Stockholm International Arbitration Review (SIAR) 2007-1 - 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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"Ms. Polina Permyakova (Stockholm) introduces this issue with an article reviewing the present case law in which an arbitral tribunal denies jurisdiction. As she points out, great uncertainty exists with regard to the consequences under national laws of an arbitrator’s negative decision on jurisdiction. Most national laws remain silent on the question of what is to happen if the tribunal decides that it has no jurisdiction.
Mr. Manuel Arroyo (Zürich) follows with an article describing the new Swiss approach with regard to lis pendens in international arbitration. This article includes comments on the Buenaventura and Fomento cases, decided by the Swiss Federal Court...."
STOCKHOLM INTERNATIONAL ARBITRATION REVIEW Volume 2007:1
TABLE OF CONTENTS
Sigvard Jarvin, General Editor
Denial of Jurisdiction: Form, Consequences and Review Under the Model Law, National Arbitration Laws and Case Law
Lis Pendens in International Arbitration – The Newly Adopted Swiss Approach
Investment Treaty Arbitration: Mapping the Non-ICSID Universe
Luke Eric Peterson
COURT DECISIONS ON ARBITRATION
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)
(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) 3
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
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
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)
(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
Final Arbitral Award, rendered in 2006 in SCC case 7/2005 155
(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
(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 053/2005
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
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