White & Case LLP and the School of International Arbitration at Queen Mary, University of London have published 2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process with the focus on the views of in-house counsel, arbitration practitioners and arbitrators on the current and preferred practices in the international arbitration process.
Do you want to have a detailed knowledge about what the Guerrilla Tactics in international arbitration and litigation mean and what are counsel’s and the arbitral tribunal’s tools to deal with those? Where does poor behavior end and guerrilla tactics start? How do arbitral institutions view the issue of Guerrilla Tactics? How may arbitral institutions and state courts support fighting Guerrilla Practices? How much state court support is desirable?
Dear arbitration practitioners, be precise in specifying the name of an arbitral institution in a contract
With this post we continue the Ukraine – arbitration-friendly jurisdiction set of comments. In our previous posts we already warned arbitration practitioners, attorneys and solicitors who are dealing with drafting arbitration agreements so that they should be precise in specifying the name of an arbitral institution in a contract if the dispute somehow is connected to the Ukrainian jurisdiction. The reason why is that Ukrainian state courts are not trained in favor of arbitration and in many cases do not consider seriously the doctrine of competence-competence in international commercial arbitration.
On October 13, 2010 the Supreme Court of Ukraine ruled in case upon the petition of VKT ARDO LLC against the award of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of Ukraine issued in favor of Аrсеlоrmittal Аmbalaj Сеligі Sanауі ve Тісаrеt Аnоnіm Sіrkеtі against VKT ARDO LLC for app. USD 3 mln. Since I have no interest in that case I believe that I can share my opinion.
After the award in Rosukrenergo (we followed the case in our previous posts) case was issued against the Ukrainian respondent, Ukrainian authorities and state officials announced several options of further actions, including filing an appeal against the award issues by the arbitral tribunal of the Arbitration Institute of the Stockholm Chamber of Commerce.
In addition to those measures the members of the Ukrainian Parliament invented another one.
The admissibility of requests and orders for Document Production has been a disputed subject for considerable time now. The aim of Document Production is to give the requesting party the opportunity to close evidentiary gaps in their own submissions. It is based on the principle that the two contesting parties will have the option to survey all relevant documents. In practice, it is often used by parties for much more than just the gathering of evidence and the dispute on its admissibility and scope focuses to a high degree on the divide between civil and common law traditions.
Conducting business internationally it is extremely important to be sure about the bona fide status of your counterparty. This factor is significant for potential disputes and may be considered in two main aspects. First of all the unclear legal status of counterparty may hide certain problems which may cause disputes. Secondly, the outcome of any arbitration or litigation against that party with unclear legal status may be ineffective due to impossibility to enforce an award or court decision.
The program will take the form of a debate, titled "All or Nothing - A Debate on the production of documents", and will be moderated by Patricia Shaughnessy (Stockholm Centre for Commercial Law, Sweden) and Mark Kantor (Georgetown University, Washington, USA).
RosUkrEnergo is demanding the Stockholm Arbitration that Naftohaz Ukrainy compensate some USD 5.4 billion of losses
RosUkrEnergo (Switzerland) is demanding the Arbitration Institute of the Stockholm Chamber of Commerce that Naftohaz Ukrainy national joint-stock company compensate some USD 5.4 billion of losses for withdrawal of 11 billion cubic meters of gas stored in the Ukrainian repositories, RosUkrEnergo press secretary Andrii Knutov has informed Ukrainian News.
In his words the arbitration court opened hearings within the framework of consideration the dispute between RosUkrEnergo and the national oil and gas company.
On March 19, 2010 two members of an ICSID arbitral tribunal – the Honourable Davis R. Robinson (President) and Dr. Stanimir A. Alexandrov – dismissed the Ukraine’s challenge to the tribunal’s third member, Dr. Yoram Turbowicz, reported Investment Treaty News.
Arbitral proceedings between Alpha Projektholding GMBH (Alpha) and the Ukraine began in 2007 after the Austrian company alleged violations of the Austria-Ukraine BIT in relation to its investment in a hotel-development project in Kiev in the mid-1990s.
The separation of the state courts’ and of the arbitrators’ respective spheres of competence, which is uncontroversial with respect to the merits of a dispute, is much more problematic in relation to summary proceedings, i.e. proceedings aimed at obtaining a rapid decision on one or more aspects of dispute. Whether, and to what extent, arbitral tribunals and state courts have jurisdiction to hear applications for summary judgments in the presence of an arbitration agreement on merits of the dispute, is one of the major problems of international arbitration, and the solutions adopted differ significantly from one jurisdiction to another.
Recently we have reached one interesting publication “Enforcement of Arbitration Awards in Russia and Ukraine: Dream or Reality?”, prepared under the auspices of the American Bar Association, Section of International Law and the Center for Continuing Legal Education.
Though I do not completely agree with certain opinions of the authors (in some cases they sound too critically, I think) I recommend to read that material. Not only because some of the authors are my colleagues and acquaintances. The publication is full of practical situations illustrated by cases.
Probably there is no guide on how to draft an arbitration clause properly that does not recommend to specify the arbitral institution or administering body correctly.
Naming an institution to administer the arbitration proceeding or to appoint the arbitrators if the institution never existed, is misnamed in the clause or refuses to act, is one of the examples of pathological arbitration clauses. It is so in doctrine and in international practice. But how do Ukrainian courts decide if there are any doubts concerning the name of the institution?
The conference is held by Juris Conferences LLC with the support of the International Arbitral Centre of the Austrian Federal Economic Chamber, Young Austrian Arbitration Practitioners, the International Law Institute, Singapore International Arbitration Centre, Hong Kong International Arbitration Centre. It will take place in Vienna, Austria 29 March 2010.
Arbitrators usually are sensitive to arguments about their jurisdiction. Though under the competence-competence doctrine even issues of the existence and validity of the arbitration agreement may go initially to the arbitrators, the authority of an arbitrator arises from a contract between the parties.
If you have sufficient arguments against the jurisdiction of a tribunal present them immediately. Do not be afraid to antagonize the arbitrators. It is much better to resolve the issues of jurisdiction at the beginning of the process, than to face the restrictions on challenging an arbitrator's award on substantive jurisdiction after it is issued.
Arbitration DO’S and DON’T’S
There are checklists of do's and don'ts while drafting arbitration agreement. Probably later we will discuss those very interesting issues. However, in this series we would like to pay your attention to what the counsels may (and in some cases what they must) do after the arbitration process is initiated. In some cases we will illustrate our comments with the practice of particular arbitration institutions and arbitration rules. We will focus not only on the issues related to the strategy and tactics in international arbitration, but also on ethical rules and codes of conduct, since there are a lot of rules for arbitrators, but few for parties and their counsels.