Geneva Court of First Instance Rendered on 2 May 2005 in Case C/1043/2005-15SP

Subject Matter:

Anti-arbitration injunction

Observations by Matthias Scherer & Teresa Giovannini

NOTES & INFORMATION

BOOK REVIEW – Dr. Stefan Rützel, Prof. Dr. Gerhard Wegen and Dr. Stephan Wilske, Commercial Dispute Resolution in Germany; Litigation, Arbitration, Mediation

Volume 2005:2

TABLE OF CONTENTS

EDITORIAL

By Sigvard Jarvin, General Editor vii

ARTICLES

Estonia Has Taken a New Step in (International) Commercial Arbitration

Pirkka-Marja Põldvere

Comparative Analysis of the New Estonian Arbitration Law Provisions on the Choice of Law Applicable to the International Commercial Arbitration Dispute

Kirill Lezheiko

INVESTMENT DISPUTES

Mr. Franz Sedelmayer v. The Russian Federation

I. Final Arbitral Award Rendered in 1998 in an Ad Hoc Arbitration in Stockholm, Sweden

Observations by Walid Ben Hamida

Observations by Stefan Kröll and Jörn Griebel

II. Judgment by the Stockholm District Court Rendered on 18 December 2002

III. Decision by the Svea Court of Appeal Rendered on 15 June 2005

Observations by Domenico di Pietro

Subject Matters:

(1) Definition of “investor.”

(2) Scope of the definition of “investment.”

(3) The scope of expropriation provisions.

(4) Application of the principle of lis pendens.

(5) Propriety of State as respondent.

(6) Compliance with pre-arbitration procedures.

(7) Identification and valuation of investments subject to expropriation.

COURT DECISIONS ON ARBITRATION

China

Decision by the Guangzhou Maritime Court, P.R. China, rendered in 1998

Subject Matters:

(1) Law applicable to decide properness of notice of the arbitration proceedings under Article V.1 (b) of the New York Convention

(2) Authority to conclude the contract containing the arbitration clause (public policy)

(3) Party to the arbitral award to be recognized and enforced, English name of Chinese party

Observations by Liu Ping

England

Judgment by the Supreme Court of Judicature Court of Appeal (Civil Division), England rendered in 2004 in case [2004] EWCA Civ 1660

Subject Matter:

Issue estoppel (estoppel by res judicata) created by an arbitral award in another arbitration between different parties in a related dispute.

Observations by Salim A. H. Moollan

France

Decision by the Paris Court of Appeal rendered on 18 November 2004 in case No. 2002/60932

Subject Matter:

Whether an arbitral award should be set aside on the ground that the award violated public policy consisting of EC Competition Law (Art 81 of the EC Treaty) which should have been applied by the arbitral tribunal ex officio.

Observations by Diederik de Groot

Judgment of the French Cour de Cassation First Civil Chamber rendered on 1 February 2005 in case No. 01–13.742/02–15.237

Subject Matter:

Whether a French court can appoint an arbitrator on behalf of an obstructing party at the request of the other party in an arbitration that is not taking place in France or subject to French procedural law.

Observations by Guillaume Tattevin

Observations by François-Xavier Train

Germany

Judgment by the Federal Supreme Court of Germany rendered in 2004 in case II ZR 65/03

Subject Matter:

Whether a dispute regarding the payment of the initial contribution to a limited liability corporation is arbitrable.

Observations by Roman Jordans

Sweden

Decision by the Svea Court of Appeal in Sweden rendered in 2005 in case No. T 1038–05.

Subject Matter:

When is an award deemed to have been rendered in Sweden?

Observations by Patricia Shaughnessy

Observations by Christer Söderlund

Switzerland

Decision by the Swiss Supreme Court rendered on 6 October 2004 in case 4P117–2004

Subject Matter:

Admissibility of appeals filed against partial awards stricto sensu.

Observations by Pierre-Yves Gunter

United States of America

Judgment of the Appellate Court of Illinois, Third District, rendered in 2004 in case No. 3–03–0563

Subject Matter:

Gross error of law and manifest disregard of law as grounds to set aside arbitral awards in the United States.

Observations by Grant Hanessian

Observations by Ihsan Dogramaci

NOTES & INFORMATION

BIBLIOGRAPHICAL NOTE – Nathalie Najjar

L’arbitrage dans les pays arabes face aux exigences du commerce international

BOOK REVIEW – ARBITRATION IN CHINA: A PRACTICAL GUIDE

Advisory editors: Jerome A. Cohen, Neil Kaplan and Peter Malanczuk;

General editors: Daniel R. Fung and Wang Sheng Chang

LIST OF BOOKS RECEIVED

NEW ACCESSIONS TO THE 1958 NEW YORK CONVENTION

Volume 2005:1

TABLE OF CONTENTS

EDITORIAL

By Dr. Sigvard Jarvin, General Editor

ARTICLES

Can an Arbitral Tribunal Disregard the Choice of Law Made by the Parties?

Giuditta Cordero Moss

Recognition and Enforcement of Foreign Arbitral Awards in the Russian Federation

Vladimir Khvalei & Jonas Benedictsson

INVESTMENT DISPUTES

Investment Arbitration Introduction

Final Award rendered in 2003 in SCC case 118/2001

Subject Matter:

Whether the Republic of Latvia was in breach of its obligations under the Energy Charter Treaty (ECT) towards the claimant due to the fact that the

republic’s state-owned company allegedly did not pay the claimant’s subsidiary in accordance with the contract between company and subsidiary.

Observations by Richard Happ

I. Jurisdictional Award rendered in 2003 in SCC case 122/2001,

II. Final Award rendered in 2004 in SCC case 122/2001 &

III. Supplemental Award and Interpretation rendered in 2004 in SCC case 122/2001

I. Subject Matters:

(1) Applicable law to jurisdictional issues under the arbitration clause.

(2) Res judicata and collateral estoppel.

(3) Principle of Separability, Competence-Competence Doctrine.

(4) Act of State Doctrine.

(5) Comity among states.

(6) Sovereign state, Issue of sovereign immunity.

(7) Definition of “foreign investor” under the Foreign Investment Law of Kazakhstan.

(8) Applicable law to jurisdictional issues under the Treaty between the USA and the Republic of Kazakhstan Concerning the Encouragement and Reciprocal Protection of Investment (19 May 1992) (“BIT”).

(9) Definition of “National of another Contracting State” under the Treaty between the USA and the Republic of Kazakhstan Concerning the Encouragement and Reciprocal Protection of Investment.

(10) Burden of proof to establish “National of another Contracting State” under the Treaty between the USA and the Republic of Kazakhstan

Concerning the Encouragement and Reciprocal Protection of Investment.

II. Subject Matters:

(1) Jurisdiction—Validity of the Agreement—Apparent authority, Ratification by acceptance.

(2) Jurisdiction—Admission to jurisdiction of the Kazakh courts.

(3) Party to the arbitration agreement—Sovereign state and state organ—whether the department designated in the Agreement or the State is the contractual party.

(4) Effects of prior court decision on termination of the Agreement.

(5) Whether acts of the Prosecutor General, and the national courts, either in its capacity of contractual party to the Agreement or under norms of Kazakh law and customary international law should be considered as acts attributable to Sovereign State.

(6) Loss of future profit based on contractual right of first refusal—whether a contractual right of first refusal, expressly conditioned upon the owner’s decision to sell and without specification on the purchase price to be paid, may give rise to a claim for damages.

(7) Concept of expropriation, “creeping” or “covert” expropriation.

III. Subject Matters:

(1) Enforcement of the Tribunal’s decision on costs—whether the Tribunal can issue award or order to enforce its decision on costs.

(2) Correction of the award based on miscalculation.

Observations by Hans Smit

ARBITRAL AWARDS

Arbitral Award rendered on 24 April 2003 in CIETAC case G20010379

Subject Matters:

(1) Language of the arbitration.

(2) Time-bar and warranty period under contract for international sale of goods. Article 158 of the Contract Law of the People’s Republic of China.

(3) Expert witness in international arbitration under the CIETAC Rules.

Observations by Xing Xiusong

COURT DECISIONS ON ARBITRATION

France

Decision by the French Supreme Court, First Civil Chamber rendered in 2004 in case 1231 FS-P

Subject Matter:

Whether French courts can order a company to pay interest as from the date of an international arbitral award, “post-award interest.”

Observations by Christopher R. Seppälä

Kazakhstan

Judgment of the Judicial Collegium for Civil Cases of the Supreme Court of Kazakhstan rendered in 2004, Resolution No. 3A-121/2-04 217

Subject Matter:

Requirements for a valid arbitration clause under the laws of Kazakhstan.

Observations by M. K. Suleimenov

Russia

Judgment of the Presidium of the Higher Commercial Court of the Russian Federation rendered on 22 February 2005 in case 14548/04 “The Kodest Case”

Subject Matters:

(1) Whether the burden of proof with respect to the New York Convention Article V(1)(b) is on the defendant or the claimant.

(2) Whether the defendant was given proper notice of the arbitration proceedings.

Observations by Dominic Pellew

Singapore

Judgment of the Singapore High Court rendered in 2004 in case [2004] 4 SLR 705; [2004] SGHC

Subject Matter:

Whether the expert had gone beyond his mandate and the agreement of the parties and whether not providing the parties with the information

supplied by the expert to the arbitral tribunal was a breach of natural justice in making the award.

Observations by Devashish Krishan

NOTES & INFORMATION

APPOINTMENT – Professor M.K. Suleimenov

Appointment as Chairman of the Kazakh International Arbitration

BOOK REVIEW – Finn Madsen

Review on Commercial Arbitration in Sweden

BOOK REVIEW – E. Schäfer - H. Verbist - C. Imhoos

ICC Arbitration in Practice

The 1958 New York Convention, List of Contracting States

How to subscribe to the Stockholm International Arbitration Review

Stephen Bond is Senior Of Counsel in Covington & Burling LLP’s London office. Formerly co-head of the White & Case international arbitration practice group, Mr. Bond has served as counsel, co-counsel, chairman, and co-arbitrator in numerous international arbitrations principally under the rules of the International Chamber of Commerce, as well as those of the London Court of International Arbitration, Stockholm Arbitration Institute, Japanese Commercial Arbitration Association, Vienna Centre, and UNCITRAL. Mr. Bond has served in arbitrations focused predominantly on disputes in the oil and gas, international joint venture, construction, computer, and sales and distribution fields involving the application of various civil and common law legal systems. He has also provided expert witness statements on international arbitration-related matters.

During his career, Mr. Bond has held a number of high profile positions, including acting as Secretary General of the International Court of Arbitration of the International Chamber of Commerce (ICC) from 1985 to 1991 and as U.S. Member of the ICC International Court of Arbitration from 1994 to 1999. He acted as Vice Chairman of the ICC Working Group charged with drafting the 1998 ICC Rules of Arbitration.

Prior to joining White & Case in 1991, and in addition to his ICC experience, he served as Assistant Legal Adviser in the Office of the Legal Adviser of the Department of State and as Counselor for Legal Affairs in the United States Mission to the United Nations in Geneva, where he was accorded the State Department's Distinguished Honors Award.

Editors:

Mr. Timur D. Aitkulov, Clifford Chance, Moscow
Professor Frédéric Bachand, McGill University Faculty of Law, Montreal
Ms. Linn Bergman, SCC Arbitration Institute, Stockholm
Ms. Lisa Bingham, Hanotiau & van den Berg, Brussels
Mr. Oliver Caprasse, University of Liège and University of Brussels, Hanotiau & van den Berg, Liège and Brussels
Mr. Nils Eliasson, Mannheimer Swartling Advokatbyra, Hongkong
Mr. John Fellas, Hughes,Hhubbard & Reed, New York
Mr. Grant Hanessian, Baker & McKenzie, New York
Mr. Jeffrey M. Hertzfeld, Salans, Paris
Mr. Devashish Krishan, Freshfields Bruckhaus Deringer, New York
Ms. Olga Mouraviova, White & Case, Paris
Mr. Noah Rubins, Freshfields Bruckhaus Deringer, Paris
Professor Patricia Shaughnessy, Stockholm University, Faculty of Law, Stockholm

Editorial Committee:

Mr. Michael Bühler, Jones Day, Paris
Professor Thomas E. Carbonneau, The Dickinson School of Law Pennsylvania State University, Carlisle, Pennsylvania
Mr. Ulf Franke, Arbitration Institute of the Stockholm Chamber of Commerce, Stockholm
Mr. Kaj Hobér, Mannheimer Swartling Advokatbyrå Stockholm, Sweden
Ms. Marina Kaldina, Basic Element, Moscow, Russia
Ms. Aigoul Kenjebayeva, Salans, Almaty, Republic of Kazakhstan
Mr. Alexander S. Komarov, International Commercial Arbitration Court at the Russian Federation, Chamber of Commerce and Industry, Moscow, Russia
Professor Joseph Lookofsky, University of Copenhagen, Faculty of Law, Copenhagen, Denmark
Professor William W. Park, Boston University School of Law, Boston, Massachusetts
Mr. Hilmar Raeschke-Kessler, Rechtsanwalt beim Bundesgerichtshof Ettlingen bei Karlsruhe, Germany
Professor Alan Scott Rau, University of Texas at Austin School of Law, Austin, Texas
Professor Michael Reisman, Yale Law School, New Haven, Connecticut
Mr. Wang Sheng Chang, Beijing, China

David Ramsjö, Editorial Assistant, Trainee, SCC.

Author/Editor Detail:

Editors:

Mr. Timur D. Aitkulov, Clifford Chance, Moscow
Professor Frédéric Bachand, McGill University Faculty of Law, Montreal
Ms. Linn Bergman, SCC Arbitration Institute, Stockholm
Ms. Lisa Bingham, Hanotiau & van den Berg, Brussels
Mr. Oliver Caprasse, University of Liège and University of Brussels, Hanotiau & van den Berg, Liège and Brussels
Mr. Nils Eliasson, Mannheimer Swartling Advokatbyra, Hongkong
Mr. John Fellas, Hughes,Hhubbard & Reed, New York
Mr. Grant Hanessian, Baker & McKenzie, New York
Mr. Jeffrey M. Hertzfeld, Salans, Paris
Mr. Devashish Krishan, Freshfields Bruckhaus Deringer, New York
Ms. Olga Mouraviova, White & Case, Paris
Mr. Noah Rubins, Freshfields Bruckhaus Deringer, Paris
Professor Patricia Shaughnessy, Stockholm University, Faculty of Law, Stockholm

Editorial Committee:

Mr. Michael Bühler, Jones Day, Paris
Professor Thomas E. Carbonneau, The Dickinson School of Law Pennsylvania State University, Carlisle, Pennsylvania
Mr. Ulf Franke, Arbitration Institute of the Stockholm Chamber of Commerce, Stockholm
Mr. Kaj Hobér, Mannheimer Swartling Advokatbyrå Stockholm, Sweden
Ms. Marina Kaldina, Basic Element, Moscow, Russia
Ms. Aigoul Kenjebayeva, Salans, Almaty, Republic of Kazakhstan
Mr. Alexander S. Komarov, International Commercial Arbitration Court at the Russian Federation, Chamber of Commerce and Industry, Moscow, Russia
Professor Joseph Lookofsky, University of Copenhagen, Faculty of Law, Copenhagen, Denmark
Professor William W. Park, Boston University School of Law, Boston, Massachusetts
Mr. Hilmar Raeschke-Kessler, Rechtsanwalt beim Bundesgerichtshof Ettlingen bei Karlsruhe, Germany
Professor Alan Scott Rau, University of Texas at Austin School of Law, Austin, Texas
Professor Michael Reisman, Yale Law School, New Haven, Connecticut
Mr. Wang Sheng Chang, Beijing, China

David Ramsjö, Editorial Assistant, Trainee, SCC.

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