The Danish Institute of Arbitration has adopted revised Rules of Arbitration Procedure. The revised Rules came into force on 1 May 2013. The new Rules are in line with the latest international standards.

A Court of Appeals in Commercial Matters in Buenos Aires decided that, by engaging in mediation proceedings, a company had implicitly waived the arbitration clause. Also, the Court of Appeals decided that arbitration clauses must be interpreted narrowly.

The Court of Appeals in Buenos Aires confirmed the validity of the arbitration clause contained in an agency agreement. The Court ruled that the merits of the claim were related to the performance of the agency agreement, the matter expressly covered by the arbitration clause. Therefore the petitioner had to honor the arbitration clause.

The Santiago Appeals Court declares inadmissible a "recurso de queja", extraordinary recourse against the Sole Arbitrator's award in case of misconduct or miscarriage of arbitral proceedings. The Court decides so on the grounds that (i) the "recurso de queja" only proceeds against decisions which cannot be attacked by any other means or recourses, which is not the case here because the arbitral award is subject to Law 19.971 on International Arbitration which establishes the action to set aside the award, and (ii) the action to set aside the award is in fact the only recourse that may proceed against an arbitral award under Law 19.971.

The Santiago Appeals Court rejects a "recurso de queja" filed against a final arbitral award. The "recurso de queja" is an extraordinary recourse which seeks redress for the arbitrator's misconduct or miscarriage of proceedings in arbitration. While it was originally envisaged for domestic arbitration, a reservation made by the Constitutional Court ("Tribunal Constitucional") when approving Law Nº. 19.971 on International Arbitration left some room for the use of this recourse in international arbitration.

Arbitration Clause was void due to reference to a non-existent arbitration institute.

An Arbitral Tribunal decision on costs could not be enforced because the decision was not made as an Arbitral Award but instead as only an Order

The taking of evidence in a dispute in which the parties have agreed to arbitration is not necessarily subject to arbitration proceedings.

Arbitrator was not impartial, but the award was not invalid/vacated as the objection regarding impartiality was raised too late.

A request for a court decision on the termination of an arbitrator appointment pursuant to Sec. 1038 para. 1 Sentence 2 German Code of Civil Procedure (Zivilprozessordnung – ZPO) does not require having granted the arbitrator the possibility to resign before making such request. An arbitrator appointment may be terminated if, inter alia, the arbitrator violated his duties, such as to notify the parties of the receipt of the case files on his own accord or to issue a first procedural order after having worked through the case file.

The Higher Regional Court of Koblenz (OLG Koblenz) held that an arbitration clause does not become ineffective if it stipulates that the arbitral award has to be rendered within a certain time frame and this time lapses. Exceeding the time frame does not constitute a valid ground for refusing recognition and enforcement of the award under Article V(1) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards where the party opposing enforcement participated in the arbitration after the lapse of the stipulated time without objection. Furthermore, the OLG Koblenz held that due to the French seat of the arbitral tribunal the sole condition for the enforceability of the award was the exequatur decision of the French district court pursuant to the French lex arbitri. French law does not require for purposes of enforcement the decision to be delivered to the parties.

German courts may be asked to determine the competent arbitration institution even prior to an arbitration proceeding being initiated. In case the arbitration institution designated in an arbitration agreement does not exist, the arbitration agreement has to be interpreted using established principles of contract interpretation, such as the history of the negotiations and the intent of the parties, to determine the competent arbitration institution. The designation of a non-existing arbitration institution does not, per se, impact the validity of the arbitration agreement.

Recognition and enforcement of a Russian arbitral award that has been set aside in Russia. Main rule is that if the award has been set aside at the seat, Article V NYC precludes recognition and enforcement. However, an exception must be made if there are strong indications that the court reviewing the setting aside request did not respect due process. A further exception to this exception applies in that recognition shall only be refused if there are adequate indications that had due process been applied, the award would have been set aside anyhow. In order to assess these matters, the Court requests expert evidence on Russian law.

The recent decision of the Court of Appeal (Lagos Division) in Tulip (Nig) Ltd. v Noleggioe Transport Maritime S.A.S concerns procedural issues that should be considered in relation to enforcement in Nigeria of a foreign arbitral award. The case turned on the applicable limitation period for the enforcement in Nigeria of a foreign arbitral award.

The Second Commercial Chamber of the Superior Court of Lima, in a judgment of April 19th, 2012 annuled an award because the Arbitral Tribunal ruled on matters that could not be legally arbitrated. 

In this appeal against the grant of an injunction by the High Court, the Court of Appeal defined the parameters of the High Court’s power under section 12A(4) of the International Arbitration Act [“IAA”] (Cap. 143A, 2002 Rev. Ed.) to grant any one or more of the orders listed in section 12(1)(c) to (i) of the IAA, and in particular the definition of the terms “assets” and “necessary” in section 12A(4).

In Astro Nusantara International BV and others v PT Ayunda Prima Mitra and others [2013] 1 SLR 636, the High Court held that if a party has not availed itself of Art 16(3) UNCITRAL Model Law on International Commercial Arbitration (“the Model Law”) to challenge a jurisdictional award, then it cannot raise the lack of jurisdiction as a ground to refuse the enforcement of an arbitral award, i.e., the question of jurisdiction becomes res judicata.

In L W Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd and another appeal, the Court of Appeal upheld the High Court’s decision that the courts did not have the jurisdiction to declare the Additional Award a nullity pursuant to Sections 43(4), 47 and 48(1)(a)(v) Arbitration Act (Cap 10, 2002 Rev Ed) (“AA”), which is the statute applicable to domestic arbitration albeit based on the Model Law and further that the Additional Award be set aside for breach of natural justice pursuant to Sections 43(4), 44 and 48(1)(a)(vii) of the AA.

High Court set aside two arbitral awards for their dealing with issues which were not formally pleaded (Article 34(2)(a)(iii) of the 1985 UNCITRAL Model Law on International Commercial Arbitration [“Model Law”]). The Court of Appeal’s overturned the decision. The ruling is instructive in defining the meaning of the term “scope of the submission to arbitration” in Article 34(2)(a)(iii) and the role of pleadings in arbitration.

An officer's lack of authority to initiate arbitration on behalf of its company is an issue of jurisdiction of the arbitral tribunal (the ground of improper constitution is limited to cases where the appointment/replacement of arbitrators or their independence/impartiality is concerned).  Further,  the arbitral tribunal is free to draw any factual conclusion it deems relevant from an exhibit. Finally,  public policy was not violated insofar as no bribes were established.

Challenge based on improper constitution of the arbitral tribunal is not admissible when the arbitrator being challenged was appointed by a foreign court to avoid denial of justice

An ad hoc arbitral award was set aside by the Taiwan High Court in May 2012 on the ground that an arbitrator participated in an arbitration hearing when the said arbitrator's appointment was being challenged.

The United States District Court for the District of Columbia held that a contract’s incorporation of the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules was “clear and unmistakable evidence” that the parties intended to have an arbitrator, rather than a court, decide the arbitrability of the dispute.

The United States Court of Appeals for the Fifth Circuit held that a party could be judicially estopped from denying that an arbitration under a bilateral investment treaty was an “international tribunal” for the purpose of ordering discovery under 28 U.S.C. § 1782, where the party had taken the opposite position in prior proceedings in order to gain the benefit of discovery under the statute.

The United States Court of Appeals for the Second Circuit held that federal courts must look to federal common law to define “arbitration” under the Federal Arbitration Act (“FAA”).

The United States Court of Appeals for the Fifth Circuit held that, as a matter of first impression, a petition for confirmation of an arbitral award pursuant to the New York Convention may be dismissed for lack of personal jurisdiction.

The High Court of Lagos (Civil Procedure) Rules 2012 (“the Rules”) which came into force on December 31, 2012, has introduced several radical changes to civil procedure landscape in Lagos Nigeria notably in relation to Alternative Dispute Resolution (“ADR”). In this regard, Order 3, Rule 11 of the new Rules provide as follows:

“All Originating Processes shall upon acceptance for filing by the Registry be screened for suitability for ADR and referred to the Lagos Multi Door Court House or other appropriate ADR institutions or Practitioners in accordance with the Practice Directions that shall from time to time be issued by the Chief Judge of Lagos State”.

The above provision though laudable, appears to impede on the constitutionally recognised right of access to the courts.

Admittedly, the current global trend is for disputing parties to embrace alternative means of resolving their disputes away from the conventional court approach. In the Nigerian context, the advantages of embracing ADR mechanism are manifold – the need to reduce the congested dockets of Nigerian courts is topmost; and from a business perspective, the need to attract foreign investors to Nigeria. Indeed, a stable framework for ADR provides succor to potential international investors who are not comfortable submitting their disputes to the local courts for resolution, either to avoid opportunities for overt or covert state interference or because the judicial process in Nigeria is quite slow.

The major problem with this provision is the mandatory nature of the referral of suitably qualified suits to ADR Institutions or Practitioners and it is my view that the referral of suitably qualified suits to ADR Institutions or Practitioners on a mandatory basis is a needless affront on the constitutionally guaranteed right of access to court.

The right of access to court is recognised by sections 6 (6)(b) and 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended). Section 6(6) provides: “The judicial powers vested in accordance with the foregoing provisions of this section shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”. See the Supreme Court’s decision in Adediran v. Interland Transport Ltd (1991) 9 NWLR (PT 214) 155 @ 180-181. In the same vein, section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides: “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality”. In Eyesan v. Sanusi (1984) 1 SCNLR 353 at 367, The Nigerian Supreme Court, per Obaseki stated:

“The right of action in court is also a constitutional right exercisable by a person who has complaints touching his civil rights and obligation against another person, government or authority. See Section 6 (6) (b), 33 (1) and 236 (1) of the 1979 Constitution. Once the exercise of the right of action has commenced, the exercise is not completed until the action is finally and completely determined by the Court of first instance or the appeal Court”.

In the context of this discourse, it is contended that once a suit is filed in court, the Claimant therein evinces an intention to submit the dispute, subject matter of the suit to the Court for determination. In other words, absent any prior agreement between the parties to the suit to submit their dispute, first to arbitration for instance, or other forms of ADR, such a Claimant will be said to have exercised his right of access to court pursuant to sections 6 (6) (b) and 36 (1) of Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is further contended that the referral of suitably qualified suits to ADR Institutions or Practitioners on a mandatory basis pursuant to the provisions of Order 3, Rule 11 of the new Rules imposes conditions inconsistent with the free and unrestrained exercise of the right of access to court and a fortiori, the said provision is unconstitutional.

The unconstitutionality of Order 3, Rule 11 of the new Rules is further demonstrated by the fact that the essence of the right of access to court guaranteed by sections 6 (6) (b) and 36 (1) of Constitution of the Federal Republic of Nigeria, 1999 (as amended) is that the state is constitutionally prohibited from taking the arbitrary decision (through the instrumentality of the rules of court) of diminishing parties’ right to have their disputes determined by a court of law. Furthermore, the right of every citizen to have access to court incorporates the right to a public hearing and the right to an appeal. On the contrary, arbitration, for instance, as an alternative to the judicial process, denies a person these rights since there is no public hearing in such cases. In any event, the right to appeal from an arbitration award is limited to statutorily recognised points of law only. The Rules is curiously silent on who would bear the costs of these ADR’s processes.

On 27 November 2012 Denmark’s first young arbitration practitioners’ association – Young Arbitrators Copenhagen (YAC) – was launched by a group of up and coming arbitration practitioners. The aim of YAC is to promote the interest and knowledge of domestic and international arbitration among younger (below 40)  attorneys, in-house counsel, academics and students in an informal and open-minded setting, as well as further promoting Denmark as the seat of arbitration cases within the international arbitration community.

The formation of YAC was inspired by the existence of similar associations in other countries and comes at a time when the use of arbitration in Denmark as a mean to solve domestic and international disputes is becoming increasingly popular with a growing number of younger practitioners involved in arbitration cases as a consequence thereof.

The five-day Düsseldorf International Arbitration School aims at providing young practitioners, post graduates and advanced students – particularly Moot Court participants – with the requisite knowledge of International Arbitration. The School is based on a practical, inter-active teaching concept. All of the participants get the opportunity to improve their skills and knowledge in both the law and practice of international commercial arbitration. The teaching faculty consists of some of the world's leading arbitration practitioners. The participants may accompany these practitioners on an exciting quest: the search for efficient and fair dispute resolution in a world where there is no "non-national commercial court of compulsory jurisdiction" - a world where the two major legal systems come together and merge. Each day of the Arbitration School will have a different theme - with a special focus on manipulation and arbitration on the fifth and final day.

An international conference celebrating a decade of study and research in international arbitration at the Master Program of International Commercial Arbitration Law at Stockholm University.

England is a leading centre for arbitration, both international and domestic, arising out of all manner of contractual disputes and industry sectors. This book comprises contributions from well-known arbitration practitioners and scholars who present, in a straightforward and readable fashion, the rich and varied nature of arbitration in England today.

Arbitration is a staple of international dispute resolution. Though the international community now has a plethora of courts and tribunals at its disposal, for numerous reasons international arbitration remains a central mechanism—perhaps even the central mechanism in third-party resolution of international commercial disputes.

Götz challenges the current prevailing legal opinion in German jurisdiction and legal literature regarding the limitation of liability for the violation of an arbitrator's duties under the arbitrator contract, and offers a different line of argument to justify limiting an arbitrator's liability in accordance with the liability limitations set forth by German law for judges.

Kuhli discusses a decision by the Higher Regional Court of Berlin (Kammergericht or KG) [KG Berlin, 20 SchH 3/09 dated April 23, 2012] concerning the restriction of the binding effects of arbitration agreements in the context of insolvency proceedings.

While it is common to assume that an arbitration award will provide for the payment of interest, a party may find at the enforcement stage that its expectations will not be fully realised unless attention is paid to the different rules that can apply to the three different time periods for which interest may be awarded. The issue of interest is often discussed in terms of two time periods: “pre-award” and “post-award” interest. However, closer examination reveals that there are three distinct time periods for which interest may be awarded.

The words 'what we gain, what we lose' might suggest that we have a choice—that if we are losing more than we gain we can turn our backs on universal arbitration and return to a more comfortable existence. That would be wrong. It is interesting to take stock, but there is no choice. For better or worse, universal arbitration is here to stay. So we must deal with it, and if possible rescue those things of value which belong to the world we seem to be leaving behind.

The news is that Italy is increasingly being chosen as a place for international arbitrations. The article analyses the reasons for this recent success as well as the shortcomings which still constitute obstacles to an even greater success. Italy has relatively recently adopted a new law on arbitration. It is the Legislative Decree of February 2, 2006, No.40, which, substantially modifying previous rules, introduced into the Italian Code of Civil Procedure (hereinaf-ter “CPC”) new arts 806-840.

The Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China (PRC) continues to grow in popularity as a preferred seat for international arbitration. Under the framework of “one country, two systems”, the HKSAR has its own constitution (the Basic Law), which provides for an independent legislature and courts based on principles of common law. The Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China (PRC) continues to grow in popularity as a preferred seat for international arbitration. Under the framework of “one    country, two systems”, the HKSAR has its own constitution (the Basic Law), which provides for an independent    legislature and courts based on principles of common law.

The article addresses a specific, dual issue -- foreign-investment protection agreements (FIPAs), which governments adopt when they ratify these documents, and investor-state dispute settlement (ISDS) processes, which establish arbitration mechanisms that a transnational corporation can use to seek compensation from signatory states for any violation of its new privileges.

These rights are far from uncontroversial, since ISDS processes have imposed enormous penalties on signatory states, particularly the weak, foreign-investment receiving countries in the Third World. Because these awards are so high, considerable resistance has been growing to reject what is seen as a new form of imperialist domination. The authors limit their discussion of the new resistance to this process of norm diffusion to a specific region, Latin America, where the contestation of new rights for transnational corporations (TNCs) is encountering significant resistance not just within civil society but at the highest political levels.

The following article discusses the application of lex mercatoria by domestic courts and international arbitral tribunals instead of or supplementary to domestic substantive law. Emphasising the legal status of lex mercatoria, the article evaluates its value compared to substantive law. To provide legal certainty, it also tries to establish certain criteria regarding the recognition of certain business principles as lex mercatoria. 

This article critically examines the system by which individuals are appointed to ICSID annulment committees. It observes the largely unilateral and highly discretionary role of the ICSID Chairman in this process, urging greater participation in the selection of annulment committees by the member states of ICSID in order to improve the transparency and legitimacy in this crucial feature of ICSID dispute settlement. A procedure similar to that adopted with respect to the World Trade Organization’s Appellate Body may be instructive in this regard. 

One of the most remarkable developments in international commercial law over the last fifty years has been the gradual acceptance of the existence of a new merchant ‘law’, or lex mercatoria, spontaneously generated by the international community in the shadow of national legal orders. While the notion that there might be law beyond the state aroused the interest of legal scholars and theorists around the world, few wondered whether international commercial actors had a genuine interest in the development of an autonomous transnational law. This Article offers empirical evidence suggesting that commercial parties almost never opt into lex mercatoria pursuant to their freedom to contract, but instead use that freedom to select a particular national law to govern their contracts. This conclusion begs the question of whether anybody else might benefit from lex mercatoria.