Stockholm International Arbitration Review (SIAR) 2005-1 - PDF (Downloadable Electronic Product)
Stephen Bond is Senior of Counsel in Covington & Burling LLP’s London office. Formerly a co-head of the White & Case international arbitration practice group. He has served as counsel, co-counsel, chairman or co-arbitrator in numerous international arbitrations, principally under the rules of the International Chamber of Commerce, and also under those of the London Court of International Arbitration, the Stockholm Arbitration Institute, the Japanese Commercial Arbitration Association, the Vienna Centre and UNCITRAL.
Mr. Bond has served in arbitrations focused predominantly on disputes in the oil and gas, international joint venture, construction, computer, sales and distribution fields and that involve 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, he has held a number of high profile positions that include Secretary General of the International Court of Arbitration of the International Chamber of Commerce (ICC) from 1985-1991 and the U.S. Member of the ICC International Court of Arbitration for the period 1994-1999. He was 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.
* 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
* 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
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CAN AN ARBITRAL TRIBUNAL DISREGARD
THE CHOICE OF LAW MADE BY THE
By Giuditta Cordero Moss**
This article analyses whether disregard by the arbitral tribunal of the
choice of law made by the parties may be considered an excess of power or
a procedural irregularity, thus leading to the invalidity or unenforceability of
Arbitration is, as known, an out-of-court method of dispute resolution
that is mostly based on the will of the parties. The arbitral tribunal is bound
to follow the parties’ instructions because it does not have any powers
outside the scope of the parties’ agreement. Tribunals are therefore, and
correctly, very reluctant to deviate from the instructions of the parties.
Nevertheless, there might be situations where a tribunal is faced with the
necessity or the opportunity to disregard the parties’ instructions in respect
of the applicable law. As an example, following the parties’ choice might
result in a violation of applicable fundamental principles (ordre public) if the
parties have made a conscious choice of law in order to avoid the
application of certain rules of the otherwise applicable law; for instance, the
rules on export, taxes, and competition regulation. Or, following the parties’
choice might result in a contradiction with the contractual regulation made
by the parties themselves—if they have made a not so conscious choice of
law (or no choice at all) and have not noticed that the contractual regulation
contradicts the governing law.
In both scenarios, the parties (or, rather than both of them, the party that
would have an advantage therefrom) will expect that their will is respected
by the arbitral tribunal; however, in order to do so, the tribunal may run the
risk of rendering an award that violates public policy, or of applying the
TABLE OF CONTENTS
By Dr. Sigvard Jarvin, General Editor
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 Arbitration Introduction
Final Award rendered in 2003 in SCC case 118/2001
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
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
(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 Award rendered on 24 April 2003 in CIETAC
(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
(3) Expert witness in international arbitration under the CIETAC Rules.
Observations by Xing Xiusong
COURT DECISIONS ON ARBITRATION
Decision by the French Supreme Court, First Civil Chamber
rendered in 2004 in case 1231 FS-P
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
Judgment of the Judicial Collegium for Civil Cases of the
Supreme Court of Kazakhstan rendered in 2004,
Resolution No. 3A-121/2-04
Requirements for a valid arbitration clause under the laws of Kazakhstan.
iv STOCKHOLM INTERNATIONAL ARBITRATION REVIEW 2005:1
Observations by M. K. Suleimenov
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”
(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
Observations by Dominic Pellew
Judgment of the Singapore High Court rendered in 2004 in
case  4 SLR 705;  SGHC
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
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
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