Arbitration Team Coffee Break - August 2022
Events
Getting ready for next events
On 1-2 September 2022, the Swedish Arbitration Days 2022 will take place in Stockholm. This year’s event will explore the topic of integrity in international arbitration. Academics and prominent legal practitioners will reconvene to analyse and discuss the topic from all angles. They hope to provide answers to questions such as, what defines integrity within arbitral proceedings and whose responsibility is it to make sure integrity is being maintained?
Furthermore, on 28-29 September 2022, the 17th ICC New York Conference on International Arbitration will take place. The event will kick off with a panel discussing ‘North American trends to watch for more resilient dispute resolution’, moving forward with several sessions discussing recent developments and trends in international arbitration. Also on the agenda is a fireside chat with ICC International Court of Arbitration President Claudia Salomon.
News
Italian Supreme Court rules against the existence of limitation on arbitrability in arbitration proceedings involving public entities
On 20 June 2022, Italian Corte di Cassazione (Cassazione SU n. 19852/2022) issued an interesting decision on the validity of arbitration clauses included in contracts between privates and public entities. This joint-chambers decision clarifies that no limitation on arbitrability exists when public entities are involved, because Italian laws do not include such a prohibition. A more extensive report on the decision will be provided in the future newsletter issues. Stay tuned!
ECtHR declares that the non-enforcement by Slovak national courts of a foreign arbitral award constituted a violation of Article 1 of Protocol 1 of the ECHR
BTS Holding (BTS), a Slovak private joint-stock company, obtained an ICC award in its favour against the National Property Fund of Slovakia (the country’s privatisation agency, NPF), following the rescinding by the NPF of a contract that it had entered into with BTS for the purchase by the latter of shares in Bratislava Airport. The award was rendered in Paris on 8 June 2022.
The Slovak Courts refused the enforcement of the award on the basis of several grounds (for a summary of which, see point 66 of the ECtHR decision).
BTS “complained that enforcement of the arbitral award in its favour had been arbitrarily refused, contrary to its rights under Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” (point 46).
In addition, BTS, “relying on Articles 6 and 13 of the Convention […] complained that the refusal to enforce a final and binding arbitration award in its favour had been arbitrary and contrary to the principle of legal certainty and that it had had no effective domestic remedy in that regard” (point 74).
The ECtHR, in its decision of 30 June 2022 (Case of BTS Holding, A.S. v. Slovakia - Application no. 55617/17), considered the grounds of non-enforcement at the basis of the Slovak courts’ decisions (points 67 to 71) and concluded that “the refusal to enforce the applicant company’s arbitration award was not justified for the purposes of Article 1 of Protocol No. 1” of the Convention and that therefore “there has been a violation of” said provision (points 72 and 73). As to the complaints relying on Articles 6 and 13, the Court considered them admissible but it deemed that there was no need to give a separate ruling on them.
Book Review
Il riconoscimento degli effetti del giudicato nell’arbitrato commerciale internazionale (The recognition of res judicata’s effects in international commercial arbitration) – Giappichelli Editore
Michele Grassi
On 10 May 2022, Giappichelli Editore published the volume “The recognition of res judicata’s effects in international commercial arbitration” by Michele Grassi (titled in its original Italian version as: “Il riconoscimento degli effetti del giudicato nell’arbitrato commerciale internazionale”).
The book investigates the practical implications of the theory of res judicata in the context of international commercial arbitration.
In the introductory chapter, the Author outlines the general features of the theory of res judicata and its relevant criticalities, starting from the notion of res judicata and the determination of its object within the context of the Italian civil procedure.
The Italian legal framework is the starting point of a comparative analysis of the res judicata effects spanning between civil law and common law systems, offering the Italian, German, French, English and American perspectives.
In particular, the first part of the investigation addresses the res judicata effects of: (i) State Courts’ decisions; (ii) domestic arbitration awards; (iii) foreign State Court decisions recognised in a given State.
In the second part of the book, the author goes to the core of the problems of the res judicata effects in international commercial arbitrations. The Aathor starts with offering a clarification of the context in which the problems shall be examined,namely the notion of “international commercial arbitration” and the questions whether or not a wider arbitral system can be envisaged. Then the author outlines the inadequacy of the solutions offered by the arbitration practice and by the literature to the various problems entailed by the res judicata within the arbitral proceedings. Finally, the author dedicates the last chapter of his work to reconstruct the effects of res judicata within the arbitral proceedings. This is described through the intricated conundrum of jurisdiction of the arbitral tribunal and admissibility of the claim in the first place.
The book can be found here.
Good to know
The possible reform of corporate arbitration in Italy
Check out Matteo Ronchi’s analysis of the future changes, envisaged in the upcoming reform of the Italian Code of Civil Procedure in the Italian corporate arbitration law.
