International arbitration report - Norton Rose · PDF filearbitration laws An English perspective on ... International arbitration report Issue 4 ... The 2012 ICC Arbitration Rules

Inside this issue

Q&A with the Secretary General of the ICC International Court of Arbitration

India’s anticipated new arbitration laws

An English perspective on third-party funding

South Africa’s changing approach to investment protection

International arbitration reportIssue 4 – April 2015

Norton Rose Fulbright

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Norton Rose Fulbright is a global legal practice. We provide the world’s preeminent corporations and fi nancial institutions with a full business law service. We have more than 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: fi nancial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offi ces and to maintain that level of quality at every point of contact.

Norton Rose Fulbright US LLP, Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP and Norton Rose Fulbright South Africa Inc are separate legal entities and all of them are members of Norton Rose Fulbright Verein, a Swiss verein. Norton Rose Fulbright Verein helps coordinate the activities of the members but does not itself provide legal services to clients.

References to ‘Norton Rose Fulbright’, ‘the law fi rm’, and ‘legal practice’ are to one or more of the Norton Rose Fulbright members or to one of their respective affi liates (together ‘Norton Rose Fulbright entity/entities’). No individual who is a member, partner, shareholder, director, employee or consultant of, in or to any Norton Rose Fulbright entity (whether or not such individual is described as a ‘partner’) accepts or assumes responsibility, or has any liability, to any person in respect of this communication. Any reference to a partner or director is to a member, employee or consultant with equivalent standing and qualifi cations of the relevant Norton Rose Fulbright entity. The purpose of this communication is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of any Norton Rose Fulbright entity on the points of law discussed. You must take specifi c legal advice on any particular matter which concerns you. If you require any advice or further information, please speak to your usual contact at Norton Rose Fulbright.

© Norton Rose Fulbright LLP NRF20988 04/15 (UK) Extracts may be copied provided their source is acknowledged.

International arbitration reportPublished by Norton Rose Fulbright – issue 4 – April 2015

Editors-in-chief – Mark Baker, US; Pierre Bienvenu Ad. E., CanadaEditor – James Rogers, Hong KongAssistant editor – Tim Robbins, Singapore

Contents

02 The Q&A Interview with Andrea Carlevaris, Secretary General of the ICC International Court of Arbitration

05 Avoiding a punitive damage award in arbitration A lesson from the Flintlock case

08 South Africa’s changing approach to investment protection What does it mean for investors?

11 Mediation II Preparing for an international mediation

15 Modernizing Dutch arbitration law An overview

18 P.R.I.M.E. Finance Resolving complex derivatives disputes since 2012

19 The Longlide decision PRC courts uphold validity of an ICC arbitration in China

22 India anticipates new arbitration laws Another positive sign for those looking at business opportunities in India

25 Bancec applied Piercing the ‘corporate veil’ between a sovereign and its agencies and instrumentalities

28 Funding arbitration An English perspective

32 Launch of the Singapore International Commercial Court Singapore’s latest offering for disputes resolution

34 International arbitration at Norton Rose Fulbright Our recent highlights

36 Contacts

International arbitration reportIssue 4 – April 2015

Inside this issue

Q&A with the Secretary General of the ICC International Court of Arbitration

India’s anticipated new arbitration laws

An English perspective on third-party funding


About the cover

The International Council for Commercial Arbitration (ICCA) and the Hong Kong International Arbitration Centre (the HKIAC) will jointly host the HK Summit 2015 in Hong Kong in May of this year. Our cover for this issue features a lion guardian bronze sculpture at the Sik Sik Yuen Wong Tai Sin Temple in Kowloon, Hong Kong.

Editorial

Welcome to issue 4 of Norton Rose Fulbright’s International arbitration report.

In this issue, we speak to Andrea Carlevaris, Secretary General of the ICC International Court of Arbitration, about the challenges of his role and the importance of developing a global presence as an arbitral institution. The second instalment of our series on mediation provides guidance on how to prepare for and conduct a mediation. We also include a helpful introduction to P.R.I.M.E. Finance and its arbitration rules. In light of the increasing use of third-party funding in arbitration and the publicity which it has attracted, we discuss the current English perspective on third-party funding.

We provide an overview of amendments to Dutch and Indian arbitration legislation, as well as a discussion of South Africa’s changing approach to investment protection. We highlight key features of the recently launched Singapore International Commercial Court, which has attracted significant interest from the international arbitration community.

Case law updates from the US include recent judicial developments on the seminal case First National City Bank v Banco Para el Comercio Exterior de Cuba, relating to when a government will be jointly liable with its instrumentality under the US Foreign Sovereign Immunity Act, and a discussion of the recent decision in Flintlock Construction Services, LLC v Weiss, which provides guidance on how to avoid a punitive damages award in an arbitration governed by New York law. We also feature an analysis of the recent Longlide case from People’s Republic of China, in which the Chinese courts have upheld the validity of an arbitration agreement providing for ICC-administered arbitration in China.

Mark Baker and Pierre Bienvenu Ad. E. Co-heads, International arbitration Norton Rose Fulbright

The Q&AInterview with Andrea Carlevaris, Secretary General

of the ICC International Court of ArbitrationJames Rogers and Tim Robbins

We speak to Andrea Carlevaris, Secretary General of the ICC International Court of Arbitration, about recent amendments to

the ICC Arbitration Rules and get his thoughts on the importance of global presence for arbitral institutions and the ethics of

counsel conduct.

02 Norton Rose Fulbright – 2015

International arbitration report 2015 – issue 4

1 | What are the key challenges facing you as Secretary General of the ICC International Court of Arbitration?

The main challenge is maintaining the leadership and reputation the Court has gained worldwide in its 92 years of life, and doing so in a time of fierce competition among institutions, and with the growing caseload of the last couple of years. As a truly global arbitral institution, the Court needs to make the most of its international network, which comprises national committees in some 90 jurisdictions; regional directors who coordinate educational and promotional efforts in four different areas (North America, Latin America, East Asia, the Middle East and Africa); and two case-management teams outside Paris, in Hong Kong and New York.

We intend to consolidate and expand our presence in regions where ICC arbitration has traditionally been very popular, such as Western Europe and North America. We will continue to grow in developing areas (e.g. Latin America and East Asia) and capture the potential of emerging arbitration markets, such as Sub-Saharan Africa and Central Asia.

2 | Following the launch of the 2012 ICC Arbitration Rules, which amendments have been best received by the parties?

The 2012 ICC Arbitration Rules have generally been extremely well received by users. None of the new provisions introduced in the Rules with the last revision has given rise to major problems of application or to doubts as to their interpretation.

The Emergency Arbitration Provisions are used frequently and seem to respond to a real need of the users of ICC arbitration. In all the cases registered so far, the time limits provided by the Rules for the appointment of the emergency arbitrator by the President of the Court and for the rendering of the Order, albeit challenging, have been respected.

The new provisions on ‘complex arbitrations’ (i.e. multi-party and multi-contract cases, joinders of new parties in already pending proceedings, consolidation of two or more pending arbitrations and claims between multiple claimants or multiple respondents) have increased the transparency and the predictability of the Court’s decisions, and have not caused an increase of unfounded applications by the parties.

The case-management conference which arbitrators are now required to hold at an early stage of the proceedings is proving a very useful tool to consult the parties on the possible adoption of procedural measures aimed at reducing the timescale and costs of the arbitration.

Parties seem to appreciate the efforts which have been put into avoiding delays in the rendering of the award by arbitrators, which are reflected in several provisions of the 2012 Rules. For example, upon closing of the proceedings, the arbitral tribunal is required to inform the parties and the Secretariat of the date by which it expects to submit the draft award for scrutiny, and any delay in this respect may have an impact on the fixing of the arbitrators’ fees by the Court.

Finally, the introduction of provisions aimed at facilitating the participation of states and state entities in ICC arbitrations (including investor-state cases) has proven beneficial to the use of the ICC Rules in this type of arbitration. While states have traditionally been frequent users of ICC arbitration in contractual matters, in the last couple of years we have observed an increase in the number of arbitrations introduced on the basis of an international investment instrument, an area where there seems to be room for further growth.

3 | The Court set up branch offices in Hong Kong (2008) and, more recently, in New York (2014). How important do you think it is for arbitral institutions to have a global presence?

The added value of institutional arbitration consists not only in the quality of the rules, but also (and more importantly) in the role of the institution in administering them. Physical presence in various areas of the world is a key factor for the success of a truly global institution such as the Court. Despite the growing use of IT in arbitration, including in case administration, users still attach a great importance to the proximity of the case managers. The presence of the institution in the same time zone as the parties, or their counsel, facilitates the interaction and consolidates the familiarity with the arbitral institution and with its arbitration system.

Our experience with the teams based in Hong Kong and New York is extremely positive. In both cases, the opening of the offices has coincided with a significant increase of parties from those regions. Arguably, it has contributed to dispelling the false impression of the Court as a ‘European’, or ‘Euro-centric’,

Norton Rose Fulbright – 2015 03

The Q&A

institution. Both teams are ‘local’ in terms of nationality and in terms of the language skills and legal training of their members.

The main challenge facing institutions with respect to offices far from the headquarters is maintaining the same high standards of quality. In our case, the Hong Kong and the New York offices are an integral part of the structure of the Secretariat and operate just like any of the Paris-based teams (i.e. under the daily supervision of the senior management of the Secretariat and with videoconference internal staff meetings and Court meetings).

4 | What role does arbitration play within the greater scope of the ICC’s dispute resolution services?

In addition to arbitration, the ICC provides other dispute resolution services under its Mediation Rules, Expert Rules, Dispute Boards Rules and ‘DOCDEX’ Rules (Documentary Credit Dispute Resolution Expertise, a quick and cost-effective procedure specifically to settle documentary credit disputes). All of these services are administered by the ICC International Centre for ADR (the Centre), which is not under the supervision of the Court, but is an integral part of the greater secretariat of the ICC dispute resolution services. The number of cases administered by the Centre has grown significantly in the last few years.

Within the ICC dispute resolution services, arbitration and these other mechanisms are by no means in competition with each other. They are part of a broad and articulated offer of dispute resolution services, from which parties can choose, and which they can combine according to their needs. It is not infrequent for parties to proceed to arbitration under the Arbitration Rules after having attempted mediation under the Mediation Rules, or for parties and arbitral tribunals involved in ICC arbitrations to resort to the services of the Centre for the appointment of experts or dispute boards.

The unitary approach to dispute resolution is further reflected in the fact that the Secretary General of the Court also serves as director of the ICC dispute resolution services. Moreover, the ICC Commission on International Arbitration was recently renamed the ‘ICC Commission on International Arbitration and ADR’ (the Commission) to reflect the growing importance of ADR among the services offered by the ICC (all the rules administered by the Centre have either been revised by

the Commission in the recent past, or their revision will be finalised in the next few months) and the growing areas of contact between different mechanisms in the dispute resolution practice.

5 | There has been some debate recently regarding the ethics of counsel conduct (or lack thereof) in international arbitration. Do you see evidence of this in ICC arbitrations, and do you think steps should, or could, be taken to address this issue?

The majority of ICC arbitrations are genuinely international in nature, and often parties and counsel come from the most diverse regions of the world and have the most diverse cultural and legal backgrounds. This inevitably poses problems of inhomogeneity of the ethical standards applied and expected. We see evidence of this diversity of ethical attitudes, for example, in the grounds invoked by the parties when challenging arbitrators and in procedural motions filed by the parties.

Initiatives of international professional organizations, such as the adoption of the IBA Guidelines on Party-Representation, are welcome developments in this respect. They contribute to raising awareness of the problem and to fostering consensus on generally accepted ethical standards, without imposing rigid solutions, which may not be equally acceptable to all counsel involved in a specific case. The main purpose of these initiatives should be to encourage parties and arbitrators to engage in an open discussion at an early stage of the proceedings on the procedural conduct expected, with a view to reaching agreement on the ethical standards to be applied in a given case, or, if this proves impossible, at least to highlight areas where expectations may differ.

I am much more sceptical about similar initiatives taken by arbitral institutions. Unlike other institutions, the ICC has chosen not to adopt codes of ethics, or rules automatically applicable in cases conducted under its Rules. As mentioned, ICC arbitrations often involve actors with vastly differing backgrounds and little shared understanding and expectations as to the relevant ethical standards.

James Rogers is a partner in the Hong Kong office of Norton Rose Fulbright and Tim Robbins is an associate in the Singapore office.



Avoiding a punitive damage award in arbitration

A lesson from the Flintlock caseGlen Banks and Mark Stadnyk

While arbitrators have the power to award punitive damages in FAA arbitrations, this power does not exist under New York law.

The decision in Flintlock provides some guidance on the language necessary to exclude punitive damages in FAA arbitrations

arising from contracts governed by New York law.


Contracts in international transactions may contain a New York choice-of-law clause and an arbitration clause that provides the arbitration will be seated in the United States. When a claim concerning that contract is asserted, the tribunal will apply the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA) and not New York law, to determine whether the arbitrator has the power to determine an issue. This point becomes significant when New York law and the FAA differ on the issue of arbitrability.

Under New York law, an arbitrator cannot award punitive damages. In Garrity v Lyle Stuart, Inc., the New York Court of Appeals held that an ‘arbitrator has no power to award punitive damages, even if agreed upon by the parties. Punitive damages is a sanction reserved to the State, a public policy of such magnitude as to call for judicial intrusion to prevent its contravention.’1 Consequently, the Court vacated a punitive damages award.

Importantly, Garrity did not purport to address the award of punitive damages under the FAA, which applies to the enforcement and review of international arbitral awards. The FAA permits an arbitrator to award punitive damages. However, parties to a FAA-governed arbitration may also agree to exclude punitive damages directly (by expressly agreeing to do so) or indirectly (by invoking New York’s arbitration limitations, including the Garrity rule).

Arbitration agreements in contracts for international transactions frequently specify that they are ‘governed’ by New York law. The US Supreme Court held in Mastrobuono v Shearson Lehman Hutton, Inc. that merely stating that the arbitration shall be ‘governed by the laws of the State of New York’ did not suffice to invoke New York’s arbitration limitations, Garrity included.2 The Court held that the reference in the governing law clause to ‘the laws of the State of New York’ was limited to ‘substantive principles that New York courts would apply, but not… special rules limiting the authority of arbitrators’ (as with Garrity). Therefore, despite its reference to New York law, the arbitration agreement did not specifically exclude awards of punitive damages, and the underlying award would stand.

Punitive damages are not the only subject where New York law differs from the FAA. Under New York law, the court determines whether a claim asserted in an arbitration is barred by the

1 Garrity v Lyle Stuart, Inc., 40 N.Y.2d 354, 356.2 Mastrobuono v Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995).

Statute of Limitations. Under the FAA, however, the arbitrator decides this issue. The New York Court of Appeals has held that the New York rule would be applied to determine the issue when the parties agreed that New York law would govern the ‘enforcement’ of their contract. The Court believed that language constituted an agreement to arbitrate only to the extent permitted by New York law.

A question that has not been answered definitively is whether an arbitrator can adjudicate a punitive damages claim when the choice-of-law clause provides that New York law applies to the ‘enforcement’ of the contract. In Flintlock Construction Services, LLC v Weiss, a divided ruling by the New York intermediate appellate court that sits in Manhattan suggests that the answer is no.3 The Flintlock decision provides guidance on the language necessary to exclude punitive damages in the arbitration of a claim for breach of a contract governed by New York law.

The Flintlock decision

Post-Mastrobuono decisions by New York courts on the arbitrability of a statutes of limitation defense have suggested that stating that the ‘enforcement’ of the contract would be governed by New York law evidences the parties’ intent to invoke New York’s arbitration limitations in arbitrations governed by the FAA (for an example, see Matter of Diamond Waterproofing v 55 Liberty Owners, 4 N.Y.3d 247, 793 N.Y.S.2d 831 (2005)). In Flintlock, the Court considered a related issue: whether a clause stating that the contract ‘shall be construed and enforced in accordance with the laws of the State of New York’ sufficed to establish the requisite intent to deprive the arbitrators of the authority to award punitive damages.4

In a three-two decision, the Flintlock court held that ‘merely stating… that an agreement is to be construed and enforced in accordance with the law of New York does not suffice to invoke the Garrity rule.’5 Rather, ‘language expressly invoking the Garrity rule, or expressly excluding claims for punitive damages’ is required.6 As a result, the majority supported a lower-court order denying a petition to stay arbitration of punitive damages claims. The Flintlock minority, by contrast, found the aforementioned authority on statutes of limitation

3 Flintlock Construction Services, LLC v Weiss, 122 A.D.3d 51, 991 N.Y.S.2d 408 (1st Dept. 2014).4 Id. note ii at 53.5 Id. at 55.6 Id. at 54.



to be persuasive, opining that a clause providing for the ‘enforcement’ of an agreement under New York law sufficed to ‘invoke the limitations on arbitration under New York State law’ including Garrity’s prohibition on punitive damages.7

Contracting out of punitive damages

The holding in Flintlock only applies to arbitral agreements governed by the FAA; arbitrations purely within New York state will remain governed by the Garrity rule. Flintlock illustrates, however, that a party that wants to avoid the possibility of an arbitral punitive damages award for breach of a cross-border contract governed by New York law must specify that the arbitrator does not have the power to award punitive damages. It may address punitive damages expressly, it may invoke Garrity, or it may adopt institutional arbitral rules prohibiting awards of punitive damages, such as those of the International Centre for Dispute Resolution. However, a ‘no punitive damage’ provision in a limitation-of-liability clause is not likely to be sufficient. It would be difficult for a court to set aside an arbitrator’s award where the arbitrator erred by awarding damages precluded by a limitation-on-liability clause. In contrast, a court clearly has the power to vacate an award of punitive damages where the arbitrator did not have the power to award such damages.

Glen Banks is a partner in the New York office of Norton Rose Fulbright and Mark Stadnyk is an international arbitration advisor in the Houston office.

7 Id. at 63.

Flintlock illustrates… that a party that wants to avoid the possibility of an arbitral punitive damages award for breach of a cross-border contract governed by New York law must specify that the arbitrator does not have the power to award punitive damages.


Avoiding a punitive damage award in arbitration


What does it mean for investors?Jeffrey Kron and Matthew Clark

Many are concerned about South Africa’s change in approach to investment protection, in particular the protection afforded

to investors against expropriation. There is still uncertainty about what the final legal framework will look like, but investors

can derive some comfort from reports that their concerns are being addressed.



Since the mid-1990s, foreign investments in South Africa have in many instances been protected from expropriation through bilateral investment treaties (BITs). They have also been protected by South African common law, local legislation and the South African Constitution.

South Africa’s approach to investment protection is changing. This follows a review South Africa conducted of its BIT obligations. The review led to a decision by the South African cabinet in July 2010 to:

• develop a new investment act to codify typical BIT provisions into domestic law, and strengthen investor protection

• terminate first-generation BITs and offer partners the possibility of renegotiating

• refrain from entering into BITs in the future, unless there are compelling economic and political reasons for doing so.

At the beginning of October 2012, South Africa cancelled its BITs with Belgium–Luxembourg, Spain, Germany, Switzerland, the Netherlands and Denmark. It is reported that South Africa will soon be cancelling its remaining European BITs. Discussions are apparently ongoing regarding the future of the China–South Africa BIT.

South Africa is one of a number of developing countries moving away from the traditional form of investment protection offered by BITs. Indonesia intends to terminate more than 60 BITS, and Venezuela, Ecuador and Bolivia have already withdrawn from the ICSID Convention. Australia has apparently raised concerns about international dispute resolution mechanisms.

South Africa published a draft Promotion and Protection of Investment Bill for public comment in October 2013 (the Bill). The Bill sets out to promote and protect investment in a manner that reflects public interest and that strikes a balance between the rights and obligations of all investors. Various stakeholders, including many of South Africa’s trading partners, raised concerns that the protection afforded to foreign investors under the Bill will be less than that currently afforded under BITs.

After the receipt of public comment, the Bill was referred to the National Economic Development and Labour Council (NEDLAC) for discussion. It has been reported that NEDLAC has responded favourably to foreign investors’ concerns regarding the expropriation and dispute settlement provisions of the Bill.

The revised draft Bill has not yet been released.

Concerns relating to the draft Bill

South Africa’s trading partners expressed the following concerns about the Bill in its draft form:

• The Bill contains exclusions of what actions might constitute expropriation: specifically any measure which results in a deprivation of property where the State does not acquire ownership of such property (provided that there is no permanent damage to the economic value of the investment) or where the investor’s ability to manage, use or control his or her investment in a meaningful way is not unduly impeded.



• The Bill states that the amount of compensation payable for an expropriated investment must be ‘just and equitable’, rather than the fair market value of the expropriated asset. The compensation must strike a balance between public interest and the interests of those affected, and take into account all relevant circumstances, including the current use of the investment; the history of the acquisition and use of the investment; the market value of the investment; and the purpose of the expropriation.

• The Bill does not contemplate the possibility of compulsory recourse to international arbitration as a means of resolving disputes. An investor may request that a dispute be resolved through mediation and the Minister of Trade and Industry for South Africa must make regulations on the processes and procedures for the settlement of disputes. This implies that the dispute resolution procedure may be prescribed and that investors aggrieved by the action of the State may have to rely on South African courts to help them, rather than international arbitration.

• The Bill does not contain the specific ‘fair and equitable treatment’ provisions that are common in many BITs. However, the Bill does state that one of its purposes is to ‘ensure the equal treatment between foreign investors and citizens’ of South Africa. Once enacted, the Bill will be applicable to investments made by locals and foreigners, which necessitates equal treatment of the two types of investor. The Bill also provides that South Africa ‘must give effect to national treatment and treat foreign investors, their foreign investments and their returns not less favourably than it treats South African investors in their business operations that are in like circumstances’.

Should investors be concerned at this stage?

The latest version of the Bill is still to be published. If reports are correct, South Africa’s trading partners can be optimistic that some of their concerns about the draft Bill have been addressed. It has been reported that the provisions contained in the current Bill which relate to expropriation have been removed and will be dealt with in the new Expropriation Act and that the exclusion of ‘deprivation’ from the definition of ‘expropriation’ (referred to above) has been removed.

South Africa’s change in approach to the protection of foreign investments will be regulated not only by the Bill (once it becomes a formal Act) but also by the new Expropriation

Act (which will amend the 1975 Expropriation Act). The new Expropriation Act has yet to be promulgated, but it has been published in the form of a bill for public comment. The Expropriation Bill states that the Minister of Public Works may expropriate property ‘for a purpose connected with the execution of his or her mandate or upon request of an organ of state’ but that this is ‘subject to the obligation to pay compensation which is just and equitable’.

The Expropriation Bill states that the compensation payable to an expropriated owner must also reflect an equitable balance between the public interest and the interests of the expropriated owner, having regard to all relevant circumstances, including the following (most of which are required by the Constitution):

• the current use of the property

• the history of the acquisition of the property

• the market value of the property

• the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property

• the purpose of the expropriation.

The Expropriation Bill is the subject of public comment and further parliamentary debate. There is much uncertainty about what the revised Bill and Expropriation Act will contain and investors should continue to monitor the situation.

The President of South Africa announced in the 2015 State of the Nation Address that measures will be taken to limit foreign ownership of agricultural land and that there will be a move to a system of long-term leasehold. This is not currently addressed in either of the bills discussed above.

However, investors should derive some comfort that both pieces of legislation will be subject to the supremacy of the South African Constitution, which prohibits any form of expropriation except as against payment of just and equitable compensation, based on the factors mentioned.

Jeffrey Kron is a director and Matthew Clark is an associate in the Johannesburg office of Norton Rose Fulbright.



Mediation IIPreparing for an international mediation

Lucy Greenwood and Mark Baker

This is the second in a series of articles offering practical ideas for those considering mediating their disputes. In issue 3 of

International arbitration report, we focused on how to choose the right mediator. We now discuss how to prepare for an

international mediation.


In recent years there has been an increase in the inclusion of ‘step’ dispute resolution clauses in international contracts. These ‘step’ clauses are multi-tiered dispute resolution clauses which require the parties to pursue some form of alternative dispute resolution mechanism prior to embarking on arbitration or litigation (i.e. the binding mechanism they have chosen). These clauses often have formal or informal negotiation between corporate representatives as a first step, then formal mediation, then arbitration or litigation as the final step. As a consequence, matters which might have gone straight to arbitration or court a few years ago are now being resolved by formal mediation.

Mediation is a process of conflict management, distinct from party negotiations, which is facilitated by a third party with no connection to any of the participants. As we explained in ‘Choosing a mediator’ (the first article in our series on mediation), mediators can vary hugely in terms of their approach, attitude and abilities. This is particularly true for international mediations, where all parties might have different cultural backgrounds and have very different expectations of the mediation process.

A voluntary negotiation affords the parties the greatest level of ‘free’ participation (and, arguably, a greater level of ‘buy in’ to the process). Mediation, which has been mandated by a step clause, offers a degree of choice, in that the parties chose the original clause. Court-ordered mediation has no element of choice as it is a mandatory stage before the court determines the dispute. It is rare to have international mediations mandated by anything other than the wording of a dispute resolution clause. This may be a factor in the settlement rate of international mediations, which is around 80 per cent.

It can be difficult for international counsel to ameliorate cultural differences between parties – particularly those already locked in a dispute. An experienced international mediator will be in the best position to bridge the gaps between cultural differences and between different expectations and it is particularly important in mediations with an international element to choose the right mediator. Thereafter, preparing for a mediation with an international element can be encapsulated in three basic principles:

1 | Work with what you have

In international mediations, an experienced mediator will work with counsel and the parties to identify the appropriate mediation technique to use and refine it where necessary to

accommodate particular preferences according to the dispute before him or her. However, it is perhaps even more important for parties and their advocates to critically appraise the dispute as part of their preparations for the mediation – to assess what they have and to work with it. This may be easier said than done: studies at the Harvard University Program on Negotiation (a research center dedicated to developing the theory and practice of negotiation and dispute resolution) have shown how difficult it is for parties in a dispute to make a completely objective assessment of their own case. Counsel must bear this in mind when reviewing the facts of the case.

A key point when trying to work with what you have is to think carefully about the mediation itself, in particular, who is going to talk during the mediation. Mediation is not a debate, nor is it an opportunity for airing grievances that may bear little or no relevance to the dispute between the parties. An important question therefore is who will attend the mediation and who will address the mediator (and the other side, if there is to be a joint session with both disputing parties present).

Once you have identified the appropriate client representative, make sure they have authority to resolve the dispute, or that they have the means of obtaining that authority promptly. Take the opportunity to rehearse potential scenarios with your client, particularly if they are going to be responding directly to questions by the mediator.

Working with what you have includes looking critically at your own style and approach. Opening statements for mediation are very different from opening statements in arbitrations; they should set the scene in a neutral manner and be more conciliatory in tone.

Advocates should think about the language they would use in the mediation and consider making it more neutral and less adversarial. Asking the other side simple questions, such as how they view liability in this case and listening to the answer,

Mediation is not a debate, nor is it an opportunity for airing grievances that may bear little or no relevance to the dispute between the parties.



rather than launching in with a client’s case, will smooth the process by building goodwill during the negotiations.

Be prepared to discuss, not argue, your case before the mediator. Taking time to know the details of the case intimately will pay dividends. Even though you will not be using the adversarial approach you would use in an arbitration, you will need to know the case just as well (in fact, you might need to know more ‘soft’ details going into a mediation, rather than the hard legal facts you would need to be on top of going into

an arbitration). A time line of events and list of significant individuals will help both sides and the mediator to reach an efficient understanding of the case. Knowing the background of a case also helps counsel come across as honest and committed to the mediation.

2 | Be creative

As counsel, you have an opportunity to shape the mediation to further your client’s position. Being creative in your approach can bring significant benefits. As with any negotiation, trying to identify what might be important to the other side is as important as thinking about what is important to your client. Prior to the mediation, you may need to speak to a number of people at the client’s to determine what the other party (rather than its counsel) might really want. You should also factor in time to research in depth those attending the mediation from the other side and to properly understand the mediator’s style and likely approach to the dispute, in order to properly prepare yourself and your client for the mediation.

Knowing the background of a case also helps counsel come across as honest and committed to the mediation.


Mediation II

Seek to be creative about how you present your client’s case in any opening statement. Use of effective visual aids can make a good first impression on the mediator (and the other side if there is to be a joint session).

Mediations can occur at any stage of the dispute process. In the event that your client is participating in a late-stage mediation, be aware that your view of the dispute and your opinions will have become entrenched and heavily influenced by your legal argument. This is less significant for a mediation taking place at an earlier stage, but good counsel will still be aware of the tendency to view disputes solely through ‘legal’ eyes. Facts which can be bad facts for a legal claim can be very useful in preparing for mediation.

For example, a client may have undermined their legal position following an alleged breach of contract by contacting customers and making legally unfortunate statements which could be construed as admissions of liability. However, such behavior can show the client’s willingness to resolve the situation, which may be helpful in mediation. A creative approach adopted in relation to these legal ‘bad facts’ could turn them into a significant advantage.

3 | Play the long game

The ice hockey player, Wayne Gretzky, memorably said ‘I skate to where the puck is going to be, not where it has been.’ This is equally apt for preparing for mediations. Consider where your client (not you) wants to be at the end of a mediation. Keeping an eye on the long game involves thinking about timing, about confidentiality, strategy and logistics.

The timing of a mediation is vitally important. As noted, mediations can and do take place at any stage of the dispute resolution process. It is important to assess critically whether the case is really right for settlement and if not, then to consider postponing the mediation rather than risk a failed mediation and further entrenched hostilities.

Although the mediation is often assumed to be confidential, make sure you have analyzed what this really means in relation to your client’s case. For example, you may need to

amend the standard confidentiality agreement to deal with specific case-related issues. You will also need to discuss with your client how information you acquire during the course of the mediation might be or might not be used in the future, including in later dispute resolution forums (litigation or arbitration) that may be required by the parties’ contract. Prepare the client to evaluate and take in new information which they will learn during the mediation and to respond to it.

Mediations can form part of a wider strategy. On occasion, it is important for a client simply to have participated in a mediation and it is not in the client’s interest to have the dispute resolved; parties may find it easier to deal with an unfavorable award than a negotiated resolution. Often cultural backgrounds may influence the conduct of the mediation and it is important to remain attuned to these nuances when preparing for a mediation, and to be open with the mediator about the potential difficulties he or she may face.

Playing the long game also involves thinking about logistical factors that may affect the mediation (e.g. making sure travel arrangements allow parties time to recover from jet lag). Building breaks into the timetable can give the parties time to consider their positions or simply get a fresh perspective on the dispute.

Concluding remarks

The three guiding principles set out in this article simply underscore the fundamental importance of preparation in mediations, particularly those with an international element. Being able to work with the mediator, the client and the other side is a very difficult task and one which will be greatly simplified if counsel try to channel their commercial awareness rather than their legal instincts and take time to really prepare their mediation in the same way they would approach the opening day of an international commercial arbitration.

Mark Baker is co-head of international arbitration and a partner based in the Houston office of Norton Rose Fulbright. Lucy Greenwood is a foreign legal consultant also based in Houston.



Modernizing Dutch arbitration law

An overviewYke Lennartz and Jessica de Rooij

January 2015 saw the first changes to Dutch arbitration law since 1986. The changes seek to modernize various aspects of the law and make the Netherlands more attractive as a venue for international arbitration. We give an overview of the most

important amendments.


In the Netherlands, arbitration is one of the most important forms of commercial dispute resolution. A new arbitration act (the Act)1, which entered into force on January 1, 2015, aims to both modernize and simplify arbitrations in the Netherlands. It will reduce reliance on the domestic courts and allow parties more freedom to agree on alternative rules with respect to arbitration proceedings between them. It will also bring Dutch arbitration law more in line with the UNCITRAL Model Law on International Commercial Arbitration. The Act’s most important amendments are the following:

Electronic arbitrations

The Act provides for the conduct of arbitration proceedings electronically.

Codifying best practice

The Act codifies into law provisions for the written phase of arbitration proceedings and for site viewings and inspections. It provides that parties may agree on different procedural rules from the (non-mandatory) procedural rules provided for by law to apply to their specific dispute. Parties may, for instance, decide on the extent of written statements each can submit. The Act also codifies that a counterclaim can only be brought when that counterclaim is governed by the same arbitration agreement.

Annulment proceedings

The annulment of arbitral awards is now limited to one set of proceedings, before the Court of Appeal. Formerly, proceedings to set aside an arbitral award went before a district court, whose judgment would be subject to appeal at the Court of Appeal. Under the Act, annulment proceedings must now be brought directly before the Court of Appeal, making them more time- and cost-efficient, and in line with international best practice. A judgment of the Court of Appeal does, however, remain subject to appeal to the Supreme Court.

1 Act of June 2, 2014 amending Book 3, Book 6 and Book 10 of the Civil Code and the Fourth Book of the Code of Civil Procedure in connection with the modernization of arbitration law.

The Court of Appeal can also suspend annulment proceedings and refer a matter back to the arbitral tribunal, which will then be reinstated and have the opportunity to remedy the grounds for annulment in the arbitral award.

Dutch courts in foreign arbitration proceedings

Parties to arbitration proceedings seated outside the Netherlands are no longer prevented from seeking the assistance of a Dutch district court. Parties may require such assistance for preliminary witness hearings and other interim measures. In principle, the same procedural rules will apply as for arbitration proceedings in the Netherlands.

Institutional administration of arbitrator challenges

The Act aims to make the Netherlands more attractive for international arbitrations by providing for the option of institutions to administer proceedings for the challenge of arbitrators. This change was included as a result of requests by the ICC and the Permanent Court of Arbitration. Under the Act, parties can agree on an independent third party (for example, an arbitrator institution) to review the challenge request, instead of the preliminary relief judge at the district court.

Increasing consumer confidence

The Act aims to increase consumer confidence by qualifying as ‘unreasonably onerous’ (within the meaning of article 6:236 of the Dutch Civil Code) arbitration clauses included in the general terms and conditions of contractual relationships with consumers. This is unless such an arbitration clause allows the consumer to submit the dispute before the regular courts within at least one month of that clause being invoked. Therefore, consumers have more power to avoid arbitration clauses that they are confronted with.



Depositing arbitral awards

The Netherlands was one of the few remaining countries which required arbitral awards to be deposited at district courts. Under the Act, depositing an arbitral award at a court registry has become optional. This is one of the measures taken with a view to easing the administrative burden on the parties.

Statute of limitation

The Act provides that the statutory period of limitation for claims governed by Dutch law will be interrupted by the initiation of arbitral proceedings, even if the arbitral tribunal subsequently declines jurisdiction. A new statutory period of limitation will start on the day following the date of the award.

Provisional measures

A final amendment is that the Act codifies the parties’ rights to request provisional measures in pending arbitral procedures. In addition, it confirms that parties may agree to the appointment of emergency arbitrators pending the constitution of the proper tribunal. Under the Act, a decision rendered as a result of a request for a provisional relief will qualify as an arbitral award.

The consequences of the amendments in Dutch arbitration law may be relatively limited. Arbitration proceedings in the Netherlands are largely conducted by arbitration institutions, such as the Netherlands Arbitration Institute (NAI). Certain of the amendments will have limited effect in practice, because the rules of arbitration institutions already include similar provisions. In general, however, the amendments to the Dutch arbitration law will increase the perception of the Netherlands as an attractive venue for international arbitration.

Yke Lennartz is a partner and Jessica de Rooij is a senior associate in the Amsterdam office of Norton Rose Fulbright.


Modernizing Dutch arbitration law

P.R.I.M.E. FinanceResolving complex derivatives disputes since 2012

Yke Lennartz and Jessica de Rooij

P.R.I.M.E. Finance aims to provide a transparent, effective and uniform way of settling disputes on the international derivatives

markets. What exactly does P.R.I.M.E. Finance offer?

With the growing complexity of financial products, the task for courts and arbitrators to efficiently decide on disputes related to financial products has become increasingly difficult. Established in 2012, the Panel of Recognized International Market Experts in Finance (P.R.I.M.E. Finance) is a non-profit organization based in the Netherlands that provides expert services to help resolve disputes in the financial sector.

P.R.I.M.E. Finance comprises a panel of over 100 internationally recognized experts in derivatives and financial arbitration. Amongst its experts are judges, bankers, regulators and academics. A key focus of P.R.I.M.E. Finance is providing arbitration services, but the panel also offers mediation, judicial training, expert court opinions and other recommendations on legal reform for international derivatives markets. One of the goals of the panel is to create a central database of international precedents and source materials through the publication of arbitral awards.

P.R.I.M.E. Finance’s effectiveness is yet to be comprehensively tested, but the International Swaps and Derivatives Association (ISDA) has recognized P.R.I.M.E. Finance as one of seven arbitration centers for dispute resolution in the ISDA Arbitration Guide. This will likely bolster the image of P.R.I.M.E. Finance arbitration as alternative dispute resolution method in the derivative markets.

What are the most important characteristics of P.R.I.M.E. Finance arbitration?The P.R.I.M.E. Finance arbitration rules are based on the UNCITRAL rules, but also provide for expedited proceedings and – in matters of urgency where parties cannot wait for a tribunal to be assembled – emergency proceedings. Expedited proceedings will result in a substantive award, but the timeframe of the proceedings is shortened. In emergency proceedings, parties can request an emergency arbitrator to grant provisional measures. In the context of international derivative trading, this can prove to be very useful. In addition – in cases where the Netherlands is chosen as the seat for arbitration – the P.R.I.M.E. Finance arbitration rules provide for referee arbitration proceedings, allowing for an enforceable arbitral award to be rendered within 60 days.

As part of P.R.I.M.E. Finance’s goal to create a database of precedents, arbitral awards are published without the consent of the parties involved in the arbitration. However, a party can unilaterally object to an award being published within one month after the receipt of that award. Although it is too early to tell how popular this option will become, the desire to avoid publicity will likely drive many parties to object to the publication of awards.

More information on P.R.I.M.E. Finance can be found on primefinancedisputes.org

Yke Lennartz is a partner and Jessica de Rooij is a senior associate in the Amsterdam office of Norton Rose Fulbright.



The Longlide decisionPRC courts uphold validity of an

ICC arbitration in ChinaJames Rogers and Matthew Townsend

As Chinese law is unclear on whether non-Chinese institutions have the right to administer arbitrations in China, parties

have avoided agreeing such clauses. However, in a significant decision, a Shanghai court has upheld the validity of a clause

providing for China-seated ICC arbitration.


Background

PRC law implies that only Chinese arbitral institutions can administer arbitrations in mainland China. First, a valid arbitration agreement must expressly nominate the parties’ choice of arbitration commission (article 16 of the PRC Arbitration Law) and, second, that arbitration commission should comply with local PRC requirements regarding its establishment, affiliation and regulation (see articles 10–15 of the PRC Arbitration Law). Hence the implication is that foreign arbitral institutions cannot conduct arbitrations in China.

However, there has been no binding judicial pronouncement upon the mandate of international institutions, such as the ICC, operating in China. The PRC courts have ruled on the validity of such clauses, but cases have been determined on narrow grounds, in an inconsistent manner.

In Züblin International GmbH v Wuxi Woke General Engineering Rubber Co Ltd ([2003] Min Si Ta Zi Di 23 Hao.2004), the Supreme People’s Court (SPC) ruled invalid an arbitration clause specifying ICC-administered proceedings seated in Shanghai. The SPC’s grounds for refusal were limited to finding a breach of article 16 of the Arbitration Law, in that no arbitral commission at all (foreign or domestic) had been specified.

Four years later, in Duferco S.A. v Ningbo Art & Craft Import & Export Corp. ([2008] Yong Zhong Jian Zi Di 4 Hao.), the Intermediate People’s Court of Ningbo agreed to enforce an award issued by an ICC tribunal in Beijing. However, this decision, unlike the Züblin decision, was not ratified by the SPC and caused some controversy among practitioners, as despite the PRC seat of the arbitration, the court categorised the resulting award as a non-domestic award for the purposes of the New York Convention.



In light of the uncertain position, arbitration users agreeing to PRC-seated proceedings have usually specified a Chinese entity as the administering institution.

The Longlide case and the decision of the Hefei Court

In October 2010, an Italian-incorporated party, BP Agnati SRL (BP) and a Chinese-incorporated party Anhui Longlide Packaging and Printing Co. Ltd (Longlide) entered into a commercial agreement. The contract contained an arbitration clause providing that ‘any dispute arising from or in connection with this contract shall be submitted to arbitration by the ICC Court of Arbitration according to its arbitration rules, by one or more arbitrators. The place of jurisdiction shall be Shanghai, China. The arbitration shall be conducted in English.’

A dispute arose and BP commenced arbitration proceedings against Longlide. However, Longlide submitted a jurisdictional challenge to the Intermediate People’s Court of Hefei (Hefei Court) on the basis that the arbitration clause breached article 16 of the Arbitration Law.

Longlide contended that the clause did not identify a Chinese arbitration commission within the meaning of the Arbitration Law. Further it was asserted that the nomination of the ICC as administering institution would violate the PRC’s judicial sovereignty.

The Hefei Court acknowledged the provisions of article 10 of the Arbitration Law regarding the establishment and regulation of arbitration commissions by the relevant Chinese government bodies. The Court found that, since the domestic arbitration market has not been opened up to foreign arbitration ‘service providers’, they did not qualify as arbitration commissions for the purposes of article 10. Accordingly, article 16 of the Arbitration Law was not satisfied by an ICC arbitration clause as such a clause would not specify a qualifying arbitration commission.

On the basis of these provisions, and while acknowledging that there was no express prohibition of ICC administration of PRC arbitrations, the Hefei Court noted that it was minded to refuse enforcement.

Under the judicial reporting system, which requires lower courts to refer their decision to refuse the enforcement of foreign and foreign-related awards in the PRC to a higher court to confirm the decision, the Hefei Court then referred the matter to the Anhui High People’s Court (Anhui Court).

Decision of the Anhui Court and the SPC ‘reply’

The Anhui Court was divided on the issue of the validity of the arbitration clause under article 16 of the Arbitration Law. While a minority supported the Hefei Court’s reasoning (i.e. that the domestic arbitration market has not been opened up to foreign arbitration service providers), the majority held the agreement to be valid, stating it considered that the clause contained all of the elements required by article 16. Accordingly the clause was found to be a legitimate designation of an arbitration institution. Upon referral, the SPC sided with the majority view of the Anhui Court, agreeing that the article 16 requirements were satisfied. The challenge was dismissed and the arbitration clause determined to be valid.

Comment

The Longlide decision has no binding force upon other Chinese courts. This will only happen if the SPC issues a binding judicial pronouncement (or ‘interpretation’). Until such time, parties are likely to continue to avoid agreeing PRC-seated proceedings administered by foreign arbitration institutions.

Nevertheless, the decision is important as it marks another cautious step by the SPC to take a more pro-arbitration stance than has previously been seen in China. It reassures many that, in years to come, Chinese courts may allow for the operation of a variety of foreign and domestic arbitration institutions in their jurisdiction, as do the leading arbitration jurisdictions in Asia and worldwide.

James Rogers is a partner and Matthew Townsend is an associate in the Hong Kong office of Norton Rose Fulbright.


The Longlide decision

India anticipates new arbitration laws

Another positive sign for those looking at business opportunities in India

Sherina Petit, Nikhil Lakhani and Leonie Timmers

Far-reaching changes to India’s Arbitration and Conciliation Act are expected to be passed by the Indian government in the next few months. This crucial development demonstrates the

government’s commitment to drastically reducing the timescales for resolving commercial disputes in India, making India a more

attractive place to do business.



Amendments to the Arbitration and Conciliation Act 1996 (the Act) were first approved by the Union Cabinet in December 2014, in the form of an ordinance. However, the ordinance was withdrawn before it received presidential assent and the amendments were put before Parliament. Although Parliament was due to pass the amendments during a budget session in late February 2015, turmoil relating to the controversial Land Acquisition Bill has pushed developments back to a later session.

The amendments are based on the recommendations of the Law Commission of India in its Report No. 246. The recommendations seek to speed up and improve the arbitration process. The exact amendments to the Act have not been revealed to the public, so an in-depth analysis must wait. However, Sadananda Gowda, the Minister of Law & Justice, has revealed that ‘… most of the recommendations of the Law Commission have been accepted. While some have been incorporated in the law itself, some of the recommendations will be used while framing rules.’

The Law Commission first proposed extensive amendments to the Act on August 6, 2014. It sought to address the significant problems that ‘plague the present regime of arbitration in India’. This was not the first attempt to modernise Indian arbitration law. Support for change has grown in recent years, and the proposed amendments to the Act come at a time when both the government and the judiciary are seeing the benefits of a pro-arbitration stance in India.

The Act – which was based on the UNCITRAL Model Law and designed to cover both international and domestic arbitration – has long been considered ineffective because it contains various ambiguities which have led to problems with the timing and cost of arbitrations and the enforcement of arbitral awards. The Law Commission spells out the issues in the following terms:

The Act has now been in force for almost two decades, and in this period of time, although arbitration has fast emerged as a frequently chosen alternative to litigation, it has come to be afflicted with various problems including those of high costs and delays, making it no better than either the earlier regime which it was intended to replace; or to litigation, to which it intends to provide an alternative.

The [Law Commisiom of India] Report recommends that specialised and dedicated arbitration benches are set up within the courts, to circumvent the delays and other problems associated with court applications.


India anticipates new arbitration laws

The changes put forward seek to deal with these issues. We can look to the contents of the Law Commission report to shed some light on what we can expect to see in the amended Act. The Report’s key proposals focus on the following:

• Institutional arbitration: The Report highlights the need to actively encourage institutional arbitration throughout India and proposes setting up a specific body tasked with this role. Emergency arbitrator provisions are included in the amendments, bringing the Act in line with new institutional rules. There has been a surge in activity by international arbitral institutions with both the LCIA and the SIAC opening offices in India recently.

• Pre-arbitral judicial intervention: The Report recommends reducing the scope for early judicial intervention to situations where the court finds that the arbitration agreement does not exist or is null and void. Where the court is prima facie satisfied that there is a valid arbitration agreement, it is required to refer the dispute to arbitration and leave the existence and validity of the arbitration agreement to be finally determined by the tribunal.

• Delays in court: The Report recommends that specialised and dedicated arbitration benches are set up within the courts, to circumvent the delays and other problems associated with court applications. It has been reported in the Indian press that new legislation will be enacted shortly on the establishment of commercial benches in high courts, together with a national litigation policy. The Report also proposes that arbitrator appointments can be delegated by the courts to specialised, external persons or institutions to speed up the appointment process and that a one-year time limit is imposed for challenges to arbitration awards. In a move aimed at appeasing foreign investors, the more commercially oriented High Court will be given the power to determine disputes arising out of an arbitration agreement where foreign parties are involved.

• Enforcement: The Report recommends a narrower interpretation of ‘public policy’ when used as a ground for resisting the recognition and enforcement of foreign arbitral awards. This is in line with a string of Supreme Court decisions such as Shri Lal Mahal v Progretto Grano Spa [2013] and Associate Builders v Delhi Development Authority [2015]. It also proposes a specific provision for setting aside domestic awards for patent illegality.

• Foreign-seated arbitrations: The Report proposes amendments which seek to strike a balance between reducing judicial intervention in foreign arbitrations and ensuring that redress is available to a party seeking protection of assets located in India.

• Costs and fees: The Report provides a general ‘loser pays the winners’ reasonable costs’ rule to be included in the Act, as well as a regime for calculating costs. Arbitrators will also be able to issue cost orders against parties bringing frivolous claims. The Report also proposes the introduction of a model schedule of fees for domestic ad hoc arbitrations, with the intention of reducing expensive arbitrator costs.

• Neutrality of arbitrators and availability: Arbitrators will be required to disclose circumstances that may give rise to justifiable doubts as to his or her independence or impartiality. Arbitrators will also be required to disclose circumstances likely to affect his or her ability to devote sufficient time to the arbitration and complete it within 24 months, with the award delivered three months thereafter.

• Other amendments: The Report makes other significant recommendations, including changes aimed at discouraging the practice of frequent adjournments in arbitration and making interim orders made by arbitral tribunals in domestic arbitrations more effective. The Report imposes conditions to stays ordered during applications to set aside awards; confirms that allegations of fraud and corruption may be arbitrated; expands the definition of ‘party’; and provides a more flexible market-based approach for awarding interest on sums awarded.

The proposed changes go some way to achieving the Law Commission’s desire for fairness, speed and economy in resolution of disputes and fit within the government’s aim – repeatedly highlighted by Prime Minister Narendra Modi – to attract maximum foreign investment by improving the ‘ease of doing business’ in India. The Report reads very much like a bill, leaving little to be done by the government; therefore we expect and hope to see an amended Act that is nearly identical to the Report.

Sherina Petit is a partner, Nikhil Lakhani is an associate and Leonie Timmers is a trainee solicitor in the London office of Norton Rose Fulbright.



Bancec appliedPiercing the ‘corporate veil’ between a sovereign

and its agencies and instrumentalitiesMatt Kirtland and Benjamin Hayes

In 1983, the US Supreme Court established guidelines for determining when a judgment against a foreign state is

enforceable against its agencies and instrumentalities, or vice versa. Over the past three decades, a series of cases has raised

questions about how these guidelines can be applied.


The Bancec guidelines

The Foreign Sovereign Immunities Act (FSIA) provides limited exceptions to a foreign state’s immunity in US courts. One exception allows suit against a foreign state to enforce an arbitral award. The FSIA defines a ‘foreign state’ to encompass a ‘political subdivision’ of a foreign state or ‘an agency or instrumentality of a foreign state’.

In the seminal 1983 case First National City Bank v Banco Para el Comercio Exterior de Cuba (Bancec), 462 U.S., the Supreme Court (the Court) outlined the principles for determining when a foreign government and its agencies and instrumentalities are sufficiently connected to permit joint enforcement of what otherwise would be distinct legal obligations. In short, the Court found that joint liability can exist when the ‘agency or instrumentality’ is an ‘alter ego’ of a foreign government; or when a principal-agent relationship exists between the foreign government and agency/instrumentality; or when taking a view of them as separate would give rise to fraud or injustice. These can be described as the Bancec guidelines.

To guide the lower courts, the Supreme Court recognized a ‘presumption’ that ‘government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated’ as separate. The Court further identified the following key features of an instrumentality:

• It is created by an enabling statute that prescribes its powers and duties.

• Its board of directors is selected by the foreign state.

• It has the power to hold and sell property.

• It has the ability to sue and be sued.

• It has primary responsibility over its own finances.

• It is run as a distinct economic enterprise.

The Court warned against using a ‘mechanical formula’ for determining whether the presumption of separateness should be overcome. It directed lower courts to consider ‘piercing the corporate veil’.

Applying the guidelines

Lower courts have had numerous opportunities to apply the Bancec guidelines since 1983. Examples include where a party has secured a judgment against an instrumentality and seeks to recover from the foreign state; where a party has recovered against the state and seeks recovery from an agency or instrumentality; and where a party has prevailed against an agency or instrumentality and seeks to recover from a subsidiary thereof.

Courts have differed on the precise legal framework under which their analysis should fall. Some have applied principal-agency law; others have referred more exclusively to corporate alter ego law; and others have considered both. At least one court has acknowledged the potential for ‘piercing’ on the basis of apparent authority.

Typically, cases have presented the following questions for the courts to address:

Does the government treat the entity’s assets as its own?

Are the entity’s employees civil servants?

Does the government appoint or have the right to remove board members?

Does the government supervise the entity’s day-to-day operations?

Can the government circumscribe the entity’s activities?

Does the government deal at arm’s length with the entity?

Is the government the entity’s only source of business?

Did the entity undertake the activity that provides the basis for the lawsuit on behalf of the government or at its insistence?

Lower courts have had to consider these questions with the understanding that the ‘Presumption of independent status is not to be lightly overcome’ (Hercaire Int’l, Inc. v Argentina, 821 F.2d 559 (11th Cir. 1987)). Most cases have centered on the following issues:

OwnershipAn entity wholly owned by a foreign state has not, in itself, been sufficient to overcome the presumption of separateness. The same goes for when a foreign state has been responsible for appointing the board of directors or officers of the entity. As one court concluded, if these were sufficient, the ‘presumption of separateness… would be an illusion’ (Transamerica Leasing, Inc. v La Republica De Venezuela & Fondo de Inversiones De Venezuela, 200 F.3d 843 (D.C. Cir. 2000).



Level of controlCourts have distinguished between a foreign state’s day-to-day involvement in the operations of an instrumentality, and the more general control the foreign state has over that entity. In short, courts have looked to whether the level of control exercized over the instrumentality is of the kind typically exerted by a majority shareholder of a private company. Thus, the fact that an instrumentality is required to carry out certain government policies does not automatically render it an alter ego of the foreign state (Seijas v Republic of Argentina & Banco De La Nacion Argentina, 2011 U.S. Dist. LEXIS 31946 (S.D.N.Y. 2011); NML Capital, Ltd. v Republic of Argentina, 2011 U.S. Dist. LEXIS 14795 (S.D.N.Y. 2011)).

Appointment of government officialsWhen directors or officers appointed by the foreign state are also government officials, this does not automatically confer alter ego status on the instrumentality. Even if the decision by the foreign state to appoint a member of management is ‘political’, this has been found insufficient to prove that the foreign state has the requisite level of day-to-day control over the instrumentality (Gen. Star Nat’l Insu. Co. v Asigurarilor de Stat, Carom, S.A., 713 F. Supp. 2d 267 (S.D.N.Y. 2010); BCI Aircraft Leasing, Inc. v Republic of Ghana, 2006 WL 2989291 (N.D. Ill. 2006); (First Inv. Corp. v Fujian Mawei Shipbuilding, Ltd., 858 F. Supp. 2d 658 (E.D. La. 2012)). However, some courts have found extensive intermingling of officers and directors to be highly probative of alter ego status (U.S. Fid. & Guar. Co. v Braspetro Oil Servs. Co., 1999 WL 307666, at *9 (S.D.N.Y. 1999) aff’d, 199 F.3d 94 (2d Cir. 1999)).

Type of involvementA foreign state can inject capital into an entity, cover its debts, and engage in the full-scale financial rescue of that entity, without courts viewing the entity as an alter ego. This is because these actions are consistent with the actions of a majority shareholder of a private company (Transamerica Leasing, Inc.; BCI Aircraft Leasing, Inc.; Gen. Star Nat’l Ins. Co.). However, while the day-to-day control typical of a controlling shareholder has been found insufficient to support alter ego status, courts have rarely found alter ego status without it. For example, in Braspetro Oil Servs., in affirming the lower court’s conclusion that one instrumentality of the state of Brazil was an alter ego of another, the appellate court placed heavy reliance on the fact that the ‘parent’ instrumentality ‘controlled the day-to-day operations’ of the subsidiary.

In McKesson Corp. v Islamic Republic of Iran, 52 F.3d 346 (D.C. Cir. 1995), the appellate court concluded that Iran was liable for the actions of its instrumentality (a state-owned dairy) because the Iranian government controlled the dairy’s ‘routine business decisions’. However, the government also designed and guided the dairy’s corporate policy.

An appellate court allowed the enforcement of an arbitral award against Yemen and one of its instrumentalities, noting that the instrumentality had failed to adduce evidence of its incorporation, existence of board members, whether its employees were public servants, and whether it had control of its own finances (S&R Davis Int’l, Inc. v Republic of Yemen, 218 F.3d 1292 (11th Cir. 2000)). The instrumentality also had directly ordered the action giving rise to the arbitral award, thus ‘[becoming] more of a managing partner over’ the entity.

Contract details and foreign court decisionsIn Servaas Inc. v Republic of Iraq, 686 F. Supp. 2d 346 (S.D.N.Y. 2010), a lower court enforced a judgment against Iraq that had been secured against one of its instrumentalities because the contract at issue had been approved by the government; certain agreements defined the instrumentality as within the State of Iraq; and the agreement was signed in the name of Iraq by individuals from the instrumentality. Similarly, in allowing enforcement of a judgment entered against the Democratic Republic of Congo against a state-owned oil company, a lower court relied in part on various foreign court decisions that had concluded that the oil company was an alter ego of the state (Kensington Int’l Ltd. v Republic of Congo, 2007 U.S. Dist. LEXIS 25282 (S.D.N.Y. 2007).

Fraud and injusticeAlthough a finding of alter ego status is an important factor determining joint liability, it can be bypassed altogether if a court feels that fraud or injustice would result by failing to find joint liability. In one instance, a court allowed enforcement of an arbitral award because the foreign state, as majority owner of the instrumentality, had engaged in ‘intentionally bleeding’ the instrumentality in order to thwart recovery (Bridas S.A.P.I.C. v Government of Turkmenistan, 447 F.3d 411 (5th Cir. 2006)). The court rested its conclusion on the grounds that this type of conduct was ‘a classic ground for piercing the corporate veil’.

Matt Kirtland is a partner and Benjamin Hayes is an associate in the Washington DC office of Norton Rose Fulbright.


Bancec applied

Funding arbitrationAn English perspective

Sherina Petit and Marion Edge

There is now a much wider range of options for funding disputes in England and Wales. The market for third-party funding has

expanded and become more competitive. The rules governing the financial arrangements between lawyers and clients have also changed. This Q&A looks at the opportunities now available.



How are English attitudes to funding disputes changing?

Historically the common law rules against maintenance and champerty were a bar to alternative ways to fund disputes. Maintenance is the support of litigation by a third party with no legitimate interest in the proceedings. Champerty refers to the maintenance of an action in return for a share of the proceeds. These were outlawed on public policy grounds, with Lord Denning warning that the ‘maintainer might be tempted, for his own personal gain, to inflame the damages, to suppress evidence, or even to suborn witnesses’.

Lord Denning’s concerns have long been embedded in the legal culture of England and Wales, and it has taken time to dispel suspicions around the involvement of third parties in the financing of disputes. However, legislation over the last 20 years has done much to limit the scope of the champerty and maintenance rules, while judicial and government support for alternative funding arrangements has grown. Forward-thinking companies and law firms are now looking seriously at alternative fee structures and funding arrangements for their disputes.

What arrangements can a lawyer enter into with their client?

The traditional method of billing by the hour is still the most popular way of funding arbitration work. However, alternative billing structures are emerging. The main options available are as follows:

• Conditional fee agreements (CFAs) – These provide for a lawyer’s fees and expenses, or any part of them, to be payable only in specified circumstances. This can include a success fee, which in England must be capped at 100 per cent of the lawyer’s fees.

• Damages-based agreements (DBAs) – These are ‘no win, no fee’ agreements where a lawyer can recover an agreed percentage of a client’s damages if the case is won (capped at 50 per cent in commercial cases) but will receive nothing if the case is lost. Before April 2013, DBAs were only available in employment cases.

What impact have the Jackson Reforms had on CFAs?

The Jackson Reforms were very substantial changes to the civil procedure rules which govern litigation in English courts. They took effect in April 2013. They follow a report by Lord Justice Jackson recommending significant changes to reduce costs in the litigation process and make it more efficient.

Changes to CFAs were made to ensure that any funding arrangements entered into by the claimant do not affect the defendant. Prior to these reforms an unsuccessful defendant in a case funded by a CFA could expect to pay all the claimant’s recoverable legal costs. This included the success fee as well as the premium for any after-the-event insurance (ATE) policy taken out to cover the risk that the claimant might have to pay the defendant’s legal costs if the claim was unsuccessful. Following the reforms, the claimant can only recover standard costs (i.e. not the success fee or the ATE insurance premium).

How do DBAs work?

Solicitors and barristers can now act under DBAs. Credit for any costs recovered from the paying party will be given to the receiving party, so lawyers will only receive the agreed percentage of the damages, and any costs recovered from the other side will be paid to the successful party. Some expenses, such as experts’ fees, fall outside the cap on the contingency payment and will be additional costs to be paid for by the claimant. In commercial cases, counsel’s fees and VAT must be paid by the solicitors from their contingency payment.

As with post-Jackson reform CFAs, DBAs are designed to be cost-neutral for respondents. If a claimant funded by a DBA is successful it will not change the amount that the claimant can recover from the respondent.


Funding arbitration

Why haven’t DBAs been as popular?

The legislation introducing DBAs was unclear in a number of important respects and for this reason they have not been widely used. In particular, the uncertainty around the validity of ‘hybrid’ DBAs attracted criticism. Hybrid DBAs permit parties entering into a DBA to also enter into a separate agreement providing for fees to be payable (usually at a lower rate) if the claim is unsuccessful. They were contemplated as permissible by the Civil Justice Council (CJC) Working Party on DBAs and are permitted in Ontario, Canada (the model adopted by English DBAs). Lord Jackson stated in a speech given on October 20, 2014 that it was his ‘firm view’ that there was a need for hybrid DBAs.

However in November 2014, it was announced that while the CJC has set up a working party to take a detailed look at some technical revisions to the regulations for DBAs, the government has ruled out hybrid DBAs. It considers such arrangements ‘could encourage litigation behaviour based on a “low risk/high returns” approach’. This is a blow to companies and law firms that had been looking at the new DBA model with interest. Without the option to create hybrid DBAs it is likely that regular DBAs will continue to see little take up.

What is the English third-party funding market like?

The UK is a leading jurisdiction when it comes to the size of the specialist third-party funding market. England and Wales were the first jurisdictions to have a code of conduct for third-party funding, written and enforced by the Association of Litigation Funders. This was introduced in 2011 and applies equally to arbitration funding. The code of conduct ensures that members have proper capitalisation and that funders cannot terminate the funding agreement mid-dispute without good reason. It clarifies and restricts the extent to which a funder can influence the proceedings and any settlement negotiations.

What are the main benefits in using third-party funding?

Using third-party funding provides some certainty about the costs of arbitration and ensures the cash flow required for the case is available. Where one party is in a much stronger financial position, third-party funding can help to create a more level playing field by removing the ability of one party to stifle the claim by deliberately increasing costs. Engaging a third-party funder can assist settlement as an opponent then knows that the party has the means to pursue the case.

To what extent is third-party funding being used in international arbitration?

Third-party funding is regularly used to fund investment treaty arbitration. It was noted by the tribunal in the recent ICSID case Giovanni Alemanni and Others v The Argentine Republic, ICSID Case No. ARB/07/8 that ‘individual views may differ as to whether third-party funding is or is not desirable or beneficial, either at the national or at the international level, but the practice is by now so well established both within many national jurisdictions and within international investment arbitration that it offers no grounds in itself for objection to the admissibility of a request to arbitrate’.

It may not be practical for lawyers to undertake a long commercial action on the basis that they will recover no payment for their labours if the case is lost. On the other hand, they may well be willing to work for (a) reduced fees in the event of defeat and (b) a share of the winnings if the case is won. If that is what both lawyers and clients want, why should they not be allowed to proceed on that basis?



What do third-party funding arrangements cover?

Funders will support both claimants and respondents with a substantial counter-claim. To be suitable for third-party funding, a case generally needs to have strong arguments on liability and good prospects for enforcement of an award both legally and in terms of the solvency of the paying party. Funders will be looking for a good ratio between the realistic amount to be recovered and the likely legal costs and disbursements. They will also favour claims that are likely to be resolved quickly. Clients are normally expected to fund a proportion of the costs themselves. Funders will want to see an experienced legal team in place, and if that team is working on a contingency basis through a CFA or DBA and is sharing the risk, that will encourage them to invest.

A third-party funder might fund some or all of the lawyer’s fees, the client’s disbursements including counsel’s fees, expert’s fees, institutional and tribunal costs and security for costs (and any associated indemnity). The funder’s fees are usually paid from the sums recovered if the claim is successful. The fee is normally expressed as a percentage of the amount recovered or a multiple of the amount spent on the legal fees or a combination of the two.

What will be included in a funding agreement?

Third-party funding arrangements are necessarily bespoke and the terms will vary depending on the case and the client. In England and Wales any funding agreement needs to be carefully drafted to avoid giving rise to champerty, as this would make the agreement void and unenforceable. The agreement must not extract too high a return, give the funder power to withdraw unreasonably or give them too much power to intervene. Although funders need to be cautious about intervening, they must be careful to monitor the proceedings and their merits.

The recent case of Excalibur Ventures LLC v Texas Keystone Inc and others [2014] EWHC 3436 highlighted the risks when the third-party funders were ordered to pay indemnity costs subject to the Arkin cap (i.e. that a third-party funder can only be liable for the winning party’s costs to the extent of the funding provided). Although the funders were not directly responsible for the factors leading to the indemnity costs order and had not behaved with any impropriety, the judge found that the pursuit of objectively hopeless claims that required much expense to refute was itself a ground for indemnity costs both against the litigant and his funder.

Sherina Petit is a partner and Marion Edge is a senior knowledge lawyer in the London office of Norton Rose Fulbright.


Funding arbitration

Launch of the Singapore International Commercial Court

Singapore’s latest offering for dispute resolutionKC Lye and Darius Chan

In January 2015, the Singapore International Commercial Court (SICC) joined the Singapore International

Arbitration Centre (SIAC) and the Singapore International Mediation Centre (SIMC) in a triumvirate of dispute resolution institutions at the heart of Singapore’s plan to establish itself

as the centre for dispute resolution in Asia.



The SICC – which was officially launched on January 5, 2015 – is positioned as the Asian centre for resolving international commercial disputes. It aims to be more attractive to international users than the domestic courts, offering a panel of international judges; the possibility of foreign legal representation; the determination of foreign law on the basis of submissions; the exclusion of Singapore’s laws of evidence; and limits to the right of appeal.

Judges

The judges of the SICC comprise both the local judiciary as well as a panel of international judges. The inaugural panel of 11 international judges includes both civilian and common law jurists from around the globe. They are:

Patricia Bergin, chief judge of the Supreme Court of New South Wales (Australia)

Roger Giles QC, former judge of the Court of Appeal of the Supreme Court of New South Wales and judge of the Dubai International Financial Centre Courts (Australia)

Dyson Heydon AC QC, former judge of the High Court of Australia and the New South Wales Court of Appeal (Australia)

Irmgard Griss, former president of the Austrian Supreme Court (Austria)

Sir Vivian Ramsey, former judge of the High Court and judge in charge of the Technology and Construction Court (England and Wales)

Sir Bernard Rix, former judge in charge of the Commercial Court and Lord Justice of Appeal in the Court of Appeal (England and Wales)

Simon Thorley QC, IP law specialist and former deputy High Court judge and deputy chairman of the Copyright Tribunal (England and Wales)

Dominique Hascher, judge of the French Supreme Court (France)

Anselmo Reyes, former judge of the Court of First Instance in Hong Kong in charge of the construction and arbitration list and the commercial and admiralty list (Hong Kong)

Yasuhei Taniguchi, former chairman of the Appellate Body of the World Trade Organization Dispute Settlement Body and professor emeritus at Tokyo University (Japan)

Carolyn Berger, former judge of the Delaware Supreme Court and vice chancellor of the Delaware Court of Chancery (United States)

Rules and practice directions

The SICC’s rules and practice directions have been specifically formulated to hear cross-border commercial disputes. Some of the salient features are as follows:

Jurisdiction – The SICC enjoys jurisdiction to hear cases that can be heard by the Singapore High Court in its original civil jurisdiction if (i) the claims are of an international and commercial nature; (ii) the parties have submitted to the Court’s jurisdiction under a written jurisdiction agreement; and (iii) the parties do not seek any relief in the form of prerogative orders.

Joinder of third parties – The SICC has the power to join third parties to an action, even if the third parties are not parties to a written jurisdiction agreement and do not consent to being joined as a party. However, the SICC is unlikely to exercise this power if the third party will be in breach of an arbitration agreement. A state or the sovereign of a state may not be made a party to an action in the SICC (whether by joinder or otherwise) unless the state or the sovereign has submitted to the jurisdiction of the SICC under a written jurisdiction agreement.

Foreign legal representation – Parties may be represented by foreign lawyers in cases which have no substantial connection to Singapore (‘offshore cases’), as well as in cases where the subject matter or issues in dispute give rise to questions of foreign law.

Laws of evidence – Parties may apply to exclude the application of Singapore’s laws of evidence.

Confidentiality of proceedings – Proceedings will generally take place in an open court, but parties will have the option to apply for the proceedings to be confidential.

Right of appeal – Decisions of the SICC may be appealed at the Singapore Court of Appeal, although parties will be allowed to contractually exclude or limit this right of appeal.

Enforcement – In contrast to international arbitral awards that are enforceable by way of the New York Convention, SICC judgments have the status of a Singapore High Court judgment. Their enforceability will depend on the principles governing the recognition of foreign judgments in the relevant enforcement jurisdiction.

It remains to be seen whether the SICC will enter into memoranda of understanding with other courts on enforcement issues, or related international conventions.

Although much work lies ahead for the SICC, the various parts of Singapore’s plan to position as the leading centre for dispute resolution in Asia are now set firmly in place as we enter the year ahead.

KC Lye is a partner and Darius Chan is a senior associate in the Singapore office of Norton Rose Fulbright.


Launch of the Singapore International Commercial Court

International arbitration at Norton Rose Fulbright

Our recent highlightsStay up to date on current developments in international arbitration with our international arbitration video series: www.nortonrosefulbright.com/knowledge/videos/122940/international-arbitration-video-series

Awards and appointments

Beijing Arbitration Commission James Rogers (Hong Kong) appointed to the panel of arbitrators, April 2015.

Chambers Global 2015 Mark Baker (Houston), Pierre Bienvenu (Montreal) and Guy Spooner (Singapore) ranked among the world’s leading lawyers for global-wide international arbitration.

Client Choice Award Mark Baker selected for the 2015 Client Choice Award by Lexology and the International Law Office. Honorees can only be nominated by corporate counsel for excellence in client service.

Global Arbitration Review 2015 Norton Rose Fulbright listed as a top ten arbitration practice.

Institute for Transnational Arbitration Lucy Greenwood (Houston) appointed to the advisory board.

International Law Association Lucy Greenwood elected co-chair of the Feminism and International Law Committee.

Singapore Law Blog Katie Chung (Singapore) appointed associate editor.

Conferences and activities

Houston Maritime Arbitrators Association Kevin O’Gorman (Houston), Lucy Greenwood, Paul Neufeld (Houston/Dubai) and Mark Stadnyk (Houston) were lead instructors at the arbitrator training course, November 2014.

IBA Asia Pacific Forum KC Lye (Singapore) served as co-chair in a session titled ‘Building an international arbitration language in the Asia-Pacific region’ in Singapore, March 18–20, 2015.

ICC Annual Arbitrators’ Forum On December 10, 2014, the London office hosted ‘Managing the arbitrators: tips for practitioners’. Patricia Nacimiento (Frankfurt), Deborah Ruff (London) and Sherina Petit (London) participated in panel discussions on appointing the right arbitrators, controlling time and costs and evaluating the 2012 ICC Arbitration rules.

ICDR International Arbitration Conference Elisabeth Eljuri (Caracas) participated in a mock arbitration on document exchange and privilege and Lucy Greenwood moderated ‘Drafting dispute resolution clauses: practices and trends’ in Miami, January 2015.

ITA-IEL Joint Conference on International Energy Arbitration Kevin O’Gorman moderated the second annual conference, in Houston, January 2015.

LCIA Symposium on International Commercial Arbitration Pierre Bienvenu participated as a moderator in Washington DC on February 28, 2015.



Speaking engagements

Arbitration and Investment Forum Matthew Kirtland (Washington DC) spoke at the third annual forum, in Nassau, January 2015.

Florida Bar International Law Section’s International Litigation, Arbitration & Transaction Conference Elisabeth Eljuri spoke on resource nationalism and international arbitration in Miami on February 27, 2015.

ICC International Arbitration Conference Mark Baker spoke on cross-border energy disputes at the second annual conference, in Houston, October 2014.

ICC Middle East and North Africa Conference Katie Chung spoke on the topic ‘Confidentiality in arbitration – myth or reality?’ in Dubai, April 13–15, 2015.

ICDR International Symposia in Advanced Case Management Issues Mark Baker presented ‘Maximizing your client’s advantage under the new rules’ in Tokyo, October 2014.

ICDR/AIPN Dispute Resolution in the International Oil & Gas Business Conference Kevin O’Gorman spoke on selecting an energy arbitrator in Calgary, October 2014. Elisabeth Eljuri spoke on state investment disputes.

International Law Institute: Advanced Arbitration and Mediation Seminar Matthew Kirtland presented on ‘Preparing statement of claims/defenses’ in Washington DC, November 2014.

International Law Weekend Lucy Greenwood chaired the panel ‘Addressing the internal challenges that affect diversity in international disputes’ in New York on October 25, 2014.

Law Society of Singapore Nicholas Thio (Singapore) spoke at the YIAG Arbitration Seminar on topical issues in international arbitration and on identifying parties to arbitration agreements in multi-party situations, in Singapore on April 1, 2015.

Norton Rose Fulbright’s International Disputes and Arbitration Conference Mark Baker spoke on investment treaty arbitration in Beijing, October 2014.

Norton Rose Fulbright’s Mergers and Acquisitions School Kevin O’Gorman spoke at the seventh annual conference in Houston, October 2014.

Practical Oil & Gas Issues in International Commercial Arbitration seminar Kevin O’Gorman and Glenn Faass (Rio de Janeiro) spoke on joint-operating agreements and concession disputes in Sao Paulo, March 2–3, 2015.

University of Houston Law Center Mark Stadnyk presented ‘May national oil companies efficiently breach their contracts? The problem of applicable law’ at the Oil & Gas Investment Arbitrations: Protecting Oil & Gas Projects Against Political Risk Conference on October 31, 2014. Lucy Greenwood spoke on ethics in advocacy in international arbitration in November 2014.

University of Montreal Martin Valasek (Montreal) spoke about remedies in international arbitration on March 16, 2015.

Publications

Dispute Resolution International Vol. 8 (No 2) Andrey Panov (Moscow) authored the article ‘Recent developments in disputes involving foreign parties: the legacy of the Russian Supreme Arbitrazh Court’, published October 2014.

European, Middle Eastern and African Arbitration Review 2015 Sherina Petit and Andrey Panov co-authored ‘Amicable settlement in international arbitration’, published October 2014.

International Arbitration Law Review (Issue 5) Sherina Petit and Trevor Tan co-authored ‘Fraud in Indian arbitration – Supreme Changes’, published October 2014.

Kluwer Arbitration Blog James Rogers, Matthew Townsend (Hong Kong), Jim James (Hong Kong) and Trevor Tan (London) co-authored ‘CIETAC’s new arbitration rules’, published February 17, 2015.

Singapore Law Blog Katie Chung wrote a case note on Silica Investors, discussing the arbitrability of minority oppression claims, published January 5, 2015.



Contactsnortonrosefulbright.com

International arbitration, Co-heads

Mark Baker Norton Rose Fulbright US LLP Houston

Pierre Bienvenu, Ad. E. Norton Rose Fulbright Canada LLP Montréal

CanadaNorton Rose Fulbright Canada LLP

Calgary Mary Comeau Clarke Hunter, QC

Montréal Martin Valasek

United StatesNorton Rose Fulbright US LLP

Houston Lucy Greenwood Kevin O’Gorman

Washington DC Matthew Kirtland

Latin AmericaCaracas Despacho de Abogados Miembros de Norton Rose Fulbright, S.C. Ramón Alvins Elisabeth Eljuri

EuropeAmsterdam Norton Rose Fulbright LLP Yke Lennartz

Athens Norton Rose Fulbright Greece Marie Kelly

Frankfurt Norton Rose Fulbright LLP Patricia Nacimiento

London Norton Rose Fulbright LLP Sherina Petit Deborah Ruff

Paris Norton Rose Fulbright LLP Christian Dargham

Moscow Norton Rose Fulbright (Central Europe) LLP Yaroslav Klimov

Middle EastUAE Norton Rose Fulbright (Middle East) LLP Patrick Bourke

AfricaSouth Africa Norton Rose Fulbright South Africa Inc Donald Dinnie

AsiaChina / Hong Kong Norton Rose Fulbright Hong Kong Jim James James Rogers Alfred Wu

Singapore Norton Rose Fulbright (Asia) LLP KC Lye Guy Spooner

AustraliaNorton Rose Fulbright Australia

Brisbane Ernie van Buuren

Perth Dylan McKimmie

Sydney Rob Buchanan




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