Spring 2008

LONDON ARBITRATION:

LIFTING THE CLOAK OF CONFIDENTIALITY?

by Nick Marsh, London

The English Court of Appeal recently1 examined the law of privacy and confidentiality in English arbitrations in the context of a dispute between providers of legal services in Kazakhstan which was being fought in several jurisdictions.

Although the decision resulted in the court ordering disclosure of a limited set of documents to third parties, the court stressed that most arbitrations in England are conducted with complete confidentiality. London, therefore, remains an attractive arbitration seat for parties seeking to avoid public exposure of their private commercial disputes.

For our readers, we have prepared a summary of the dispute—which involved an arbitration in London and proceedings in England, New South Wales, and the British Virgin Islands.

Please read our article here.

1 Michael Wilson & Partners Limited v John Forster Emmott [2008] EWCA Civ 184

USING BITS TO PROTECT FOREIGN INVESTMENT

IN THE MIDDLE EAST

Foreign investment in the UAE is an integral part of the rapid economic development being achieved in the area. The UAE has taken steps which demonstrate its commitment to attracting and encouraging foreign investment in the region, including ratifying amendments to the Federal Arbitration law (currently awaiting enactment) and announcing a proposed new arbitral regime in the Dubai International Financial Centre. The UAE is also entering into negotiations with other nations in relation to new bilateral investment treaties (BITs). Most recently, the UAE has entered into BIT negotiations with the United Kingdom.

For our readers, here is a short overview of the protections that multinationals can received under BITs, as well as important considerations for investors.

CHILE’S SUPREME COURT AFFIRMS RIGHT

TO ENFORCE INTERNATIONAL ARBITRATION AGREEMENTS

by Joshua Briones, Los Angeles

As globalization continues, the interrelationship of economies is becoming the norm. One consequence of this growing integration is that Latin American countries have had to reconsider their views and procedures regarding international dispute resolution, including arbitration.

Chile’s Supreme Court recently broke with tradition by affirming the right to select a foreign dispute resolution forum in a contract, even when one of the companies in the potential dispute is Chilean. The decision1 is likely to boost international arbitration because it sends a strong signal to the international business community that international arbitration agreements and awards are legitimate and will be enforced by the Chilean courts.

The Chilean decision concerned a claim by a Chilean mining company, Mauricio Hochschild, in a dispute with Germany’s Ferrostaal, a metals producer. For our readers, we have prepared a short summary of the decision and the positive implications it will have for foreign investment in Chile, as well as for the acceptance and use of international arbitration throughout Latin America. Please read the summary here.

1 Mauricio Hochschild v. Ferrostaal, Decision of Chilean Supreme Court on
January 22, 2008.

HALL STREET ASSOCIATES:

THE END OF MANIFEST DISREGARD CHALLENGES?

by J.P. Duffy, New York, and Kate Frenzinger, Phoenix

The United States Supreme Court recently held in Hall Street Associates, LLC v. Mattel, Inc., 552 U.S. ___ (2008), that the grounds for vacating or modifying an arbitration award under Sections 10 and 11 of the Federal Arbitration Act (FAA) are exclusive and that those grounds cannot be expanded by agreement of the parties.

The Hall Street Associates decision is critical for both domestic and international arbitral awards because it may severely limit parties’ ability to challenge awards on the basis of manifest disregard of the law, which is a judicially created basis not expressly stated in the FAA.

We have prepared a brief overview of the issues in this decision. Please read it here.

NEWS FROM THE ARBITRATION INSTITUTIONS

Norway Proposes Significant Reforms to its Investment Treaty Practices

The Government of Norway has released the text of a draft model bilateral investment treaty for consultation. If agreed, the text would set a template for future bilateral investment treaty negotiations with Norway. For more information, visit this page.

Canada Passes Legislation to Implement the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention)

On 14 March 2008, the Canadian government announced that Bill C-9, which will implement the ICSID Convention, had been passed by both Houses and received royal assent. To learn more, please visit this page.

Reform of the Arbitration Law in Hong Kong and Draft
Arbitration Bill

The Hong Kong Department of Justice has released a consultation paper and draft legislation for reforming Hong Kong’s arbitration law, which will unify Hong Kong’s different regimes for ‘domestic’ and ‘international’ arbitration. The reforms to the Arbitration Ordinance are expected to come into force by mid-2008. Click here for the Department of Justice’s consultation paper.

United Nations Commission on International Trade Law Working Group Adopts New Draft Convention on the Contract for the International Carriage of Goods Wholly or Partly by Sea

The UNCITRAL Working Group on Transport Law has adopted the draft convention on contracts for the international carriage of goods wholly or partly by sea, which will soon be circulated to governments for comment and will be presented to the annual session of the Commission (New York, 16 June to 3 July 2008) for a final round of negotiations, with a view to the draft convention being presented to the General Assembly for conclusion later in 2008. For more information about the session, please read here.

CEDR Solve Launches Independent Investigation and Fact-Finding Service for Organisations with Difficult Disputes

CEDR has launched a new “Independent Investigation and Fact-Finding” service to offer an impartial and fresh perspective on complex or difficult disputes provided by a neutral individual or team. The service aims to work directly with managers in business and the public sector undertaking detailed investigations that would rapidly clarify disputed issues. This approach is intended to enable organisations to appropriately manage risk in dealing with conflict. Read more about the new service here.

ICC International Court of Arbitration to Open Offices in Asia

The International Court of Arbitration of the International Chamber of Commerce and the Secretariat of the ICC Court have decided to locate their new offices in Hong Kong and Singapore in recognition of the growing importance of the Asia Pacific region to ICC Dispute Resolution Services and the ICC International Court of Arbitration. More information about the new offices may be found here.

Arbitration: Developments in the UAE

The draft UAE Federal Law on Arbitration and the Enforcement of Arbitration Awards has been published. The new law incorporates the UNCITRAL Model Law, with additional provisions reflecting modern arbitration practice.

Amendment of JCAA Commercial Arbitration Rules

On 1 January 2008 the Japan Commercial Arbitration Association issued amended versions of its Commercial Arbitration Rules and Regulations for Arbitrator’s Remuneration. The most important amendment is that to the Remuneration Regulations, which have been amended to allow a maximum hourly rate for arbitrators of ¥80,000 (about US$750), double the previous cap. Read the amended regulation here.

UPCOMING EVENTS

International Council for Commercial Arbitration (ICCA) Conference in Dublin

The conference on 8-10 June 2008 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. Full details about the conference can be found here.

5th Summer Academy on International Dispute Resolution

The Heidelberg Centre for International Dispute Resolution will hold its 5th Summer Academy on International Dispute Resolution from 23 June to 28 June 2008 at Internationales Wissenschaftsforum Heidelberg. Sessions will cover international civil procedure, alternative dispute resolution and international commercial arbitration. Click here for more information.