Arbitration Team Coffee Break

NEWS

Swedish court annuls ECT award after Komstroy ruling

On 20 December 2023, a Swedish Court of Appeal annulled a EUR1.5 million SCC award issued by an arbitral tribunal consisting of Bernardo Cremades (president), Kaj Hober, and Zachary Douglas KC (both co-arbitrators) in a dispute between five shareholders of the Polish company Blue Gas Holding (both EU and non-EU nationals) and the Republic of Poland. The investors, finding themselves as “losing” parties before the arbitral tribunal, asked the Stockholm Court of Appeal to set aside the award on public policy grounds given that the ECJ Komstroy decision ruled that disputes between intra-EU parties brought under the Energy Charter Treaty could not be the object of arbitration The Swedish Court of Appeal annulled the award, finding that it violated Swedish law. At the moment, only the Swedish version of the decision has been published.

IBA Arbitration Committee publishes the new guidance on conflicts of interest in international arbitration

On February 2024, the IBA Arbitration Committee published the updated “Guidelines on Conflicts of Interest in International Arbitration” (the ‘Guidelines’) applicable to both investment and commercial arbitration. These new Guidelines aim to enhance the previous 2014 version by amending the existing regime without compromising its rationale, which has gained wide acceptance within the international arbitral community since its first publication. Specifically, the revisions made by the IBA Arbitration Committee address various aspects, including the waiver of facts and circumstances if not raised within 30 days from a party becoming aware of them, broader circumstances affecting arbitrators’ impartiality, and the extension of the so-called “orange list” of circumstances evaluated for conflict of interest. The Guidelines are published on the International Bar Association website.

Arbitrator Mr Gonzalo Stampa faces criminal charges amid controversy over USD15 billion award against Malaysia – arbitration community stand in favour of Mr Stampa

More than 60 arbitration practitioners have criticized the Spanish authorities' decision to criminally charge arbitrator Mr Gonzalo Stampa, who, sitting as sole arbitrator, issued a USD15 billion investment award in a dispute between Philippine nationals and the State of Malaysia. As reported by GAR, the agreement theoretically governing the dispute provided for the controversy to be decided by the former British consul-general of Borneo, a role that no longer exists. Therefore, the claimants asked the Spanish Supreme Court of Justice to appoint an arbitrator, who was eventually found in the person of Mr Stampa. The Spanish Supreme Court of Justice then annulled Mr Stampa’s appointment after finding that the service made to Malaysia was vitiated. Despite the annulment, the arbitrator moved the seat of the arbitration to Paris and proceeded to issue the final award. The decision of moving the seat of the proceedings notwithstanding the appointment annulment is causing a potential imprisonment of up to three years for the arbitrator if found guilty. The charges, undisclosed publicly by Spanish authorities, were brought to light in an open letter published in support of Mr Stampa. Malaysia, disputing the award's legitimacy, filed criminal complaints against Mr Stampa for contempt of court for neglecting the Spanish Supreme Court of Justice decision on the appointment annulment as well as for unqualified professional practice. Meanwhile, Philippine claimants succeeded in freezing Malaysian assets in Luxembourg and France and are seeking enforcement in various countries. Malaysia is challenging the award in French courts. An investigation against the claimants is ongoing in Malaysia. Malaysia's legal spokesperson denies the award's validity and underscores the state's actions against the claimants.

 

EVENTS

8th ICC European Conference on International Arbitration – 18-20 March, Paris

Between 18 and 20 March 2024, in Paris, the ICC will host the 8th European Conference on International Arbitration. The official schedule and programme has yet to be published, we’ll keep you posted. In the meantime, you can register here.

Paris arbitration week – 18-22 March 2024, Paris

Paris arbitration week will return in 2024 between 18 and 22 March. You can check the planned events and register here.

GAR's 14th annual awards ceremony – 21 March 2024, Paris

As part of the 2024 Paris arbitration week, on 21 March 2024 GAR will hold its 14th annual awards ceremony. While the programme is still to be finalized, you can register here. Stay in touch for more updates.

 

BOOK REVIEW

A Henke, M Torsello, E Zucconi Galli Fonseca, International Commercial Courts. A Paradigm for the Future of Adjudication?

On 3 January 2023, the book “International Commercial Courts. A Paradigm for the Future of Adjudication?” edited by A. Henke, M. Torsello and E. Zucconi Galli Fonseca was published.

The handbook has been published following a conference jointly organized by the Universities of Bologna, Milan, and Verona and comprises all the results of the discussions held during that conference. In particular, the volume aims to provide a comparative overview of the emerging phenomenon of International Commercial Courts, in comparison also with international arbitration. The handbook addresses the phenomenon both from an EU perspective (analysing the experience of Germany, France, Belgium, and Italy) and from an extra-EU perspective (with analysis of States such as Gulf area, Singapore, China, and the OHADA States).

The volume ends by concluding that only time will tell us if international commercial courts will reach a relevant importance as players in the international litigation field.