ITA Monthly Report

Edited by:

Prof. Roger Alford, General Editor, Seem Maleh, Associate Editor, ITA Board Reporters

June 2008, Volume VI Issue 6

Contents

Treaty Ratifications

Recent Developments

• Greece
  • The Greek State Enacted Six Laws for the Ratification of Six Agreements Regarding Big Infrastructure Projects in Greece (2007)
• ITA
  • ITA Reporter for Paraguay "Diego Zavala's" New Appointment (May 2008)

Recent Cases

• Colombia
  • In Bancolombia v. Bogotá Civil Tribunal, in Response to a Constitutional Action, the Supreme Court of Justice Overturned an Award Annulment Decision (1 March 2008)
• England
  • In Sheltam v. Mirambo and Primefuels, the High Court Held that CPR Part 38, Dealing with the Discontinuance of Claims, does Apply to Arbitration Claims to the English Court under the Arbitration Act 1996 (21 April 2008)
  • In IPCO v. NNPC, the High Court Held that the Court will Review an Interlocutory Order because of Changed Circumstances where the Change in Circumstances Impinges on the Reasons for the Original Order and a Causative Link Exists between the Changed Circumstances and the New Variation Sought (17 April 2008)
  • In R & S v. Defendants, the High Court Held where an Arbitration Agreement Allows an Appeal from the Arbitrator's Award to the Courts on a Point of Law, the Parties are not Required to Ask the Permission of the Court to Appeal (15 April 2008)
  • In Tsavliris v. Grain Board of Iraq, the High Court Held that the Cargo Owners were not Entitled to Claim State Immunity from Proceedings as the Entity was Held to be a Separate Entity from the State (1 April 2008)
  • In PDV v. MPIV, the High Court Set aside a Temporary Worldwide Freezing Injunction Granted under s. 44 Arbitration Act 1996 (18 March 2008)
  • In Braes v. McAlpine, the High Court Held where Parties have Expressly Agreed on the Curial Law Governing an Arbitration, a Reference to the 'Seat' of the Arbitration which is Different from the Curial Law will be Taken to be a Reference Simply to the Place at which the Hearings should Take Place (13 March 2008)
  • In MWP v. John Emmott, the Court of Appeal Held where Cases were being Advanced in Various Proceedings in Both English and Foreign Courts, it was in the Interests of Justice to Disclose to the Defendants in the Foreign Proceedings the Pleadings Submitted in a London Arbitration (12 March 2008)
• ICSID
  • In Rompetrol Group v. Romania, ICSID Tribunal Finds it has Jurisdiction to Decide a Dispute Submitted to it Pursuant to the Netherlands-Romania BIT, and Joins Romania's Admissibility Objection to the Merits (10 April 2008)
  • In Azurix Corp. v. Argentina, the ICSID ad hoc Committee Finds a Stay of Enforcement should Continue in Force Pending its Decision on Argentina's Application for Annulment (28 December 2007)
• Netherlands
  • In Tholen v. Valk Architecten , the District Court Held that Procedural Efficiency does not Overrule a Valid Arbitration Clause (7 December 2007)
  • In De Jong & Breunis v. the Netherlands, the District Court Held that the Court has the Power to Order Interim Relief where there is an Immediate Need and no Technical Knowledge is Required and that the Court does not have the Mentioned Power when a Claim is not Urgent (16 October 2007)
• Portugal
  • In X v. Y, the Appeal Court Stated that Article 494 of the Civil Procedure Code may Only be Inapplicable when the Arbitration Agreement is Clearly Null and Void (5 June 2007)
  • In A v. B, the Supreme Court Held that the Failure to Provide Critical Analysis of the Reasons upon which the Arbitral Award was based is not Deemed Sufficient to Set aside an Arbitral Award (15 May 2007)
• U.S.A
  • In Hall Street v. Mattel, the Supreme Court Ruled that the Federal Arbitration Act Contains the Exclusive Grounds for Promptly Vacating or Modifying an Arbitral Award, Rejecting Petitioner's Argument that Parties may Contractually Agree to Expanded Grounds of Review (25 March 2008)
  • In Wartsila v. Duke Capital & Duke Energy Int., the Fifth Circuit Court of Appeals Held that where an Award Ordered Immediate Payment by a Losing Party in an Arbitration, the District Court was Correct to Confirm the Award without a Stay Despite the Pendency of Other Related Arbitration Claims (20 February 2008)
  • In AGK v. Zink & Treist Int., the District Court Held that Plaintiff must Establish the Subsidiary's Liability in Arbitration before Filing any Claims that Purport to Pierce the Subsidiary's Corporate Veil (18 March 2008)
  • In Steel Corp. v. Int. Steel, the U.S. District Court Rejected Defendant's Arguments that the Award should be Set aside under the New York Convention Because it had been Nullified by a Default Judgment Entered against Plaintiff by a Philippine Court (6 February 2008)

Upcoming Events

• 2008

  June

  • Houston: ICC - The Resolution of Disputes under Construction Contracts (2-4 June 2008)
  • Dublin: Special Arbitral Women Day (7 June 2008)
  • The ICCA Conference in Dublin (8-10 June 2008)
  • Dublin: Young Arbitration Practitioners (YAP) (11 June 2008)
  • New York: Fordham Third Annual Conference on International Arbitration and Mediation (16-17 June 2008)
  • Germany: 2008 International Commercial Law Seminar Cologne, Germany, Dispute Resolution in International Commerce and Investment (16- 27 June 2008)
  • Paris: ICC- International Commercial Arbitration - Advanced PIDA Training in Spanish (16-19 June 2008)
  • Dallas: 3rd Annual Dallas Roundtable for Young International Arbitrators (18 June 2008)
  • Dallas: 19th Annual ITA Workshop "Damages in International Arbitration: Strategies, Techniques & Presentation (19 June 2008)
  • Paris: ICC - Cross Examination in Arbitration Proceedings (23 June 2008)
  • Heideberg: 5th Summer Academy on International Dispute Resolution (23 - 28 June 2008)
  • Moscow: International Arbitration: Is Russia Different? (27 - 28 June 2008)
  • Barcelona: ICC's Young Arbitrators Forum (27-29 June 2008)
  • Singapore: Arbitration in India and Singapore - Sharing Perspectives (27 June 2008) New

  July

  • Hong Kong: HKIAC Conference - Investor- State Arbitration: Lessons for Asia (12 July 2008)

  August

  • Cologne: 6th Cologne Summer Academy on International Commercial Arbitration - (from 31 August 2008 until 4 September 2008)

  September

  • Dundee: Introduction to Commercial Arbitration (1-5 September 2008)
  • Singapore: ICC - SIAC Conference (2 September 2008)
  • Oxford, U.K.: Diploma Course in International Commercial Arbitration (6- 14 September 2008)
  • The Grove: LCIA Young International Arbitration Group Symposium (19 September 2008)
  • Sao Paolo: 4th Annual ITA Americas Workshop (21-23 September 2008)

  October

  • New Delhi: UNCITRAL-SIAC-CIAC Conference (18-19 October 2008)
  • Buenos Aires: IBA 2008 Conference (19-24 October 2008)

  November

  • Miami: International Commercial Arbitration in Latin America - ICC Perspective (9-11 November)
• 2009
  • Zurich: ASA Swiss Arbitration Association Conference (30 January 2009)
  • Vienna: Vienna Arbitration Days (20- 21 February 2009)
  • Frankfurt: Taxation Meets Arbitration - Arbitration Clauses in Tax Treaties (7 March 2009) New

Publications

• Books

  Books to be published

  • Investment Treaty Arbitration and Public Law (Oxford Monographs in International Law (by HHA Van Harten, Oxford University Press, 20 July 2008)
  • The Rhine Chlorides Arbitration Concerning the Auditing of Accounts (Netherlands-France): Award of 2004 (Permanent Court of Arbitration Award series, Asser Press; 1 edition, 30 June 2008)
  • Chinese Investment Treaties (by Wenhua Shan and Norah Gallegher, Oxford International Arbitration, 9 December 2008)
  • A Practical Guide to International Arbitration in London (by Hilary Heilbron, Informa Maritime & Transport; New edition, March 2008)
  • The Precedent in International Arbitration (by Editors: Emmanuel Gaillard and Yas Banifatemi, Juris Publishing, June 2008)
  • The Fair and Equitable Treatment Standard in International Foreign Investment Law (Oxford Monographs in International Law) (by Ioana Tudor, Oxford University Press, USA; 1 edition, 11 June, 2008)
  • State Entities in International Arbitration (edited by: Emmanuel Gaillard, Juris Publishing, May 2008)
  • Investor-State Arbitration (by Christopher Dugan, Noah D. Rubins, Donald Wallace, and Borzu Sabahi, estimated publication date: June 2008)
  • A Guide to the LCIA Arbitration Rules (by Peter Turner and Reza Mohtashami, Oxford University Press, 10 October 2008)
  • The Fair and Equitable Treatment Standard in International Foreign Investment Law (Oxford Monographs in International Law) (by Ioana Tudor, Oxford University Press, 11 June 2008)

  Books recently published

  • Principles of International Investment Law (by Rudolf Dolzer and Christoph Schreuer, Oxford University Press, 28 May 2008)
  • Investor-State Dispute Settlement and Impact on Investment Rulemaking (Unctad Series on International Investment Policies for Development) (by United Nations Conference on Trade & Development (Author), Roberto Echandi (Author) (United Nations Pubns, 28 February 2008)
  • Arbitration Law Reports and Review 2002 (by Stewart Shackleton. Oxford University Press, 28 April 2008)
  • Western and Chinese Arbitration: The Arbitral Chain (by Arthur Gemmell, University Press of America, 28 April 2008)
• Articles
  • 5th Cir. Applies NY Convention to Avert Collateral Attack (by the American Arbitration Association, Dispute Resolution Journal, February-April 2008)
  • The International arbitrator's Point of View (by Laurence Shore, Practicing Law Institute, March 2008)
  • Indirect Claims under the ICSID Convention (by Gabriel Bottini, University of Pennsylvania Journal of International Law, Spring 2008)
  • Meeting Expectations: Assessing the Long-Term Legitimacy and Stability of International Investment Law (by Christopher Ryan, University of Pennsylvania Journal of International Law, Spring 2008)

Treaty Ratifications

There were no other new parties acceding to the major arbitration conventions in May 2008.

Recent Developments

Greece contribution by Georgios Petrochilos, at Freshfields Bruckhaus Deringer & Ioannis Vassardanis, at Alexander Vassardanis & Partners

The Greek State Enacted Six Laws for the Ratification of Six Agreements Regarding Big Infrastructure Projects in Greece (2007) - In 2007, the Greek State enacted six Laws for the ratification of six Agreements regarding big infrastructure projects in Greece, namely:

Law 3535 of the year 2007 / Government Official Gazette A-41/23.02.2007 Concession Agreement for the Design, Construction, Financing, Operation, Maintenance and Exploitation of Thessaloniki Underwater Tunnel

Law 3555 of the year 2007 / Government Official Gazette A-81/16.04.2007 Concession Agreement for the Design, Construction, Financing, Operation, Maintenance and Exploitation of "Ionia Odos" Motorway Project from Antirrio to Ioannina

Law 3559 of the year 2007 / Government Official Gazette A-102/14.05.2007 Concession Agreement for the Design, Construction, Financing, Operation, Maintenance and Exploitation of Korinthos-Tripoli-Kalamata Motorway Project and the section Lefktro-Sparti

Law 3597 of the year 2007 / Government Official Gazette A-168/25.07.2007 Concession Agreement for the Design, Construction, Financing, Operation, Maintenance and Exploitation of Central Greece Motorway Project (?65)

Law 3605 of the year 2007 / Government Official Gazette A-190/08.08.2007 Concession Agreement for the Design, Construction, Financing, Operation, Maintenance and Exploitation of the Maliakos-Kleidi section of Patra-Athens-Thessaloniki-Euzoni Motorway

Law 3621 of the year 2007 / Government Official Gazette A-279/20.12.2007 Concession Agreement for the Design, Construction, Financing, Operation, Maintenance and Exploitation of Elefsina-Korinthos-Patra-Pyrgos-Tsakona Motorway Project.

These Agreements/Laws are almost identical and provide that any dispute arising after the commencement date of the Concession shall be settled according to the agreed dispute resolution mechanisms, which exclude any other jurisdiction. In fact, no differences can be noticed in the very essence of the dispute resolution provisions of the Agreements/Laws. However, it is worth noting that these Agreements/Laws make reference to the actual nature of the dispute so as to define what procedure should be followed, instead of adopting multi-tiered dispute resolution clauses for all disputes. Therefore, on the one hand, any arising technical dispute shall entail a technical dispute resolution procedure conducted by a three-member Adjudication Panel for Technical Disputes and on the other hand, a settlement by arbitration will take place for any dispute that will not be considered as a "technical dispute".

More specifically, three experts that constitute a three-member Adjudication Panel for Technical Disputes, the Findings of which are binding to the parties, conduct a Technical Disputes Resolution procedure. It should be stressed that the findings are also subject to arbitration but merely on three grounds: allocation of liability, allocation of costs and financial consequences. This is the case when one of the parties decides to "appeal" within a (30) thirty-day time limit from the day the findings were rendered. Recourse to arbitration is also provided when it is held that the Panel does not have jurisdiction on the matter. In such a case, the Panel notifies the parties to refer the case to arbitration within a time limit of seven (7) days. The arbitral awards in all cases are final and binding. Finally, the experts cannot be appointed as Arbitrators.

Regarding the arbitration procedure, this is governed by the Rules of Arbitration of the International Chamber of Commerce subject to any variations, however scarce, agreed under the articles of the abovementioned laws; the latter in fact prevails over the Rules of Arbitration of the International Chamber of Commerce. In particular, Article 33.3 of these Agreements/Laws (Article 44.3 in Law 3605 of the year 2007) outlines the arbitration procedure in detail. In a few words, Athens is the place of arbitration and the arbitration proceedings shall be conducted in the Greek Language. At this point, there is a slight difference in Law 3535 of the year 2007 for the Concession Agreement of the Thessaloniki Underwater Tunnel where the place for the Resolution of Technical Disputes and Arbitration is set to be Thessaloniki, as it is apparently more appropriate for the particular project. Three a rbitrators constitute the arbitral tribunal, a request and an answer are required and terms of reference are drawn up. The award is then rendered but not later than four (4) months from the date of signature of the terms of reference on behalf of the arbitral tribunal and the parties.

It is evident that here we have a slight variation regarding the time limit within which the award must be rendered, which is shorter in these six Agreements/Laws. Nevertheless, it is also provided that the arbitral tribunal can actually extend this time limit following a request by any of the parties or on its own initiative.

A major difference between the provisions of these Agreements/Laws and the Rules of Arbitration of the ICC can be noticed in Article 33.3.9 (Article 44.3.9 in Law 3605 of the year 2007), where it is stated that Article 27 of the Rules of Arbitration of the ICC does not apply since the arbitral award is final and binding, cannot be subject to appeal and constitutes an enforceable instrument without need for any recognition by the Courts.

Finally, it should be highlighted that the aforementioned Laws also make explicit provisions for a dispute among the State, the Concessionaire and the Lenders. In such a case the Lenders have the right to refer to these procedures as well, as if they were parties of the agreement. When, in fact, the interests of the Concessionaire and Lenders are in contradiction, and then five arbitrators shall compose the arbitral tribunal, instead of three. The three arbitrators shall be appointed by each of the parties, whereas these three arbitrators shall agree as to the fourth and the fifth, one of which shall be the Chairman. In case of disagreement on the fourth and the fifth arbitrators these shall be appointed by the International Court of Arbitration of the International Chamber of Commerce after a relevant request by any of the parties.

At this point it should be mentioned that these six legal documents do not constitute a new attempt to resort to arbitration for the resolution of arising disputes in big infrastructure projects in Greece. In fact, in two former agreements regarding major construction projects there are also such dispute resolution provisions. These are the Airport Development Agreement (Athens Spata Airport) as ratified by Law 2338 of the year 1995 and the Concession Agreement- (3) three-member Agreement for the project of Design, Construction, Financing and Exploitation of the Rio-Antirio Bridge as ratified by Law 2395 of the year 1996. In both of these Agreements however, arbitration was part of a multi-tiered dispute resolution procedure, as the last resort after two other alternative dispute resolution mechanisms. The arbitral award was the third and final stage for the resolution of arising disputes, thus highlighting the important role of arbitration. In the six aforementioned Agreements/Laws however, there is a bolder attempt to directly refer to arbitration for any dispute that is not a technical dispute. It could be alleged that here we have an attempt to exclude clauses that could lead to the problematic and more complicated solutions of multi-tiered dispute resolution procedures where, in practice, former-to-arbitration steps are usually disregarded and a number of interpretive and jurisdictional issues are often raised.

To sum up, it cannot be denied that these six legal documents constitute an important development for arbitration in Greece in the sense that all the above-mentioned Concession Agreements/Laws provide that a great number of disputes arising between the Contracting Parties shall be settled by arbitration. In effect, this is obvious if we take into consideration the significance of the projects as well as the binding and final character of the Awards. Therefore an undeniable willingness to trust the Dispute Resolution Services of the ICC is demonstrated while there is also an attempt to avoid to the most possible extent any problems that could arise due to multi-tiered dispute resolution procedures.

ITA Reporter for Paraguay "Diego Zavala's" New Appointment (May 2008) - Diego Zavala was recently appointed as the Executive Director to the Board of Directors of the "Centro de Arbitraje y Mediacion" of the National Chamber of Commerce and Services of Paraguay ("Camara Nacional de Comercio y Servicios de Paraguay).

Recent Cases

Colombia contribution by Eduardo Zuleta Jaramillo, at Zuleta & Partners Legal Group

In Bancolombia v. Bogotá Civil Tribunal, in Response to a Constitutional Action, the Supreme Court of Justice Overturned an Award Annulment Decision (1 March 2008) - The Colombian Supreme Court of Justice overturned a ruling by the Bogotá Civil Tribunal, which set aside an arbitration award in the Gilinsky vs. Bancolombia case. The decision of the Supreme Court resulted from an action for protection of constitutional rights (acción de tutela) filed by Bancolombia against the Civil Tribunal's ruling.

The dispute between Bancolombia and the Gilinsky family arose from the merger of two Colombian banks during 1998 and 1999. The Gilinsky family filed several civil and criminal actions before the Colombian courts. However, many of the claims were to be submitted to arbitration. Accordingly, different domestic arbitration tribunals were established to decide upon several claims and counterclaims filed by both parties.

One of the arbitration tribunals decided against the Gilinsky Family and awarded Bancolombia damages for approximately US$30 million. Subsequently, the Gilinskys filed an action to set aside the award before the Bogotá Civil Tribunal. They argued, among others, that the Tribunal lacked jurisdiction to decide upon certain matters that, according to the contract, were to be solved by an independent technical expert and not by an arbitral tribunal. The Civil Tribunal found that the arbitrators had no jurisdiction to decide on certain specific matters according to the arbitration agreement signed by both parties. Consequently, the arbitration award was annulled by the Tribunal.

The Tribunal considered that even though the law did not expressly provide for "lack of jurisdiction" as a ground for annulment, it did provide for undue constitution of the arbitral tribunal. If further indicated that since, according to the contract, certain issues were to be decided by a technical expert and not by an arbitration tribunal, the latter was not properly constituted and therefore, the award had to be annulled.

Bancolombia filed a writ of protection of constitutional rights before the Colombian Supreme Court of Justice. Bancolombia argued, among others, that the right to due process was infringed by the Civil Tribunal, since it annulled the award on grounds to set aside not provided for in Colombian law.

The Colombian Supreme Court of Justice, following prior decisions of the Constitutional Court, decided to concede the writ of protection and overturned the Civil Tribunal's ruling to set aside the award. The Supreme Court found that Colombian legislation included a list of exhaustive grounds to set aside an arbitration award, not subject to an extensive interpretation and added that no Tribunal or Court is entitled to annul an award on grounds other than the ones expressly provided for in the law. Moreover, a court cannot make an extensive interpretation of such grounds so as to cover particular circumstances that are not expressly included in the law.

Based on the fact that "lack of jurisdiction" of the Arbitral Tribunal is not a ground to set aside the award, the Supreme Court considered that the Civil Tribunal disregarded Colombian legislation and violated Bancolombia's right of due process. The ruling overturned the annulment of the award and allowed Bancolombia to seek a final decision on this matter by filing a revision recourse (Recurso de Revisión) before the Supreme Court.

The ruling constitutes a new chapter regarding the effects of constitutional actions within arbitration procedures. The case would not be finally settled after the revision recourse is resolved by the Colombian Supreme Court. Parties: Bancolombia v. Bogotá Civil Tribunal, case no: 2008-00384-00, Supreme Court of Justice, Colombia.

England contribution by John Beechey, at Clifford Chance

In Sheltam v. Mirambo and Primefuels , the High Court Held that CPR Part 38, Dealing with the Discontinuance of Claims, does Apply to Arbitration Claims to the English Court under the Arbitration Act 1996 (21 April 2008) - The Claimant ("Sheltam") and Defendants ("Mirambo and Primefuels") were parties to a consortium agreement pursuant to which it was agreed to bid for concessions to operate railways in Kenya and Uganda. The consortium was successful in winning the concessions. Sheltam subsequently purported to exclude Mirambo and Primefuels from the consortium. This was resisted by Mirambo and Primefuels and the dispute, in accordance with the terms of the consortium agreement, was referred to LCIA arbitration in London. The arbitral award found that Sheltam had acted in breach of its contractual obligations in excluding Mirambo and Primefuels from participating in the consortium and ordered, inter alia, that Sheltam should include the defendants in a revised, contractually compliant, shareholders' agreement. Sheltam issued an arbitration claim in the English Commercial Court challenging the award under: (i) s.67 Arbitration Act 1996 (the "Act") on the grounds that the tribunal lacked jurisdiction to grant the relief set out in the award; and (ii) under s.68(2) of the Act on the basis that the tribunal was acting ultra vires and that such a serious irregularity would cause substantial injustice to Sheltam.

Shortly before those applications were due to be heard, Sheltam issued a notice of discontinuance of its arbitration claim claiming that it had run out of funds. Mirambo and Primefuels applied to set aside the notice of discontinuance arguing that where a party had started an arbitration claim in order to challenge an award under s.67 of the Act, such party should not be permitted to subvert the supervisory jurisdiction of the English court, at the last moment, by issuing a notice of discontinuance. Mirambo and Primefuels argued that to do so would enable the relevant party to keep open the option of subsequently using the same jurisdictional objections to delay or resist enforcement in another New York Convention state.

CPR Part 38 deals with the discontinuance of claims and sets out the procedure for discontinuing a claim. CPR 38.4 deals with applications to set aside a notice of discontinuance. In its discussion of the CPR provisions, the court found that there was nothing in CPR Part 38 to prevent the rules relating to discontinuance from applying to an arbitration claim. Nor did CPR Part 62, relating to arbitration claims, stipulate that CPR Part 38 did not apply to such claims. Thus, the court held that Part 38 did apply to arbitration claims. A claimant bringing an arbitration claim was thus entitled to discontinue his/her claim without the leave of the court, unless one of the circumstances set out in CPR 38.2 was deemed to apply. Equally, a defendant to an arbitral claim was entitled to apply to set aside a notice of discontinuance of such a claim. The court noted that it retained the power to set aside a notice of discontinuance in cases where such notice would amount to an abuse of process. Such a notice could also be set aside in other circumstances. However, even if the court concluded that a notice of discontinuance did amount to an abuse of process, it would be able to exercise its discretion whether or not to set aside the notice. Essentially, the court would be entitled to consider the circumstances in which the notice of discontinuance was issued and what the claimant was attempting to achieve by issuing and serving the notice.

In the present case, the notice of discontinuance was issued in respect of an arbitral claim in which the claimant had invoked the supervisory jurisdiction of the court over a continuing arbitration, which had its seat in England. The court wished to ensure that the validity of the tribunal's award would not be impugned by implication, i.e. by an assertion that a challenge had been made in the English court, but which was not taken to its conclusion because the claimant had no funds to continue the challenge. Mr Justice Aikens thus held that, in such circumstances, the court would have granted permission to discontinue only on the condition that Sheltam undertook to the court not to challenge recognition and enforcement of the arbitration award by the defendants using the arguments raised in its s.67 application. This would ensure that the validity of the award would not be challenged by implication, or by Sheltam keeping open the option of using the same jurisdictional objections in other New York Convention jurisdictions. As Sheltam had given such an undertaking to the court, the notice of discontinuance was thus allowed. Sheltam was obliged, of course, to pay the costs of the defendants up to and including the date of service of the notice. Sheltam Rail Company (Proprietary) Limited v. Mirambo Holdings Limited & Primefuels (Kenya) Limited, case no: 2007/1668, High Court, QBD, Commercial Court, England.

In IPCO v. NNPC , the High Court Held that the Court will Review an Interlocutory Order because of Changed Circumstances where the Change in Circumstances Impinges on the Reasons for the Original Order and a Causative Link Exists between the Changed Circumstances and the New Variation Sought (17 April 2008) - IPCO (Nigeria) Limited ("IPCO") agreed a lump sum price with Nigerian National Petroleum Company ("NNPC") to construct an oil refinery at Port Harcourt, Nigeria, under a contract governed by Nigerian law. Completion was delayed by 22 months, and the resulting arbitral tribunal in Nigeria awarded US$152 million in favour of IPCO. IPCO commenced proceedings in the Nigerian court (to review the award) and in the English court (to enforce the award). In November 2004 an English court ordered enforcement subject to review of the award by the Nigerian supervisory court. NNPC applied unsuccessfully for the English order to be set aside in April 2005. This current application was lodged by IPCO to request review of the previous English orders in light of substantial and continuing delays in the ongoing review of the award in the Nigerian Courts.

The issue for the court in this case was to consider whether justice would be served by the continuation of the previous orders considering the different circumstances that now prevailed. Both parties cited authority on the question of what the circumstances should be in order for the court to reconsider an interlocutory decision. Mr Justice Tomlinson stated that, for review of an order to occur, the change of circumstances should impinge on the reason for the original order being made, and a causative link would be required between the changed circumstances and the variation sought. The court held that the substantial delay in the proceedings before the supervisory Nigerian court was a significant relevant development that necessitated the English court reconsidering its earlier decisions, but that the need to reconsider the court's discretion should not be regarded as an opportunity to re-run the argument about the strength of the original challenge. Furthermore, the court held that the judge granting the original November 2004 decision permitting the enforcement of the award was inadvertently misled by counsel.

Mr Justice Tomlinson saw no reason to revisit the conclusions of the court which granted the enforcement order as to the strength of the challenge to the award itself. The judge did, however, revisit the quantum of the award to be enforced, as the correct facts had not been presented to the previous judge, and amended a double-counting error previously made under a head of claim in the award. This potentially gave NNPC the opportunity to challenge the quantum award but the judge declared that NNPC had no realistic prospect of reducing it. The court held that the appropriate remedy was to vary the original enforcement award relating to the head of claim that was erroneously decided, in light of facts not presented at the time of the award. The court held further that, considering the continuing delays in the Nigerian review proceedings, the money secured by a guarantee in the original enforcement order should be paid out to IPCO in partial satisfaction of the judgment. Parties: IPCO (Nigeria) Limited v. Nigerian National Petroleum Corporation, case no: 2004 Folio 1031, High Court, QBD, Commercial Court, England.

In R & S v. Defendants , the High Court Held where an Arbitration Agreement Allows an Appeal from the Arbitrator's Award to the Courts on a Point of Law, the Parties are not Required to Ask the Permission of the Court to Appeal (15 April 2008) - Royal & Sun Alliance Insurance plc ("R&S") contracted with BAE Systems Insurance (Isle of Man) Limited ("BAE Insurance") to act as one of the reinsurers of BAE Insurance, the insurer for the BAE group of companies. All of the BAE group's reinsurers entered into a Reinsurers Common Terms Agreement and a Dispute Resolution Agreement (the "DRA"), which included an arbitration agreement, with BAE Insurance. A dispute arose between the parties in relation to an application by BAE Insurance for payment by R&S of a claim, under the reinsurance contract, for a sum of $91.416 million. This dispute was referred to arbitration. The arbitrators rejected R&S's objections to the application and, in their award, held that the full sum, with interest, was payable by R&S. The question before the Court was whether R&S required leave to appeal the arbitrator's award on a point of law, or whether the requirement for leave to appeal had been waived by the parties under the DRA.

The Court began by exploring the statutory requirements for appealing an arbitrator's award on a point of law. S69(2) Arbitration Act 1996 (the "Act") provides that an appeal against an arbitrator's award on a point of law shall not be brought to Court except, "with the agreement of all parties" (s69(2)(a)), or with "the leave of the court" (s69(2)(b)). Article 26 of the LCIA Rules, the procedural rules set out in the DRA as governing any dispute between the parties, states that "the parties waive irrevocably their right to any form of appeal insofar as such waiver may be validly made". The DRA incorporated the LCIA Rules, subject to certain provisions, which included the express statement that "any party to the Dispute may appeal to the court on a question of law arising out of an award made in the arbitral proceedings".

All parties agreed that the matter before the Court was one of construction of the above provisions, i.e. to decide whether the provisions of the DRA permitting an appeal would prevail over the LCIA provision waiving the right of appeal. Mr Justice Walker first looked to the ordinary meaning of s.69(2)(a) of the Act and decided that it was clear that there was no need for leave to appeal to be sought from the courts if all parties to the arbitration agreement had agreed that an appeal on a point of law could be brought. He rejected the arguments advanced by BAE Insurance. The words in the DRA were to be given their ordinary meaning. The ordinary meaning of the relevant clause of the DRA was that the parties to the arbitration agreement had expressly agreed that an appeal on a point of law could be made to the Courts, and that this provision prevailed over the LCIA provision waiving the right of appeal. It was not necessary for there to be a specific agreement to dispense, in terms, with the requirement of leave. The Court thus concluded that leave to appeal the award on a point of law was not required. Parties: Royal & Sun Alliance Insurance v. BAE Systems, Systems 2001 Asset Trust Funding Ltd & BAE Systems Insurance (Isle of Man) Ltd, case no: 2007 Folio 1374, High Court, QBD, Commercial Court, England.

In Tsavliris v. Grain Board of Iraq , the High Court Held that the Cargo Owners were not Entitled to Claim State Immunity from Proceedings as the Entity was Held to be a Separate Entity from the State (1 April 2008) - Tsavliris Salvage Limited ("Tsavliris") was contracted by the vessel's owners on the Lloyd's Open Form of Salvage Agreement to salvage a ship carrying wheat to Iraq. At the time of salvage, the wheat had been sold by the cargo owners to the Grain Board of Iraq ("GBI"). After the salvage services had been concluded, Tsavliris required payment of the salvage costs and approached the cargo owners for their contribution. Tsavliris attempted to contact GBI, and then to arrest the cargo, both unsuccessfully. Tsavliris then commenced arbitration against GBI pursuant to the provisions of an arbitration agreement contained within the salvage agreement between Tsavliris and the ship-owners, who were acting as agents for GBI at the time of salvage. The arbitrator held that since the cargo was the property of GBI (and not of the Republic of Iraq), GBI was liable for the cargo's proportion of the salvage costs. The Ministry of Trade of the Republic of Iraq ("MOT") and GBI applied to the court challenging the award on the following grounds: (i) that the arbitrator had no jurisdiction as GBI was not a party to the arbitration agreement; and (ii) that GBI was a part of MOT and thus immune from proceedings under the State Immunity Act 1978 (the "Act"). Tsavliris applied to the Court to enforce the award and for a freezing injunction against GBI.

The Court first examined whether the cargo owner was bound by the salvage agreement entered into by the ship owners. The Court noted that Article 6.2 of the International Convention on Salvage 1989, as enacted by s.224, Schedule II Merchant Shipping Act 1995 sets out that the owner of a vessel has authority to conclude a salvage agreement on behalf of the cargo owner. The salvage agreement in this case included an arbitration agreement and thus the Court held that, following the principles of agency, the cargo owner was bound by the arbitration agreement with Tsavliris. The Court then looked into whether GBI or MOT could be deemed the owners of the cargo, and agreed with the arbitrator, on the facts, that GBI was the owner. The Court made this decision by reference to the supply contract, the bill of lading and the purchase and shipping documents that were exhibited. It was thus held that GBI was a party to the arbitration agreement, and that the arbitrator did have jurisdiction.

As regards the second claim of immunity by MOT and GBI the Court examined three issues. Firstly the Court analysed whether GBI was a separate entity from MOT and consequently not a beneficiary of state immunity. The Court concluded that GBI was, in fact, a separate entity, inter alia because of its separate management structure, its financial and administrative independence, its existence as a separate legal entity and its separate identity. Second, the Court considered whether in the event that GBI was not deemed a separate entity and was connected with MOT, s9(1) of the Act would act to prevent a claim for immunity as GBI/MOT had agreed in writing to submit any dispute to arbitration. The Court concluded that s9(1) of the Act did prevent each of GBI and MOT claiming immunity because of the existence of an agreement to arbitrate. Finally, the character of the acts of GBI was examined by the Court to determine whether these had the character of State acts as required for immunity under the Act. The Court decided that the acts in question, the purchase and transport of grain, were not governmental acts but acts that any private citizen could perform. For all these reasons, the Court thus held that GBI was not entitled to challenge the award on the basis of state immunity. The Court held that each of the challenges against the arbitral award should be rejected and that Tsavliris was entitled to enforce the original arbitration award against GBI. Finally, the judge granted the freezing order that Tsavliris sought, freezing the assets of GBI because of the very real risk of GBI assets being dissipated. Parties: Tsavliris Salvage & Ministry of Trade of the Republic of Iraq v. Grain Board of Iraq, case no: 2006 - 1387 and 2007 - 919, High Court, QBD, Commercial Court, England.

In PDV v. MPIV , the High Court Set aside a Temporary Worldwide Freezing Injunction Granted under s. 44 Arbitration Act 1996 (18 March 2008) - Petroleos De Venezuela SA ("PDV") is the national oil company of Venezuela. PDV's subsidiary, PDVSA Cerro Negro ("CN") entered into an Association Agreement (the "Agreement") for the exploitation of certain oil resources from Venezuela with, inter alia, a subsidiary of the Exxon Mobil Group, Mobil Produccion e Industrializacion, Inc. ("MPIV"). MPIV assigned its rights under the Agreement to another Exxon Mobil Group subsidiary based in the Bahamas, Mobil Cerro Negro ("Mobil"). Following Venezuelan expropriation of its oil interests, Mobil (i) commenced an ICSID arbitration against the state of Venezuela, (ii) claimed that the expropriation of its assets entitled it to compensation from CN under the Agreement and that it intended to commence an ICC arbitration in New York against CN pursuant to the Agreement; and (iii) issued PDV with a demand pursuant to a guarantee (the "Guarantee") under which PDV guaranteed the performance of the obligations of CN under the Agreement. The Guarantee also provided for ICC arbitration in New York. Mobil sought a freezing order from the court in respect of claim (iii). At the time the order was sought, Mobil had not commenced any ICC arbitral proceedings but informed the court that it intended to do so. A "without notice" temporary freezing order in the sum of US$12 billion was subsequently obtained from the English courts, freezing PDV's assets worldwide. The defendant, PDV, applied to set aside this order.

The power of the courts to grant freezing orders in relation to arbitral proceedings is subject to the restrictions imposed by s.44 Arbitration Act 1996 and s.37 Supreme Court Act 1981 ("Supreme Court Act"). A good arguable case of unjustifiable conduct on the part of the defendant in relation to its assets (s.36 Supreme Court Act) must be demonstrated in order for the court to find that it is "just and convenient" under s.37 Supreme Court Act to grant the order. Under s.44(3) of the Arbitration Act, if the case is one of urgency, the court may, on application, make an order to preserve the assets in question. The first restriction on this discretion, under s.44(4) of the Act, is that if the case is not one of urgency, the court shall act only subsequent to an application of a party made with the permission of the tribunal or pursuant to an agreement in writing of the other parties. The second limit on this discretion is that, in any case, under s.44(5) of the Act, the court shall act only if or to the extent that the arbitrators have no power or are unable for the time being to act effectively. S.2 of the Arbitration Act sets out the scope of application of the Act's provisions. S.2(3) of the Act specifically deals with the powers of the court exercisable in support of arbitral proceedings under s.44 and states that a court may refuse to exercise its powers under s.44 if the seat of the relevant arbitral proceedings is outside England and Wales and it is thus deemed inappropriate to do so. S.2(4) of the Act, which does not cover proceedings outside England and Wales, permits the court to exercise its powers to support the arbitral process where it is appropriate to do so by reason of a connection with England and Wales.

In the present case the court held that:

i) Mobil had failed at the first hurdle (s.37 Supreme Court Act) because it was not able to show a good arguable case that PDV's conduct in relation to its assets was unjustified. Since the bulk of PDV's assets were in Venezuela, Mr Justice Walker held that an ICC award under the guarantee could be enforced in Venezuela as the State is a party to the New York Convention. The courts there would also be able to grant relief similar to a freezing order and consequently Mobil was unable to show that it was "just and convenient" to grant the order.

ii) Mobil had also failed at the second hurdle (s44(3) of the Act) because it was not able to show that the case was urgent. Mobil was unable to show a real risk of dissipation of assets by CN, something which might make the case urgent. Mr Justice Walker went on to state that freezing orders are not granted in order to provide security for a claim and that doubt as to creditworthiness will not justify the issuing of a freezing order. The court held that the only justification for issuing such an order is: (a) the existence of a real risk of 'dissipation of assets', which focuses on whether a course of conduct in relation to assets, actual or feared, is conduct which lends weight to the conclusion that the grant of a freezing order is 'just and convenient'; and (b) that there exists a risk of impairing the claimant's ability to enforce a judgment or award. The court could not infer such risks from Mobil's submissions.

iii) To surmount the first hurdle, in the absence of an exceptional feature such as fraud, Mobil would have had to demonstrate a link with the jurisdiction of the English Courts in the form of substantial assets of PDV being located in England. Mobil was unable to demonstrate such a link.

iv) Consequently, in the absence of an exceptional feature such as fraud, and in the absence of any substantial assets of PDV being located in England, the fact that the seat of the arbitration was not in England led the court to deem that it was inappropriate to grant a freezing order under s.2(3) of the Act.

The court concluded that, although there is no statutory bar on the grant of orders under s44(3) of the Act, in the absence of a sufficiently strong link with England, the decision must be left to the court, which is to exercise its discretion cautiously. Such discretion should only be exercised when there are exceptional factors, such as fraud. In the absence of any such exceptional feature and in the absence of a connection to the jurisdiction, the fact that the seat of arbitration was not in England and Wales rendered it inappropriate for the court to grant the freezing order requested by the claimant. Parties: Mobil Cerro Negro Limited v. Petroleos De Venezuela S.A., case no: 2008 Folio 61, High Court, QBD, Commercial Court, England.

In Braes v. McAlpine , the High Court Held where Parties have Expressly Agreed on the Curial Law Governing an Arbitration, a Reference to the 'Seat' of the Arbitration which is Different from the Curial Law will be Taken to be a Reference Simply to the Place at which the Hearings should Take Place (13 March 2008) - Braes of Doune Farm (Scotland) Limited ("Braes") contracted with Alfred McAlpine Business Services Limited ("McAlpine") to provide construction services in connection with the installation of 36 wind turbine generators in Scotland. A dispute arose which was referred to arbitration in accordance with the dispute resolution provisions set out in the EPC Contract which governed the relationship between the parties. The sole arbitrator issued an award relating to the enforceability of the liquidated damages provisions contained in the EPC Contract. Braes sought leave from the Court to appeal against the award on a point of law, whilst McAlpine countered by seeking a declaration that the Court had no jurisdiction to entertain the application for leave.

The Court looked first to the jurisdiction issue. The EPC Contract stated expressly that its governing law was English law and that the arbitration agreement was "subject to English Law", whilst the "seat" of the arbitration was named as Glasgow. McAlpine cited s2(1) Arbitration Act 1996 (the "Act") to support its claim that the English Courts had no jurisdiction to hear an appeal. This section states that the provisions of Part 1 of the Act apply only where the "seat of arbitration is in England and Wales". Mr Justice Akenhead held that the Court did have jurisdiction to hear the application for leave, in particular because the EPC Contract expressly stated that the Courts of England and Wales have "exclusive jurisdiction," subject to arbitration, to settle disputes. In light of this provision, the Court held that the statement that the "seat" of arbitration was in Glasgow referred only to the geographical location where the hearing should take place as "the parties had expressly agreed that the curial law, or the law which governed the arbitral proceedings, was to be that of England and Wales". The Court concluded that, where the parties had agreed that the laws of one country will govern and control a given arbitration, the place where the arbitration is to be heard will not dictate what the curial law will be.

The Court then explored the application for leave to appeal, lodged under s 69(3) of the Act, which sets out the criteria under which the Court may grant leave to appeal an arbitrator's award on a question of law - including, inter alia, if the decision of the tribunal on the question is "obviously wrong". For leave to be given, the arbitrator's decision should be obviously wrong in the eyes of the judge giving leave. It is not sufficient for the judge to disagree on balance or to form a contrary view with which respectable intellects might disagree. In those circumstances the decision would be wrong, but not necessarily obviously so. Mr Justice Akenhead decided that the arbitrator's award was not obviously wrong. Although the judge stated that he might have conducted a different analysis of the legal points raised in the arbitration and might well have disagreed with parts of the arbitrator's reasoning, he ultimately considered that the arbitrator's decision was correct. Braes' application under s69(2) of the Act for leave to appeal the arbitrator's award was thus rejected. Parties: Braes of Doune Wind Farm (Scotland) Limited v. Alfred McAlpine Business Services Limited, case no: HT 08 07, High Court, QBD, Technology and Construction Court, England.

In MWP v. John Emmott , the Court of Appeal Held where Cases were being Advanced in Various Proceedings in Both English and Foreign Courts, it was in the Interests of Justice to Disclose to the Defendants in the Foreign Proceedings the Pleadings Submitted in a London Arbitration ( 12 March 2008) - Michael Wilson Partners (MWP) was a company established in the British Virgin Islands (BVI) to provide legal services in Kazakhstan. John Emmott (E) joined MWP in 2001 as a director and senior lawyer under an agreement which contained an arbitration clause providing for arbitration in England under English law. Five years thereafter, E left MWP to set up a competing business with two former MWP employees. This competing business had its registered offices in the BVI. MWP argued that the new business was part of a scheme by E to divert business away from MWP in breach of contract and in breach of trust. Fraud and conspiracy was also claimed, although these claims were later dropped. MWP commenced arbitration in London and brought court proceedings against E and others in the BVI, England, New South Wales (NSW), Jersey, the Bahamas and Colorado.

E was concerned that allegations of fraud continued to be made against him in NSW and the BVI notwithstanding the fact that they had been dropped in the London arbitration. E thus sought an order from the English courts permitting disclosure of documents from the London arbitration in the foreign proceedings on the grounds that the proceedings in London, NSW & BVI were part of the same dispute, that MWP's case in the London arbitration was materially inconsistent with that advanced in other proceedings and that the foreign courts were thus being presented with a misleading or inaccurate picture. The judge ordered limited disclosure on the basis that it was in the interests of justice to do so in order that the foreign courts would not be misled or potentially misled where the cases that were being advanced in the various proceedings were essentially raising the same or similar allegations. MWP appealed the decision despite the fact that the documents in question had, in the meantime been made available to the foreign courts, arguing that the issue was still live because there could be future disclosure of confidential documents from the arbitration.

The Court, in analysing MWP's appeal, considered the principles of privacy and confidentiality in English arbitration law and the exceptions to these principles. Lord Justices Lawrence Collins and Thomas considered the relevant English authorities extensively. The first issue the court examined was which forum should deal with the application for permission to disclose the arbitration papers to the NSW court. Lord Justice Thomas considered that, at least when the arbitration proceedings were still taking place, it should be the arbitrators and not the court. However, the court's jurisdiction on this issue had not been challenged. Lord Justice Lawrence Collins, in his analysis, held that privacy and confidentiality were implicit in the arbitration agreement, were implied by law and arose out of the nature of arbitration. He further held that the conduct of arbitration is private, although he conceded that public interest would be a legitimate exception. The court also held that there was an implied obligation on both parties to an English arbitration, arising out of the nature of arbitration itself, not to disclose or use for any other purpose any documents prepared for and used in the arbitration. Lord Justice Lawrence Collins examined the roles of privacy and confidentiality in various institutional rules such as those of the ICC, LCIA, WIPO and UNCITRAL and also in case law. He concluded that there were currently four exceptions to the implied obligation of confidentiality: a) express or implied consent b) by way of an order or leave of the court (without conferring a general discretion on the court) c) the interests of justice or (perhaps) public interest and d) that it was reasonably necessary for the establishment or protection of an arbitrating party's legal rights vis-à-vis a third party in order to find a cause of action against that third party or defend a claim or counterclaim brought by that third party. It was held that the judge in the first instance did have jurisdiction and was correct in ordering disclosure. The NSW court was looking into the same matters as the arbitrators and the underlying contentions were the same in both the court and the arbitral proceedings. The interests of justice thus required that the NSW court should have all the relevant information to allow it to reach its own view. Parties: John Forster Emmott v. Michael Wilson & Partners Ltd, case no: 2007 Folio 1521, Court of Appeal, England.

ICSID contribution by Dietmar Prager & Joanna Davidson, at Debevoise & Plimpton

In Rompetrol Group v. Romania , ICSID Tribunal Finds it has Jurisdiction to Decide a Dispute Submitted to it Pursuant to the Netherlands-Romania BIT, and Joins Romania's Admissibility Objection to the Merits (10 April 2008) - Rompetrol S.A., a Romanian state-owned oil company, was privatized in 1993. In 1998 Dinu Patriciu, a Romanian citizen, purchased a controlling stake in the company. Via a series of changes in ownership of shares from 2000 onwards, by December 2005, when the Request for Arbitration was filed, Claimant The Rompetrol Group N.V. ("TRG"), incorporated in The Netherlands, owned a majority shareholding in Rompetrol S.A. and was itself wholly owned by a Swiss company that in turn was 80 per cent owned by Dinu Patriciu. In 2000, TRG acquired a controlling stake in a privatized Romanian company which owns and operates one of Romania's largest oil refineries. The privatized company is the subject of an ongoing investigation by the General Prosecutor's Office in Romania. TRG claimed that the investigation constituted discriminatory and arbitrary treatment of the privatized company, in violation of the Netherlands-Romania BIT ("BIT"). Romania asserted that the Tribunal lacked jurisdiction, on the basis that despite meeting the 'formal requirements' of the ICSID Convention and the BIT, TRG's ownership, management, control and funding meant that it was not qualified as a foreign investor and could not invoke ICSID jurisdiction. Romania also raised other preliminary objections relating to admissibility.

The Tribunal found it had jurisdiction over the dispute, holding that the definition of national status in the BIT was decisive for the purposes of establishing jurisdiction and that TRG qualified as a foreign investor. Noting that Article 25 of the ICSID Convention grants parties significant latitude to define nationality, the Tribunal observed that such latitude must be at its greatest in the context of corporate nationality. The Tribunal refused to follow Professor Weil's dissenting opinion in the Tokios Tokelés case, which suggested that economic reality should trump formal legal structure in determining the nationality of corporate investors. The Tribunal rejected Romania's argument that there is a rule of general international law favoring "real and effective nationality". The Tribunal reasoned that the ICJ's consideration of a natural person's nationality in the context of an international claim in the Nottebohm case raised different questions to those relating to corporate nationality. Moreover, nothing in either the Barcelona Traction case or general international law bars state parties from agreeing to rely on place and law of incorporation as a sufficient criterion of nationality for the purposes of a BIT or any other treaty. Turning to the specific provisions of the BIT, the Tribunal held it was clear that Romania had specifically consented to ICSID jurisdiction over claims brought by Dutch companies, without regard to their incidents of control or source of capital.

The Tribunal also rejected a narrower version of Romania's jurisdictional objection, to the effect that TRG's Dutch nationality should not be "opposable" to Romania for the purpose of establishing the Tribunal's jurisdiction. The Tribunal questioned whether "opposability" had any role to play given TRG founded its claims on rights under a bilateral treaty and would have no nationality for the purposes of the arbitration if its Dutch nationality were non-opposable to Romania. In any case, the Tribunal held, "opposability" was irrelevant to the interpretation of the BIT. Finally, the Tribunal commented that the NAFTA tribunal's remark in the Loewen case that "it is inconceivable that sovereign nations would negotiate treaties to supplement or modify domestic law as it applies to their own residents" was "plainly wrong."

Romania's admissibility objection was premised on its characterization of TRG's claim as in substance a claim for denial of justice, which was inadmissible under the BIT so long as local remedies had not been exhausted. The Tribunal held it was unable to resolve the admissibility objection as a preliminary question, given TRG had not yet elaborated its precise claims in full in a Memorial or other opening formal pleading. The Tribunal therefore joined its decision on admissibility to the merits. The Tribunal reserved for later the allocation of costs on the preliminary phase of the arbitration. Parties: The Rompetrol Group v. The Republic of Romania, ICSID Case No. ARB/06/3

In Azurix Corp. v. Argentina, the ICSID ad hoc Committee Finds a Stay of Enforcement should Continue in Force Pending its Decision on Argentina's Application for Annulment (28 December 2007) - On July 14, 2006, an ICSID Tribunal ordered Argentina to pay Azurix, a U.S. corporation, compensation in the total amount of $165 million, together with interest. On November 13, 2006, Argentina filed a timely application for annulment of that Award, including a request for a stay of enforcement of the Award until the application for annulment was decided. The award was provisionally stayed in December 2006 pursuant to ICSID Arbitration Rule 54(2). Azurix opposed Argentina's request to the ad hoc Committee to continue to stay enforcement of the Award and sought provision of security if the stay were to be continued.

The Committee decided to stay enforcement of the Award pending its decision on the annulment application and refused to order the provision of security. The Committee acknowledged that there may be "very exceptional circumstances" where a stay should not be ordered, but no such circumstances existed in the instant case. The Committee rejected Azurix's argument that a rule or norm has emerged mandating that the provision of security is "an automatic or counterbalancing right" to a stay, reasoning that such a rule would "create a positive gloss to the enforcement regime provided for under Section 6" of the ICSID Convention. The Committee commented that "the important confidence-balancing function for state parties served by the annulment procedure" would be compromised if security was required to be provided as a matter of course when a party applied for annulment. Although the Committee accepted that in exceptional circumstances, an award creditor may show real prejudice beyond delay compensated for by interest and so justify the provision of security, Azurix was not suffering any prejudice of this type. Parties: Azurix Corp. v. Argentina, ICSID Case No. ARB/01/12 (Annulment Proceeding).

Netherlands contribution by Jacomijn van Haersolte, at Freshfields Bruckhaus Deringer

In Tholen v. Valk Architecten , the District Court Held that Procedural Efficiency does not Overrule a Valid Arbitration Clause (7 December 2007) - The background of this case was a claim initiated against the Gereformeerde Gemeente Tholen ("Tholen") in regular court proceedings. In these third party impleading proceedings, Tholen sought to introduce Valk Architecten as a party to these court proceedings arguing that if anyone was liable vis à vis the original claimant, this was Valk Architecten. Tholen sought to introduce Valk Architecten in the court proceedings on the basis of the rule of civil procedure which establishes jurisdiction of the court over a third party who is argued to be liable in addition to or instead of the party named as the original defendant.

Valk Architecten opposed the court's jurisdiction arguing that its contract with Tholen, which formed the basis of the alleged right to implead Valk, included an arbitration clause. Tholen argued that even if such arbitration clause had been concluded, Valk could not invoke the arbitration clause in order to argue that the court lacked jurisdiction, because it was overruled by the provision of the civil procedure establishing the jurisdiction of the court.

The court held that Section 216 of the Code of Civil Procedure (CCP) does not overrule Section 1022 of the CCP, which provides that the court lacks jurisdiction where the parties have concluded a valid arbitration clause. The fact that it may be preferable to adjudicate the two sets of proceedings together cannot affect this conclusion. The court concluded that procedural efficiency does not overrule a valid arbitration clause. Parties: Gereformeerde Gemeente Tholen v. Valk Architecten B.V., case no: HA ZA 07-295, District Court of Middelburg, Netherlands.

In De Jong & Breunis v. the Netherlands, the District Court Held that the Court has the Power to Order Interim Relief where there is an Immediate Need and no Technical Knowledge is Required and that the Court does not have the Mentioned Power when a Claim is not Urgent (16 October 2007) - The respondent invoked the lack of jurisdiction of the President of the District Court that would otherwise have jurisdiction to issue an injunction in the preliminary proceedings, because the agreement between the parties referred to arbitration before the Raad van Arbitrage voor de Bouw (Court of Arbitration for Construction Matters).

The District Court considered that Section 1051 para. 2 of the Code of Civil Procedure, which provides that the court (normally) is entitled to issue an injunction in the preliminary proceeding and may refer the matter to arbitrators is a discretionary authority. Depending on the specific circumstances of each case, the court may decide to apply this authority. In the present matter, the Court considered that claimants had an immediate need to have their case heard because the requested measure related to construction work was due to begin on 15 October 2007 (the date of the decision being 16 October 2007). Apart from the immediacy of the requested measure, the nature of the dispute, particularly claims that do not require specific knowledge of the trade of industry or technical matters, did not require a reference to a specific arbitrator but could also be addressed by the court. To the extent that the claim related to payment of outstanding invoices, the Court held that there were no specific circumstances justifying that the Court retained jurisdiction and therefore the Court declared that it lacked jurisdiction for this claim. Parties: Aannemingsmaatschappij De Jong & Breunis B.V. & Landbouwmechanisatie- en Loonbedrijf Van Leussen B.V. v. State of the Netherlands, case no: KG07/1208, District Court, The Netherlands.

Portugal contribution by José Miguel Júdice, at A. M. Pereira, Saragga Leal, Oliveira Martins, Júdice e Associados (PLMJ)

In X v. Y, the Appeal Court Stated that Article 494 of the Civil Procedure Code may Only be Inapplicable when the Arbitration Agreement is Clearly Null and Void (5 June 2007) - In this case, the plaintiff moved to file a petition before a judicial court seeking to terminate a conveyance agreement entered by and between the parties despite having previously entered an arbitration agreement concerning the same matter. The defendant, however, claimed that in accordance with article 494 of the Portuguese Civil Procedure Code, the existence of an arbitration agreement may inhibit judicial courts to continue judicial proceeding.

Holding in favor of the plaintiff, the Court of First Instance analyzed the arbitration agreement and decided to dismiss the defendant's argument holding that the said arbitration agreement would only embrace the disputes related to the conveyance agreement's interpretation and application and does not comprise the termination. The defendant appealed to the Appeal Court of Lisbon to reverse this lower court's decision.

The Appeal Court of Lisbon held for the defendant/appellant proclaiming that the mere existence of an arbitration agreement precluded the possibility to resort to judicial jurisdiction and precluded the judge from analyzing the arbitration agreement. The Appeal Court referred to article 494 of the Civil Procedure Code which provides that a court shall verify the existence and validity of an alleged arbitration agreement and if the agreement is prima facie valid, the court shall dismiss the court proceedings and refer the case to arbitration. It is only when the arbitration agreement is clearly and obviously null and void; the mentioned article does not apply. The Appeal Court stated that, according to the Portuguese Arbitration Act, the circumstances in which judicial courts are authorized to interfere are very limited and that under the Act the arbitration agreement's validity, effectiveness and applicability may not be submitted before the judicial court, which has no competence to decide these issues.

It is worth noting that the cases in which State courts reverse decisions rendered by arbitral tribunals either through appeals (when admitted) or annulment of awards are very few. This is leading arbitration practice in Portugal to become more favorable by parties resorting to it. Parties: X v. Y, case no: 1380/2007-1, Appeal Court of Lisbon, Portugal.

In A v. B , the Supreme Court Held that the Failure to Provide Critical Analysis of the Reasons upon which the Arbitral Award was based is not Deemed Sufficient to Set aside an Arbitral Award (15 May 2007) - The Supreme Judicial Court upheld the arbitration award confirming the decision of the Appeal Court of Lisbon.

The appellant argued that the arbitral award was not properly reasoned and was limited to a list of concrete evidences, which would justify the set aside of the arbitral award. The Court of Appeal of Lisbon rejected this argument and the appellant appealed.

The Supreme Court of Justice stated that whenever the tribunal includes the facts as well as the evidences which were considered relevant to reach the decision, it is not necessary for the tribunal to make any critical analysis of the said facts and evidences. Therefore, the Supreme Court held that the failure to provide critical analysis of the reasons upon which the arbitral award was based is not likely to be considered as a lack of motivation, which can justify the award to be set aside. Parties: A v. B, case no: 07A924, Supreme Court of Justice, Portugal.

U.S.A. contribution by Donald Francis Donovan & Catherine Amirfar, at Debevoise & Plimpton

In Global Gold v. Robinson & International Court of Arbitration , the Court Held that the International Court of Arbitration of the International Chamber of Commerce (ICC) was not Required by Law to Refer a Question of Arbitrability to an Arbitral Panel (6 February 2008) - Global Gold Mining, LLC ("GGM") agreed to purchase stocks of an Armenian company from three Armenian shareholders. The stock purchase agreement provided for arbitration under the rules of the ICC. Following a dispute, GGM initiated an arbitration against the three shareholders and a fourth individual, allegedly an undisclosed shareholder. The shareholders did not respond to the request for arbitration.

Under Article 6(2) of the ICC Rules, the International Court of Arbitration ("ICC Court") ruled that there was a valid arbitration agreement between GGM and the three shareholders, but not the fourth individual. Accordingly, the ICC Court referred only GGM's dispute against the three shareholders to arbitration. GGM responded by filing a complaint in a New York state court, requesting that the court direct the ICC Court to refer the fourth undisclosed shareholder to arbitration. The case was removed to the District Court for the Southern District of New York.

The District Court dismissed the complaint for failure to state a claim, rejecting GGM's argument that the ICC Court was required to submit disputed questions of arbitrability to an arbitral tribunal. The court reasoned that Rule 6(2) of the ICC Rules explicitly gave the ICC Court the power to decide the issue in the first instance, and the parties expressly chose to apply the ICC Rules to their arbitration. Furthermore, the court declined to enjoin the ICC Court because nothing in the ICC Rules or in federal law contemplated such extraordinary relief. The court also held that in order to put the question of whether a binding arbitration agreement with the fourth shareholder existed before a court, GGM must bring a motion to compel arbitration against that shareholder, not in injunctive action against the ICC respondents. A rule to the contrary, the court reasoned, would be inconsistent with traditional principles of arbitral immunity. Parties: Global Gold Mining v. Peter M. Robinson & International Court of Arbitration, case no: 07-10492, United States District Court for the Southern District of New York, U.S.A.

U.S.A. contribution by Donald Francis Donovan, Catherine Amirfar & Constantinos Hotis, at Debevoise & Plimpton

In Hall Street v. Mattel , the Supreme Court Ruled that the Federal Arbitration Act Contains the Exclusive Grounds for Promptly Vacating or Modifying an Arbitral Award, Rejecting Petitioner's Argument that Parties may Contractually Agree to Expanded Grounds of Review (25 March 2008) - Mattel, Inc. ("Mattel") leased property from Hall Street Associates, L.L.C ("Hall Street"). Under the lease, the tenant had to indemnify the landlord against any losses resulting from violations of environmental laws. The property's ground water became contaminated due to years of chemical discharges at the site. As a result, Mattel, one of its predecessors and the Oregon Department of Environmental Quality entered into a consent decree for a cleanup of the site.

Mattel later terminated its lease in 2001, prompting Hall Street to file a suit against Mattel to challenge Mattel's right to terminate the lease and to seek indemnification for any losses incurred. Mattel prevailed on the termination issue at trial, and the parties agreed to arbitrate the remaining indemnification claim. The arbitration agreement provided that the District Court could override the arbitrator's decision "(i) where the arbitrator's finding of facts are not supported by substantial evidence, or (ii) where the arbitrator's conclusions of law are erroneous."

The arbitrator found in favor of Mattel. Pursuant to the arbitration agreement, Hall Street sought review of the award, and the district court held that the arbitrator's conclusions of law were erroneous. The parties resubmitted their dispute to arbitration, which found for Hall Street, and the district court affirmed. The Ninth Circuit reversed, holding that the district court did not have the authority to review the arbitrator's conclusions of law.

The Supreme Court held that sections 10 and 11 of the Federal Arbitration Act ("FAA") provided the exclusive means of vacatur and modification of arbitral awards and could not be expanded by contract. The Court applied the rule of statutory interpretation of ejusdem generis, which provides that "when a statute sets out with a general term, that general term is confined to covering subjects comparable to the specifics it follows." The Court reasoned that because the statute included "no textual hook for expansion," the parties could not expand review to any legal error when the specific statutory instances are only for outrageous conduct. The Court also emphasized that a contractual expansion would contradict the language in section 9 of the FAA whereby the court "must grant" the order "unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title." In the Court's view, a contrary holding would only prolong arbitration disputes by "bring[ing] arbitration theory to grief in post-arbitration process." Parties: Hall Street Assocs., L.L.C. v. Mattel, Inc., case no: 06-989, Supreme Court of the United States, U.S.A.

U.S.A. contribution by Donald Francis Donovan, Catherine Amirfar & Marco Serrano, at Debevoise & Plimpton

In Wartsila v. Duke Capital & Duke Energy Int., the Fifth Circuit Court of Appeals Held that where an Award Ordered Immediate Payment by a Losing Party in an Arbitration, the District Court was Correct to Confirm the Award without a Stay Despite the Pendency of Other Related Arbitration Claims (20 February 2008) - In 2002, Duke Energy International ("DEI") hired Wartsila Finland OY and Wartsila Guatemala, SA (collectively "Wartsila") to construct a power plant near Puerto Quetzal, Guatemala. The contract included an arbitration clause that provided that disputes were to be submitted to arbitration in accordance with the International Chamber of Commerce ("ICC") rules.

In April 2003, prior to completion of the project, Wartsila filed a demand for arbitration in connection with a dispute over unpaid invoices. In April 2006, the tribunal issued a Final Award with respect to all the claims before it, ordering DEI to pay Wartsila. The tribunal also allowed DEI to withdraw certain counterclaims and reserve them for later arbitration in accordance with Article 30(4) of the ICC rules.

Wartsila filed a motion with the United States District Court for the Southern District of Texas to confirm the award under the New York Convention. DEI filed a cross-motion for confirmation of the award as well as a stay of the proceedings pending completion of newly filed arbitration claims. The district court confirmed the award, rejected DEI's arguments for a stay, and ordered DEI to pay Wartsila.

On appeal, the Fifth Circuit Court of Appeals affirmed the judgment of the district court on the principle that courts should enforce arbitration awards as written, reasoning that "to do anything more or less would usurp the tribunal's power to finally resolve disputes and undermine the pro-enforcement policies of the New York Convention." The court noted that the award "reflect[ed] the tribunal's intent to resolve the specific disputes then before it and issue a final award such that a monetary payment would be made regarding those specific disputes," and the fact that DEI was allowed to withdraw claims and reserve them for a later arbitration did not provide guidance as to whether the panel understood those future claims to provide a setoff amount against any award it may issue. Thus, in light of the award's unequivocal language ordering immediate payment by DEI, the court concluded that a stay was not warranted. Parties: Wartsila Finland & Wartsila Guatemala v. Duke Capital& Duke Energy International Guatemala, case no: 07-20012, United States Court of Appeals for the Fifth Circuit, U.S.A.

U.S.A. contribution by Donald Francis Donovan, Catherine Amirfar & Tara Helfman, at Debevoise & Plimpton

In AGK v. Zink & Treist Int ., the District Court Held that Plaintiff must Establish the Subsidiary's Liability in Arbitration before Filing any Claims that Purport to Pierce the Subsidiary's Corporate Veil (18 March 2008) - A.G.K. Sarl ("AGK"), a vanilla exporting company in the Comoros, and Zink and Treist International ("ZTI"), a Mauritius company, entered into an agreement for the purchase and sale of vanilla beans. ZTI was a shell company established by defendant A. M. Todd Company ("A.M. Todd"), a Michigan Company, and its subsidiary Zink and Triest Company ("ZTC"), a Delaware corporation. In 2005, AGK commenced AAA arbitration proceedings against ZTI for failure to pay for a delivery of vanilla beans.

Almost a year later, AGK attempted to join the defendants in the arbitration, arguing that ZTI was judgment-proof because it was an "offshore dummy corporation" and that the tribunal should pierce its corporate veil to hold the parent companies liable for ZTI's debt. The tribunal denied the request on the ground that joining the other parties so late in the proceedings effectively denied them the opportunity to participate in crucial stages of the arbitration.

AGK then withdrew from the arbitration and sued in the District Court for the Eastern District of Pennsylvania to pierce the corporate veil of ZTI. ZTI moved to dismiss the claim primarily on the ground that AGK was estopped from arguing that the arbitration clause did not govern the transaction. The District Court granted ZTI's motion and dismissed the action. The court held that by commencing arbitral proceedings, AGK had manifested its consent to arbitration and was thereby estopped from asserting that it did not contractually agree to arbitrate. The court reasoned that whether the decision to arbitrate was based on mistaken assumptions about the counterparty is immaterial to such estoppel because it is the act of bringing and prosecuting the arbitration, not the motivation, that manifests binding consent. To hold otherwise, the District Court noted, would "allow a party to bring arbitration, abandon it just before its conclusion-no matter for what reason-and then bring federal suit arguing that no valid arbitration clause existed would introduce unfair and inefficient incentives." The court also held that AGK's direct claims against the parent was subject to arbitration, noting that where a party is obligated to arbitrate its disputes with a subsidiary "allowing [that party] to sue the parent directly would allow [the party] to bypass the requirement that arbitrators, not a court, rule on whether the subsidiary is liable. [Such an] outcome would frustrate the federal policy favoring arbitration." Parties: A.G.K. Sarl v. Zink and Treist International, A. M. Todd Company & Zink and Triest Company, case no: 07-2727, United States District Court for the Eastern District of Pennsylvania, U.S.A.

In Steel Corp. v. Int. Steel , the U.S. District Court Rejected Defendant's Arguments that the Award should be Set aside under the New York Convention Because it had been Nullified by a Default Judgment Entered against Plaintiff by a Philippine Court (6 February 2008) - Plaintiff Steel Corporation of the Philippines ("SCP") petitioned the District Court for the Western District of Pennsylvania to confirm a foreign arbitration award dated June 24, 2004 against International Steel Services, Inc. ("ISSI").

ISSI moved to dismiss the petition primarily on the ground that a Philippine court had set aside the arbitral award and that enforcement would therefore violate Art. V(e) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which provides that "applications for setting aside or suspending an arbitral award may be made only to a competent authority of the country in which, or under the law of which, that award was made." The arbitral clause of the contract between SCP and ISSI stipulated that the "validity, performance and enforcement" of the contract would be governed by Philippine law and that the arbitration would be conducted in Singapore. The arbitrator applied the Singapore International Arbitration Act to the proceedings, but applied Philippine law in construing the contract. ISSI filed a petition in a trial court of the Philippines to vacate the award. On January 4, 2006, SCP was declared in default of the petition by the trial court and ISSI was "allowed to present its evidence ex-parte."

On January 26, 2006, SCP filed a motion to reconsider the default order and on April 18, 2007, the trial court referred the dispute to mediation and stayed all further proceedings of the court pending mediation. The court found as a threshold matter that the Philippine court proceedings could not be construed as a set aside or vacatur of the award. The court held that, in any event, the arbitration clause's statement that the "enforcement" of the contract was governed by Philippine law, without more, did not sufficiently reflect an agreement between the parties that Philippine procedural law should apply to an arbitration to be held in Singapore. The Court reasoned that under the New York Convention, an arbitration clause specifying the place of the arbitration creates a presumption that the procedural law of the situs will apply, and accordingly, the Philippine court had no jurisdiction to vacate an award rendered in Singapore. Parties: Steel Corporation of the Philippines v. International Steel Services, Inc., case no: 06-386, United States District Court for the Western District of Pennsylvania, U.S.A.

Upcoming Events

2008

June

Houston: International Construction Contracts and the Resolution of Disputes - on 2 - 4 June 2008 the ICC and FIDIC are organizing this conference. The object of the conference is to discuss FIDIC Conditions of Contract which are the most widely used standard forms of contract in international construction and disputes that have been submitted to the ICC International Court of Arbitration since their first edition in 1957. It will also review the procedure for claims and disputes under FIDIC contracts and explain the legal entitlements of the contractor and employer, and will also focus on the specific features of dispute resolution in international construction contracts in the United States and explore practical implications and current developments. For program details visit http://www.iccwbo.org/events/display12/index.html?CodeICMS=S0822

Dublin: Special Arbitral Women Day - on 7 June 2008. On the occasion of the fifteenth anniversary of the group's informal origin and the third anniversary of the association, Arbitral Women is organizing a special day where participants will have the opportunity to network and participate in stimulating discussions. To register visit http://www.arbitralwomen.org/index.aspx?sectionlinks_id=103&language=0&pageName=ICCARegistration

The ICCA Conference in Dublin - on 8-10 June 2008. The conference is hosted by the Bar Council of Ireland. It will celebrate the 50th Anniversary of the signing of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Registration is now open. Visit https://www.securedbits.com/296106d.asp

Dublin: Young Arbitration Practitioners (YAP) - on 11 June 2008 the YAP conference is taking place immediately after the ICCA Conference.

New York: Fordham Third Annual Conference on International Arbitration and Mediation - on 16-17 June 2008, Fordham Law School will hold its annual conference, which will bring together leading international arbitrators, mediators, practitioners and scholars to discuss contemporary issues in international arbitration and mediation. For more information email cle@law.fordham.edu, call +1 212 636 6945 or send a fax to +1 212 636 6984.

Germany: 2008 International Commercial Law Seminar Cologne, Germany, Dispute Resolution in International Commerce and Investment - on 16- 27 June 2008 the law schools of the University of California, Davis, and the University of Cologne in cooperation with the German Institution of Arbitration (DIS), the Arbitration Documentation and Information Center (ADIC) and the German Bar Association (DAV) are organizing this English-Language seminar. This intensive, two-week seminar is geared toward international attorneys and seeks to provide new perspectives and tools for dispute resolution in international commerce and investment. Lecture topics include: Relevant Legal Sources and Means of Dispute Resolution in International Transactions, Principles of International Arbitration, Legal Protection of Foreign Investors, Current Issues in Investor-State Arbitration, Corrupt Practices in International Transactions, a Case Study on Selected Issues of Commercial Arbitration, International Jurisdiction of U.S. and European Courts and Special Features of Litigating International Cases in the U.S. For more information visit http://extension.ucdavis.edu/unit/international_law/germany.asp or email law@unexmail.ucdavis.edu

Paris: ICC- International Commercial Arbitration - Advanced PIDA Training in Spanish - on 16-19 June 2008. For more information visit http://www.iccwbo.org/events/id8684/index.html

Dallas: 3rd Annual Dallas Roundtable for Young International Arbitrators - on 18 June 2008. The event is presented by the Institute for Transnational Arbitration, ICDR Young & International, LCIA Young International Arbitration Group and USCOB Young Arbitrators Forum. The Roundtable will include two substantive panels of young and not-so-young international arbitration specialists and conclude with a networking reception.

Dallas: 19th Annual ITA Workshop "Damages in International Arbitration: Strategies, Techniques & Presentation- on 19 June 2008. This year's Workshop will address strategies and techniques for presenting damages and costs in investment-treaty arbitration under the auspices of the International Center for Settlement of Investment Disputes (ICSID). It will feature scenes from a mock arbitration in which top arbitrators and practitioners will comment on issues such as selecting damages experts, managing client expectations for damages experts, and working with damages experts to present quantum evidence to the tribunal. The event will take place at the Westin Galleria Hotel in Dallas. For more details and to register visit http://www.cailaw.org/ita/ITA_Workshop_08.html

Paris: ICC - Cross Examination in Arbitration Proceedings - on 23 June 2008, the seminar will look at the principles behind the cross examination process, with experienced counsel s from civil and common law backgrounds. For program details visit http://www.iccwbo.org/events/display12/index.html?CodeICMS=S0813

Heideberg: 5th Summer Academy on International Dispute Resolution - from 23 June until 28 June 2008 the Heidelberg Center for International Dispute Resolution will hold its 5th Summer Academy on International Dispute Resolution. Renowned international speakers will introduce the participants to techniques and tactics of Europeans as well as International Civil Procedure, Alternative Dispute Resolution and International Commercial Arbitration. The event will take place at Internationales Wissenschaftsforum Heidelberg. For more information visit www.heidelberg-center.org or contact Wiltrud Hillmann by email at academy@heidelberg-center.org or hillmann@ipr.uni-heidelberg.de, by phone at +49 62 2154 2242 or by fax at +49 62 2154 3632.

Moscow: International Arbitration: Is Russia Different? On 27 - 28 June 2008 the AIJA International Arbitration Commission with the support of IBA and a number of leading law firms are organizing this conference. Program details will be provided later.

Barcelona: ICC's Young Arbitrators Forum (YAF) - on 27-29 June 2008 the ICC will be hositing a weekend conference especially designated for laywers and in-house counsel under the age of 40. For more information contact Jennie Irving at +33 1 49 53 28 70 or by email at events@iccwbo.org

Singapore: Arbitration in India and Singapore - Sharing Perspectives - on 27 June 2008, the Indian Arbitration Bar and the Singapore International Arbitration Center are arranging this event. This seminar seeks to provide the legal and business communities in Singapore with an insight into the trends and development in the law and practice of arbitration in India. The event would also provide an excellent opportunity for Asian lawyers and arbitrators to network with their peers from India. For more information, please contact Geraldine Ng by email (geraldineng@siac.org.sg) or by phone at (65) 6334 1277.

July

Hong Kong: HKIAC Conference - Investor- State Arbitration: Lessons for Asia - on 12 July 2008. Program details will follow.

August

Cologne: 6th Cologne Summer Academy on International Commercial Arbitration - from 31 August 2008 until 4 September 2008, the Center for Transnational Law (CENTRAL) in cooperation with the German Institution of Arbitration (DIS) is organizing this event, which will take place at the University of Cologne (Universität zu Köln). The event is geared towards advanced students and young practitioners. Participants will have the opportunity to improve their skills and knowledge about international commercial arbitration under the guidance of highly experienced professionals. In a mock arbitration, participants will be given a real international arbitration case and will have a chance to plead or examine witnesses with instant feedback from the workshop leaders. Participants will then have a chance to watch videos of the workshop's leaders as they performed as arbitrators or counsels in the same given case. The number of participants is limited to 40, the working language is English and all participants will obtain a CENTRAL/DIS-Attendance Certificate. For more information visit www.private-dispute-resolution.net, or contact Ellen Allerödder by phone at +49 (0)221 470 3863, by fax at +49 (0)221 470 5118 or by email at e.alleroedder@uni-koeln.de or central-info@uni-koeln.de

September

Dundee: Introduction to Commercial Arbitration - from 1until 5 September 2008 - For more information visit https://www.buyat.dundee.ac.uk/events/eventdetails.asp?eventid=13

Singapore: ICC - SIAC Conference - on 2 September 2008. Details will be provided later or contact Geraldine Ng at geraldineng@siac.org.sg or by phone at (65) 6334 1277.

Oxford, U.K: Diploma Course in International Commercial Arbitration - on 6 -14 September 2008, the Chartered Institute of Arbitrators is organizing a nine-day course in Oxford, UK. The course is designed to provide a deep understanding of practice and procedures in international commercial arbitration. Among the subjects covered are the nature and limits of arbitration and its treatment by various legal systems, UNCITRAL Model Law and national arbitration laws, the subject of arbitrability, applicable laws, privacy, confidentiality and secrecy, powers and obligations of arbitrators, institutional and ad hoc arbitration and the subject of enforceability. The course is followed by two exams. For more details contact Linda Austin at laustin@arbitrators.org, tel: = 44 20 7421 7445 or visit http://www.arbitrators.org/Courses/DiplomaIntArb.asp

The Grove: LCIA Young International Arbitration Group Symposium - on 19 September 2008, the LCIA is arranging a half-day symposium preceding the second LCIA European Users' Council Symposium for 2008. Program details will be provided later.

Sao Paolo: 4th Annual ITA Americas Workshop - on 21-23 September 2008. More details will be provided later.

October

New Delhi: UNCITRAL-SIAC-CIAC Conference - on 18-19 October 2008 the SIAC together with its joint venture centre in India, the Construction Industry Arbitration Council will be hosting an UNCITRAL Conference to be held in India for the first time. The conference will discuss 50 years of the New York Convention, the proposed amendments to the UNCITRAL Arbitration Rules and the Vienna Sales Convention. For more information contact Ajay Thomas at ajaythomas@siac.org.sg or by phone at (91) 99534 38490.

November

Miami: International Commercial Arbitration in Latin America - ICC Perspective- on 9-11 November the ICC is holding its 6th annual conference in Miami, Florida. Program information will be provided later.

Buenos Aires: IBA 2008 Conference - on 19-24 October 2008. Details will follow.

2009

Zurich: ASA Swiss Arbitration Association Conference - on 30 January 2009. Details of the conference will be provided later.

Vienna: Vienna Arbitration Days - on 20-21 February 2009, the arbitration institutions of Austria are jointly organizing a conference in Vienna. The conference is a two-day discussion on leading topics in international arbitration. This is a unique opportunity to meet arbitration practitioners in CEE/SEE and to discuss current issues and future developments in the field. The event takes place annually on the weekend of the Juristenball (Ball of the Legal Profession) in Vienna. Further information will be provided later. For more information check http://www.aayb.at

Frankfurt: Taxation Meets Arbitration - Arbitration Clauses in Tax Treaties - 7 March 2009. Program information will be provided later.

Publications

Books

Books to be published

Investment Treaty Arbitration and Public Law (Oxford Monographs in International Law (by HHA Van Harten, Oxford University Press, 20 July 2008) - This book outlines investment treaty arbitration as a public law system, by precisely demonstrating the significance of giving arbitrators comprehensive jurisdiction to decide regulatory disputes between business and state. In doing so, it exposes some startling consequences of transplanting rules of commercial arbitration into the regulatory sphere. First, private arbitrators can award compensation to investors in ways that go well beyond domestic systems of state liability in public law. Second, these awards can be enforced in as many as 165 countries, making them more widely enforceable than other judicial decisions in public law. Third, public law can be interpreted in private as a matter of course, without any appeal to a court to correct errors of law. The conflict between private arbitration and public law poses a serious challenge to open and accountable judging. But the critical flaw of the system - hitherto neglected - is its threat to judicial independence based on security of tenure. Under investment treaties, business claims against the state are decided by privately-contracted adjudicators, who win appointments only as more claims are brought. Thus, as the book explains, the 'judge' has a financial stake in how public law is interpreted and in the outcome of the dispute. While it is laudable to use international adjudication to resolve controversial disputes, the benefits of a global economy are no excuse for corrupting our historic tradition of independent courts. For more information visit http://www.amazon.com/Investment-Treaty-Arbitration-Monographs-International/dp/0199552142/ref=sr_1_8?ie=UTF8&s=books&qid=1207609336&sr=1-8

The Rhine Chlorides Arbitration Concerning the Auditing of Accounts (Netherlands-France): Award of 2004 (Permanent Court of Arbitration Award series, Asser Press; 1 edition, 30 June 2008) - The Rhine Chlorides Arbitration (2004), one of the few international watercourse arbitrations hitherto conducted, decided the dispute between the Netherlands and France concerning the auditing of accounts relating to the reduction of chloride discharges into the Rhine. France was obliged to undertake certain measures under the Additional Protocol of 1991 to the 1976 Convention on the Protection of the Rhine against Pollution by Chlorides, with the costs shared between four of the five state parties (the Netherlands, Switzerland, Luxembourg and Germany) according to a specific formula. The Arbitral Tribunal was required to interpret and implement this formula and determine the methodology of calculation to be used in the final auditing of financial contributions paid in advance by the Netherlands to France. This bi-lingual volume contains the first, unofficial, English translation of the original French award and an introduction by Professor Laurence Boisson de Chazournes of the University of Geneva. For more information visit http://www.amazon.com/Chlorides-Arbitration-Concerning-Auditing-Netherlands-France/dp/9067042668/ref=sr_1_14?ie=UTF8&s=books&qid=1207609713&sr=1-14

Chinese Investment Treaties (by Wenhua Shan and Norah Gallegher, Oxford International Arbitration, 9 December 2008) - This is a comprehensive commentary on Chinese BITs. It will provide a detailed review and analysis of China's approach to foreign investment. It will consider the current role of investment treaties in China's foreign economic policy, analyze and interpret the key provisions of the BITs, and discuss the future agenda of China's investment program. It will look at how this investment regime interconnects with the domestic system and consider the implications for a foreign investor in China. For more information visit http://www.amazon.com/Chinese-Investment-Treaties-International-Arbitration/dp/0199230250/ref=sr_1_4?ie=UTF8&s=books&qid=1204909363&sr=1-4

A Practical Guide to International Arbitration in London (by Hilary Heilbron, Informa Maritime & Transport; New edition, March 2008) - to order visit http://www.amazon.com/Practical-Guide-International-Arbitration-London/dp/1843117290/ref=sr_1_18?ie=UTF8&s=books&qid=1204909823&sr=1-18

The Precedent in International Arbitration (by Editors: Emmanuel Gaillard and Yas Banifatemi, Juris Publishing, June 2008) - Arbitrators routinely refer in their decisions to awards rendered by other arbitral tribunals that deal with the same issues. However natural it may seem to arbitrators and to parties who will refer to arbitral precedents in an attempt to support their position, such an approach raises many practical and theoretical questions. Is there such a thing as arbitral precedent? What weight should arbitrators give to decisions previously rendered by other arbitral tribunals? Can arbitral "case law" exist without consistency? Does such consistency exist? Is it necessary or simply desirable? What is the respective weight to be given to arbitral and national case law when arbitrators have to decide a case in accordance with a given law? These are some of the questions that this book explores, in the context of both international commercial arbitration and investment arbitration. http://jurispub.com/344/precedent-in-international-arbitration

The Fair and Equitable Treatment Standard in International Foreign Investment Law (Oxford Monographs in International Law) (by Ioana Tudor, Oxford University Press, USA; 1 edition, 11 June, 2008) - The first two chapters explore the two classical sources of international law as possible sources for fair and equitable treatment (FET). The book offers a classification of the FET clauses found in more than 400 BITs. The book turns next to the examination of the possible customary character of FET and argues that the view equating FET with the International Minimum Standard is erroneous and it limits the scope of FET. Alternatively, it suggests that the FET standard is an independent standard of customary nature. Then the book looks at the nature of FET, that of being a standard and retains three direct consequences for its meaning: its flexibility, the absence of a fixed content and its evolutionary character. With these three characteristics in mind, it proceeds to the third conceptual framework, the content of FET. Although no fixed content may be given to it, it identifies and develops each one of those situations in which the FET standard has already been applied. Finally, the last conceptual framework aims at discussing the final act of a FET claim. It argues that FETis a standard which balances the interests and behaviours of both the States and the investors, at the stage of compensation. For more details visit http://www.amazon.com/Equitable-Treatment-International-Investment-Monographs/dp/0199235066/ref=sr_1_7?ie=UTF8&s=books&qid=1202401901&sr=1-7

State Entities in International Arbitration (edited by: Emmanuel Gaillard, Juris Publishing, May 2008) - States get involved in international affairs either directly or through their instrumentalities. The activities of these instrumentalities raise many issues, two of which have given rise to significant recent developments both in arbitral and domestic case law. The first is whether and under what conditions a State may be held liable for the conduct of such instrumentalities on the basis of an investment treaty. This issue will be the subject of a systematic survey of ICSID and ICC case law and that of other arbitral tribunals so as to identify the circumstances in which such liability may arise. The second issue, which is addressed by State courts, is whether and under what conditions State instrumentalities that have a separate and autonomous legal personality may be held liable for the pecuniary obligations of the State. A comparative law study focusing in particular on solutions found in French, English and U.S. law will provide answers to the question as to whether an award holding a State liable may be enforced against the assets of instrumentalities of that State, where such instrumentalities are prima facie separate juridical persons. For more information visit http://jurispub.com/275/state-entities-in-international-arbitration

Investor-State Arbitration (by Christopher Dugan, Noah D. Rubins, Donald Wallace, and Borzu Sabahi, estimated publication date: June 2008) - Full coverage of procedural and substantive developments. For more information visit http://www.oup.com/uk/catalogue/?ci=9780379215441&view=lawview

A Guide to the LCIA Arbitration Rules (by Peter Turner and Reza Mohtashami, Oxford University Press, 10 October 2008) - This is the first full length and comprehensive commentary on the London Court of Arbitration (LCIA) Arbitration Rules, written by two well-known and experienced arbitration practitioners. This book acts as a guide and provides an indispensable resource for all involved in international arbitration under the LCIA rules. The commentary to each rule provides 1) a description of the rule and its intended meaning 2) the provenance and history of the rule 3) the practical effect of the rule with reference to previous case law and jurisprudence and 4) a comparative look at conceptual and practical differences between each rule. Focusing specifically on how the rules of the LCIA differ from those of the ICC and the UNCITRAL, this title emphasizes the international nature of the LCIA and provides the only dedicated reference to the Rules. http://www.amazon.com/Guide-LCIA-Arbitration-Rules/dp/0199234434/ref=sr_1_1/105-3862919-9045268?ie=UTF8&s=books&qid=1184240809&sr=1-1

The Fair and Equitable Treatment Standard in International Foreign Investment Law (Oxford Monographs in International Law) (by Ioana Tudor, Oxford University Press, 11 June 2008) - This book analyses the conventional and customary framework of the Fair and Equitable Treatment (FET) clause as well as its scope and all applications in the existing case law. This book tackles the standard of fair and equitable treatment by applying four conceptual frames: the legal basis of FET, its nature as a standard, its content and finally the implications of its breach. http://www.amazon.com/Equitable-Treatment-International-Investment-Monographs/dp/0199235066/ref=sr_1_2/105-3862919-9045268?ie=UTF8&s=books&qid=1184240809&sr=1-2

Books recently published

Principles of International Investment Law (by Rudolf Dolzer and Christoph Schreuer, Oxford University Press, 28 May 2008) - This book outlines the principles behind the international law of foreign investment. The main focus is on the law governed by bilateral and multilateral investment treaties. The book traces the purpose, context and evolution of the clauses and provisions characteristic of contemporary investment treaties, and analyses the case law interpreting the issues raised by standard clauses. Particular consideration is given to broad treaty-rules whose understanding in practice has mainly been shaped by their interpretation and application by international tribunals. In addition, the book introduces the dispute settlement mechanisms for enforcing investment law, outlining the operation of State vs. State and Investor vs. State arbitration. For more information visit http://www.amazon.com/Principles-International-Investment-Foundations-Public/dp/0199211760/ref=sr_1_8?ie=UTF8&s=books&qid=1202401901&sr=1-8

Investor-State Dispute Settlement and Impact on Investment Rulemaking (Unctad Series on International Investment Policies for Development) (by United Nations Conference on Trade & Development (Author), Roberto Echandi (Author) (United Nations Pubns, 28 February 2008)

Arbitration Law Reports and Review 2002 (by Stewart Shackleton, Oxford University Press, 28 April 2008) - This is the 2002 volume of the Arbitration Law Reports and Review series, which makes full texts of judgments on the arbitration law of England, Wales and Northern Ireland available in a single publication on an annual basis. Each volume contains the Editor's analytical review of developments during the year, offering comment on decisions, grouping cases together under thematic headings to identify trends and developments, and integrating discussion of relevant non-arbitration related cases (contract interpretation, human rights, adjudication, expert determination, mediation, procedural fairness, duties to give reasons and so on). For more information visit