Arbitration & ADR updates

Cyprus

Contributed by George Z Georgiou & Associates LLC
Court finds real likelihood of bias and orders arbitrator's dismissal
  • Cyprus
  • May 24 2018

In a recent Limassol District Court case, the applicants applied for the dismissal and replacement of an arbitrator. They argued that the relationship between the arbitrator and the respondents' main witness in the arbitration proceedings and his brother would lead a reasonable person to find that there was a real likelihood of bias. As a result, the applicants argued that the relationship between the parties constituted misconduct in arbitration proceedings.

From Russia with love? District court rejects application to enforce Russian arbitral award
  • Cyprus
  • April 12 2018

In a recent Limassol District Court case, the applicants requested the registration and enforcement in Cyprus of a Russian arbitral award. Τhe court found that the applicants had failed to provide evidence of whether Russia was a contracting state to the New York Convention and that the award's translation did not fulfil the convention's requirements. As a result, the application to register and enforce the arbitral award was rejected.

Only arbitrator has locus standi before court regarding extension of arbitration procedure
  • Cyprus
  • February 15 2018

The Nicosia District Court recently issued an order which referred a dispute to arbitration. The order stipulated that the arbitrator should deliver a final decision within nine months. One of the parties applied to the court for an extension of the arbitration procedure. The court rejected the application on the ground that only the arbitrator had the right to apply for such an extension.

Court rules that pending appeal does not suspend arbitral award
  • Cyprus
  • November 30 2017

The Limassol District Court recently concluded that an appeal pending before the English courts does not suspend an order's enforcement or diminish the validity of an arbitral award. The applicants had applied for the recognition and enforcement of an arbitral award issued in May 2016. The court held that the order was final and that there had been no abuse of process; the respondents' request to set aside the award was therefore rejected.

Court applies res judicata in dismissing objection to recognition and enforcement of arbitral award
  • Cyprus
  • September 28 2017

In a recent Limassol District Court case, the applicants applied for the recognition and enforcement of an arbitral award issued by the Chamber of Commerce and Industry. The respondents had previously applied to the Cypriot courts to set aside and annul the arbitral award pursuant to the International Commercial Arbitration Law. In their objection to the application for the recognition of the award, the respondents advanced additional grounds to those raised in their earlier application to annul the award.


Ecuador

Constitutional Court issues troubling arbitration ruling
  • Ecuador
  • January 12 2017

The Constitutional Court recently annulled an arbitral award based on grounds that are not listed in the Arbitration Law as causes for such action. To reach that outcome, the court made an expansive application of certain constitutional guarantees dealing with due process. The ruling has created troubling uncertainty regarding the enforcement of arbitral awards.

Executive regulations for arbitration in public-private partnerships
  • Ecuador
  • November 03 2016

After the National Assembly passed a law regulating agreements for public-private partnerships involving foreign investors, the executive branch promulgated a decree establishing regulations to facilitate the law's implementation. Some of the new regulations deal with arbitration in the context of public-private partnerships with foreign corporations. Although this is a positive step in the recognition of arbitration as an efficient dispute resolution mechanism, the regulations contain some shortcomings.

BIT tribunal not deterred by constitutional mandate
  • Ecuador
  • July 14 2016

A UNCITRAL tribunal has found Ecuador to be in breach of the 1996 Canada-Ecuador Bilateral Investment Treaty for the unlawful expropriation of the investment of a Vancouver-based company. The expropriation was the result of a resolution passed by the 2008 constituent assembly. According to Ecuadorian jurisprudence, the powers of constituent assemblies are considered unlimited and are therefore not subject to judicial review.


France

Contributed by Freshfields Bruckhaus Deringer LLP
Arbitrators' duty of disclosure
  • France
  • January 04 2018

Parties' ability to choose their arbitrators remains one of the most frequently mentioned advantages of arbitration over litigation. However, this freedom makes sense only if it preserves the overarching duties of arbitrators and judges alike – that is, the duty to be and remain independent and impartial from the parties.

Paris Court of Appeal rules on Iraq war's impact on due process in arbitral proceedings
  • France
  • March 16 2017

The Paris Court of Appeal recently set aside an award on the grounds of a violation of the principle of equality of arms. The court had to rule on the Iraq war's impact on due process in arbitral proceedings between the Republic of Iraq and two German companies. This decision comes as a reminder that arbitration is a jurisdictional process where parties and arbitrators, while enjoying considerable freedom and flexibility, should be mindful of due process and fair trial guarantees.

Principle of procedural estoppel under French arbitration law
  • France
  • November 03 2016

The French courts recently supported the rigorous application of the principle of procedural estoppel and reiterated their commitment to the enforcement of agreements that govern arbitral proceedings. The principle prevents parties from relying on alleged irregularities that affect arbitration proceedings before the French courts if the requesting party has not initially raised them before the arbitral tribunal.

Independence and impartiality: Supreme Court confirms stern approach to duty of disclosure
  • France
  • April 21 2016

A recent Supreme Court decision confirms French law's strict approach in matters involving arbitrators' independence and impartiality. The court found that despite an arbitrator's previous disclosure that his firm had had an inactive relationship with the parent company of one of the parties to the arbitration, his later failure to disclose that this relationship had resumed created reasonable doubt as to his independence and impartiality.

Acknowledgement that civil courts can rule on enforcement of foreign awards involving public law matters
  • France
  • December 17 2015

The jurisdictional duality which characterises the French legal system triggers practical difficulties in international arbitrations, especially when they involve the recognition and enforcement in France of arbitral awards relating to issues of French administrative law. The Cour de Cassation recently decided on this issue, holding that civil courts have jurisdiction to rule on the recognition and enforcement of any foreign arbitral award.


Greece

Legal regime applicable to tribunal secretaries
  • Greece
  • January 25 2018

The Supreme Court recently ruled that the provisions that require arbitrators' details to be included in the award also apply by analogy to tribunal secretaries. Following the judgment, arbitrators should always refer in detail to the particulars of the secretary employed in the arbitration (which is always a best practice) in order to avoid unnecessary complications that may lead to the setting aside of the award.

Form and proof of arbitration agreements incorporated by reference under New York Convention
  • Greece
  • October 19 2017

In international trade, a general reference is sufficient to validly incorporate an arbitration clause contained in another document under Article II(2) of the New York Convention, provided that the clause is common and known to those engaged in a particular trade. The Piraeus Single-Member First-Instance Court recently ruled on a dispute regarding the enforcement of an arbitral award in Greece under the New York Convention.

Authority to enter into an arbitration agreement
  • Greece
  • June 15 2017

In a recent case, the Supreme Court held that the requirement that specific authorisation be obtained for the person acting as a legal representative for the valid conclusion of an arbitration agreement refers only to a person acting as a proxy or an agent of the legal entity and does not refer to an organ of the legal entity – the very function of which is to represent the entity, such as the board of directors or its substitute.

Burden of proof rules and setting aside arbitral awards
  • Greece
  • March 09 2017

The Supreme Court recently ruled that a violation of the burden of proof rules did not constitute grounds to set aside an arbitral award. This ruling is consistent with the court's previous stance when deciding whether violations of the res judicata effect could form grounds to set aside an arbitral award. It is also in line with the legislature's clear intention to limit state court control in arbitration in order to enhance its effectiveness and finality.

Supreme Court rules on scope of arbitration agreements
  • Greece
  • November 10 2016

A recent Supreme Court decision held that an arbitration agreement may validly refer to future disputes; in such cases, the agreement must determine the definite legal relationship out of which such disputes will arise, but it is not necessary to refer to specific disputes. Further, the court held that an arbitration agreement does not extend its scope to disputes arising out of a subsequent agreement between the same parties, even if the subject matter concerns the initial agreement.


Hong Kong

ADR coming of age for financial disputes in Hong Kong
  • Hong Kong
  • November 02 2017

Hong Kong's Financial Dispute Resolution Scheme will be expanded with effect from January 1 2018 and July 1 2018 by amending the jurisdiction and terms of reference of the Financial Dispute Resolution Centre. Alongside the recent changes to allow third-party funding in arbitration, the changes to the scheme show that alternative dispute resolution is coming of age for financial disputes in Hong Kong where there is an imbalance of power between parties.