2012 International Arbitration Report - Norton Rose · PDF fileand English Arbitration Acts • Regulation 44/2001 Reform Update • Section 1782 Case Update 2012 International Arbitration

This issue includes: China-Related Arbitration Agreements • Comparative Study of the French and English Arbitration Acts • Regulation 44/2001 Reform Update • Section 1782 Case Update

2012 International Arbitration Report I s s u e 1

Fulbright & Jaworski 2012 International Arbitration Report

Issue 1

7

Attorney Advertising

The editor of the International Arbitration Report is Jonathan sutcliffe.

The following Fulbright attorneys contributed articles to the International Arbitration Report: stephen Burke, Marti Cherry, Lucy Greenwood, Richard Hill, Matthew Kirtland, Paul Neufeld, Kevin O’Gorman, efrén Olivares, James Rogers, Aníbal sabater, Mark stadnyk and Matthew Townsend.

Meet Fulbright’s Asia Disputes Team ................................................... 1

China-Related Arbitration Agreements: A Guide to Best Practices for International Parties engaged in China-Related Transactions ............................................................. 2

Indian Treatment of Foreign-seated Arbitrations ..................................... 5

A Arbitragem Internacional No Brasil: Brazilian Courts embrace Arbitration Again ....................................... 7

A Comparative Analysis of the French and english Arbitration Acts .................................................. 8

Tribunal’s Award of Remedy Not Requested by Parties May Provide Grounds for Annulment ...................................... 12

Fulbright Representative Matters ......................................................... 14

Challenge and enforcement in the english Courts: A Round-up of some Recent Cases ................................................... 15

Venezuela Withdraws from ICsID ..................................................... 18

Identifying Trends in International Arbitration since 2004: The Fulbright & Jaworski Litigation Trends surveys .......................... 19

Regulation 44/2001 Reform update: The european Parliament Weighs In ................................................. 21

Forum Non Conveniens: A “Procedural” Basis for Refusing to enforce Arbitral Awards in the u.s.? .......................................... 23

u.s. Discovery in Private International Arbitration Remains unsettled under section 1782 ............................................. 25

Honors and Appointments ................................................................. 27

scriveners and speakers ...................................................................... 28

Fulbright Contacts ............................................................................. 32

China Arbitration Conference

October 2012

Beijing

Fulbright’s 4th China Arbitration

Conference will address a range of

current topics affecting Western and

Chinese parties facing or considering

arbitration in China and Asia. Speakers

will include Fulbright arbitration

practitioners, leading arbitrators,

corporate counsel and representatives

of arbitral institutions.

Save the Date!

c

1

Meet Fulbright’s Asia Disputes TeamWe are pleased to introduce Fulbright & Jaworski’s Asia-focused arbitration and international disputes team.

These experienced lawyers continue Fulbright’s long tradition of representing clients in complex legal matters

involving parties, projects and investments across the Asia Pacific region.

Fulbright & Jaworski represents clients on complex disputes and arbitrations in the region and globally

through its international network of offices. The Asian disputes team regularly act as counsel and advocates

in arbitrations under the arbitral rules of all major regional and international arbitration institutions, in

cases heard in a variety of arbitral seats and involving a wide range of governing laws.

James Rogers has represented clients in a wide variety of matters involving numerous jurisdictions across Asia, North and south America, Africa, europe and the Middle east. He has represented clients in arbitrations under the ICC, LCIA, sCC, DIAC, LMAA, CIeTAC, HKIAC and swiss Rules in many of the major arbitral centers of the world, including Asia, europe, London and the Middle east. His experience extends across a broad range of industry sectors, with a particular focus on energy and construction sector disputes. James recently worked on a number of licensing and technology development disputes involving the alleged misappropriation and misuse of intellectual property. Based in Hong Kong, James has also lived and practiced in Tokyo and London.

The Legal 500 recently described Richard Hill as “one of the most recognized arbitration specialists in town”. Based in Fulbright’s London and Hong Kong offices, Richard has extensive international arbitration experience, having acted in more than 80 cases as counsel and more than 20 cases as arbitrator. His practice covers disputes in a range of commercial and industry sectors, including energy, power, transportation, banking and finance, corporate/M&A matters, FDI, technology, telecommunications, construction, engineering, reinsurance, manufacturing and international trade. As an english solicitor-advocate and former barrister, he frequently appears as an advocate in arbitral hearings. Richard is also an experienced arbitrator and has been a tribunal member in some of the largest arbitrations recently heard in Hong Kong.

Matthew Townsend focuses his practice on China-related international arbitration and dispute resolution from Fulbright’s Beijing and Hong Kong offices. Qualified in england and Wales, Matthew worked as a dispute resolution lawyer in London before making Beijing his home. Fluent in Mandarin Chinese, he is the co-founder and director of the China Britain Law Institute and a regular writer and commentator on Chinese legal issues.

Jeff Blount is Partner-in-Charge of Fulbright’s Hong Kong and Beijing offices. He began his career at Fulbright & Jaworski in 1983 and has lived and worked in Asia since the early 1990s. Jeff ’s tenure in Asia has corresponded with a period of rapid growth, market liberalization and transformation of the Chinese economy. As a result, he has had the opportunity to work on all aspects of a wide variety of legal matters, transactions and projects throughout China, in industries ranging from automotive, energy and biotechnology to telecommunications, transportation and logistics.

t 2012 InternatIonal arbItratIon report

2

China-Related aRBitRatiOn agReements: a guide tO Best PRaCtiCes fOR inteRnatiOnal PaRties engaged in China-Related tRansaCtiOnsParties engaging in China-related transactions are often unsure how best to protect themselves with respect to the choice of dispute resolution mechanism. This article is intended as a guide to best practices for arbitration agreements for international parties engaged in China-related transactions. specific advice should of course be sought in respect of particular transactions.

Arbitration Preferable

Why not litigation?

D Litigation in China remains unpredictable.

D Limited reciprocal enforcement of foreign court judgments in China. The 1958 New York Convention on the Recognition and enforcement of Foreign Arbitral Awards (the “New York Convention”), to which China is a party, means that foreign arbitral awards are more readily enforceable in China than are foreign court judgments.

D Positive regime for the enforcement of foreign arbitral awards in China.

b Narrow grounds to refuse enforcement. Grounds for refusal of enforcement are limited to the narrow procedural irregularity and public policy grounds set out in the New York Convention.

b special reporting system implemented for enforcement of foreign arbitral awards. Lower courts are unable to refuse enforcement of a foreign arbitral award without referring the case to the higher courts and ultimately the supreme People’s Court in Beijing.

b The reporting system is imperfect and lacks transparency and a clear, timely procedure, but has helped promote a pro-enforcement environment.

Arbitrate Outside Mainland China if Possible

Is it possible to arbitrate a China- related dispute outside of China?

D Yes, but only if your dispute is “foreign-related.” A dispute will be treated as foreign-related if:

b One of the parties to the dispute is non- Chinese. All corporations incorporated in mainland China, including “Foreign Invested enterprises”, will be considered local entities, regardless of ownership structure;

b Performance of the contract in dispute is or was to be undertaken wholly or partly outside mainland China; or

b Other relevant and substantive circumstances exist outside of mainland China regarding the “occurrence, modification or termination of civil rights and obligations.”

D Governing law: it is important also to note that contracts which are not foreign-related must be governed by Chinese law.

Why is it preferable to arbitrate outside of mainland China?

D The enforcement regime in China is less robust for local awards. The reporting system referred to above applies only to the enforcement of foreign arbitral awards (i.e., those rendered outside of China). There is no systematic review of enforcement decisions relating to local arbitration awards. enforcement of

3

www.fulbright.comApril 2012

local arbitral awards is therefore less predictable and more open to local protectionism.

D Arbitrations in mainland China must be administered by a mainland Chinese arbitration commission. This is certainly the case with domestic arbitrations. The issue is less clear with respect to arbitrations with a foreign element (see above), but most commentators agree that a choice of a non-mainland China arbitral institution for any arbitration in China risks being invalidated by the Chinese courts. Moreover, ad hoc arbitrations are not allowed within China.

D The Chinese courts enjoy wide supervisory powers over arbitrations seated in China. Applications for interim relief, such as the preservation of property or evidence, are dealt with by the local courts. Arbitral tribunals are not uniformly empowered to rule on their own jurisdiction, a power which is vested in the local arbitral commissions and the local courts.

D Lack of interim measures for arbitrations seated in China. Interim measures, such as security for costs or orders to compel witnesses are not available. (On the other hand, where interim relief is likely to be required from a Chinese court this is a factor that may point towards agreeing to a Chinese seat as Chinese courts will only grant interim measures in support of Chinese arbitrations.)

D Difficulty in securing a tribunal of sufficient experience and international outlook. By international standards, the remuneration offered to arbitrators by the Chinese arbitration commissions is very low. Also, the function of appointing the presiding arbitrator falls to the local arbitration commissions, who will normally appoint a Chinese arbitrator unless the parties agree otherwise.

D Simplified procedures not suitable for complex commercial disputes. The duration of proceedings administered by mainland arbitration commissions is typically very short, with little document disclosure,

often without a hearing and with little or no opportunity to hear from witnesses (or cross-examine them). Chinese arbitrators typically employ an inquisitorial procedure which they lead, rather than an adversarial one whereby the parties can plead their own case and defend the case made against them. Chinese arbitral law also allows tribunals the right to decide matters on an ex aequo et bono basis using concepts of fairness and equity.

D Chinese arbitrators inclined towards mixing arbitration with conciliation. This gives rise to procedural concerns, particularly regarding the parties’ right to an equal opportunity to present their case and the treatment of confidential information shared in private mediation meetings with the arbitrator.

Arbitration in Mainland China The following suggestions ensure that a suitable panel of arbitrators will be appointed and a procedure adopted which is more consistent with the adversarial procedure normally followed in international arbitrations seated outside of China.

D Nationality of arbitrators. ensure your arbitration agreement requires that the chairman of the tribunal be of a nationality different to each of the parties.

D Selection and remuneration of arbitrators. ensure that arbitrators can be selected who are not on the arbitrator list of the local arbitration commission chosen to administer the arbitration. Also, ensure that arbitrators can be remunerated at their normal hourly rates rather than in accordance with the fees typically fixed by the local arbitration commissions, which are very low by international standards.

D Language. Agree that proceedings be conducted in english (or other preferred language).

D Use CIETAC or the Beijing Arbitration Commission. Avoid other, more local, arbitration commissions.


4

D Document disclosure. Consider including express provision for document disclosure (for example, in accordance with the IBA Rules on the Taking of evidence in International Arbitration).

D Procedure. expressly provide for an adversarial procedure (as opposed to inquisitorial) and stipulate that the arbitral tribunal must decide strictly in accordance with the governing law of the contract (as opposed to on grounds of fairness or equity).

Credible Offshore Arbitration Options for Chinese PartiesD Trend by Chinese parties towards Asian

seats and Asian arbitral intuitions.

b Hong Kong and Singapore. Both have strong independent judiciaries and systems of precedent based upon the common law approach. Both are supportive of arbitration. They each also have modern, user-friendly arbitration legislation and are both increasingly selected as the seat for China- related arbitrations.

b The Hong Kong International Arbitration Centre (HKIAC) and the Singapore International Arbitration Centre (SIAC). The emergence of Hong Kong and singapore as arbitral seats has been aided by the continued success of HKIAC and sIAC as arbitral institutions. Both are credible alternatives to the more traditional european arbitral institutions and have seen increasing workloads in recent years, in part due to the increased adoption of their arbitration rules in China-related contracts.

b The approach of the sIAC is inspired by the International Chamber of Commerce (the ICC) and is therefore perceived as more hands on than the HKIAC, which adopts a lighter touch in the administration of arbitrations.

b The ICC. Perhaps the most prestigious of the international arbitration institutions, the ICC has also shown a commitment to the region by opening an Asia secretariat branch office in Hong Kong. The ICC arbitration rules are

Fulbright Ranked Number 11 in BTI Client Service Survey BTI Consulting Group, Inc., a provider of

strategic research to law firms and General

Counsel, ranked Fulbright 11th in its 2012

Client service List. Based on the survey of

FORTuNe 1000 companies around the world,

general counsel agreed that Fulbright’s strengths

were keeping clients informed and anticipating

client needs. Assessed by a number of criteria,

Fulbright received top honors for its “ability

to keep clients informed.” 9

5


already a prominent choice for Chinese parties, but may now be even more readily adopted.

D The European arbitral centres and institutions.

b Chinese parties favour European seats over U.S. seats. London, Paris and the swiss cities, Zurich and Geneva, therefore retain prominence and are often agreed to by Chinese parties. All are arbitration-friendly jurisdictions with supportive judiciaries.

b The Stockholm Chamber of Commerce (the SCC) and the London Court of International Arbitration (the LCIA). Chinese arbitration users are also often amenable to the arbitration rules of the sCC or the LCIA, which are well-regarded and suitable for complex commercial disputes. In particular, the sCC has developed as a favored institution with Chinese parties partly due to its history in administering trade disputes between Western parties and the former soviet bloc. 9

indian tReatment Of fOReign-seated aRBitRatiOnsIn two recent cases, the supreme Court of India has placed limits upon a controversial line of case law which had allowed the Indian courts to seek to intervene in arbitrations held outside of India.

The Bhatia Principle Part I of the Indian Arbitration and Conciliation Act 1996 (the “Act”) sets out the Indian Court’s powers in respect of arbitration proceedings “where the place of arbitration is in India”. However, in Bhatia International v. Bulk Trading SA ((2002) (4) sCC 105), the supreme Court had held that, because the Act does not expressly exclude the application of Part I where the place of arbitration is not India, Part I of the Act also applies to international arbitrations held outside of the country.

This principle has caused consternation among the international arbitration community, concerned that the long arm of the Indian Courts would extend to international arbitrations involving Indian parties but seated outside of India and with no other connection to the country. Indeed, following Bhatia, the Indian courts

subsequently purported to set aside an arbitration award rendered in another country and intervened in the appointment of arbitrators in an arbitration where no arbitral seat was agreed.

Limiting the Bhatia Principle—the Videocon Judgment In Hardy Oil and Gas v. Hindustan Oil Exploration ((2006) 1 GLR 658), the Gujarat High Court sought to limit the application of Bhatia, ruling that Part I of the Act was excluded implicitly by the parties’ nomination of english law as the governing law of the arbitration. This approach has since been followed by the supreme Court in Videocon Industries Ltd. v. Union Of India & Anr. ((2011) 6 sCC 161). In May 2011, the supreme Court in Videocon confirmed that the parties’ adoption of a law other than Indian law may amount to an implied agreement to exclude the application of Part I of the Act. However, the Videocon decision is not without its problems and serves to reinforce the difficulty the Indian courts have historically had in dealing with international arbitration issues.

In the Videocon case, the contract identified: (a) Indian law as the governing law of the contract; (b) english law as the law governing the arbitration agreement; and (c) Kuala Lumpur, Malaysia as the arbitration “venue”. Following the relocation of the arbitral proceedings, an application was made to the Delhi High Court under section 9 of the Act for a declaration that Kuala Lumpur was the seat of the arbitration.

On appeal, the supreme Court ruled that, although hearings had taken place in London, the legal seat of the arbitration remained Kuala Lumpur. The court noted that an amendment to the arbitration agreement (which specified the seat of arbitration) required the agreement of all the parties to the original contract and the arbitration agreement, not merely the parties to the dispute.

However, the supreme Court also held that the Delhi High Court did not have jurisdiction to hear the application because the provisions of Part I of the Act were excluded through the adoption of english


6

law as the law governing the arbitration agreement. This second finding should have precluded the court from declaring that the seat of the arbitration was Kuala Lumpur.

Notably, the supreme Court also failed to distinguish between the law governing the contract and that governing the arbitration. The court in Videocon had emphasized the parties’ adoption of english law to govern the arbitration agreement as excluding the application of the Act. This is to be distinguished from the Hardy Oil case where the court found that the parties’ adoption of english law as the law governing the arbitration itself excluded the application of the Act.

A Further Limitation on Extraterritorial Jurisdiction—the Yograj Judgment On 1 september 2011, the supreme Court again limited the application of the Bhatia principle. In Yograj Infrastructure Ltd. v. Ssang Yong Engineering and Construction Co. Ltd. (Civil Appeal No. 7562 of 2011 (arising out of sLP (C) No. 25624 of 2010)), the supreme Court ruled that, although the contract in question was governed by Indian law, the nomination of a non-Indian seat of arbitration was sufficient to exclude the application of the Act.

In the Yograj case, the arbitration was to be “conducted in english in singapore in accordance with the [2007] singapore International Arbitration Centre (sIAC) Rules as in force at the time of signing of this Agreement … [and t]he arbitration shall take place in singapore …”. As the 2007 sIAC Rules (since superseded by the 2010 sIAC Rules, which allow greater discretion in this regard) provided expressly that the law of the arbitration was singaporean law, the supreme Court ruled that the parties had therefore excluded the application of Part I of the Act.

Conclusion and Further Developments The Yograj decision is welcome, both for correctly distinguishing between the different laws at play in the international arbitration context and limiting the impact of the Bhatia principle. These limits on the Bhatia principle reduce the uncertainty faced by parties in offshore arbitrations involving Indian parties and help improve the perception of India’s arbitration credentials. In early 2012, the supreme Court began hearing a number of consolidated appeals that could spell the end for Bhatia, inviting amici curiae briefs from interested parties, including LCIA India and the sIAC. It is therefore anticipated that the supreme Court may yet go further and fully reverse the Bhatia line of authority. 9

7


a aRBitRagem inteRnaCiOnal nO BRasil: BRazilian COuRts emBRaCe aRBitRatiOn againIn a decision widely welcomed by the international arbitration community, the Court of Appeal of the southern Brazilian state of Paraná recently overturned its own earlier ruling and confirmed a previously vacated international arbitral award. (Itiquira Energética S.A. v. Inepar S.A Indústria e Construções, Interlocutory Appeal No. 428.067-1/10, Paraná Tribunal of Justice (en banc), Dec. 7, 2011.) The decision suggests that Brazilian courts increasingly respect and promote international arbitration.

The Long Road of Inepar v. Itiquira Energética In June 2002, Inepar s.A Indústria e Construções (“Inepar”) initiated an arbitration against Itiquira energética s.A. (“Itiquira”) for the alleged termination of a construction contract related to a hydroelectric power plant in Mato Grosso, Brazil. Although the arbitration clause provided for ICC-administered arbitration, the parties opted for a non-administered procedure applying the ICC Rules. Both parties were from Brazil and participated in the arbitration without objection. After a us$70 million award was rendered in favor of Itiquira, Inepar challenged it in the Brazilian courts. (Inepar S.A Indústria e Construções v. Itiquira Energética S.A., Interlocutory Appeal No. 428.067-1, 18 Civil Chamber of Paraná Tribunal of Justice, Jan. 30, 2008). Inepar argued, among other things, that the parties had not executed a compromisso (submission agreement), as required by the Brazilian Arbitration Law. (Law No. 9.307, sep. 23, 1996).

Before the 1996 Arbitration Law in Brazil, compromissos, or agreements to submit an existing dispute to arbitration, were required to arbitrate in Brazil. As one might expect, such agreements can be difficult to secure once a dispute has arisen. The 1996 law did not do away with compromissos altogether, but requires them only for “empty” arbitration clauses, i.e., for those that merely refer disputes to arbitration, but do not adopt rules or specify procedural details for the arbitration. In other words, the 1996 Arbitration Law does not seem to require

compromissos for those cases in which the parties have already entered into an arbitration clause containing a choice of applicable rules, like Itiquira and Inepar did.

Finding no compromisso, the Inepar court held, in a 2-1 majority in 2008, that there could be no effective transfer of the state’s judicial jurisdiction to the arbitrators. This decision was denounced as a “black sheep” for Brazilian arbitration jurisprudence, as its rationale made it very difficult for parties to enforce arbitral awards in Brazilian courts. As the 2008 decision was not unanimous, Itiquira was able to appeal it for a re-hearing en banc.

The Sheep Is Brought Back to the Fold Almost ten years after the arbitration was initiated, Itiquira is now closer to achieving closure. On 7 December 2011, the Paraná Court of Appeal issued an unanimous decision overturning its previous 2008 judgment and confirming the arbitral award. (Itiquira Energética S.A. v. Inepar S.A Indústria e Construções, Interlocutory Appeal No. No. 428.067-1/10, Paraná Tribunal of Justice (en banc), Dec. 7, 2011). The Court of Appeal held en banc that the arbitral award should be reinstated and confirmed. It explained that, with the enactment of Law No. 9.307 of 1996, the parties are free to stipulate in their contract that disputes


8

are to be resolved by arbitration. The court added that when the parties validly stipulate in their contract that disputes arising from it are to be resolved by arbitration, the decision as to any breach of the contract, as well as any right to compensation, should be resolved by the chosen means, i.e., arbitration.

As for the timing of Inepar’s objection to the lack of a compromisso, the court explained: “[f ]rom the record, it is clear that [Inepar] was aware of the inexistence of the submission agreement, given that the [arbitral] proceeding was instituted at its request, it received pleadings without objection, signed the Terms of Reference, participated at the hearings and was always represented by counsel. It certainly should have raised the issue [of the compromisso] earlier. However, it only adduced the fact after it received an unfavorable decision.”

This decision has been welcomed by the international arbitration community as a confirmation of Brazil’s pro-arbitration stance and a long-awaited rejection of the 2008 decision. As more parties seek to enforce arbitral awards in Brazilian courts, it remains to be seen whether any more black sheep will appear in the flock. 9

a COmPaRative analysis Of the fRenCh and english aRBitRatiOn aCts

In January 2011, France adopted a new arbitration law (Decree No. 2011-48 of 13 January 2011) (the “French Act”) to replace the 1980 and 1981 texts. The much-anticipated French Act, which came into force on 1 May 2011, was intended to codify much of the existing and well-established body of French case law, with the ultimate aim of increasing the attraction of Paris as a seat for arbitration.

This article considers how successful the French Act is likely to be in achieving this aim by comparing a number of its key provisions with the law applicable to arbitrations seated in London (perhaps the most significant rival to Paris as a seat for arbitration).

Split Between Domestic and International Arbitrations The law applicable to arbitrations seated in London is the Arbitration Act 1996 (the “english Act”). Whereas the english Act does not distinguish between “domestic” and “international” arbitrations, the French Act is split clearly along these lines. In particular, the French Act contains certain provisions that apply only to domestic arbitrations, other provisions that apply only to international arbitrations and further provisions that apply to both domestic and international arbitrations. As a result, a French domestic arbitration is subject to a markedly different legislative regime from an “international” arbitration seated in France.

To give an obvious example of these differing regimes, in the case of international arbitrations there are no requirements as to the form of the parties’ arbitration agreement (Article 1507 of the French Act). In particular, there is no requirement that an arbitration agreement should be in writing (although the existence of an arbitration agreement must still be established by the party seeking to rely upon it). With regard to domestic arbitrations, however, Article 1443 of the French Act provides that an agreement to arbitrate must be

9


in writing (which includes an exchange of written communications). In this regard, the French Act’s approach to domestic arbitrations is very similar to the approach of the english Act in all arbitrations (specifically section 5 of the english Act, which applies to all arbitrations seated in england and Wales or Northern Ireland).

Further examples of key differences between the rules applicable to domestic and international arbitrations are included below.

Given the fundamental differences between the treatment of domestic and international arbitrations under the French Act, it is perhaps surprising that there is only a loose definition of what constitutes an “international” arbitration. The definition is found at Article 1504, which provides that an arbitration is international “when international trade interests are at stake”. In the absence of judicial guidance on the scope of this definition, it

may be difficult to say with any certainty which rules will apply, particularly in borderline cases. The potential uncertainty caused by having different regimes applicable to domestic and international cases is one reason why england, and most recently Hong Kong, have opted for a unitary regime applicable to all arbitrations.

Confidentiality english law clearly recognises an implied duty of confidentiality in arbitration proceedings, although this may be displaced by express agreement of the parties (Emmott v. Michael Wilson & Partners Ltd [2008] 1 Lloyd’s Rep 616).

exceptions to this duty of confidentiality exist, so that documents or other information produced in the course of arbitral proceedings may be used elsewhere. These exceptions include: (i) where the party which produced the material has consented to its use; (ii) where a court has ordered or given permission for use of the material on the

fulBRight lawyeR eleCted tO lead disPutes divisiOn Of aBa inteRnatiOnalFulbright arbitration partner Kevin O’Gorman has been elected as Division Chair of the Disputes

Division of the 20,000+ member American Bar Association section of International Law.

He oversees the following committees:

D International Arbitration Committee

D International Courts Committee

D International Criminal Law Committee

D International Judicial Affairs Committee

D International Litigation Committee and International Mediation Committee

As Division Chair, O’Gorman also serves on the section’s Council, which identifies, considers, debates

and approves section policy. Additionally, he serves as ABA International’s liaison to the American

Arbitration Association. Kevin is the past Chair of the International Arbitration Committee. 9


10

basis that it is reasonably necessary for the protection of the legitimate interest of an arbitrating party; and (iii) where use of the material is otherwise in the interests of justice.

Although Article 1464 of the French Act provides that domestic arbitrations are confidential, this provision does not apply to international arbitrations (Article 1506). International arbitrations seated in France will therefore not be confidential unless the parties agree otherwise (whether expressly or through the provisions of the arbitration rules adopted).

The differing stance towards confidentially in London and Paris is not necessarily surprising, as various other jurisdictions deal with the issue in different ways (for example, countries such as Australia, sweden and the u.s. also do not regard arbitral proceedings as confidential). This position does, however, conflict with the common misunderstanding amongst some users of arbitration that arbitral proceedings necessarily will be confidential (confidentiality often being cited as an advantage of arbitration over other forms of dispute resolution).

Court’s Powers in Support of Arbitration Although both the english and French courts are generally seen as supportive of arbitration and non-interventionist, the powers of the english courts to assist the arbitral process after the tribunal has been constituted are arguably greater than those enjoyed by the French courts.

The english courts have various powers to act in support of the arbitral process both before and after the tribunal has been constituted. These include:

D The power to enforce peremptory orders of the tribunal at the request of the tribunal or one of the parties to the arbitral proceedings or where the parties have agreed that the court has such a power (section 42 of the english Act).

D The power to secure the attendance of witnesses before the tribunal in order to give oral testimony or to produce documents (section 43 of the english Act). This power is only exercisable where the witness

is in the united Kingdom and the arbitral proceedings are being conducted in england, Wales or Northern Ireland.

D Powers to make such orders as the court may make in relation to proceedings in court relating to the taking of witness evidence, the preservation of evidence and orders in relation to property (section 44 of the english Act).

The english courts’ powers under sections 42 and 44 of the english Act (but not section 43 of the english Act) may be excluded by agreement of the parties.

The French Act enshrines the concept of a specialised juge d’appui or “support judge” whose role is to support the arbitral proceedings and who may intervene only in narrow circumstances. In international arbitrations, the juge d’appui will be the President of the High Court in Paris. Once the arbitral tribunal has been constituted, the parties may apply to the juge d’appui to act in support of the arbitral process, but only with regard to the following specific matters:

D To extend the deadline by which the arbitration must be completed (Article 1463 of the French Act).

D For the purposes of obtaining evidence held by third parties (Article 1469 of the French Act). The court’s power under Article 1469 of the French Act relates only to the production of documents held by third parties and not to the securing of witnesses to give oral evidence.

The courts also have the power to order conservatory measures of attachment and judicial security (Article 1468 of the French Act).

Other than the above, the French courts have no powers to act in support of the arbitration process once the tribunal has been constituted. The english courts therefore have a broader scope than their French counterparts to assist arbitrations, for example by compelling the attendance of witnesses at arbitral hearings. These wider powers are often seen as desirable, particularly as the english courts will generally only exercise such powers to assist, rather than to undermine, the arbitral process.

11


Grounds for Challenge Many of the grounds upon which an arbitral award may be challenged are broadly similar in both France and england. In both jurisdictions, a party seeking to challenge an arbitral award faces a high hurdle if it is to succeed.

The english Act permits challenges on the grounds of a lack of jurisdiction (section 67 of the english Act) or because of a serious irregularity affecting the tribunal, the proceedings or the award (section 68 of the english Act). similarly, Article 1520 of the French Act allows an action to set aside an arbitral award on the basis that: (i) the arbitral tribunal wrongly upheld or declined jurisdiction; (ii) the arbitral tribunal was not properly constituted; (iii) the arbitral tribunal ruled without complying with the mandate conferred upon it; (iv) due process was violated; or (v) recognition or enforcement of the award is contrary to international public policy. Although Article 1520 applies to international arbitrations only, Article 1492 provides for actions to set aside domestic arbitrations on similar grounds.

One potentially significant difference between the French Act and the english Act is that Article 1522 of the French Act allows the parties to agree to waive their right to apply to set aside an award (although the right to rely on any of the same grounds to resist enforcement cannot be waived). In contrast, the right to challenge awards under sections 67 and 68 of the english Act cannot be waived by agreement of the parties.

Much is often made of section 69 of the english Act, which allows for an appeal to the english courts on a point of law. This provision is often criticised both as an unjustified interference by the courts in the arbitral process and because it calls into question the finality of arbitral awards. such criticism of this provision is frequently overstated, however, as section 69 may be (and frequently is) disapplied by agreement of the parties. such agreement includes the incorporation by reference of institutional or other arbitral rules which exclude the possibility of such challenges (e.g., the ICC or LCIA rules). even where section 69 has not been disapplied, it relates strictly to questions of english law and not to issues of fact nor to questions of foreign law.

In fact, the French Act may go even further than section 69 of the english Act, at least with regard to domestic arbitrations. under Article 1489 of the French Act, domestic arbitration awards may be subject to appeal where this is agreed by the parties. Where the parties have agreed to such an appeal, this is subject to the same principles as are applicable to appeals from court decisions and so may be in relation to matters of both fact and law (including questions of foreign law).

Conclusion Although to be welcomed as a codification of existing case law, it is not certain that the new legal framework applicable to arbitrations seated in Paris offers any particular advantages over the law applicable to arbitrations seated in London. To the contrary, the differing treatment of French domestic and international arbitrations and the lack of a clear definition of when an arbitration will be considered as “international” gives rise to potentially significant uncertainties, particularly in borderline cases. In contrast, the english Act provides a clear and consistent framework for arbitration proceedings without distinction between domestic and international proceedings. It therefore remains to be seen whether the new French Act will, as intended, boost the popularity of Paris as an arbitral seat. even if it does, it seems unlikely that any such boost would come at the expense of London. 9


12

tRiBunal’s awaRd Of Remedy nOt Requested By PaRties may PROvide gROunds fOR annulmentTwo recent judicial decisions address whether an arbitral tribunal’s award of a remedy that neither party requested violates due process and therefore provides grounds for annulment of the award. In Commercial Caribbean Niquel v. Overseas Mining Investment Ltd., the French Cour de Cassation upheld annulment of an uNCITRAL award, finding that an award of lost chance profits— which had not been requested or addressed by either party—violated the adversarial principle (principe de la contradiction). Conversely, in Harper Insurance Limited v. Century Indemnity Company, a u.s. court refused to set aside on due process grounds an award in which the tribunal fashioned a remedy that was neither requested by the claimant nor expressly provided for in the operative contract (Harper Ins. Ltd. v. Century Indemnity Co., –F. supp. 2d–, 2011 WL 3366484, at **4-5 (s.D.N.Y. 2011)). Fundamental Due Process Protection in International Arbitration under the 1958 New York Convention on the Recognition and enforcement of Foreign Arbitral Awards (“New York Convention”), one of the limited grounds on which recognition and enforcement of awards may be refused is a violation of due process (common law jurisdictions) or le principe de la contradiction (civil law jurisdictions). In the u.s., parties generally challenge due process under the Federal Arbitration Act which provides that an award may be vacated “where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted

was not made.” (9 u.s.C.§ 10(a)(4)). In practice, due process requires that arbitrators provide a fundamentally fair hearing, which includes adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator. similarly, under the French concept of le principe de la contradiction, arbitrators must allow parties the right to be heard on all legal and factual elements used to render the award and may not base their decisions on arguments that were not put forward by the parties. Arbitrators comply with this principle by allowing the parties to comment on the application of legal rules in presenting their case. As commentators have noted, if arbitrators rule ultra petita (beyond what is permissible or legal), they exceed their mandate to apply the substantive law of the parties. U.S. Court Finds Tribunal Has Authority to Grant Remedy Parties Did Not Specifically Request In Harper Insurance, a case arising out of the plethora of asbestos-related insurance claims in the early 2000s, the claimant insurance company alleged that the respondent reinsurers had imposed extra-contractual paperwork requirements during the claims approval process. These paperwork requirements, according to the claimant, had the effect of its reinsurance claims being stuck in limbo, with neither payment nor a denial that would have triggered a further dispute resolution mechanism. In its request for relief, the claimant sought an award directing the respondents to “pay or deny” the subject reinsurance claims within the period of time specified in the contract (75 days).

The arbitral tribunal found for the insurers on liability but, instead of granting the requested relief, ordered the reinsurers to pay all undisputed claims and to pre-pay 75% of the amount of any disputed claims. The reinsurers then had the right to recoup some or all of the disputed monies


if they could demonstrate the claims had no basis. In effect, the tribunal’s award turned the approval process for disputed claims on its head.

The reinsurers mounted a challenge to the award on due process grounds. Noting that the claimant had only requested an order requiring reinsurers to “pay or deny” bills within the specified period of time, the reinsurers argued that ordering pre-payment of any disputed amounts both violated their underlying contracts (which did not have a pre-payment requirement) and deprived them of the right to put forward witnesses or evidence relating to the propriety of this remedy.

The united states District Court for the southern District of New York disagreed. With judicial review limited to whether the award has a “barely colorable justification,” the court found that the tribunal did not exceed its authority by “fashioning relief not specifically requested.” According to the court, due process only prevented the tribunal from ruling on an issue that had not been submitted by the parties. Once this requirement was satisfied, the court held, it was not “beyond the authority of the arbitrators to issue a remedy directed to an issue squarely before them,” regardless of whether such remedy had been specifically requested by either party. By analogy, the court reasoned that judges are not limited to resolving disputes by choosing between the options presented by the parties but often must use their judgement to craft a different remedy.

The court also noted that the parties’ arbitration clause directed the tribunal to interpret the operative reinsurance contract “as an honorable engagement” and to “make their award with a view to effecting the general purpose of this Agreement in a reasonable manner.” The tribunal’s fashioned remedy, according to the court, implemented these terms. Further, the court noted that the parties had put forward evidence on the subject of pre-payment, albeit in a different context than as a form of relief. Considering all these factors, the court found that the tribunal had sufficient justification for the remedy ordered and denied the petitioners’ request to vacate the award on due process grounds.

French Court Annuls Award Because Tribunal Awarded Form of Damages Not Requested by Either Party In apparent contrast to Harper Insurance, in June 2011 the French Cour de Cassation upheld a lower court ruling that set aside an arbitral award ordering a form of damages that had not been requested or addressed by either party. At issue in the Commercial Caribbean Niquel v. Overseas Mining Investments Ltd. case was the respondent’s alleged contractual obligation to enter into a joint venture with the claimant to exploit nickel deposits in Cuba. After Commercial Caribbean Niquel (“CCN”) repudiated the venture, Overseas Mining Investments Ltd (“OMI”) sought damages for lost profits. The arbitral tribunal, after finding for the claimant on liability, awarded approximately us$50 million in damages on the basis of claimant’s loss of a chance. (The tribunal may have decided that a damage calculation based upon lost profits was inappropriate because the mine was not yet operative). Although CCN had counterclaimed for damages based on this principle, loss of chance damages were neither requested nor argued during the arbitral proceedings.

The respondent petitioned the Paris Court of Appeal to set aside the award, arguing it violated the adversarial principle (principe de la contradiction), a fundamental rule of due process in French civil procedure that guarantees a party’s right to counter arguments of fact or law. The court agreed with the respondent and held that arbitrators must give both parties the opportunity to present opposing arguments on the substantive law that forms the basis for their award. On appeal, the Cour de Cassation affirmed, finding that the tribunal acted sua sponte (on its own motion) in predicating its damage award on a distinct legal doctrine of damages—loss of chance —that had not been presented to the tribunal.

13


14

Analysis

The OMI and Harper Insurance cases both should give pause for thought to parties and arbitrators when the form of relief awarded has not been specifically requested during the proceedings. On the surface, the cases appear to conflict. The stated rationale for each, however, was to give effect to the due process rights and expectations of the parties.

In the OMI case, the court followed the position that awarding a remedy that had not been requested or addressed by either party was sufficient to violate le principe de la contradiction. In the Harper Insurance case, the court distinguished between a tribunal’s inability to rule on an issue that had not been presented and a tribunal’s power to fashion an appropriate remedy for an issue that had been presented. This distinction does not take account of the fact that in some cases the key issue presented to a tribunal is the appropriate remedy to award. Certainly this can be true in bifurcated cases. Three other features of the Harper Insurance case appear to have weighed heavily in the court’s decision not to annul the award—that the underlying contract contained an “honorable engagement” clause, that evidence was in fact presented in the arbitration on the precise form of relief ordered by the tribunal, and that the respondent’s inequitable and extra-contractual conduct gave rise to the dispute. As stated by the court in Harper Insurance, “Having agreed that the arbitrators should resolve disputes in [a reasonable] manner, petitioners cannot now complain that the arbitrators granted relief that was not specifically requested by either party.” (Harper Ins. Ltd., 2011 WL 3366484, at *5). In the absence of these three factors being present, it is unclear whether the court in Harper Insurance would have reached the same result and, for that reason, the extent to which the distinction drawn by Harper Insurance will be relied upon in other cases to avoid annulment is uncertain. 9

fulBRight RePResentative matteRsThe following non-exhaustive list is illustrative of the scope and significance of Fulbright’s recent international arbitration matters:

D Representation of a Canadian oil company in an ICC arbitration concerning West African offshore oilfields.

D Representation of a u.s.-based international oilfield services company in an ad hoc arbitration brought by a Pacific Rim technology company. Claims and counterclaims arose out of a deferred payment agreement that provided for arbitration in Auckland, New Zealand under New Zealand law.

D Representation of an international power generation equipment manufacturer in an sCC arbitration proceeding in stockholm against a Chinese company. The dispute arises out of a technology licensing agreement.

D Representation of a West African oil exploration and production company in ICC arbitration proceedings. The arbitration is seated in Paris and arises out of service contracts relating to Nigeria and Benin.

D Representation of a Texas-based international music producer in an arbitration under the ICDR Rules against a european company involving issues of breaches of intellectual property rights.

D Representation of a south-east Asian charitable foundation in an HKIAC arbitration against a Korean company arising out of a contract governed by Cambodian and Hong Kong law.

D Representation of a u.s. power generation equipment manufacturer in an ICC arbitration proceedings in Zurich against a German company. The dispute arises out of the supply of desulphurisation plant equipment for two power units.

D Representation of an oil services company in an ICC arbitration involving Colombia, ecuador, and Peru.

D Representation of a u.s. financial services technology supplier in LCIA arbitration proceedings against a european party. The seat of arbitration is London. The dispute arises out of a technology cooperation agreement.

15


D Representation of a u.s. oilfield equipment manufacturer in a Dallas-seated ICDR arbitration against a distributor.

D Representation of a hotel owner in an uNCITRAL arbitration seated in Cairo against a hotel operating company. The contract is governed by egyptian law.

D Representation of a government-owned employer in a DIAC arbitration seated in Dubai against the Contractor relating to the construction of a major residential housing complex. The contract is governed by uAe law.

D Representation of a u.K.-based aircraft charter company in a DIAC arbitration seated in Dubai concerning agreements for the supply of aircraft to Afghanistan.

D Representation of a Dubai-based main contractor claiming extensions of time, costs and expenses in a DIAC arbitration seated in Dubai against a uAe-based employer. 9

Challenge and enfORCement in the english COuRts: a ROund-uP Of sOme ReCent Cases Late 2011 and early 2012 saw a number of cases in the english High Court on challenges to and enforcement of arbitration awards in england.

Challenges to an Arbitration Award on the Grounds of Serious Irregularity: Confirmation that Section 68 Will Only Be Applicable in Extreme Cases

Chantiers De L’Atlantique S.A v. Gaztransport & Technigaz S.A.S (2011 eWHC 3383) stands for the proposition that “evasion and obfuscation” and dishonesty may not by themselves be sufficient to overturn an arbitral award under section 68 of the english Arbitration Act 1996.

On 24 January 2012, the Commercial Court rejected a challenge to an arbitration award brought under section 68 of the Arbitration Act 1996, which allows an award to be set aside on grounds of ‘serious irregularity’. The arbitration had been brought by Chantiers De L’Atlantique (known as CAT), a French shipbuilder, against Gaztransport & Technigaz (known as GTT), a technology designer. The arbitration hearings took place in France, and the arbitration was conducted in French and was governed by French law. London was specified to be the seat of the arbitration, so the english courts had a supervisory role, and any challenges to the arbitration award could be brought before the english courts.

After lengthy arbitration proceedings, the arbitral tribunal dismissed CAT’s claims. After the award was issued, allegations of deception by GTT surfaced, and CAT accused GTT of deliberately concealing certain test results from the tribunal.

serious irregularity is defined in the Arbitration Act 1996 as “an irregularity … which the court considers has caused or will cause substantial injustice to the applicant”. such irregularities include “the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy”. Flaux J stated that, on an assumption that CAT could show evidence of fraud in the arbitration itself which could not have been obtained during the course of the hearing by the exercise of due


16

diligence, CAT must also show that the concealed evidence would probably have affected the result of the arbitration. Flaux J was highly critical of the evidence given by two of GTT’s witnesses, calling them, variously, “evasive”, “less than wholly truthful” and “argumentative”. In relation to one of the GTT witnesses, Flaux J stated that he had “formed the very firm view that [the witness’] evidence both before the tribunal and before this court was dishonest”. In his view, the evidence was a “masterclass in evasion and obfuscation”.

Although Flaux J held that GTT had deliberately concealed test results from the arbitral tribunal and that GTT’s witnesses gave deliberately misleading evidence to the tribunal, he did not consider that this demonstrated that the arbitration award was obtained by fraud. He held that, even if the true position had been disclosed to the tribunal, it would not, in all probability, have affected the result of the arbitration. Therefore, the application did not succeed.

ED&F Man Sugar Limited v. Belmont Shipping Limited (2011 eWHC 2992) held that a tribunal’s failure to alert parties to potential arguments in support of their case was not sufficient to constitute serious irregularity under section 68 of the Arbitration Act 1996.

This case involved a challenge to an arbitration award on the grounds of serious irregularity caused by the arbitral tribunal’s alleged failure to comply with its duty to act fairly between the parties under section 33 of the Arbitration Act 1996. The arbitration involved a demurrage claim which had been decided by the arbitrators relying solely upon the documents. In their award, the

arbitrators stated that “the Respondents did not rely upon the decision in the Happy Day [2002] 2 Lloyd’s Rep. 487 so the potential consequences of that decision have not affected our conclusion”. The applicants alleged that, in failing to alert the respondents to the decision in question, the arbitrators were in breach of their obligations under section 33 of the Arbitration Act 1996 and thus there had been serious irregularity in the award which had caused substantial injustice. section 33 states that “the tribunal shall … (a) act fairly and impartially between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent”. Mr Justice Teare held that section 33 did not require the tribunal to alert the respondents to the argument based on the Happy Day decision. He adopted and reiterated the wording of the Departmental Advisory Committee Report on the Arbitration Act 1996 (which was quoted by Lord steyn in Lesotho Highlands Development Authority v. Impreglio SpA [2006] 1 AC 221) that section 68 “was designed as a long stop, only available in extreme cases where the tribunal has gone so wrong in its conduct of the arbitration that justice calls out for it to be corrected”.

Enforcement: Confirmation that Declaratory Awards May Be Enforced

Two recent cases, African Fertilizers and Chemicals NIG Ltd (Nigeria) v. BD Shipsnavo GmbH & Co Reederei KG ([2011] eWHC 2452 (Comm)) and West Tankers Inc v. (1) Allianz SpA (2) Generali Assicurazione Generali SpA ([2012] eWCA Civ 27), have confirmed that a declaratory award can be enforced under section 66 of the Arbitration Act 1996.

April 2012 w w w . f u l b r i g h t . c o m

In the African Fertilizers case, the applicant brought proceedings before the english Commercial Court to set aside an order obtained under section 66 of the Arbitration Act 1996 which had granted the respondent leave to enforce a declaratory award against the applicant. The underlying dispute had arisen between BD shipsnavo (a ship-owner) and African Fertilizers (a cargo-owner), which resulted in an arbitral tribunal granting a declaratory award in favour of BD shipsnavo. The applicant alleged that enforcement of a purely declaratory arbitration award was not possible and contended that the decision of Field J in West Tankers Inc v. Allianz SpA ([2011] 2 Lloyd’s Rep 117) was wrong and should not be followed. Beatson J noted that section 66 of the Arbitration Act 1996 was one of two ways open to a party to enforce an arbitration award. The other way was through a common law action on the award.

Beatson J considered that the case law authorities showed that one of the common law contractual remedies open to the court on an action to enforce an arbitral award was a declaration. He then turned to the summary procedure under section 66 of the Arbitration Act 1996 and reviewed

the authorities in relation to the applicant’s argument that a declaratory award could not be enforced under this procedure. He held that authorities possibly supported an argument that awards that were not sufficiently clear could not be enforced, but endorsed the view that as long as the terms of an award were sufficiently clear there was no reason why a declaratory award should not be enforced under section 66. He further noted that a real benefit would accrue to the claimant because the claimant could rely on the judgment entered in terms of the declaratory award to establish the primacy of the award over any inconsistent judgment in litigation which was taking place in Romania. He therefore dismissed the application and held that the order giving leave to enforce the declaratory award should stand.

In a further installment of the long-running West Tankers saga, the english Court of Appeal rendered its decision on the appeal from Field J’s decision on 24 January 2012. We reported on Field J’s decision in the 2011 International Arbitration Report, Issue 2 (“West Tankers – The Enduring Dispute: An Update”).

17

Fulbright Partner Receives the 2012

ILO Client Choice Award for Arbitration

The International Law Office (ILO) has selected Fulbright partner Matthew Kirtland

to receive the 2012 ILO Client Choice Award for Arbitration in the usA.

The criteria for the Client Choice Awards focuses on a law firm’s ability to add real

value its clients’ business beyond competitors in the market. unlike other awards, nominations only

come from corporate counsel, and with over 2,000 nominations for 2012, this is considered to be a

great honor.

Those receiving the award are also mentioned in the ILO Client Choice Guide, which is distributed to

over 20,000 corporate counsel worldwide.

Matthew is a partner in Fulbright’s Washington, D.C., office and has been working in the firm’s

Arbitration and ADR team for 15 years. He focuses his practice on dispute resolution with a particular

emphasis on international and domestic arbitration, complex civil litigation and government contracts. 9


18

The Court of Appeal (judgment given by Lord Justice Toulson) confirmed that the declaratory award declaring West Tankers free from contractual liability could be entered as a judgment under section 66 of the Arbitration Act 1996. Toulson LJ reasoned that, at common law, a party to an arbitration who has obtained a declaratory award in his favour could bring a common law action on the award and the court, if appropriate, could make a declaration in the same terms. He noted that the purpose of section 66 was to provide a simpler alternative route to bringing an action on the award and he therefore could not see why a court should not give leave for an arbitral award to be enforced in the same manner as would be achieved by a common law action of the award, in an appropriate case. Toulson LJ emphasized his use of the phrase “in an appropriate case” to underline the discretionary nature of the court’s jurisdiction to make the order sought. He endorsed the “judgment and reasoning” of Field J, as well as that of Beatson J in the African Fertilisers case, and dismissed the appeal. 9

venezuela withdRaws fROm iCsidOn 24 January 2012, Venezuela gave notice to the World Bank of its “irreversible denunciation” of the 1965 Convention on the settlement of Investment Disputes between states and Nationals of Other states (“ICsID Convention”). This followed up on threats made by President Hugo Chavez as far back as May 2007 to withdraw from ICsID. Pursuant to Article 71 of the ICsID Convention, Venezuela’s withdrawal will take formal effect six months from the date of its notice, on 25 July 2012.

According to the government press release announcing the withdrawal, Venezuela’s participation in ICsID was rendered “null and void” by Article 151 of its 1999 Constitution, which provides that “in public interest contracts … disputes which may arise … shall be decided by the competent courts of Venezuela, in accordance with its laws and shall not on any grounds or for any reason give rise to any foreign claim.” Going forward, the press release stated that the Venezuelan government, “will continue implementing policies in order to defend the national sovereignty, particularly with regard to the ownership of strategic assets, always providing fair compensation to the individuals and legal entities, eventually affected, in accordance with Venezuelan law.”

Venezuela is the third country to withdraw from the ICsID Convention, following the withdrawal by Bolivia and ecuador in 2007 and 2009, respectively. Venezuela’s withdrawal took place a few weeks after an International Chamber of Commerce arbitral tribunal awarded us$907 million to an exxonMobil subsidiary in a dispute with PDVsA, the Venezuelan national oil company, as compensation for the alleged expropriation and breach of contract of exxonMobil’s Cerro Negro and La Ceiba projects.

As of January 2012, Venezuela was party to 25 bilateral investment treaties (BITs) and was the respondent in 16 pending ICsID claims, with a reported aggregate value in excess of us$21 billion. Pursuant to Article 72 of the ICsID Convention, the denunciation will not affect any pending ICsID proceedings.

19


As to future ICsID proceedings, Venezuela’s withdrawal, and its other recent threats to renegotiate its existing BITs, creates a significant degree of uncertainty. Although the ICsID secretariat continued to register claims against Bolivia after it withdrew from the ICsID Convention, even after expiration of the six-month waiting period, no arbitral tribunal has yet to rule on the precise jurisdictional impact of a denunciation of the ICsID Convention. Commentary on the subject is varied. A restrictive view is that withdrawal immediately terminates the “offer” to arbitrate contained in Venezuela’s existing bilateral investment treaties, domestic legislation, investment contracts, and other investor protection mechanisms. under this view, which appears to be in the minority, ICsID would be deprived of jurisdiction over any claims filed after 25 January 2012. A more expansive view is that Venezuela cannot unilaterally withdraw an “offer” to arbitrate until the mechanism in which such offer is contained expires on its terms or, at minimum, until the expiration of its “tail” provisions, which can extend 10 to 15 years. support for this view arguably is found in the secretariat continuing to register claims against Bolivia and in Article 72 of the ICsID Convention, which provides in pertinent part that any denunciation “shall not affect the rights or obligations under this Convention of that state ... arising out of consent to the jurisdiction of the Centre given by [that state] before such notice was received by the depositary.” A middle view is that Venezuela’s withdrawal should not impact any claims filed during the six-month period following the denunciation.

Regardless of the availability of ICsID arbitration under the ICsID Convention, Venezuela’s withdrawal will not deprive investors of the alternative arbitral forums provided in the various mechanisms in which Venezuela has made an “offer” to arbitrate. In principle, this includes the ICC, and proceedings instituted under the rules of united Nations Commission on International Trade Law (uNCITRAL) and the ICsID “Additional Facility,” the latter two of which, for example, are contained in the existing Venezuela-uK BIT. 9

identifying tRends in inteRnatiOnal aRBitRatiOn sinCe 2004: the fulBRight & JawORski litigatiOn tRends suRveysThe Fulbright & Jaworski Litigation Trends survey is one of the largest surveys on contentious trends in the legal field. each year, a sample of between 300 and 400 in-house counsel is identified. The respondents are interviewed in depth and answer approximately 75 questions to gauge their views on the type and scope of litigation exposure they face. established in 2004, the survey provides a unique insight into the litigation strategies adopted by corporate counsel in the united states and europe.

International Arbitration: Looking Back Back in 2004, 91% of respondents to the survey believed that arbitration was going to remain a part of the corporate legal landscape for years to come, and 27% of survey respondents thought that they would see more arbitration proceedings in years to come. In the 2011 survey, we can see that belief was justified. For example, in the past three years, there has been a steady increase reported in international arbitrations. In our 2009 survey, 17% of respondents reported that they had been party to at least one international arbitration in the previous 12 months. This figure increased to 29% in 2010, and further increased to 30% in 2011, the most recent Litigation Trends survey.

Arbitral Institutions The preference shown by survey respondents for international arbitration institutions has remained largely constant over the years. The International Centre for Dispute Resolution (ICDR), LCIA and ICC have occupied the top spots since the inception of the survey. The ICDR and the ICC are the predominant international arbitration institutions, opening, on average, around 600 cases each a year. The LCIA is smaller, with an average case load of around 120 cases a year. The survey participants’ preference for these three arbitral institutions reflects the international profile of the institutions, which are widely regarded as pre-eminent in their fields.


20

seats and Governing Law since 2005, New York and London have occupied the top positions in our surveys in terms of favored seats for international arbitration. In 2011, the survey posed more detailed questions on the choice of seat in international arbitration. We found that in selecting a seat of arbitration, 59% of survey respondents cited logistical convenience as a significant factor and only 16% of respondents cited the local courts’ experience with arbitration as a significant factor. Impartiality was almost as important as logistical convenience, with 55% of total respondents citing it as a factor. However, the u.s. respondents placed impartiality above logistical convenience. When asked which they would concede, the governing law or the choice of seat, the majority of respondents said they would concede the seat of arbitration. For 81% of respondents familiarity with the law is the key influence on the choice of governing law. Other significant influences included the location of the company and the location of the legal team.

Time and Cost During the last decade, there has been a growing awareness that international arbitration is no longer perceived to be a quicker and cheaper alternative to national court proceedings. The 2007 survey found that only 9% of respondents believed that international arbitration was cheaper than litigation (down from 26% in 2006 and 32% in 2005). The survey concluded that “the overall trend among the survey respondents seems to be that international arbitration is not seen as offering significant cost benefits over litigation.” The 2007 survey also found that the percentage of respondents who believed that arbitration was quicker than litigation fell dramatically from 43% in 2006 to 11% in 2007.

In our 2009 survey, respondents observed that “Arbitration is no faster, no less expensive and less reliable” and that “Arbitration has proven to be almost as involved and costly as litigation, so there

has been no advantage.” Recent comments from our 2011 survey continue to show distrust with the international arbitration process, with one respondent stating that “Arbitration still needs more controls built into the process before it is distinguishable from litigation in terms of costs and speed.”

Voluntary Compliance with and enforcement of Awards Although the New York Convention is widely cited as the reason why parties choose arbitration, it appears that most participants in an arbitration do not need to have recourse to it to enforce arbitral awards. Arbitral institutions do not keep records of compliance rates, but a rate of around 90% of voluntary compliance with arbitral awards is often cited. This figure is supported by our findings. In 2006, we asked respondents for their experience of voluntary compliance with awards. The response supported the general belief that awards are often complied with voluntarily, with 87% of respondents stating that awards were “sometimes” or “frequently” complied with. If parties do have to resort to enforcement proceedings, it is notable that a fifth of respondents to the 2007 survey thought that arbitration awards were more easily enforced in their home jurisdiction than court judgments, a testament to the simplicity of the enforcement regime under the New York Convention.

International Arbitration: Looking Forward In 2009, 17% of respondents foresaw an increase in international arbitration matters, with 79% predicting that the number of arbitrations they were involved in would stay the same. In 2010, 19% foresaw an increase, with 78% predicting that it would stay the same. By 2011, 37% of the companies with revenues over us$ 100 million reported at least one international arbitration, and almost 10% of those companies had been involved in more than five arbitrations.

The growth of arbitration appears set to continue steadily, as long as counsel and arbitrators react to parties’ concerns about the time taken to determine an international arbitration matter and the rising costs of pursuing an international arbitration claim. 9

21


RegulatiOn 44/2001 RefORm uPdate: the euROPean PaRliament weighs in The long-running saga concerning the european union’s Council Regulation (eC) No. 44/2001 (the “Regulation”) and arbitration has added another chapter. On 28 June 2011, the european Parliament issued a draft Legislative Resolution declining to follow the european Commission’s (“Commission”) 14 December 2010 proposal regarding the Regulation, sparking concern in some international arbitration quarters.

Background—The Regulation and Arbitration Among other things, the Regulation establishes (1) procedures for enforcing intra-eu court judgments and (2) rules for determining the jurisdiction in which intra-eu disputes should be heard when the courts of more than one Member state may have a basis to assert jurisdiction. (For an extended discussion of the Regulation and arbitration, see “Arbitration and eu Regulation 44/2001: A Troubled and evolving Relationship,” 2009 International Arbitration Report, Issue 2, p. 13). However, the Regulation does “not apply to … arbitration.” (Regulation, Art. 1(2)(d)). This “arbitration exclusion” has generated uncertainty regarding its scope and effects, and has led to protracted litigation regarding, for instance, whether certain arbitration-related court proceedings are outside the scope of the Regulation.

After a number of seemingly inconsistent decisions from the european Court of Justice (“eCJ”), various eu bodies began an effort to clarify the interaction between the Regulation and arbitration. (See “eu Regulation 44/2001 update: Proposals for the Future of Arbitration in the european union,” 2011 International Arbitration Report, Issue 1, p. 1). The proposals ranged from leaving

the Regulation untouched to eliminating the arbitration exclusion altogether.

As part of this process, the Commission issued a proposal attempting to clarify the arbitration exclusion (Proposal for a Regulation of the european Parliament and of the Council on Jurisdiction and the Recognition and enforcement of Judgments in Civil and Commercial Matters, COM(2010) 748/3 final). The Commission’s proposal would allow certain arbitration-related court proceedings to fall within the scope of the Regulation, although it would not alter the well-established regime regarding award enforcement proceedings. (As discussed in our previous article on the Regulation’s reform process, it is largely undisputed that court proceedings to enforce arbitral awards are outside the scope of the Regulation, as such proceedings are covered by the 1958 New York Convention on the Recognition and enforcement of Foreign Arbitral Awards.)

specifically, under the Commission’s proposal, if the seat of an arbitration is in an eu Member state, the courts of other Member states whose jurisdiction is challenged based on the existence of an arbitration agreement “shall stay proceedings” if either a court at the seat of arbitration or the arbitral tribunal “have been seised of proceedings to determine, as their main object or as an incidental question, the existence, validity or effects of that arbitration agreement.” Alternatively, under this same scenario, a court of a Member state would have discretion to decline jurisdiction if its national law so prescribed. (Proposed Articles 29 and 33(3).) The Commission’s proposal was received with mixed reviews, but generally was seen as a clarification of the status quo.


22

The European Parliament’s Draft Legislative Resolution The european Parliament declined to follow the Commission’s proposal regarding arbitration. In particular, it deleted the Commission’s proposed amendments to Articles 1, 29, and 33. (Draft european Parliament Legislative Resolution on the Proposal for a Regulation of the european Parliament and of the Council on Jurisdiction and the Recognition and enforcement of Judgments in Civil and Commercial Matters, 2010/0383(COD), June 28, 2011). Instead, the european Parliament’s resolution proposes to re-state the arbitration exclusion in the following terms: “The Regulation shall not apply to ... (d) arbitration, including judicial procedures ruling on the validity or extent of arbitral competence as a principal issue or as an incidental or preliminary question.” (Proposed Article 1.2(d)). The european Parliament’s draft adds that the Regulation shall not apply “to any dispute, litigation or application which the parties have subjected to an arbitration agreement [… or] to any dispute or decision concerning the existence or validity of an arbitration agreement or settlement, or to any provisional or preventive measure adopted in the context of a dispute, litigation or application which the parties have subjected to an arbitration agreement or settlement. ...” (Proposed Recital 11).

Like earlier attempts to clarify the interplay between the Regulation and arbitration, the european Parliament’s draft resolution has been met with a mixture of criticism and praise. For some, the draft resolution goes against the principle of mutual trust among the courts of the eu Member states, and supposes a return to the pre-West Tankers era of anti-suit injunctions. In West Tankers, the eCJ famously held in 2009 that under the Regulation, Member state courts cannot enjoin a person from commencing or continuing proceedings before the courts of another Member state on the ground that

such proceedings are contrary to an arbitration agreement. (Allianz SpA v. West Tankers, Inc., Case C-185/107). The concern appears to be that by excluding from the scope of the Regulation all arbitration-related court proceedings, there will be no way to determine which eu Member state courts should exercise jurisdiction over such proceedings (e.g., the courts at the seat of arbitration? the courts first seized with the action? the courts at the place of enforcement of the contract? the courts of some other jurisdiction?). In this respect, the european Parliament’s draft has left many unsatisfied.

At the same time, others have praised the european Parliament for its clarity: “all aspects of arbitration must be clearly and unambiguously excluded from the scope of the Regulation.” (european Parliament draft resolution, Justification to Proposed Recital 11). This absolute exclusion of arbitration-related court proceedings from the scope of the Regulation respects the New York Convention regime—which by all accounts works sufficiently well—and attempts to preclude future disputes regarding the Regulation’s application to certain arbitration-related proceedings.

Conclusion—or Not In the process to reform Regulation 44/2001, highly divergent positions have reached advanced stages within the eu system. The european Parliament has proposed to entirely replace language that the Commission took many months to draft, after a wide public consultation. The first plenary reading of the Parliament’s draft resolution is scheduled for 2 July 2012. It is difficult to predict which direction the process may ultimately take. As the evolution of the relationship between the Regulation and international arbitration continues, eu arbitration watchers can no doubt look forward to some future twists and turns before a final landing is made. 9


fORum nOn COnveniens: a “PROCeduRal” Basis fOR Refusing tO enfORCe aRBitRal awaRds in the u.s.?Figueiredo Ferraz (“Ferraz”), a Brazilian engineering firm, prevailed against Peru’s Ministry of Housing in a Lima-seated arbitration. Ferraz sought to enforce the award in the united states, but the u.s. Court of Appeals for the second Circuit recently refused enforcement on the grounds of forum non conveniens (“FNC”). (Figueiredo Ferraz v. Peru, 665 F.3d 384 (2d Cir. Dec. 14, 2011)). The controversy in the u.s. over the role of FNC under the 1958 New York Convention for the Recognition and enforcement of Foreign Arbitral Awards and the Panama Convention (Inter-American Convention on International Commercial Arbitration 1975) (“Conventions”) is illustrated by the strong disagreement between the court’s majority and Judge Lynch’s dissent.

FNC is a doctrine enabling u.s. courts to decline jurisdiction over a claim in favor of another country’s judicial system. It is a common law doctrine, and is not mentioned in either Convention’s list of grounds on which national courts may refuse to enforce arbitral awards.

Ferraz attempted to enforce its us$21.6 million award in the u.s. against Peruvian assets located in New York. It had not sought to confirm or execute the award in Peru, but had nevertheless received some us$1.4 million in payments. A Peruvian statute capped the amount government agencies could disburse to satisfy judgments to “three percent of the agency’s annual budget.”

The New York Convention holds that each signatory state shall enforce foreign arbitral awards “in accordance with the rules of procedure” in that state. (Article III). The second Circuit held previously that FNC was a procedural doctrine and thus a potential basis on which the courts could refuse to enforce an arbitral award under the New York Convention. (Monegasque de Reassurances S.A.M. v. Nak Naftogaz of Ukraine, 311 F.3d 488 (2d Cir. 2002)).

The Panama Convention contains a similar provision in Article IV (states may enforce arbitral awards “in accordance with the procedural laws of [the forum]”). The majority in the Figueiredo Ferraz case relied on

Monegasque in construing Article IV, given the similar wording of the Conventions on this point, and applied FNC. They identified the Peruvian statute, which capped disbursements, as a “highly significant public factor warranting FNC dismissal”, given that it concerned sovereign prerogative to disburse public funds. The factual nexus of the claim to Peru was also central to their holding.

The strong dissent in the Figueiredo Ferraz case contested both the availability of FNC under the Conventions as well as the majority’s application of FNC to the facts. First, Judge Lynch argued in his dissent that Monegasque was “wrongly decided”. The Conventions’ procedural provisions allowed states to vary the modalities by which they enforced international awards, but did not provide supplemental grounds on which to deny enforcement outright. Judge Lynch noted that FNC is not recognized by civil law countries. Thus, allowing FNC to supplement the exclusive and universal grounds under the Conventions threatened to introduce a “significant inconsistency into the international regime of reciprocal enforcement.”

Judge Lynch’s dissent also opined that the majority misinterpreted Monegasque. First, the favorability of foreign law to one party – here, the cap statute – was not a relevant FNC factor. (Piper Aircraft Co. v. Reyno, 454 u.s. 235 (1981)). second, Monegasque was complex: the claimant raised alter ego points in its attempt to enforce against a non-party to the arbitration and evidence was located abroad. The summary enforcement of an award presented in the Ferraz Figueiredo case was significantly less complex. Third, Ferraz was seeking to attach assets located in the u.s. For this objective, alternate fora are clearly inadequate. Finally, the u.s. government’s interest in complying with Panama Convention recognition obligations was as or more convincing than the Peruvian interest in capping arbitration payouts.

It is not known if Ferraz will seek rehearing of the split decision by the second Circuit Court of Appeals en banc or petition the u.s. supreme Court to hear the case. It remains to be seen if the second Circuit’s reaffirmation of the availability of FNC in award enforcement cases will be followed by other courts in the united states. 9

23


24

Fulbright Partner Named in Global Arbitration Review’s ‘45 Under 45’ Leaders ListHouston Fulbright partner Aníbal Sabater, 37, has been named one of the 45

worldwide leading international arbitration lawyers under the age of 45 by

Global Arbitration Review.

The 2011 GAR 45 under 45 Guide is a peer-reviewed guide that considers

about 150 profiles before narrowing the field down to 45 individuals. Of those

listed, only ten were u.s.-based lawyers, including Aníbal. This is the second

GAR 45 under 45 Guide. GAR released its first 45 under 45 Guide with its

inaugural issue in 2006.

Aníbal is a licensed lawyer in the united states (California and District of

Columbia), england and Wales (solicitor), and spain, where he practiced

law in the field of international dispute resolution. He is also registered

as a foreign legal consultant with the state Bar of Texas.

Recently Aníbal has served as an emergency arbitrator in one of the first

cases conducted under AAA Optional Rules for emergency Measures

of Protection and has served as counsel in several ICC, ICDR, and

uNCITRAL international disputes. 9

25


u.s. disCOveRy in PRivate inteRnatiOnal aRBitRatiOn Remains unsettled undeR seCtiOn 1782 As an update to earlier International Arbitration Report articles, the question of whether u.s. court- ordered discovery is available to participants in private international arbitration remains unsettled. Two recent district court decisions illustrate ostensibly contrary approaches to discovery in aid of international arbitration under 28 u.s.C. section 1782 (“§ 1782”). These cases demonstrate that courts continue to grapple with the statute’s applicability to private international arbitration.

§ 1782 enables a court to compel discovery “for use in a proceeding in a foreign or international tribunal.” If this and other statutory requirements are met, courts then analyze other factors to determine whether to grant a petitioner’s request for discovery for use in the foreign or international tribunal. Courts have disagreed whether § 1782 applies to private, contract-based international arbitrations. At issue is whether or not a private arbitral tribunal constitutes a “foreign tribunal” as required by the statutory language of § 1782. existing case law provides support for either contention.

On 18 October 2011, the u.s. District Court for the District of Colorado implied that applicants may obtain discovery for use in private international arbitrations under § 1782. (In re Broadsheet LLC, Civ. A. No. 11-cv-02436-PAB-KMT, 2011 WL 4949864 (D. Colo. Oct. 18, 2011)). In the Broadsheet case, the petitioners sought discovery in a contractually authorized private international arbitration using rules promulgated by the Chartered Institute of Arbitrators (“CIArb”). The court found that § 1782’s statutory requirements were met because the requested documents related to the parties’ contract, implying § 1782 applies to private international arbitration.

Two days later, the u.s. District Court for the District of south Carolina reached a contrary result, denying a § 1782 discovery application. (In re Finserve Group Ltd., C.A. No. 4:11-mc-2044-RBH, 2011 WL 5024264 (D.s.C. Oct. 20, 2011)). In the Finserve case, the petitioner sought discovery from a south Carolina resident to be used in an arbitration before the LCIA

(London Court of International Arbitration). The south Carolina court expressed “very serious concerns” whether a private international arbitration met the statutory definition of “foreign tribunal” for purposes of § 1782.

The district courts’ analyses of § 1782 also illustrate that u.s. courts sometimes skirt the issue of whether a private international tribunal constituted a “foreign tribunal,” a prerequisite to the court’s authority to grant a discovery request under § 1782. The Colorado court in Broadsheet, which granted the discovery request, avoided the issue altogether and did not address whether the arbitral tribunal under the CIArb constituted a “foreign tribunal” for purposes of § 1782. The south Carolina court in Finserve analyzed the issue and expressed “very serious concerns” whether the LCIA arbitration constituted a foreign tribunal, but did not expressly hold that § 1782 does not apply to a private international arbitration. Arguably, neither court’s analysis recognized that its authority to grant or deny the discovery request was predicated on the court’s initial determination that the arbitral tribunal at issue fell within the penumbra of a “foreign tribunal.”

Another unresolved issue is the evidentiary burden associated with a request for discovery under § 1782. If § 1782 applies to a discovery request, courts may consider whether the arbitral tribunal would be receptive to u.s. federal-court judicial assistance. This raises the specter of whether the party resisting discovery or the party requesting discovery must establish the foreign tribunal’s receptivity to u.s. assistance. The issue of which party that bears the burden of proof is significant and potentially outcome determinative. Once again, the Broadsheet and Finserve courts differed in their analyses of the absence of evidence. The Colorado court in Broadsheet found that a lack of evidence concerning whether the foreign tribunal would be receptive to court-ordered discovery weighed in favor of granting the petitioner’s discovery application. As a result, the Colorado court impliedly placed the burden of proof on the respondent, who must proffer evidence that the foreign tribunal would not be receptive to u.s. discovery to avoid court-ordered discovery. Conversely, the south Carolina court in Finserve indicated that if there is no evidence of


26

the arbitral tribunal’s receptivity to federal court assistance, the request should be denied. The south Carolina decision indicates that applicants seeking discovery under § 1782 should proffer some evidence of the foreign tribunal’s receptivity to u.s. court-ordered discovery, which would appear to place a greater burden of proof on the applicant rather than the respondent.

The applicability of § 1782 continues to generate mixed results for parties to private international arbitration. This ambiguity will persist until definitive rulings from the Courts of Appeal or the united states supreme Court. In the meantime, parties should carefully evaluate the potential applicability of § 1782 and u.s. discovery devices to private international arbitrations in which they are involved. 9

Fulbright Dubai Lawyer Authors Commentary on First Official Publication of DIFC Court Rules

Philip Punwar, a partner in Fulbright’s Dubai office, was recently commissioned by the Dubai International Financial Centre (DIFC) Courts and

Thomson Reuters to author the commentary accompanying the first official publication of the Rules of the DIFC Courts.

Published in November 2011, “The Rules of the DIFC Courts, with Commentary & Materials” highlights decisions of the DIFC’s english language Common Law Courts relevant to practice in the small Claims Tribunal, the Court of First Instance and the Court of Appeal. Where appropriate, the commentary gives practical advice drawn from the author’s experience of the Courts since their establishment in 2005.

The DIFC Courts have proven over the past few years to be a popular forum in Dubai for the resolution of english language commercial disputes. This is due in part to the fact that the Court of First Instance and the Court of Appeal include senior judges from across the Common Law world and that their procedures are largely those of the english Commercial Court.

The publication of the commentary coincided with the announcement on 1 November 2011 that the DIFC Courts are now an “opt-in jurisdiction.” Consequently, from 1 November 2011, parties worldwide are free to confer jurisdiction on the DIFC Courts by agreement, regardless of whether they or their contract are otherwise connected with the Dubai International Financial Centre Free Zone. 9

27


hOnORs and aPPOintments

D In Chambers UK Guide 2012, Fulbright was ranked among the top firms in London for dispute resolution and international arbitration. David Howell was recommended for international arbitration and was described as “intellectual and cerebral” with “huge experience in the international field.”

D The Legal 500 UK Guide 2012 listed David Howell and James Rogers for international arbitration.

D The Legal 500 Asia Pacific 2012 recognized Richard Hill for dispute resolution and international arbitration.

D The Legal 500 United States Guide 2011 recognized Mark Baker on the “Leading Lawyers” list for international arbitration. The guide also recommended Mark Baker, Matthew Kirtland and Kevin O’Gorman for international arbitration.

D Best Lawyers 2012 listed Mark Baker, Richard Mainland and Kevin O’Gorman as “Best Lawyers” for international arbitration.

D Who’s Who Legal named Mark Baker, David Howell, Kevin O’Gorman, Philip Punwar, Aníbal Sabater and Jonathan Sutcliffe among the most highly regarded individuals in the 2012 International Who’s Who of Commercial Arbitration.

D Practical Law Company (PLC) endorsed Mark Baker and Kevin O’Gorman among only six other lawyers in Texas for PLC Which Lawyer?—Arbitration 2011-2012. David Howell was endorsed for the united Kingdom.

D The Best Law Firms rankings by the U.S. News Media U.S. News & World Report Group and Best Lawyers listed Fulbright as a national leader in international arbitration.

D Texas Super Lawyers 2011, a Thomson Reuters business, named Mark Baker and Kevin O’Gorman for international arbitration and Andrew Price for business litigation in its annual super Lawyer listing.

D The International Legal Alliance Summit & Awards selected Fulbright as one of the best international arbitration firms in the united states in 2012.

D Kevin O’Gorman was named to the Irish Legal 100 in 2011. 9

In the Chambers Global Guide 2012 Fulbright was described as “a solid practice and a great litigation firm” and ranked among the top law firms for:D Arbitration (International): Global D Dispute Resolution: united Kingdom

and united Arab emiratesD Dispute Resolution: International Arbitration

(International Firms): ChinaD International Arbitration: Latin America-wide

several key individuals were also recognized:

D Mark Baker was ranked for Arbitration (International): Global and International Arbitration: Latin America-wide and described by clients as “an excellent advocate.”

D Richard Hill was ranked in Arbitration (International) Asia-Pacific Region and Dispute Resolution: International Arbitration (International Firms): China and described as “well respected in this field; he is a really smart lawyer…”

D Philip Punwar was ranked in Disputes Resolution: united Arab emirates and described as “one of the strongest advocates in the uAe.” Jonathan Sutcliffe was also ranked and noted “for his excellent work in energy disputes” and for being “a good technical operator and a bright man.”

D Aníbal Sabater was ranked in International Arbitration: Latin America-wide and described as “a talented attorney, very present in the field and with a great future ahead of him.”


28

Mark BakerD Co-authored “Ad Hoc International Arbitrations—The Way of the Future?,” José María

Abascal’s Liber Amicorum, World Arbitration & Mediation Review, forthcoming 2012

D spoke on “How to Handle Challenges Against Arbitrators,” Global Arbitration Review Live, London, November 2011

D Co-authored “The Regionalization of International Arbitration: Maintaining International standards in Appointing Arbitrators,” Hans van Houtte Liber Amicorum, The Practice of Arbitration—Essays in Honor of Professor Hans van Houtte, October 2011

D spoke on “The users’ Perspective—Drafting Preferences and experiences of Arbitration in China and Asia, and Practical Advice for Avoiding and Dealing with China Disputes,” Fulbright’s Third China Arbitration Conference, Beijing, October 2011

D Contributor, ICDR Yearbook, 2012

Jeff BlountD spoke on “The users’ Perspective—Drafting Preferences and experiences of Arbitration

in China and Asia, and Practical Advice for Avoiding and Dealing with China Disputes,” Fulbright’s Third China Arbitration Conference, Beijing, October 2011

Stephen BurkeD Authored “english High Court considers apparent bias,” International Arbitration

Law Review, February 16, 2012

D Authored “english High Court finds scott v Avery clause effective to exclude its supervisory powers under s44 of the Arbitration Act,” International Arbitration Law Review, February 16, 2012

Marti CherryD Authored “Litigating the Merits of an International Arbitration,” 22nd Annual Institute

for Transnational Arbitration Workshop, Dallas, June 2011

D spoke on “Presenting the Case to the Tribunal,” 22nd Annual Institute for Transnational Arbitration Workshop, Dallas, June 2011

D spoke on “Practice Tips for Handling Depositions on e-discovery Document search Procedures,” Fulbright & Jaworski seminar, september 29, 2011

sCRiveneRs and sPeakeRs

The writing and speaking engagements listed below are those since the publication of the Fulbright 2011 International Arbitration Report, Issue 2.

29


Lucy GreenwoodD Authored “sketch: The Rise, Fall and Rise of International Arbitration—a View

from 2030,” 77 Arbitration, Issue 4, 2011

D Authored “Keeping the Golden Goose Alive: Could Alternative Fee Arrangements Reduce the Cost of International Arbitration?,” Journal of International Arbitration (2011) 28 J.Int.Arb.6

D spoke on “Does Bifurcation Really Promote efficiency?,” Presentation to the Houston International Arbitration Club, November 2011

D Co-Authored “The Regionalization of International Arbitration: Maintaining International standards in Appointing Arbitrators,” Hans van Houtte Liber Amicorum, The Practice of Arbitration—Essays in Honor of Professor Hans van Houtte, October 2011.

D Contributor, ICDR Yearbook, 2012

Richard HillD spoke on “Recent Developments Affecting International Arbitration in China and Asia:

Institutions, Rules, National Laws and Cases,” Fulbright’s Third China Arbitration Conference, Beijing, October 2011

D Moderated Arbitrators panel and Institutions panel, Fulbright’s Third China Arbitration Conference, Beijing, October 2011

D Moderator of Australian Centre for International Arbitration Conference on “Australia as a Venue for China-related Arbitrations,” Beijing, October 2011

D spoke on “Protecting Your Technology Interests in China: What Part Can International Arbitration Play?,” Fulbright web seminar, December 2011

David Howell

D spoke on “Costs of evidence in International Arbitration,” CIARB Costs of Arbitration Conference, London, October 2011

D spoke at GAR “Third Party Funding in Arbitration” Roundtable, London, December 2011

Matthew Kirtland D Taught course on arbitration mechanics to delegation of judicial officials from uganda

and Philippines at Arbitration for Judges seminar, Washington, D.C., August 2011

D spoke on “Relevance of uNIDROIT Principles in Disputes,” symposium on 2010 uNIDROIT Principles of International Commercial Contracts: Towards A “Global Contract Law,” Washington, D.C., October 2011


30

D Taught course on “Damages and Remedies in International Arbitration,” International Law Institute, Washington, D.C., November 2011

D Taught course on “Mechanics of International Arbitration,” International Investments and Investor-state-Arbitration seminar, Washington, D.C., November 2011

Richard MainlandD Authored “Full Disclosures,” Los Angeles Lawyer Magazine, November 2011

Kevin O’Gorman D spoke on “Arbitration and Dispute Resolution Clauses,” Fulbright Mergers & Acquisition

school, Houston, October 2011

Philip PunwarD Authored “The Rules of the DIFC Courts, with Commentary & Materials,” Thomson

Reuters, November 2011

James RogersD Presented “Tips for Drafting Arbitration Clauses in China-Related Contracts” and

“selection of Arbitral Institution and Rules: A Discussion with Representatives of CIeTAC, HKIAC, ICC, sIAC and ACICA,” Fulbright’s Third China Arbitration Conference, Beijing, October 2011

D spoke on “Protecting Your Technology Interests in China: What Part Can International Arbitration Play?,” Fulbright web seminar, December 2011

D Co-authored “ICC Rules of Arbitration 2012,” Fulbright Alert, september 12, 2011

D Co-authored “New Business Opportunities expected, but Are Troubling Times Also Ahead for Investors in Libya?,” Fulbright Briefing, september 6, 2011

D Co-authored “BeIJING: Arbitral Procedure and Med-Arb from english and Chinese eyes,” Global Arbitration Review, December 12, 2011

D Co-authored “Going global, going local? Will Chinese businesses resolve their disputes abroad?,” Asian Legal Business, December 2011

31


D Co-authored “International Arbitration—Liquefied Natural Gas [LNG]: Outside Counsel Perspective,” International Commercial Arbitration Practice: 21st Century Perspectives, 2nd ed, Lexis

D Authored “India’s Changing Outlook on International Arbitration” and “Further encouraging Developments in the Indian Treatment of Foreign seated International Arbitrations,” Kluwer Arbitration Blog, August 2011 and January 2012

Aníbal Sabater D spoke on “Recent Trends in International Arbitration,” American Branch of International

Law, International Law Weekend, New York, October 2011

D spoke on “evidence in International Arbitration,” Bolivia International Arbitration Congress, La Paz, Bolivia, November 2011

D spoke on “expropriation in Investment Arbitration,” Columbia university/spanish Arbitration Club event, New York, January 2012

D Co-Authored “some Issues to Consider Before Issuing an Award,” ITA News and Notes, Third Quarter 2011

Jonathan SutcliffeD Co-authored “International Arbitration—Liquefied Natural Gas [LNG]: Outside

Counsel Perspective,” International Commercial Arbitration Practice: 21st Century Perspectives, 2nd ed, Lexis

Matthew TownsendD Co-Authored “BeIJING: Arbitral Procedure and Med-Arb from english and Chinese

eyes,” Global Arbitration Review, December 12, 2011

D spoke on “Protecting Your Technology Interests in China: What Part Can International Arbitration Play?” Fulbright web seminar, December 2011

D Co-authored “Going global, going local? Will Chinese businesses resolve their disputes abroad?,” Asian Legal Business, December 2011

D “Three Trends in China-Related Arbitration,” International Arbitration Conference: the View from england and China, organised by the Bar Council of england and Wales and China Britain Law Institute, Beijing, November 2011

D “After the spill: Law and the Fallout from environmental Catastrophes,” Beijing energy and environment Roundtable, Beijing, March 2012


32

Austin M. Scott Incerto +1 512 536 4529 [email protected]

Beijing & Hong KongJeffrey A. Blount +852 2283 1035 (Hong Kong) +86 10 8513 5888 (Beijing) [email protected]

Richard Hill +852 2283 1088 [email protected]

James Rogers +852 2283 1035 (Hong Kong) +86 10 8513 5888 (Beijing) [email protected]

Dallas Jonathan B. Skidmore +1 214 855 8038 [email protected]

Denver L. Poe Leggette +1 303 801 2746 [email protected]

Dubai Philip Punwar +971 4 293 2111 [email protected]

Jonathan Sutcliffe +971 4 293 2107 [email protected]

Houston C. Mark Baker1 +1 713 651 7708 [email protected]

Kevin O’Gorman +1 713 651 3771 [email protected]

Andrew P. Price +1 713 651 5141 [email protected]

Aníbal M. Sabater +1 713 651 5548 [email protected]

London David J. Howell2 +44 0 20 7832 3605 [email protected]

Richard Hill +44 20 7832 [email protected]

Lista M. Cannon +44 0 20 7832 3601 [email protected]

Los Angeles Richard R. Mainland +1 213 892 9210 [email protected]

Todd M. Sorrell +1 213 892 9221 [email protected]

fulBRight COntaCts Please contact any of the lawyers below for more information about our international arbitration practice.

33


Minneapolis Ronn B. Kreps +1 612 321 2810 [email protected]

Munich Craig T. Redinger +49 89 2429 3100 [email protected]

New York Mark A. Robertson +1 212 318 3304 [email protected]

Charles D. Schmerler +1 212 318 3021 [email protected]

Joseph P. Zammit +1 212 318 3346 [email protected]

Pittsburgh-Southpointe Kenneth S. Komoroski +1 724 416 0420 [email protected]

Riyadh John V. Lonsberg3 +966 1 279 5402 [email protected]

Mohammed Al-Ghamdi +966 1 279 5401 [email protected]

San Antonio Dean V. Fleming +1 210 270 7169 [email protected]

St. Louis James G. Wiehl +1 314 505 8820 [email protected]

Washington, D.C. Matthew H. Kirtland +1 202 662 4659 [email protected]

About the CoverLeft: The image of Ganesha is found throughout India and Nepal and, although he is one

of the most widely worshipped Hindu deities, devotion to him spans various belief systems,

including Jains and Buddhists. He is associated with many qualities and other deities, such

as the goddess of culture and the arts, and often the goddess of luck and prosperity

Right: The year 2012 promises to be a positive one, for it is the Year of the Dragon in

Chinese Astrology. In Chinese culture, dragons are symbols of strength and good luck.

They are often associated with supernatural powers, particularly over control of nature’s

powerful elements.9

__________ 1 Co-head of the Arbitration and ADR Practice Group and co-head of the International Department2 Co-head of the Arbitration and ADR Practice Group and co-head of the Construction Practice Group3 In Riyadh, Fulbright & Jaworski L.L.P. practices in association with Mohammed Al-Ghamdi Law Firm

Notice: We are providing this International Arbitration Report as a commentary on current legal issues. It should not be considered legal advice, which depends on the facts of each situation. Receipt of the International Arbitration Report does not establish an attorney-client relationship. The listed attorneys and/or other attorneys may provide services in connection with a particular matter.

Austin

Beijing

Dallas

Denver

Dubai

Hong Kong

Houston

London

Los Angeles

Minneapolis

Munich

New York

Pittsburgh-Southpointe

Riyadh

San Antonio

St. Louis

Washington, D.C.

www.fulbright.com

8 6 6 - F U L B R I G H T [ 8 6 6 - 3 8 5 - 2 7 4 4 ]

©2012 Fulbright & Jaworski L.L.P.5 / 1 2

Documents

2012 International Arbitration Report - Norton Rose · PDF fileand English Arbitration Acts • Regulation 44/2001 Reform Update • Section 1782 Case Update 2012 International Arbitration