Arbitration & ADR updates

Australia

Contributed by Clifford Chance
No requirement to provide evidence or documents in foreign-seated arbitration
  • Australia
  • November 09 2017

The Federal Court recently declined an application for leave to issue subpoenas pursuant to Section 23 of the International Arbitration Act 1974 on the basis that Section 23 of the act did not give the court jurisdiction to do so in aid of an arbitration seated outside Australia. While some practitioners will agree with the court's strict interpretation of the act, others – particularly those engaged in international arbitration in Asia-Pacific – may find the decision less satisfactory.

Nothing to get wound up about: Federal Court refers Masters case to arbitration
  • Australia
  • October 12 2017

In a recent case, the Federal Court stayed the proceedings brought before it and referred the dispute to arbitration, save for the ultimate question of whether a winding-up order against the first defendant should be made. Among other things, the decision illustrates the policy of minimal curial intervention that the Australian courts follow where arbitration is concerned. It also confirms the arbitrability of certain claims under the Corporations Act 2001.


Austria

Contributed by Graf & Pitkowitz Rechtsanwälte GmbH
Vienna International Arbitral Centre issues new arbitration and mediation rules
  • Austria
  • April 05 2018

The new Vienna International Arbitral Centre (VIAC) Rules of Arbitration and Mediation recently entered into force. They apply to all arbitration and mediation proceedings initiated after December 31 2017. The amendments to the VIAC rules allow for parties to conduct efficient and cost-effective arbitration and mediation proceedings, while offering enough flexibility when applying them in individual cases.

Supreme Court approves detour for setting aside proceedings
  • Austria
  • December 21 2017

The Supreme Court recently considered whether proceedings (wrongly) commenced before an Austrian district court to set aside an arbitral award could nevertheless be continued. Notwithstanding the Supreme Court's exclusive jurisdiction regarding the setting aside of arbitral awards, the unusual facts of the case at hand led to the creation of an additional channel of appeals not provided for in the law.

VIAC expands its jurisdiction
  • Austria
  • June 29 2017

The Vienna International Arbitral Centre (VIAC) recently obtained the right to administer domestic cases. The new law has received a warm welcome in Austria and is another sign of the quality of the VIAC's work and the confidence in its services. The VIAC has already established a working group to implement the proposed changes into the Rules of Arbitration and Conciliation in order to reflect this positive development.

No foul play in arbitral award regarding football licensing
  • Austria
  • June 15 2017

The Supreme Court recently considered whether an arbitral award rendered in connection with licensing for the Austrian First Division Football League had to be set aside because of an alleged infringement of public policy. The decision is particularly interesting because the court had to tackle the sensitive issue of a possible infringement of substantive Austrian public policy in a situation where a party was forced to enter into an arbitration agreement with a dominant counterparty.

Supreme Court sets aside arbitral award for defective reasoning
  • Austria
  • January 19 2017

The Supreme Court recently considered if and under what circumstances defective reasoning of an arbitral award may lead to its annulment under the Arbitration Law. In a deviation from previous case law and views expressed by the majority of Austrian legal scholars, the court held that the requirement of sound reasoning is a fundamental principle of the Austrian legal system, and thus that an arbitrator's failure to comply with this constitutes a violation of procedural public policy.


Brazil

Contributed by Carvalho, Machado e Timm Advogados
Superior Court of Justice decides on pre-arbitral interim measure for production of expert evidence
  • Brazil
  • April 12 2018

The Superior Court of Justice recently held that an arbitral tribunal has jurisdiction to (re)assess a pre-arbitral interim measure relating to an agreement containing an arbitration clause that was previously filed before the judiciary as soon as it is constituted. The controversy brought before the court concerned a recurring issue in the field of arbitration: the intersections between state courts and arbitral tribunals, especially when dealing with the establishment of competent jurisdiction.

Arbitration in labour law
  • Brazil
  • November 30 2017

The recently approved labour reform allows arbitration in individual employment agreements, provided that the employee's monthly salary is twice as high as the cap on social security pensions and the arbitration clause is proposed or expressly agreed by the employee, according to the Arbitration Law. This means that employees with a higher level of education and income can now sign employment contracts for the settlement of any disputes through arbitration.

Court refuses recognition and enforcement of $100 million US arbitral awards
  • Brazil
  • November 02 2017

The full bench of the Superior Court of Justice recently refused the recognition and enforcement of two arbitral awards issued by an arbitral tribunal seated in New York under the International Chamber of Commerce Rules. This decision is historic and important for arbitration, as it is one of the rare cases in which the Superior Court of Justice failed to recognise a foreign arbitral award.

Competence-competence doctrine: an absolute principle?
  • Brazil
  • July 06 2017

The Sao Paulo State Court was recently faced with a dispute between the contracting parties to a franchise agreement. While the judge rapporteur recognised that the Brazilian legal system provides for competence-competence as a general rule, given the circumstances of this case, he declared the arbitration clause in the relevant franchise agreement to be null.

Superior Court of Justice suspends execution lawsuit and declares arbitral tribunal competent
  • Brazil
  • May 18 2017

The Superior Court of Justice recently issued an important decision that not only demonstrates the level of sophistication reached by the superior courts in relation to arbitration, but also the prestige that arbitration has achieved in the country as a dispute resolution method which has a jurisdictional characteristic. The decision is critical for the development of arbitration in Brazil, since it reinforces the state courts' position in favour of arbitration.


British Virgin Islands

Sixtieth anniversary of New York Convention – time to choose BVI arbitration and enforcement
  • British Virgin Islands
  • July 05 2018

The British Virgin Islands is a pro-arbitration jurisdiction. Under the Arbitration Act, with regard to both New York Convention awards and non-New York Convention awards, the party against which the award has been made can make representation to the court regarding a refusal to enforce. An example of the British Virgin Islands' pro-enforcement approach can be seen in Belport Development Limited v Chimichanga Corporation.


Canada

Contributed by Borden Ladner Gervais LLP
Quebec court consolidates law on third-party funding agreements: impact on commercial arbitration
  • Canada
  • June 28 2018

Third-party funding in commercial arbitration in Canada has moved increasingly into the mainstream. Its implementation is largely influenced by the treatment of third-party funding in litigation, which is why it is important for arbitration practitioners in Canada to continue to follow jurisprudential trends regarding the treatment of third-party funding. A recent third-party litigation decision from Quebec provides valuable insight for arbitrators in this regard.

British Columbia aligns international commercial arbitration legislation with UNCITRAL Model Law 2006
  • Canada
  • May 03 2018

British Columbia recently introduced amendments to its International Commercial Arbitration Act. The proposed amendments are intended to modernise British Columbia's international arbitration legislation and align it with accepted international standards. In so doing, the government hopes to position Vancouver as a more desirable location to host international commercial arbitration proceedings.

Appeal court refuses challenge to international arbitral award
  • Canada
  • February 15 2018

A recent Ontario Court of Appeal decision has affirmed the favourable Canadian approach to the enforcement of international arbitration awards under the United Nations Commission on International Trade Law Model Law. The court of appeal's restraint when asked to set aside and refuse to enforce an international arbitral award is consistent with recent cases, which have upheld the narrow circumstances in which courts can do so.

Courts versus private arbitration: arbitrators can decide who has jurisdiction
  • Canada
  • January 18 2018

The Court of Queen's Bench of Alberta recently applied the principle of competence-competence in the context of a parallel litigation and arbitration dispute resolution procedure. As parallel dispute resolution procedures give rise to a complex interplay between the jurisdiction of the courts and arbitral tribunals, the case is an excellent example of the practical application of the principle and can serve as a useful tool for both domestic and international arbitration practitioners.

Stay out of it – sophisticated parties can contract out of arbitration legislation
  • Canada
  • November 30 2017

The Supreme Court of Newfoundland and Labrador recently dismissed an application by the province under Sections 14 and 34(2)(a)(iii) of the Arbitration Act. The court held that the parties had legally contracted out of the act, narrowing the circumstances in which a court could set aside an arbitral award. The decision furthers the general theme of recent Canadian jurisprudence, which has emphasised party autonomy and deference to reasonable arbitral decisions.