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Muslim body's intention to set up Islamic courts sparks row in India - Yeni Şafak English

Google International ADR News - 9 hours 51 min ago

Yeni Şafak English

Muslim body's intention to set up Islamic courts sparks row in India
Yeni Şafak English
According to Professor Faizan Mustafa, Darul Qaza is in fact part of an alternative dispute resolution. ... He said if the Indian judicial system has to be brought at par with the international system then there should be at least 10 judges for 100,000 ...

Does the (Recast) Brussels Regulation Allow for Court-Ordered Anti-Suit Injunctions within the EU?

Kluwer Arbitration Blog - 10 hours 44 min ago

Julio-César Betancourt

The short answer, I submit, is that it does.

 

Nonetheless, there is no shortage of articles and commentaries purporting to explain some of the reasons why court-ordered anti-suit injunctions continue to be prohibited under Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast) (“the recast Regulation”). In West Tankers, the Court of Justice of the European Union (“the CJEU”) decided that these types of injunctions were incompatible with Council Regulation (EC) 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (“the Brussels I Regulation”). In the recent case of Nori Holdings Ltd & Ors v Public Joint-Stock Company ‘Bank Otkritie Financial Corporation’ [2018], the English Commercial Court was asked to consider, among other things, whether the CJEU’s judgment in West Tankers remained good law.

 

The Commercial Court held that it did, and in doing so, dismissed Nori Holdings’ application for a court-ordered anti-suit injunction to restrain the Bank’s court proceedings in Cyprus. Although the West Tankers case was decided under the Brussels I Regulation, Males J opined that the effect of the Recital 12 of the recast Regulation was clear, thereby concluding that the position was no different under it. He also expounded that ‘Neither the [recast] Regulation itself nor its recitals say expressly that [the principles set out in the West Tankers case] no longer apply or that an anti-suit injunction in support of arbitration issued by a court in a member state takes precedence over [such principles]’.

 

It is true that the recast Regulation does not make explicit reference to the question of whether it has reinstated the power of the courts of the Member States to grant anti-suit injunctions with the intention of restraining a person from commencing or continuing proceedings before the courts of another Member State. That is not to say, however, that the language of the recast Regulation ‘clearly’ suggests that this sort of relief continues to be unavailable in the EU. Quite the contrary, it does appear to suggest that West Tankers may no longer be good law, as I shall explicate below.

 

Curiously, Males J’s decision seems to have placed emphasis on Recital 12 rather than on Article 73.2 of the recast Regulation (the operative provision), which, to be sure, leaves no room for doubt as to the superiority of the New York Convention (“the NYC”), hierarchically speaking, over such a Regulation. Article 73.2 unambiguously stipulates that the recast Regulation shall not affect the application of the NYC. One of the primary objectives of the NYC is to facilitate the recognition and enforcement of international arbitration agreements. Hence, international arbitration agreements, or rather, ‘the rights arising therefrom’ — and this is the key — enjoy a special protection.

 

International arbitration agreements yield a positive and a negative effect, i.e., an ‘obligation to engage in arbitration’ and an ‘obligation not to take legal action’ in any forum other than arbitration. Each party to the agreement has correlative rights, i.e., the ‘right to arbitrate’ and the ‘right not to be sued’. When the parties to an international arbitration agreement select the arbitration rules, the seat of the arbitration, and the law applicable to such an agreement, the list of rights and obligations that arise under the respective agreement is greatly expanded. These types of agreements, therefore, can be genuinely regarded as one of the most abundant sources of rights and obligations.1)See, in general, Julio-César Betancourt, El Contrato de Arbitraje Internacional (Tirant lo Blanch 2018) 506 forthcoming. jQuery("#footnote_plugin_tooltip_8408_1").tooltip({ tip: "#footnote_plugin_tooltip_text_8408_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

 

The duty to recognize and enforce these kinds of agreements resides in the national courts of Contracting States (Article II.1 of the NYC). Their role is to safeguard the parties’ rights or, as the case might be, to enforce their obligations in exercise of their jurisdictional function. Consequently, the national courts’ duty to protect the parties’ rights is to be understood lato sensu. In other words, the rule is that every time that a person appears in a court of law with the aim of seeking to assert a legitimate right arising out of an international arbitration agreement, the court seized is expected to protect the right in question. The right to obtain an anti-suit injunction is no exception to such rule.

 

As far as English international arbitration law is concerned, an anti-suit injunction is nothing more than a remedy for breach of an international arbitration agreement. The English court’s power to grant such a remedy lies in Section 37 of the Senior Courts Act 1981. This remedy is generally granted with the sole purpose of upholding the parties’ commitment to arbitrate. In Donohue v Armco, the House of Lords made clear, inter alia, that ‘Where the court decides to grant an injunction restraining proceedings in a foreign court, its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed’. Thus, anti-suit injunctions are not intended to prevent the court in which proceedings have been instituted from the power to rule on its own jurisdiction. Rather, their purpose is to prevent the contract-breaker from obtaining a ruling of this nature.

 

The ‘right to obtain an anti-suit injunction’ is inextricably linked with the ‘right not to be sued’, both stemming from the contract to arbitrate. As legitimate rights, they can be perfectly invoked before any of the national courts of Contracting States, which, under Article II.1 of the NYC, are under an obligation to recognize and enforce such rights. If there were any doubts as to the soundness of this proposition within the context of EU law, they were certainly dispelled by the very text of the recast Regulation, which seems to suggest that it cannot be lawfully relied upon so as to impede, whether directly or indirectly, the application of the NYC.

 

Males J’s decision did not go on to examine the relationship between the recast Regulation and the NYC, and this is the crux of the issue. The recast Regulation is an unwavering legislative commitment to protect the NYC. Instead, Males J focused on the relationship between the recast Regulation and West Tankers, concluding that there was nothing in the former to cast doubt on the continuing validity of the latter. Prior to the Nori Holdings case, a learned commentator also wrote that West Tankers remained applicable under the recast Regulation and that the CJEU ‘in the Gazprom case … did not endorse Advocate General Wathelet’s Opinion that West Tankers [had] been impliedly reversed by Recital 12 of the [recast Regulation]’.2)Neil Andrews, Arbitration and Contract Law: Common Law Perspectives (Springer 2016) 78. jQuery("#footnote_plugin_tooltip_8408_2").tooltip({ tip: "#footnote_plugin_tooltip_text_8408_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); In Gazprom the CJEU decided that the Brussels I Regulation ‘must be interpreted as not precluding a court of a Member State from recognizing and enforcing, or from refusing to recognize and enforce, an arbitral award prohibiting a party from bringing certain claims before a court of that Member State’. Nevertheless, I respectfully submit that the West Tankers’s and Gazprom’s concern with the application of the ‘Brussels I Regulation’, and not that of the ‘recast Regulation’, defeats both arguments.

 

One can make an argument that if the EU legislator had wished to maintain the restriction that the CJEU’s judgment in West Tankers imposed, it would have said so. The intention of the EU legislator was unequivocally clear: the recast ‘Regulation shall not affect the application of the 1958 New York Convention’.3)Article 73.2 of the recast Regulation. jQuery("#footnote_plugin_tooltip_8408_3").tooltip({ tip: "#footnote_plugin_tooltip_text_8408_3", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Consequently, one can further argue that the recast Regulation itself has impliedly abrogated the principles alluded to in West Tankers. This had a deleterious effect on the courts of the EU Member States’ obligation to recognize and enforce the parties’ right to obtain an anti-suit injunction from any of the EU national courts.

 

I submit that when it comes to determining whether it is permissible to grant court-ordered anti-suit injunctions (or any other remedy) within the EU, neither West Tankers nor Gazprom should be interpreted in isolation from Article 73.2 of the recast Regulation. Unlike the Brussels I Regulation, the recast Regulation is subordinate to the NYC. I further submit that the better interpretation of the recast Regulation is, or ought to be, that it is not intended to derogate from any of the rights that emanate from a given international arbitration agreement. These include the right to obtain an anti-suit injunction, which, like any other right exercisable under an international contract to arbitrate, is protected by the NYC.

References   [ + ]

1. ↑ See, in general, Julio-César Betancourt, El Contrato de Arbitraje Internacional (Tirant lo Blanch 2018) 506 forthcoming. 2. ↑ Neil Andrews, Arbitration and Contract Law: Common Law Perspectives (Springer 2016) 78. 3. ↑ Article 73.2 of the recast Regulation. function footnote_expand_reference_container() { jQuery("#footnote_references_container").show(); jQuery("#footnote_reference_container_collapse_button").text("-"); } function footnote_collapse_reference_container() { jQuery("#footnote_references_container").hide(); jQuery("#footnote_reference_container_collapse_button").text("+"); } function footnote_expand_collapse_reference_container() { if (jQuery("#footnote_references_container").is(":hidden")) { footnote_expand_reference_container(); } else { footnote_collapse_reference_container(); } } function footnote_moveToAnchor(p_str_TargetID) { footnote_expand_reference_container(); var l_obj_Target = jQuery("#" + p_str_TargetID); if(l_obj_Target.length) { jQuery('html, body').animate({ scrollTop: l_obj_Target.offset().top - window.innerHeight/2 }, 1000); } }More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
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The post Does the (Recast) Brussels Regulation Allow for Court-Ordered Anti-Suit Injunctions within the EU? appeared first on Kluwer Arbitration Blog.

INEC: Why we're spending N6bn to feed policemen - New Telegraph Newspaper

Google International ADR News - Wed, 2018-08-15 20:12

New Telegraph Newspaper

INEC: Why we're spending N6bn to feed policemen
New Telegraph Newspaper
Similarly, review and printing and distribution of electoral alternative dispute resolution (EADR) Guide, N1.675million; sensitization and awareness workshop for stakeholders, N25 million; EADR sensitization and awareness workshop for stakeholders, N1 ...

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Respect traditions in areas where you operate - Nana Nketsiah V - Ghana News Agency

Google International ADR News - Wed, 2018-08-15 13:29

Ghana News Agency

Respect traditions in areas where you operate - Nana Nketsiah V
Ghana News Agency
The lecture preceded the Chamber's annual international conference dubbed “Ghana Extractive Industry Safety Conference” (GEISCon) and held under the theme: “Handling of Dangerous Goods: Global Standards and Existing Practices in Ghana”. Mr Ato Van-Ess ...

Pease and CLF to mediate $100m suit - The Union Leader

Google International ADR News - Wed, 2018-08-15 12:40

Pease and CLF to mediate $100m suit
The Union Leader
“The toxic chemicals PFOS and PFOA are of growing concern, particularly for developing fetuses and newborns,” the CLF suit said. “These chemicals have resulted in the closure of a Portsmouth drinking water well at Pease International, as well as ...

Bill Drake (1944 – 2018): The Passing of an ADR Pioneer

ADR Prof Blog - Wed, 2018-08-15 09:38
Summarizing Bill Drake’s career is a task poorly suited for a blog post. He was a pioneer in creating integrated approaches to conflict and dispute systems, with a particular focus early in his career on city-level initiatives. He helped to run NIDR early on. He advised ACCORD. He ran the Western Justice Center Foundation. And … Continue reading Bill Drake (1944 – 2018): The Passing of an ADR Pioneer →

CLF, Pease agree to mediation in $100M suit - News ... - Seacoastonline.com

Google International ADR News - Wed, 2018-08-15 08:59

Seacoastonline.com

CLF, Pease agree to mediation in $100M suit - News ...
Seacoastonline.com
PORTSMOUTH — The Conservation Law Foundation and Pease Development Authority have agreed to try to settle, through mediation, a $100 million lawsuit ...
Pease and CLF to mediate $100m suitThe Union Leader

all 3 news articles »

European Union: Shipping Law 2018 - Mondaq News Alerts

Google International ADR News - Wed, 2018-08-15 03:53

European Union: Shipping Law 2018
Mondaq News Alerts
The provisions of the International Convention on Salvage 1989 have been given the force of law in England by the Merchant Shipping Act 1995, though parties are permitted to expressly or implicitly exclude the convention. Lloyd's Open ..... 6.1 ...

The Future of the New York Convention in Its Most Extreme Sense: A Dual Convention that Disposes of National Setting Aside Regimes

Kluwer Arbitration Blog - Wed, 2018-08-15 03:20

Marike R. P. Paulsson

The New York Convention’s 60th Anniversary renewed the debate about its future.

One must recognize that a treaty that is sixty years old and has been ratified in almost 160 countries can no longer be replaced. Even with compatibility clauses, provisions that would provide for retroactive application and the other tools that the Vienna Convention on the Law of Treaties gives to States to become a party to a new treaty, one cannot assume that yet again 160 States would sign on to the New York Convention’s replacement. Even if the text of the New York Convention is pathological at times, it is so not because the expert drafters made substantial errors, but because the drafters were not experts in international arbitration and enforcement of awards. They were delegates representing the sovereign interests of their countries. Often provisions of the treaty were a mere agreement to disagree. One must remember: the treaty is ultimately built on the idea of sovereignty. A new treaty will be the same.

Yet, it is time to reflect on what a replacement could look like because that would enable judges to understand the original idea and purpose of the treaty and strive toward a uniform application.

The decision that has sparked a debate about the New York Convention and how far courts can go when deciding to declare awards enforceable even when another court had set aside the award, was the Pemex decision 1)Marike Paulsson, Comissa v. PEMEX the Sequel: Are the Floodgates opened? The Russian Doll Effect further defined, Kluwer Arbitration Blog (August 11, 2016) jQuery("#footnote_plugin_tooltip_5262_1").tooltip({ tip: "#footnote_plugin_tooltip_text_5262_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });. With that, questions of international comity, the role of the courts and public policy under Article V(1) of the New York Convention become relevant again after sixty years after its inception. National setting aside regimes must be addressed: Should they be abolished?

Setting aside and enforcement are based on similar grounds. The setting aside grounds are often recycled in the enforcement procedure. The difference is that, with the annulment, the court that will assess the grounds is versed in lex arbitri, whereas the court enforcement court is not versed in lex arbitri. The time it would take to get from the filing of the request for arbitration to the ultimate decision by the highest enforcement court could counter the supposed advantage of arbitration – speed. The layers and the Russian Doll effect have put to question Article V(1)(e) and also Article V(1) in general: Would it be for courts of enforcement to assess the enforceability of an award when most of the refusal grounds are engrained in lex arbitri not lex fori? 2) Marike Paulsson, Comissa v. PEMEX the Sequel: Are the Floodgates opened? The Russian Doll Effect further defined, Kluwer Arbitration Blog (August 11, 2016); See also Albert Jan van den Berg, Should the setting aside of the Arbitral Award be Abolished?, 29(2) ICSID Rev. 1, 1-26 (2014) jQuery("#footnote_plugin_tooltip_5262_2").tooltip({ tip: "#footnote_plugin_tooltip_text_5262_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });.

I will not be addressing the practical steps and hurdles to replacement of a treaty in this post, let alone the (im)practicalities of amending national setting aside legislation 3) Marike Paulsson, The Indian Journal of Arbitration Law, National Law University, Jodhpur, India: “The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards from an unusual perspective: moving forward by parting with it.” jQuery("#footnote_plugin_tooltip_5262_3").tooltip({ tip: "#footnote_plugin_tooltip_text_5262_3", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });. I will simply think of an ideal structure that sets out the journey of an arbitral award once it has been rendered. As a theatre play, Act II after the intermission, an award once rendered perhaps means that a dispute has been adjudicated by a competent tribunal. Yet, lex arbitri equally gives the courts of the country where the award was rendered competence to dispose of that award. It is part of Act II. What is also part of Act II is the subsequent enforcement. Often, a setting aside procedure and enforcement procedure happen simultaneously. Where the enforcement is a natural consequence of rendering an award, a setting aside procedure is as well – parties to the arbitration had agreed to it. Perhaps, that safety net was deemed necessary, given that arbitration is entirely contract based and in a sense unregulated. But does it make sense?

The new structure would be a Dual Convention that would do away with national setting aside regimes and leave the assessment under lex arbitri to courts of the seat only: the courts versed in lex arbitri. The new Convention would consist of the Primary and Secondary Convention. The Primary Convention grants the successful party the right to seek a recognition title in the country where the award was rendered. That court will not have to decide on any setting aside request. The court will assess whether there had been a violation of due process under the laws of the seat (lex arbitri), whether there was a valid arbitration agreement, whether the mandate was complied with, whether the procedure was in accordance with the arbitration agreement or lex arbitri, and whether the award is binding on the basis of the lex arbitri. Thus, multiple courts of other countries are not asked to assess these factors under lex arbitri, a law that they are not familiar with. The courts of the seat can no longer invoke local public policy to set aside the award. Stopping of the enforcement is based on lex arbitri, a law chosen by the parties based on party autonomy. The latter is a pillar of international arbitration and of the New York Convention. The multiple layers are removed as there is no setting aside to stop enforcement.

The Secondary Convention would be applied in all the countries where enforcement is sought. Those courts would no longer make use of Article V(1). They can only apply Article V(2), i.e. the public policy of the country where enforcement is sought. The successful party can request the enforcement title in the country where the award was rendered with the respondent only being able to resist on the basis of Article V(1) and the successful party can then take that enforcement title to 159 Contracting States where the only hurdle to face would be public policy under Article V(2). Article V(2) cannot be eliminated altogether as it encompasses another important pillar of the current New York Convention, one that States would never surrender, and that is sovereignty.

The advantage of this structure is that the layer of setting aside is removed from the contestation phase and only the court of the seat will address the questions under Article V(1), which are predominantly based on lex arbitri. This one-stop process then leads to an approval or rejection of the award by one court of one jurisdiction which must be respected by other States. The successful party has more hopes for a proper assessment under Article V(1) by the courts of origin. It is thus a treaty that respects the idea of international arbitration, party autonomy, and lex arbitri, with a sovereign public policy boundary at the forum only.

Why should we think about a new Convention if it is never going to happen? Because it raises awareness with respect to the fact that although the New York Convention operates in 159 States, its outcome is not uniform, it is rather very fragmented – with judges having vast powers to interpret its text in various ways, and this leads to legal uncertainty.

This dialogue might lead to UNCITRAL creating a working group to craft further recommendations for the enforcement of awards worldwide. It might lead to the ICC establishing a Special Task Force with the users of international arbitration to confront the outcomes under Pemex.

Complacency does not lead to progress. The exercise of contemplating a new convention to replace a treaty that is over sixty years old enables the actors in international law to think of improving the procedures for enforcement of awards worldwide. One hopes that exercises such as these and the idea of what a better treaty could have looked like will lead to a different judicial lens globally.

References   [ + ]

1. ↑ Marike Paulsson, Comissa v. PEMEX the Sequel: Are the Floodgates opened? The Russian Doll Effect further defined, Kluwer Arbitration Blog (August 11, 2016) 2. ↑ Marike Paulsson, Comissa v. PEMEX the Sequel: Are the Floodgates opened? The Russian Doll Effect further defined, Kluwer Arbitration Blog (August 11, 2016); See also Albert Jan van den Berg, Should the setting aside of the Arbitral Award be Abolished?, 29(2) ICSID Rev. 1, 1-26 (2014) 3. ↑ Marike Paulsson, The Indian Journal of Arbitration Law, National Law University, Jodhpur, India: “The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards from an unusual perspective: moving forward by parting with it.” function footnote_expand_reference_container() { jQuery("#footnote_references_container").show(); jQuery("#footnote_reference_container_collapse_button").text("-"); } function footnote_collapse_reference_container() { jQuery("#footnote_references_container").hide(); jQuery("#footnote_reference_container_collapse_button").text("+"); } function footnote_expand_collapse_reference_container() { if (jQuery("#footnote_references_container").is(":hidden")) { footnote_expand_reference_container(); } else { footnote_collapse_reference_container(); } } function footnote_moveToAnchor(p_str_TargetID) { footnote_expand_reference_container(); var l_obj_Target = jQuery("#" + p_str_TargetID); if(l_obj_Target.length) { jQuery('html, body').animate({ scrollTop: l_obj_Target.offset().top - window.innerHeight/2 }, 1000); } }More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
€ 240


The post The Future of the New York Convention in Its Most Extreme Sense: A Dual Convention that Disposes of National Setting Aside Regimes appeared first on Kluwer Arbitration Blog.

Use of Arbitration Agreement to Silence Omarosa

ADR Prof Blog - Tue, 2018-08-14 15:36
Omarosa Manigault Newman, a former Trump White House aide, just published a tell-all book and the Trump campaign filed an arbitration action alleging that she broke a 2016 confidentiality agreement. According to this Washington Post article, “Initially, [White House Counsel Donald] McGahn told Trump he would not draft or give aides the [non-disclosure agreements] because … Continue reading Use of Arbitration Agreement to Silence Omarosa →

Digital Business in Sweden - Lexology

Google International ADR News - Tue, 2018-08-14 11:57

Digital Business in Sweden
Lexology
International data transfers. What rules and restrictions apply to the cross-border transfer of personal data collected in the course of digital business? Personal data transfers within the European Economic Area can be made without restrictions ...

Arbitration in Italy - Lexology

Google International ADR News - Tue, 2018-08-14 05:36

Arbitration in Italy
Lexology
A comprehensive reform of arbitration law, and alternative dispute resolution (ADR) legislation in general, is currently being considered. An ad hoc ..... With reference to the seat of arbitration, no specific requirements apply in case of ...

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Spotlight on Ethiopia as it Annuls a Euro 20 million Arbitral Award

Kluwer Arbitration Blog - Tue, 2018-08-14 04:53

Sadaff Habib (Assistant Editor for Africa)

Five years after filing the Permanent Court of Arbitration (PCA) Case No. 2013-32 under the European Development Fund Arbitration Rules (EDF Rules), the claimant, Consta JV (an Italian contractor), would have hoped for a successful award against the CDE (a joint enterprise between the Ethiopian and Djibouti government) that would be upheld by the local court.

All such hopes were crushed when, on 24 May 2018, the Supreme Court of the Federal Democratic Republic of Ethiopia (Court) (i) ruled that it has jurisdiction to review an arbitral award issued under the EDF Rules, (ii) found fundamental errors in law in the arbitral award and (iii) set aside the arbitral award.

The dispute involved a breach of contract claim arising out of a repair works contract financed by the EDF relating to rehabilitation works being performed on the Ethiopia-Djibouti Railway. The dispute was brought before a tripartite tribunal and the award issued by the majority. Co-arbitrator, Professor James Thup Gathii dissented.

Several issues arise from the Court’s decision:

  1. Did the Court have jurisdiction and authority to decide on the nullification of an arbitral award issued under the EDF Rules?
  1. Did the Tribunal err on a point of law?
  1. What is the impact of the Court’s decision on arbitration in Ethiopia and on EDF cases?

 Did the Court have jurisdiction and authority to decide on the nullification of an arbitral award issued under the EDF Rules?

The EDF is an intergovernmental fund outside the EU budget with most of its resources being managed by the European Commission. Countries that receive EDF funding include parts of Africa, the Caribbean etc., and are signatories to the Cotonou Agreement. In 1990, the Council of Ministers of the African, Carribean and Pacific Group of States (ACP States) and the European Economic Community approved a new set of rules for the settlement of disputes arising out of construction, supply and service contracts funded by the EDF. The EDF covers disputes between the private sector executing the contract and authorities of the ACP States.

The EDF Rules

The EDF Rules provide that the law applicable to the substance of the dispute and the lex arbitriare those of the State unless otherwise agreed by the Parties. Furthermore, an award rendered under the EDF Rules is final and binding and parties are required to carry out the award without delay. There is a requirement for an award to be recognised and enforced under the EDF Rules and enforcement of the award is regulated by the law relating to the enforcement of judgments which is in force in the State in whose territory the enforcement is to be carried out.

The seat of the PCA arbitration was Addis Ababa and the governing law of the arbitration was Ethiopian law. The Court had jurisdiction to enforce and recognise the award.

The Court’s rationale

The Court determined that the EDF Rules give arbitral awards rendered under such rules the status of a final court judgment of the ACP States. This is not incorrect. The Court appears to have taken into cognisance Article 33.3 of the EDF Rules which require each ACP State to recognise an award under the EDF Rules as binding and ensure it is enforced in its territory as if it were a final judgment of one of its own courts or tribunals. The Court goes further to reason thatbecause the Ethiopian Constitution grants the Court of Cassation the jurisdiction to review final court judgments of all Ethiopian courts for fundamental errors of Ethiopian law, the Court has jurisdiction to review this EDF award as it is analogous to an Ethiopian court judgment under the EDF Rules.

Notably, Ethiopia developed most of its current codes on private law in the last century. Its arbitration law can be found in its Civil Code and Civil Procedure Code. It is generally perceived that Ethiopia’s arbitration law applies to domestic arbitration as opposed to international arbitration.

It is unsurprising that the Court adopted the above approach in finding jurisdiction for itself to decide on whether the law had been applied correctly to the EDF award which in the Court’s eyes under the EDF Rules is akin to an Ethiopian court judgment.

Did the Tribunal err on a point of law?

The CDE challenged the award on the basis that the majority of the Tribunal had seriously erred in deciding on a point of law in their decision.

The Court annulled the award on a number of substantive grounds. Most importantly, it stated that the Tribunal disregarded evidence of fraudulent bidding by the claimant. Interestingly, it is on this point that Professor James Thup Gathi issued his dissenting award.

The Ethiopian Civil Code provides that a contract may be invalidated based on fraud if the other party would not have entered into the contract had it known of the deception.  Without going into detail of the dissenting award and the arbitration case, Professor Gathi relies on this provision and dissents in that he views that CDE would not have entered into the contract if it had known that the joint venture partner in Consta JV, GCF who was to provide technical expertise on railway projects, reduced its share in the JV and its responsibility as a JV partner was significantly and considerably reduced such that it disavowed the responsibility for design. Objectively, this would understandably be an issue for any client in CDE’s position particularly where it is relying on the JV partner’s skills in a project.

The Court reasoned that under the Ethiopian Civil Code, a contract entered based on fraud is invalidated and as such Consta JV’s breach of contract claim cannot be sustained. The Court found that the majority of the Tribunal omitted to address this. The Court went on to say that the only remedy to the parties in such a situation is that they are restored to the position they were in before the contract and they may seek such recourse through a subsequent arbitration. Interestingly, the Court appears to uphold the principle of separability of the arbitration agreement and does not invalidate it.

On the face of it, the Court’s reasoning appears legally sound. However, there is concern that the Court opening up the award could potentially attract more challenges counterintuitive to the arbitration process. Would a better approach have been for the Court to revert the award back to the Tribunal for the Tribunal to re-determine on the issue?

What is the impact of the Court’s decision on arbitration in Ethiopia and EDF cases?

Undoubtedly, the Court’s decision is seen as one of the first of such decisions issued by the highest court of the ACP countries. It is anticipated this will be a ground-breaking precedent that may well affect future EDF cases particularly in Ethiopia.

As of date, Ethiopia is not a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.  This, together with the Court’s decision, may cause private sector companies to reconsider and proceed cautiously in choosing arbitration as a mode of dispute resolution where Ethiopia is the seat of arbitration.

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
€ 240


The post Spotlight on Ethiopia as it Annuls a Euro 20 million Arbitral Award appeared first on Kluwer Arbitration Blog.

UK: Guide To Resolving Disputes In Scotland - Mondaq News Alerts

Google International ADR News - Tue, 2018-08-14 04:23

UK: Guide To Resolving Disputes In Scotland
Mondaq News Alerts
... information and guidance about the main methods of resolving disputes in Scotland, including commentary on fees and funding, court proceedings, interim remedies, final remedies, evidence, cross-border litigation and alternative dispute resolution ...

Jenny Vatrenko (Heyi Blockchain Advisory, Boies Schiller Flexner) Joins Oath Protocol's Founding Team - newsBTC

Google International ADR News - Tue, 2018-08-14 03:02

newsBTC

Jenny Vatrenko (Heyi Blockchain Advisory, Boies Schiller Flexner) Joins Oath Protocol's Founding Team
newsBTC
Her experience encompasses all stages of litigation, from inception to trial, across state and federal courts as well as alternative dispute resolution programs. She has also spent one year at the District Attorney's office in Brooklyn, NY, where she ...

Singapore: Whistful Thinking: Singapore High Court Stays Proceedings In Favour Of Multi-Tier Arbitration Agreement - Mondaq News Alerts

Google International ADR News - Mon, 2018-08-13 08:59

Singapore: Whistful Thinking: Singapore High Court Stays Proceedings In Favour Of Multi-Tier Arbitration Agreement
Mondaq News Alerts
Under the Arbitration Act, the Court has a discretion whether or not to grant a stay in favour of arbitration (unlike the International Arbitration Act, where such a stay is mandatory). The Court highlighted two policy considerations in exercising its ...

Low oil prices continue to squeeze liquidity in 2017, report finds - Construction Week Online

Google International ADR News - Mon, 2018-08-13 06:04

Construction Week Online

Low oil prices continue to squeeze liquidity in 2017, report finds
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READ: Can alternative dispute resolution tools reduce Middle East construction conflicts? Such dynamics continue to create an environment where firms are taking a "tougher approach to contract entitlements". The report, designed to reveal key themes ...

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SOAS Arbitration in Africa Survey Report 2018

Kluwer Arbitration Blog - Mon, 2018-08-13 03:24

Emilia Onyema

Diversity in arbitration is currently topical, and this drove our engagement with it in relation to race (particularly African) in this survey. Related to this, is the entrenched perceptions against African arbitration practitioners which has negatively impacted on their participation in international arbitration (including Africa-connected disputes). The primary perception is that African arbitration practitioners are not skilled enough to be appointed as arbitrators in international arbitration references. This negative perception has never been supported with hard facts or scientific analysis but relied on “anecdotal evidence”. Our survey aims to fill this gap and provide empirical data to support or disprove this perception.

The survey which was distributed in the Arabic, English and French languages, attracted 191 respondents from 19 African and 12 non-African countries. Not surprisingly, 90.6% of the respondents are lawyers and have acted in various capacities in arbitration: as arbitrator, counsel, tribunal secretary, academic, consultant and legal adviser. The reporting period for the survey was from 2012-2017.

Over this period, 82.2% of the respondents did not sit as arbitrator in any international arbitration reference in contrast to 58% who did not sit as arbitrator in domestic arbitration. As it relates to acting as counsel (or co-counsel) in international references, only 40.8% of the respondents acted in this capacity; while only 2% acted as tribunal secretary in international arbitration. This data supports the claim that African practitioners are under-represented in international arbitration. The top three reasons the respondents gave for their under-representation are: (1) poor perception of African arbitration practitioners (by their foreign colleagues) as lacking in expertise and experience; (2) bias by appointors in favour of foreign counsel and arbitrator; and (3) Africans not appointing fellow Africans as arbitrators. I will examine each of these reasons:

  1. Lack of expertise and experience in arbitration:

This perception is partially disproved because the finding from the survey is that experience is not uniform across the continent. 81.7% of respondents have acquired specialist training in arbitration and the vast majority (72%) were trained by the Chartered Institute of Arbitrators (CIArb). And more importantly, over the reporting period, 41.1% of the respondents sat as arbitrator in at least one domestic arbitration case (this is against 17.8% of respondents who sat as arbitrator in at least one international case).

The acquisition of experience by African arbitration practitioners will increase with the growth of domestic arbitration. 85.3% of the respondents believe domestic arbitration will grow in their jurisdiction. This is important as it assures an increasing pool of arbitration practitioners on the continent of good workflow in which they can participate. However, a surprising finding from the survey is the limited pool of arbitrators sitting in the domestic space in African countries. 10% of the respondents had acted in 11 or more cases over the reporting period against the majority of 58% who did not sit as arbitrator in any dispute. This also raises concerns of diversity of the local pool from which arbitrators are selected or appointed.

  1. Bias by appointors in favour of foreign counsel and arbitrator:

From the findings of the survey, this bias remains a perception although 40.2% of the respondents had acted as counsel or co-counsel in international arbitration over the reporting period. This view is because we do not know the exact number of arbitration references that were Africa-connected during the reporting period. However, we believe this finding is useful for international firms instructed in Africa-connected disputes. Further, this finding may also explain the strong opposition to the opening up of the legal services market in some African countries (notably, Nigeria).

  1. Africans appointing fellow Africans:

This reason for the under representation of Africans in international arbitration references is one the respondents felt was within the control of Africans themselves (either as advisor, in-house counsel, arbitration centre, appointing authority, or government official). We also note the fact that ‘Africans appointing Africans’ has almost become a mantra but there is a caveat. The appointment must be of qualified and skilled practitioners, with an eye on diversity in appointment. It is massively important that African parties (and their advisors) appreciate their role in this rebalancing exercise and seriously consider skilled African arbitration practitioners in their appointment process. The other agencies that can make an impact on this issue of diversity are appointing authorities and arbitration centres and institutions. In informal discussions with heads of arbitration centres and lawyers, they generally accept the need for diversity and confirm they make an effort to include qualified and skilled Africans in their nomination lists but the parties choose not to appoint them. It will therefore, be useful if such appointing agencies include such data in their published statistics. The data should state the number of people falling within the under-represented groups (gender, race, age, etc) they nominated and how many were actually appointed. This data will provide the evidence we need to help us understand where the gap lies with diversity in appointment.

For the African arbitration practitioners, the top three changes they need to make to ensure their fair participation in international arbitration (particularly in Africa-connected disputes) are: continuing professional development, increase in visibility in arbitration circles, and appointing fellow skilled Africans as arbitrator, counsel and tribunal secretary.

Our survey report therefore confirms that, there are skilled African arbitration practitioners who sit as arbitrators and act as counsel and tribunal secretary in not only domestic but also international disputes. Obviously fewer Africans participate in the international arena than in the domestic arena. Our survey did not capture the percentage that act in these capacities in intra-Africa disputes. However, with the growth of intra-Africa trade, increase in the number of African companies that transact business across African borders, the growth in the number of African transnational corporations or investment companies, and the increase in intra-Africa trade and services envisaged with the signing of the African Continental Free Trade Agreement (and further negotiations), it can only be envisaged that intra-African disputes will also increase. Such disputes will need skilled African arbitration practitioners to service them as arbitrators, tribunal secretary, counsel, and arbitration centres or institutions.

As already mentioned, 81.7% of the respondents are trained in the law and practice of arbitration with 72% of these trained by CIArb. The next phase of development, particularly in domestic arbitration, is the diversity in appointments as arbitrator to include women and young practitioners. Inclusion cannot be over emphasised and must be actively pursued by all African arbitration practitioners. This in particular can be driven by arbitration centres and institutions in Africa.

The SOAS Arbitration in Africa survey is an important addition to the growing body of surveys in arbitration led by the Queen Mary International Arbitration surveys. Our survey which shall be conducted biennially shall continue to focus primarily on arbitration practitioners with interest in Africa. Our vision is to provide original data on arbitration in Africa to enrich the global arbitration discourse.

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