CHINA: NEW CIETAC RULES GIVE TRIBUNAL POWER
TO DETERMINE INTERIM MEASURES
By Sammy Fang and
Moore Lu, Beijing
After more than two years of review, the revised CIETAC Arbitration Rules (New Rules) were approved by the China Council for the Promotion of International Trade/China Chamber of International Commerce on 3 February 2012 and will come into effect on 1 May 2012.
The most significant change found in the New Rules is that for the first time the arbitral tribunal will have the power to determine interim measures in a CIETAC arbitration.
BRAZIL OR UK? GOVERNING LAW OF AN ARBITRATION AGREEMENT IS THE SAME AS THE LAW OF THE SEAT
By James Carter, London
In Sulamerica CIA Nacional De Seguros SA and ors (Sulamerica) v Enesa Engenheria SA (Enesa) it was held that the arbitration clause in a construction all risks insurance policy, which provided for the seat of the arbitration to be London, was governed by English law.
This was despite the fact that the contract contained an exclusive jurisdiction and governing law clause in favour of Brazil.
This decision confirms the modern trend that the law of arbitration agreements coincides with the curial law of the arbitration (generally the law of the seat) rather than with the law of the underlying contract, even though this might be considered to frustrate the apparent intentions of the parties in relation to their choice of law and jurisdiction in the contract to which the dispute relates.
REPUBLIC OF ARGENTINA V. BG GROUP:
“ARBITRABILITY” AS A THREAT TO THE FINALITY
OF INTERNATIONAL ARBITRATION AWARDS
By Gustavo Lamelas, Miami
The United States Court of Appeals for the Washington, DC Circuit has issued an opinion, in Republic of Argentina v. BG Group PLC, calling into question the ability of an international arbitral panel to determine the scope of its jurisdiction. In so ruling, the court has highlighted the difficulty in distinguishing between matters that are to be resolved by arbitrators and those that are for courts to determine.
In the opinion, a US$185 million award obtained by BG Group PLC against Argentina was vacated on the grounds that the arbitral panel failed to comply with certain pre-arbitration conditions set out in the bilateral investment treaty pursuant to which the arbitration was conducted. In particular, in its opinion, the DC Circuit enforced a requirement that at least 18 months of litigation in Argentina’s courts should be conducted prior to the initiation of arbitral proceedings.
This is significant because the finality and enforceability of the resulting award are fundamental considerations for any party invoking an arbitration agreement.
FIGUEIREDO V. REPUBLIC OF PERU:
US FEDERAL COURT EMPLOYS FORUM NON-CONVENIENS TO DISMISS PETITION TO CONFIRM FOREIGN ARBITRAL AWARD
By J.P. Duffy, Rana Bahri and David Wenger, New York
In Figueiredo Ferraz e Engenharia de Projeto Ltda. v. Republic of Peru, the United States Court of Appeals for the Second Circuit recently relied on the forum non conveniens doctrine to dismiss an action to confirm a foreign arbitral award under the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the 1975 Inter-American Convention on International Commercial Arbitration.
The Figueiredo decision is significant not only because it relied on forum non conveniens to dismiss a petition to confirm a foreign arbitral award, but also because the basis for the court’s forum non conveniens dismissal was in an internal Peruvian law that prohibits Peru from paying more than 3 percent of its budget.
NEWS FROM THE ARBITRATION INSTITUTIONS
ICC opens office in New York
The International Court of Arbitration of the International Chamber of Commerce (ICC) has announced it will open an office of the ICC’s secretariat in New York. The aim of the new office in New York City is to increase the ICC’s presence in North America and to make the services of the court’s Secretariat directly available to parties, their counsel and arbitrators in that region. Find out more here.
Possible revisions to HKIAC Administered Arbitration rules
The Hong Kong International Arbitration Centre (HKIAC) is considering whether its Administered Arbitration Rules (effective 1 September 2008) should be revised. A series of consultations will be held before a decision is taken. More information
Venezuela submits a notice of denunciation under Article 71 of the ICSID Convention
On 24 January 2012, the World Bank received a written notice of denunciation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) from the República Bolivariana de Venezuela. In accordance with Article 71 of the ICSID Convention, the denunciation will take effect six months after the receipt of Venezuela’s notice, i.e., on 25 July 2012. See the ICSID news release.
The Panel of Recognised International Market Experts in Finance (P.R.I.M.E. Finance) launched its dispute resolution and arbitration services at a conference at the Peace Palace in The Hague on 16 January 2012. P.R.I.M.E. Finance aims to facilitate dispute resolution in the global financial markets by offering arbitration, expert opinion and training to resolve some of the markets’ most complex legal cases. More information about P.R.I.M.E. Finance is here.
ICSID: revised schedule of fees effective 1 January 2012
ICSID has revised its Schedule of Fees with effect from 1 January 2012. The Centre’s administrative fee has been adjusted to US$32,000 for all new and pending cases. The Centre has also eliminated the fee it currently charges parties for its legal staff to attend hearings held away from the seat of the Centre. This fee, which is currently US$1,500 per day of hearing and travel, will now be covered by the administrative fee. In addition, the costs of hearing rooms will now be covered by the administrative fee when the proceedings are held in World Bank Group facilities. Find out more here.
Eighth Annual Leading Arbitrators’ Symposium on the Conduct of International Arbitration
The Eighth Annual Leading Arbitrators’ Symposium on the Conduct of International Arbitration will take place on 2 April 2012 in Vienna. Leading international arbitrators and practitioners will discuss topics of importance to counsel, arbitrators and business persons who are involved in the resolution of international commercial disputes through arbitration. More information is here.
The United States and its place in the international arbitration system for the 21st century
This two day conference on the future direction of international arbitration in the United States will be held on 15 – 17 April 2012 in Atlanta, Georgia. More information is here.
CIArb European Branch Annual General Meeting & Conference
The European Branch of the CIArb will hold its 2012 Annual General Meeting and Conference in Madrid on 19-21 April 2012. This year the conference will look at the changes in arbitration and mediation that are currently taking place across Europe and will address what happens when an arbitration institution refuses to be cooperative.
More information is here.