Stockholm International Arbitration Review (SIAR) 2005-2 - PDF (Downloadable Electronic Product)
Pirkka-Marja Põldvere Attorney, Law Office Raidla & Partners, RoschierRaidlaFenno-Baltic Partnering. Master of Laws in International Commercial Arbitration Law (LL.M.), Stockholm University (2004).
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Stockholm International Arbitration Review (SIAR)
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ESTONIA HAS TAKEN
A NEW STEP IN (INTERNATIONAL)
COMMERCIAL ARBITRATION
By Pirkka-Marja Põldvere
Introduction
On 20 April 2005, Estonia adopted a new Code of Civil Procedure
(hereinafter “CCP”), which, inter alia, includes a chapter on arbitration. The
CCP entered into force on 1 January 2006 when its chapter on arbitration
replaced the Act of the Republic of Estonia on the Court of Arbitration of
the Estonian Chamber of Commerce and Industry.
In short, the new arbitration law in Estonia is based on the 1985
UNCITRAL Model Law on International Commercial Arbitration
(hereinafter “Model Law”). However, there are also certain differences.
This article gives an overview of the new arbitration law in Estonia. First,
the previous arbitration law of Estonia is briefly described. Second, the
author outlines the sources for the new arbitration provisions. Third, the
main characteristics of the new Estonian provisions of arbitration are
discussed, followed by the new law’s differences from the Model Law. The
article concludes by describing the transitional provisions of the new CCP.
Short Description of the Arbitration Law in Estonia in Effect
Before Adopting the New Code of Civil Procedure
Until the adoption of the new CCP, the regulation of (international)
commercial arbitration in Estonia was rather inadequate. The previous CCP
included only a few provisions on arbitration, namely the right to agree on
solving disputes by arbitration, as well as certain rules on the recognition of
arbitral awards.
In addition to the few provisions of the former CCP, arbitration in
Estonia was mainly conducted in accordance with the Act of the Republic
of Estonia on the Court of Arbitration of the Estonian Chamber of
Commerce and Industry (in force as of 31 August 1991, amended on 10
February 1999; hereinafter “AECA”). The AECA regulated only
Volume 2005:2
TABLE OF CONTENTS
EDITORIAL
By Sigvard Jarvin, General Editor
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 115
III. Decision by the Svea Court of Appeal Rendered on
15 June 2005 132
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 209
Judgment of the French Cour de Cassation First Civil
Chamber rendered on 1 February 2005 in case
No. 01–13.742/02–15.237 217
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