Stockholm International Arbitration Review (SIAR) 2009-1 - 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.
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
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Stockholm International Arbitration Review (SIAR)
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One hears and reads quite frequently these days that international arbitration has lost its way, or even its soul; that cases take too long, are too expensive, not efficient enough in multi-party/multi-contract cases, etc.
A variety of “fixes” are proposed: give the arbitrators more power to move the cases forward, even against the wishes of the parties; provide for summary judgements; give arbitral institutions or arbitrators or parties the authority to force consolidation of related cases or joinder of parties into pending cases so as to bring arbitration closer to the “efficiency” of national courts; allow cross-claims between or among multiple parties; create ex parte procedures for interim or conservatory measures before an arbitral tribunal is constituted, etc.
Certainly, international arbitration is not a perfect system and improvements can and must be made, but the best must not become the enemy of the good. Making arbitration faster and less expensive than national courts but just as “efficient”, whatever it takes, runs the risk of destroying the true essence of arbitration, namely the consent of the parties to arbitrate and their having significant control over the process.
STOCKHOLM INTERNATIONAL
ARBITRATION REVIEW
Volume 2009:1
TABLE OF CONTENTS
EDITORIAL
Stephen R. Bond, General Editor ix
ARTICLES
The Future of Manifest Disregard 1
Christopher R. Drahozal
The SNF v. International Chamber of Commerce Case and the
Obligation to Conduct Arbitration Proceedings
with “Expected Dispatch” 13
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 43
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 63
ARBITRAL AWARDS
Final Arbitral Award Rendered in December 2007 in
SCC Case No. 30/2003 89
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 129
Separate Award Rendered in December 2008 in
SCC Case No. 33/2007 135
Subject Matter:
Applicable law.
Observations by Therese Isaksson and Natalie Holm 143
Observations by Niklas Åstenius and Lisa Björk 147
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” 157
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. 169
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.” 177
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 187
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 195
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” 219
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 235
Supreme Court (Hoge Raad), The Netherlands Decision on
5 December 2008 in Case No. C07/166HR
(LJN: BF3799; NJ 2009, 6) 247
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 251
NOTES & INFORMATION
SCC Strengthens Its Arbitration Rules: By Making Interim
Measures Available When Needed 265
Recent Amendments to Ukraine’s Arbitration Law 269
Markiyan Kliuchkovskyi and Olga Glukhovska
BOOK REVIEW - Handbook of ICC Arbitration, 275
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) 279
Marie Öhrström
Reviewed by Claes Zettermarck