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Settling electoral disputes through ADR - New Telegraph Newspaper

Google International ADR News - Sun, 2018-06-03 22:41

New Telegraph Newspaper

Settling electoral disputes through ADR
New Telegraph Newspaper
Following incessant delay in dispensation of justice occasioned by unending litigations across courts, the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, has called on judges to embrace Alternative Dispute Resolution (ADR) mechanism. ..... In ...

Ekemezie: Why Nigeria must adopt parliamentary system of government - New Telegraph Newspaper

Google International ADR News - Sun, 2018-06-03 22:33

New Telegraph Newspaper

Ekemezie: Why Nigeria must adopt parliamentary system of government
New Telegraph Newspaper
Ahamba was echoed by another Senior Advocate of Nigeria (SAN), Olatunde Adejuyigbe, who disclosed that the use of Alternative Dispute Resolution (ADR) mechanism in resolving election petition is not known to the Electoral Act. According to him, the Act ...

“I opted for law to become a philanthropist” - New Telegraph Newspaper

Google International ADR News - Sun, 2018-06-03 22:33

New Telegraph Newspaper

“I opted for law to become a philanthropist”
New Telegraph Newspaper
Following incessant delay in dispensation of justice occasioned by unending litigations across courts, the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, has called on judges to embrace Alternative Dispute Resolution (ADR) mechanism. ..... In ...

Health workers seek salary payment despite no work - The Punch

Google International ADR News - Sun, 2018-06-03 18:04

The Punch

Health workers seek salary payment despite no work
The Punch
... 2004 and the International Labour Organisation's principles concerning employers' right during strike in essential services, the Federal Government has invoked this provision and is therefore enforcing 'no work, no pay' law on unions and ...
Health workers seek payment of salaryTODAY.NG

all 8 news articles »

Health workers seek payment of salary - TODAY.NG

Google International ADR News - Sun, 2018-06-03 12:48

TODAY.NG

Health workers seek payment of salary
TODAY.NG
It read, “In line with provision of Section 43 of the Trade Dispute Act CAP 18, Law of the Federation of Nigeria (LFN), 2004 and the International Labour Organisation's principles concerning employers' right during strike in essential services, the ...

Health workers seek payment of salary despite 'no work' – Punch ... - The Punch

Google International ADR News - Sun, 2018-06-03 11:57

The Punch

Health workers seek payment of salary despite 'no work' – Punch ...
The Punch
Eniola Akinkuotu, Abuja The Joint Health Sector Unions are seeking the payment of salaries of health workers who did not work for 43 days during t...

and more »

Health workers seek payment of salary despite 'no work' - The Punch

Google International ADR News - Sun, 2018-06-03 11:57

The Punch

Health workers seek payment of salary despite 'no work'
The Punch
It read, “In line with provision of Section 43 of the Trade Dispute Act CAP 18, Law of the Federation of Nigeria (LFN), 2004 and the International Labour Organisation's principles concerning employers' right during strike in essential services, the ...

and more »

Jumping on the TPF Bandwagon: Nigeria’s New Arbitration Bill Embraces Third-Party Funding

Kluwer Arbitration Blog - Sun, 2018-06-03 02:34

Joshua Karton and Abayomi Okubote

ITA

The past few months have witnessed several momentous developments for international arbitration in Africa. Angola, Cabo Verde, and Sudan acceded to the New York Convention; South Africa adopted a new International Arbitration Act; the OHADA Council of Ministers adopted three new texts on arbitration and mediation; and the Nigerian Arbitration and Conciliation Act (Repeal and Re-Enactment) Bill 2017 was passed by the Nigerian Senate. The Bill is presently before the Committee of the Whole at the House of Representatives and is likely to come into force around the end of the summer. Of all these developments, we believe that the passage of the Nigerian Bill will have the greatest lasting impact because it marks the first time an African state has established a permissive statutory scheme for third-party funding (TPF) in international arbitration.

The Bill addresses some of the flaws in the current Arbitration and Conciliation Act, beginning with adoption of the 2006 amendments to the UNCITRAL Model Law. It contains helpful new provisions on matters like immunity of arbitrator, appointing authorities; recognition and enforcement by courts of tribunal-issued interim measures; and computation of time limits for commencing proceedings to enforce an award. These provisions update Nigerian law to bring it in line with current global standards, and should be welcomed without controversy. What will cement the Bill’s place in history are its provisions on TPF. Assuming the Bill is passed into law with no or limited amendments, as we expect it to be, Nigeria will join Singapore and Hong Kong as the third jurisdiction to adopt a permissive statutory framework for TPF in international arbitration. A description of some of the other innovations in the Bill can be found here.

The legislative response to TPF is driven by a desire to realized its well-known benefits: improved access to justice and support for companies seeking to maintain balance sheet solvency and cash flow. With increasing capital inflows and growing commercial activity (and the attendant growth in commercial and investment disputes) Africa is poised to become a massive funding market. Nigeria should be commended for getting ahead of the curve and putting a permissive regulatory framework in place now.

The provisions of the Bill relevant to TPF are Sections 50 1(g) and 84, as well as Article 41(2)(g) of the Arbitration Rules attached as the First Schedule to the Bill. Section 50 1(g), which is mirrored in Article 41(2)(g) of the Arbitration Rules, provides:

1) The arbitral tribunal shall fix costs of arbitration in its award and the term “costs” includes: …
(g) the costs of obtaining Third-Party Funding

Section 84 defines TPF as “an arrangement between a specialist funding company, an individual, a corporation, a bank, an insurance company or an institution (the funder) and a party involved in the arbitration, whereby the funder will agree to finance some or all of the party’s legal fees in exchange for a share of the recovered damages.”

While these provisions represent progress, we believe that the lawmakers may be missing an opportunity to advance a more comprehensive TPF regulation, as the Bill does not address some of the core concerns about TPF related to the integrity of the arbitral process and the ultimate enforcement of awards. In what follows, we identify three areas where gaps in the current draft of the Bill ought to be filled.

Costs

First, we have concerns about the proposed Section 50(1)(g) of the Bill, which empowers arbitral tribunals to consider the costs of obtaining TPF in granting the costs of the arbitration.

It is widely accepted that arbitral tribunals have broad discretion to award costs (including both legal fees and the costs of the arbitration), unless the applicable rules or the parties’ agreement provide otherwise. However, it continues to be fiercely disputed whether the existence of a TPF relationship should affect the allocation of costs. We believe that tribunals should not consider the fact that a party’s claim has been funded by a third party in granting costs. Here, we differ with the recently- published ICCA-Queen Mary Task Force Principles on Third-Party Funding, which accepts that the costs of funding may be recoverable, depending on the definition of recoverable costs in the applicable law and rules (see paras. C.2-3.), and depending on such factors as whether the respondent’s conduct caused the impecuniosity of the claimant and whether the claimant had no other option but to seek funding from a third-party funder in order to pursue its claim (see p. 158).

If one accepts in principle that costs of funding should be recoverable, the Task Force’s recommendations are sensible. However, costs of funding should not be recoverable in any case, as a matter of both fairness and good policy. First, as to fairness, the funded party’s obligation to repay their funder is undertaken separately from any obligations arising under the main contract or arbitration agreement. Such liability is not a cost of the arbitration, and should not be imposed on the opposing party. Second, as to policy, permitting the recovery of funding costs as part of the costs of arbitration over-incentivizes TPF and is likely to lead to significant increases in the costs of arbitration. Funders will have an incentive to engage in expensive additional processes even if these only marginally increase the likelihood of success on the merits. In addition, including the costs of funding within the recoverable costs can significantly increase the overall costs awarded, leading to awards that may be unenforceable in practice.

On the flip side, and in the event that the Committee of the Whole currently working on the Bill retains the provision permitting tribunals to award funding costs to the prevailing party, it should ensure that information about those costs is disclosed early in the arbitral process. Ordering an unsuccessful respondent to pay the claimant’s funding costs constitutes a significant shift in the risks associated with the outcome of the arbitration. Respondents should be made aware of the scope of that risk early in the proceedings, so that they can make informed decisions on their own tactics and in settlement negotiations. That brings us to the next gap in the Bill.

Disclosure

The Nigerian Bill contains no provision relating to disclosure of funding arrangements for international arbitrations seated in Nigeria. By including a provision empowering tribunals to allocate the costs of funding without an accompanying mandatory provision on disclosure, the Bill leaves a costs award open to challenges of arbitrators or applications for annulment following the belated revelation of a previously undisclosed funder. In particular, without mandatory disclosure of TPF, it will be difficult for arbitrators and arbitral institutions to run conflict checks. We therefore fear a multiplication of challenges, and the potential for even meritorious challenges to be raised late in the proceedings or after an award has been rendered, leading to delays and disappointments. Moreover, a provision on disclosure is needed because the extant provisions of the Bill on independence and impartiality of arbitrators (Sections 8 (1) and (2)) do not deal with the ethical issues that may arise from TPF, in particular conflicts created by prior or ongoing relationships between arbitrators (or their law firms) and funders. Nigeria might look to Hong Kong, whose Arbitration Ordinance, amended in 2017, obligates funded parties to disclose to the administering institution and to the other parties the existence of the funding agreement, its date of commencement, and the identity of the funder.

Champerty and Maintenance

Curiously, the Nigerian Bill contains no provision abolishing the torts of champerty and maintenance. These common law doctrines continue to be in force in Nigeria and have been applied as the framework within which the validity of TPF arrangements is assessed. As recently as 2015, the Nigerian courts have reaffirmed that the financing of a lawsuit for a share in the proceeds of the suit is champertous. See Kessington Egbor & Anor v. Peter Ogbebor [2015] LPELR-24902.

It therefore remains open to a recalcitrant respondent to challenge a costs award that includes the costs of TPF on the basis that the funding relationship is champertous. Practically speaking, permitting TPF requires abolishment or limitation of the common law torts of champerty and maintenance, as Hong Kong and Singapore have done. Given the continuing attachment of the Nigerian courts to maintenance and champerty, and the identified gaps in the Bill, it will be interesting to see how the courts will interpret the TPF provisions in Bill if passed into law. The devil will certainly be in the details.

 

Abayomi Okubote is a PhD Student at Queen’s University, Canada and Dr. Joshua Karton is Associate Professor and Associate Dean at Queen’s University. The authors are both involved with a new initiative, Africa Arbitration, which has been launched to project the continent’s arbitration industry and jurisprudence.

 

To make sure you do not miss out on regular updates on the Kluwer Arbitration Blog, please subscribe here.

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The post Jumping on the TPF Bandwagon: Nigeria’s New Arbitration Bill Embraces Third-Party Funding appeared first on Kluwer Arbitration Blog.

How Should a Court Asked to Apply Article 8 of the Model Law Approach its Task: Challenges for the Arbitral/Court Interface (II) & Request for Comments “Procedure and Evidence in International Arbitration”

Kluwer Arbitration Blog - Fri, 2018-06-01 23:33

Jeffrey Waincymer

Part 1 of this blog argued that courts that are asked to resolve Article 8(1) Model Law disputes should adopt a deferential approach to tribunal competence under both a contextual and purposive interpretation of the Model Law or similar provisions aimed at giving effect to Art II(3) NYC. On this proposed view, such a court should consider validity under any law that a tribunal could properly apply. If a clause is valid under a law that could reasonably have been selected under the tribunal’s discretion, then the court should not be in a position to conclude to the contrary as to invalidity under the Article 8(1) test. In engaging in this exercise, the court should consider the lex arbitri powers of the tribunal as to applicable law, not its own domestic conflicts rules. In circumstances where the court bars litigation on this approach, it is not concluding that the agreement is valid. It is simply noting that it cannot conclude that the agreement is invalid. In so holding, it would simply be honouring its obligation to recognise an agreement that might be valid,1) A case that simply applies a default rule and then finds validity, is not problematic if it simply does so as part of this exercise, that is, finds that a default rule available as part of the tribunal’s discretion would support validity. Such cases are of concern, however, if they purport to set up the only possible default rule, or if the language in the judgment could be wrongly interpreted to that end, particularly if that then supports a finding of invalidity on future occasions. jQuery("#footnote_plugin_tooltip_6628_1").tooltip({ tip: "#footnote_plugin_tooltip_text_6628_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); leaving it to an annulment or enforcement court to have the final word and only if asked to so rule.

The only practical argument to the contrary would be to the effect that if the court proceedings were in the supervisory court and the evidence showed invalidity, why not have this determined at that stage so as not to force wasted costs via an arbitral determination. There are a number of responses to this. First, if invalidity is clear, the court can so hold and should do so. If it is debatable in circumstances where a tribunal would be more likely than not to find no jurisdiction, there would be little in extra wasted time and cost if the court stayed on the basis of a reasonable possibility of validity without a detailed evidentiary enquiry. To undertake a detailed factual analysis of debatable circumstances in a jurisdiction where even an annulment court has no pre-emptive powers barring a tribunal’s own determination of jurisdiction, would be decidedly wasteful and more-so for courts other than the putative supervisory court.

Secondly, if the court being asked to intervene was not the supervisory court, it not only cannot prevent the tribunal deciding the issue if asked, it is certainly unable to prevent the actual supervisory court reviewing that determination.2) A determination by a court outside the Seat made contrary to the wishes of the party asserting arbitral validity could hardly be res judicata for the supervisory court granted that jurisdiction under the applicable lex arbitri. jQuery("#footnote_plugin_tooltip_6628_2").tooltip({ tip: "#footnote_plugin_tooltip_text_6628_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); So any detailed determination by such a court would be inherently wasteful. There cannot be differing interpretations of Article 8(1) dependent upon whether the court approached is in the Seat or not or whether a court in the Seat has pre-emptive powers.

These questions must also consider the limited evidence before the Article 8(1) court as noted in Part 1. When validity is unclear in arbitration, the tribunal might hear a very broad range of evidence. Even in cases where the common law parol evidence rule must be considered, there will usually be sufficient ambiguity in the impugned arbitration agreement to allow for evidence of the background to the negotiations and to the contract’s drafting. An Article 8(1) court dealing with early procedural challenges is unlikely to be considering the same breadth of such evidence as might be presented to a tribunal. Deference should then apply both as to possible applicable laws and possible evidence. The court would effectively only conclude that an arbitration agreement is “null and void, inoperative or incapable of being performed,” if no reasonable tribunal could come to any other conclusion on potentially applicable law and on available and potentially admissible evidence.3) The one exception to the above thesis is where the court can validly conclude that, not-withstanding the fact that other jurisdictions might respect such a tribunal determination, from the perspective of their own country, the relevant arbitration agreement could never be accepted as valid. But this would not arise from some technical application of conflict of laws rules, but would instead be a result of domestic limitations on the concept of arbitrability. jQuery("#footnote_plugin_tooltip_6628_3").tooltip({ tip: "#footnote_plugin_tooltip_text_6628_3", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

The drafting history of the key provisions does not undermine this view. It shows that Article 8 was inspired by Article II (3) of the New York Convention, which was in turn inspired at the eleventh hour, by the 1923 Geneva Protocol on Arbitration Clauses.4) 27 League of Nations Treaty Series 158 (1924). English translation available here (date accessed 20/11/2017). E/AC.42/2 16 February 1955 ECOSOC. jQuery("#footnote_plugin_tooltip_6628_4").tooltip({ tip: "#footnote_plugin_tooltip_text_6628_4", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Nothing readily discoverable in the travaux preparatoires contradicts the thesis in this blog, although there is more to be found as to the Geneva Protocol and it is also true to say that very little discussion occurred as to the above questions of applicable law and standard of proof.

Even in the absence of such guidance, some commentators still suggest that contextually, it would only be logical to apply the same default law to Article II (3) NYC, as is mentioned in Article V (1)(a) NYC, that is, the law of the place where the award was made. The same argument could be made as to the Model Law, inviting the applicable law for Article 8(1) purposes, to be discerned from Articles 34(2)(a)(i) and 36 (1)(a)(i), which repeat the default rule found in Article V(1)(a) NYC. The first point to note is that there is a difference between looking to the arbitration law of the Seat as to how it determines validity,5) E.g. Dallah Real Estate and Tourism Holding Company (Appellant) v The Ministry of Religious Affairs, Government of Pakistan (Respondent) [2010] UKSC 46 jQuery("#footnote_plugin_tooltip_6628_5").tooltip({ tip: "#footnote_plugin_tooltip_text_6628_5", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); and instead, utilising the Seat’s domestic contract law for such purposes. Where the Seat has a Model Law based lex arbitri, it gives a broad discretion to tribunals that would not be problematic if viewed deferentially by an Article 8(1) court. Only an interpretation that reverts to the domestic contract law as “the law of the place where the award was made” would be truly problematic, not being binding in any way on a tribunal. The balance of this blog deals with that concern.

While it seems appealing to argue against the application of different governing laws to one and the same question posed at different stages or in different places, the thesis of this blog is that it is not in fact one and the same question. The thesis is that in interpreting Article 8(1) as it typically applies at early stages in litigation, one should adopt a deferential approach, looking to see whether there is reasonable potential for a tribunal to find validity under the applicable lex arbitri or arbitral rules. The proper question in that context, different to an enforcement court, is to discern what a tribunal may do methodologically, not what an annulment or enforcement court must do methodologically if the provisions are interpreted to allow recourse to a contract law of the Seat. If a court is then to ask itself the question that a tribunal would consider, it makes no sense to impose any binding default conflicts rules that do not equally bind the tribunal.

Articles V(1)(a) NYC and Articles 34(2)(a)(i) and 36 (1)(a)(i) Model Law are not truly analogous as they all deal with different scenarios. In these scenarios, annulment or enforcement courts respectively, are asked to definitively either support or overturn the award or definitively support or bar enforcement of the award. Each is making a final determination and must base this on the grounds both positive and negative as contained within the Model Law and the Convention and must limit themselves to the mandated methodology of those provisions, including as to applicable law. Even then, annulment and enforcement courts are given a discretion, even if the grounds for challenge are made out. There is also no guarantee that annulment or enforcement challenges would be brought or that the discretion to uphold would not be applied, even if the default rule led to invalidity.

The only logic in favour of an approach advocating use of the law of the Seat is to stand in the shoes of an annulment court. As noted in Part 1, any court can find invalidity if that is clear. But if it is not clear and if an annulment court may take a different view, its jurisdiction should not be pre-empted. Even if the grounds are made out, how would a different court stand in the shoes of the supervisory court’s discretion, or would it decide that there is no discretion, as none is mentioned expressly in Article 8(1)? If the court considering Article 8(1) was the putative supervisory court, it could rule if clear, but even then, would the exercise of the discretion not be better served by waiting until that country’s lex arbitri contemplated annulment proceedings?

Another way to look at this is to note that the New York Convention had no intention or mandate to decide on the general validity of arbitration agreements as they might found arbitrations. That was to be determined under the relevant lex arbitri. Yet if any non-Seat court could readily find invalidity under a law not binding on a tribunal, this would be the unintended effect.

Stated differently as to applicable law, is it conceivable that the drafters intended that the court and a tribunal each bound by the Model Law could employ different applicable laws in undertaking this exercise, simply because of default annulment and enforcement tests? For what policy reason consistent with Article 2A Model Law and its call for international interpretation of provisions such as Article 8(1), could that be justified? Certainly, an individual country’s court could have a parochial reason for doing so, but that could not be found within a coherent and international interpretation of the Model Law itself.

For the foregoing reasons, it is urged that Model Law courts hearing Article 8 applications should restrict themselves to asking whether a reasonable tribunal could find jurisdiction under the discretions available to it and if so, should respect the intent to recognise arbitration agreements and leave it to annulment and enforcement courts to comprehensively review if asked. Domestic conflicts default rules and presumptions as to implied intent have no determinative place in such an exercise, save when used in support of a finding of prima facie validity.

The author is preparing an article expanding on the above, which will include an analysis of the approach taken in various jurisdictions. Readers with particular thoughts/comments/experiences and/or criticisms of the above argument are invited to contact the author at [email protected].

 

Request for comments – second edition – Procedure and Evidence in International Arbitration

 

This is a call for feed-back following on from the above. I am in the process of completing a second edition of my treatise, Procedure and Evidence in International Arbitration, published in 2012 by Kluwer and also available on Kluwerarbitration (accessed from the homepage). The work aims to deal with all aspects of the arbitral process from beginning to end and aims to combine policy and comparative analysis with as many practical guides and comments as possible. It also seeks to engage with any differences in view on contentious questions, setting these out for the reader’s own reflection.

A work of this magnitude, seeking to cover arbitral practice anywhere in the world, and from beginning to end, will inevitably have gaps and errors. I would be most appreciative of comments from those blog readers who have used the work, as to such gaps, errors and possible misstatements and about any important new developments that I might not easily have been able to find and which I should seek to incorporate. Appropriate acknowledgement will be given unless commentators prefer to remain anonymous.

I am also very happy to receive general comments about style and how readers have found the work and any modifications that might improve its utility. The second edition will be broken into two halves, one on procedure and one on evidence. It will again take a broad approach to the notion of procedure and will as a result again also cover choice of law, remedies, interest and costs. The second edition will have a much-improved index to go with the comprehensive table of contents, each aiming to make it as easy as possible for users to find answers to their queries.

Comments can be sent to me at [email protected]. Ideally, comments should be sent by the end of July to guarantee that they can receive full attention, although I will aim to include whatever I can up until hand-over date.

To make sure you do not miss out on regular updates on the Kluwer Arbitration Blog, please subscribe here.

References   [ + ]

1. ↑ A case that simply applies a default rule and then finds validity, is not problematic if it simply does so as part of this exercise, that is, finds that a default rule available as part of the tribunal’s discretion would support validity. Such cases are of concern, however, if they purport to set up the only possible default rule, or if the language in the judgment could be wrongly interpreted to that end, particularly if that then supports a finding of invalidity on future occasions. 2. ↑ A determination by a court outside the Seat made contrary to the wishes of the party asserting arbitral validity could hardly be res judicata for the supervisory court granted that jurisdiction under the applicable lex arbitri. 3. ↑ The one exception to the above thesis is where the court can validly conclude that, not-withstanding the fact that other jurisdictions might respect such a tribunal determination, from the perspective of their own country, the relevant arbitration agreement could never be accepted as valid. But this would not arise from some technical application of conflict of laws rules, but would instead be a result of domestic limitations on the concept of arbitrability. 4. ↑ 27 League of Nations Treaty Series 158 (1924). English translation available here (date accessed 20/11/2017). E/AC.42/2 16 February 1955 ECOSOC. 5. ↑ E.g. Dallah Real Estate and Tourism Holding Company (Appellant) v The Ministry of Religious Affairs, Government of Pakistan (Respondent) [2010] UKSC 46 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
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The post How Should a Court Asked to Apply Article 8 of the Model Law Approach its Task: Challenges for the Arbitral/Court Interface (II) & Request for Comments “Procedure and Evidence in International Arbitration” appeared first on Kluwer Arbitration Blog.

Importing Arbitration Law from Canada Without Tariffs

Significant foreign judgments concerning arbitration statutes based upon the UNCITRAL Model Law capture limited attention in the US, because the US is not at the federal level or under the laws of 44 of the 50 states a “Model Law jurisdiction.” But in some of the six states that have adopted international arbitration statutes based on the Model Law (California, Connecticut, Florida, Georgia, Illinois, Texas), the number of locally-seated international arbitrations is said to be on the rise (and there is at least anecdotal evidence that this is so; see, for example, last month’s post: “International Arbitration in the California...
Read More »

Ottawa common law dean wants to be an institution builder - The Lawyer's Daily

Google International ADR News - Fri, 2018-06-01 07:35

The Lawyer's Daily

Ottawa common law dean wants to be an institution builder
The Lawyer's Daily
... breadth of internships the law school offers is another reason students come to the school, as are its technology law, health care law and public law and alternative dispute resolution programs. He also is proud of the school's international moot ...

Roy Israel, NAM President and CEO and 8 NAM Neutrals Named 2018 Alternative Dispute Resolution Champions - Digital Journal

Google International ADR News - Fri, 2018-06-01 07:02

Roy Israel, NAM President and CEO and 8 NAM Neutrals Named 2018 Alternative Dispute Resolution Champions
Digital Journal
NEW YORK--(Business Wire)--NAM (National Arbitration and Mediation) is proud to announce that Roy Israel, NAM President and CEO, and 8 of the firm's neutrals have been named 2018 Alternative Dispute Resolution Champions by The National Law Journal ...

Roy Israel, NAM President and CEO and 8 NAM Neutrals Named 2018 Alternative Dispute Resolution Champions - Business Wire (press release)

Google International ADR News - Fri, 2018-06-01 07:00

Business Wire (press release)

Roy Israel, NAM President and CEO and 8 NAM Neutrals Named 2018 Alternative Dispute Resolution Champions
Business Wire (press release)
NEW YORK--(BUSINESS WIRE)--NAM (National Arbitration and Mediation) is proud to announce that Roy Israel, NAM President and CEO, and 8 of the firm's neutrals have been named 2018 Alternative Dispute Resolution Champions by The National Law Journal ...

Arbitration agreements in Mexico - Lexology

Google International ADR News - Fri, 2018-06-01 06:16

Arbitration agreements in Mexico
Lexology
There is a trend to recognise arbitration clauses and promote alternative dispute resolution. Arbitration has been recognised at the constitutional level and a recent ... In principle, the rules of consolidation established in the arbitral rules of the ...

Arbitration in Mexico - Lexology

Google International ADR News - Fri, 2018-06-01 06:16

Arbitration in Mexico
Lexology
The code, a federal law applicable across the whole of Mexico, incorporates the Model Law of the UN Commission on International Trade Law (UNCITRAL) on arbitration, with minor modifications. The code applies to all arbitral proceedings brought in ...

Online Dispute Resolution a Reality in New Zealand - Scoop.co.nz

Google International ADR News - Thu, 2018-05-31 23:32

Online Dispute Resolution a Reality in New Zealand
Scoop.co.nz
FairWay is the largest alternative dispute resolution (ADR) provider in New Zealand and delivers services for all aspects of the conflict management cycle. Its stated purpose is leading the prevention and resolution of disputes, and ... “We're thrilled ...

How Should a Court Asked to Apply Article 8 of the Model Law Approach its Task: Challenges for the Arbitral/Court Interface (I)

Kluwer Arbitration Blog - Thu, 2018-05-31 23:31

Jeffrey Waincymer

A crucial issue in arbitration is determining the proper relationship between courts and the arbitration process. In addition to court challenges to preliminary jurisdictional decisions by arbitrators and court applications to annul awards or prevent enforcement, a number of other court actions also raise relationship issues. This blog is concerned with scenarios such as commencement of court proceedings or applications for leave to serve court proceedings out of the jurisdiction which are then contested on the basis of an alleged arbitration agreement;1) For example, Accentuate Ltd v ASIGRA Inc [2009] EWHC 2655 jQuery("#footnote_plugin_tooltip_4593_1").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); applications for an injunction restraining an arbitrator from proceeding,2) For example, Weisfisch v Julius [2006] EWCA Civ 218; [2006] 2 All ER (Comm) 504. jQuery("#footnote_plugin_tooltip_4593_2").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); or even applications to a court in support of arbitration,3) For example, a request for assistance in appointing a tribunal or a request for interim measures or an anti-suit injunction. jQuery("#footnote_plugin_tooltip_4593_3").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_3", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); where that is then opposed on the basis that the arbitration agreement is not valid. In most jurisdictions, such applications may lead to a contest under either Article 8 of the UNCITRAL Model Law, Article II (3) of the New York Convention, or provisions with equivalent effect. The court is asked to stay or deny jurisdiction in a case allegedly commenced in violation of an arbitration agreement,4) Civilian jurisdictions decline jurisdiction, while common law jurisdictions tend to stay judicial proceedings, but the effect in each case is the same, recognising and respecting the arbitration agreement and declining to proceed with litigation. jQuery("#footnote_plugin_tooltip_4593_4").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_4", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); or to refrain from assisting arbitration based on alleged defects in the arbitration agreement.

In such instances, the court must consider the status of the alleged arbitration agreement that is contested. Such courts may be asked to consider whether the alleged agreement is in fact an arbitration agreement, whether it relates to a dispute capable of settlement by arbitration and whether it avoids being seen as “null and void, inoperative or incapable of being performed.”5) Article 8(1) Model Law and Article II(3) New York Convention jQuery("#footnote_plugin_tooltip_4593_5").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_5", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); These elements arise from the combined language of Article 8 Model Law and Article II New York Convention. If the agreement does not fall foul of these criteria, the court must deny litigation access where that is sought contrary to the arbitration promise.6) In the scenarios where injunctive relief is sought in aid of either arbitration or litigation, a court may, in addition to considering these gateway elements of validity, also consider its own additional discretionary domestic principles as to when to allow such relief, such as the balance of convenience test, even if it finds the arbitration agreement to be valid or invalid. In the context of this blog, a court asked to support arbitration through some interim measure may also need to form a more definitive view as to arbitral validity, as a precursor to consideration of such a discretion. jQuery("#footnote_plugin_tooltip_4593_6").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_6", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

A plaintiff required to demonstrate arbitral invalidity so as to pursue litigation, would naturally assert such invalidity if reluctantly brought before an arbitral tribunal. Thus, both courts and arbitral tribunals might be called upon to address the question of validity. Because the Model Law and New York Convention criteria are found in provisions directed at courts, judges hearing the applications may consider that they have a duty to consider whether the criteria are satisfied or not.7) The Full Federal Court in Australia opined that it remains a discretionary matter in Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170 jQuery("#footnote_plugin_tooltip_4593_7").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_7", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); At the same time, Article 16(1) Model Law expressly grants competence to a tribunal to consider any jurisdictional challenge. In addition, Article 8(2) Model Law expressly allows a tribunal to continue with its processes, notwithstanding a conflicting application to a court. Hence, the Model Law expressly allows both courts and tribunals to consider validity, but makes no express stipulations as to methodology or standard of proof, and gives no indication as to whether one such empowered decision-maker should defer to a determination made by the other.8) This blog only addresses jurisdictions that apply the Model Law or whose lex arbitri have the same policy structure. In some other jurisdictions, express variations can either promote the relative role of the courts, or clearly express a position that greater deference should be given to tribunals. jQuery("#footnote_plugin_tooltip_4593_8").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_8", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

There are three main questions as to the approach that courts should then take to such applications. First, what is a court essentially being asked to do, given that there is also express competence given to an arbitral tribunal? Secondly, and related to the first question, what is the appropriate standard of proof for the court to apply to any Article 8 determination? As to the latter, should a court in which litigation is sought to be pursued, make a final independent determination of arbitral validity or invalidity, or should it merely undertake a preliminary analysis, and if so, defer to the tribunal in the first instance where there may be a reasonable possibility of validity? Thirdly, by what legal principles of interpretation and by what relevant evidence, will any such question of arbitral validity be determined? Even in jurisdictions with a strong pro-arbitration tradition, an alarming disparity of approaches to these questions is discernible.

As to the first two questions, it is submitted that a proper contextual and purposive interpretation of the Model Law should see courts take a deferential approach and simply determine whether the arbitration agreement may reasonably be valid in cases where court proceedings are opposed on the basis of a submitted arbitration agreement.9) As noted above, the situation is different where the court is asked to aid arbitration via some injunction against pursuing court action or via some interim measure in aid of the arbitration. Here a court would need to be satisfied of arbitral validity before taking such steps. jQuery("#footnote_plugin_tooltip_4593_9").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_9", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); In aid of this argument, one should consider Article 8(1) both in legal and practical context. As to legal context, there is a need for each court to find a coherent interpretation that integrates the Model Law’s express grant of jurisdictional competence to a tribunal under Article 16(1), as supported by Article 8(2), and the Model Law’s acceptance of a court’s power to consider limited jurisdictional questions at a point in time when Article 8(1) is enlivened. Most importantly, that contextual interpretation should also be integrated with a purposive approach, acknowledging the policy underpinning Article II (3) NYC, as this provision was the impetus for Article 8(1). Article II (3) acknowledged the need for courts to recognise arbitration agreements as well as awards if arbitration is to be viable. On this view, one would not wish to see both courts and tribunals hearing all available evidence concurrently and potentially coming to different conclusions on validity questions. One would instead wish to see all courts interpret the structure of the Model Law as calling for deference to tribunal competence, leaving it to annulment and enforcement courts to comprehensively review if asked. Yet courts must be allowed to do something. The logical corollary of a deferential interpretation would be that courts exercising an Article 8 mandate are asked to recognise arbitration agreements and allow a tribunal to exercise its competence, unless the material before the court shows that no reasonable tribunal could find validity. Article 8 is essentially about promotion of recognition, albeit with a limited exception, and should be interpreted as such.

The practical context aids this argument when one considers the types of proceedings and the potential venues where applications will be made under Article 8. As to type, these will be preliminary applications. In some legal systems, such applications are not even dealt with by a judge. In most cases, presentation and testing of detailed evidence via contemporaneous documents and cross-examination of witnesses would not be the norm. Certainly, most domestic litigation systems would allow a court to hear evidence on these applications, but being preliminary matters, there would invariably be reluctance to allow a full hearing with cross-examination, or allow for the generation of a full body of relevant material evidence, including by way of document production requests. It then makes further sense to conclude that the obligation on a court dealing with an Article 8(1) application is to seek at most a reasonable indication of a valid arbitration agreement. Otherwise, the court would be seeking to make a definitive ruling on arbitral validity without a full body of evidence, and in violation of due process norms that would invariably apply in that jurisdiction.10) The preferred approach would also be consistent with the due process spirit of Article 18 of the Model Law, even though that provision is not directed at courts. jQuery("#footnote_plugin_tooltip_4593_10").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_10", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); If the court instead sought full evidence to overcome this problem, it would duplicate the arbitral process and allow for messy arguments about admissibility and inconsistency of evidence between the two fora.

Such duplication is even more problematic when one considers the likely venue of an Article 8(1) skirmish. The courts that will most likely be asked to consider Article 8 applications, will either be courts in the defendant’s country, the plaintiff’s country, or at times, the place of performance of the contract, being the range of places where litigation standing is typically found. In the many cases where a neutral Seat has been selected, the court hearing the application will not even be the designated supervisory court of the alleged arbitration and could not bind the supervisory court. This is a further reason to support a deferential approach.

A majority of national courts state that they do indeed take a deferential approach, although there are significant exceptions and certainly no consensus view as to the proper interpretation of the Model Law. Even courts stating that they are adopting this deferential approach seem to diverge as to the question they purport to consider under such an analysis. Most do not seem to ask the above question as to whether a reasonable tribunal could find validity, but instead, seem to opine as to the validity of the agreement. Some seek to do so definitively, while others see their role as at least seeking to find prima facie validity. Neither a definitive nor prima facie analysis that held against validity and allowed litigation to proceed where a reasonable tribunal could nonetheless find validity, would be consistent with the latter standard.

Inconsistency also arises when courts see a need for identification of an applicable law of the arbitration agreement to assist in determining its validity. Courts then often allow conflict of laws principles to be determinative. Such courts typically note the autonomy of arbitration clauses as enshrined in Article 16 Model Law. They then invariably conclude that even a broad choice of law clause in a contract does not inherently apply to the arbitration agreement. In the absence of an express or implied choice applicable to the arbitration agreement, many courts will default to their domestic conflicts rule for contracts, at least where the arbitration agreement is contractual. In the common law world, this will be the closest connection test. These courts will then use any express, implied or default applicable law, in that order of priority, to determine when and on what basis, the arbitration agreement could be said to be “null and void, inoperative or incapable of being performed.” None seem to speak of what a tribunal might legitimately do as to applicable law in determining validity, even when this ought to be the corollary of the deference they acknowledge. Stated differently, they purport to be deferential, but use a default rule of applicable law, not binding on the tribunal.

Differences are also apparent as to the means to determine both express and implied intent as to applicable law. While all courts accept the doctrine of separability, not all agree on the way that it should impact upon applicable law. Some suggest that a general choice of law clause drafted in broad terms, could still evidence an express agreement as to applicable law for all parts of the contract.11) A tentative suggestion to this effect can be found in the judgment in Arsanovia Ltd & Ors v Cruz City 1 Mauritius Holdings [2012] EWHC 3702 (Comm), although the presiding judge did not so hold as it was not argued. One may agree or disagree as to the conclusion of fact, but that is separate to the core question in this blog as to whether and why there should be a default rule in the absence of express or implied choice. jQuery("#footnote_plugin_tooltip_4593_11").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_11", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Some courts instead see such a selection as a rebuttable inference of an implied agreement that such law should be used to interpret the arbitration agreement.12) SulAmérica Cia Nacional De Seguros S.A. and others v Enesa Engenharia S.A. [2012] 1 Lloyd’s Rep 671. The case was outside the main thrust of this blog as it dealt with an application to stay foreign litigation. In such a case, a court needs to take a view on balance that the arbitration agreement is valid before exercising such a power. Even then, it must if necessary, consider by what applicable law that should be determined. The case is problematic as much for how it is likely to be seen to have set up a presumption as to intended law that this blog suggests should not apply to classic Art 8 ML scenarios. It should also be noted that the court held against the presumption it proposed, based in part on an unproven (and unlikely) argument that the clause would have been invalid under Brazilian law, the proper law of the contract. Furthermore the key judgment noted that applicable law was not needed to support its conclusion of validity, yet opined at great length on the issue of how to discern that law. It is also not clear whether the aim of the supposed presumption is to shift the onus of proof in a common law setting, which would be undesirable. jQuery("#footnote_plugin_tooltip_4593_12").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_12", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Some courts consider instead, that selection of a Seat provides a rebuttable inference of an implied agreement that the law of the Seat should be used.13) FirstLink Investments Corp Ltd v GT Payment Pte Ltd and others [2014] SGHCR 12 jQuery("#footnote_plugin_tooltip_4593_13").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_13", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

Inferences as to intent are always problematic, particularly when articulated in generalist terms by appellate courts, as the relevant inferences are about essentially factual questions that will often be dependent on the circumstances.14) In this sense, cases seeking to apply SulAmérica or any other presumption, are likely to take less note than they should of Lord Neuberger’s salutary reminder in that case, that as implied intent is a factual question, it will need to be considered on a case by case basis, hence properly situating and undermining the value of any presumption. jQuery("#footnote_plugin_tooltip_4593_14").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_14", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); It is one thing to use such presumptions in favour of deferential pro-arbitration determinations by courts hearing Art 8(1) applications. This can be supported on the basis that such a conclusion of fact is open to a tribunal, so invalidity cannot be presumed. The real danger is if later courts noting the appellate determination, seek to apply some illogical inverse, holding that if the agreement would be invalid under the presumptive law, it should be concluded to be invalid by any court in that jurisdiction hearing an Art 8(1) application, no matter what a tribunal might legitimately do.

Common law courts then suggest that if such inferences cannot be drawn, a default closest connection test should apply. Presumably, in applying a default rule, such courts feel that being national courts, they must determine and apply national conflict of laws rules to these uncertain international matters. In the common law world, this often simply flows from opposing counsel presuming that this must be so. There is simply no reason for that view to prevail. For Model Law countries, each court should simply be seeking to give effect to its government’s intent to incorporate the Model Law into domestic legislation. While the Model Law is not a treaty, it operates in not dissimilar manner when individual countries adopt it verbatim and subject their courts to the international interpretation called for by its provisions, in particular, Article 2A. It is argued above that a contextual and purposive interpretation should lead to a deferential approach so as to acknowledge that Article 8(1) is the embodiment of the Art II(3) obligation to recognise arbitration agreements and is coupled with the express competence of tribunals to determine their validity when asked to do so. For a court that rightly takes a deferential approach on this twin basis, that should mean deferring in situations where a tribunal might find jurisdiction.

For these reasons, the court should simply ask whether a reasonable tribunal hearing all evidence could find validity. To engage in such an exercise can only mean considering the factors that a tribunal may consider. Otherwise there is no real deference. Most importantly, when considering which law to apply to determine validity of the arbitration agreement, the actual or potential arbitrator15) Dependent on whether arbitration has commenced or is only proposed. jQuery("#footnote_plugin_tooltip_4593_15").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_15", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); is not limited by any particular domestic court’s conflict rules. In many cases, a tribunal is not even bound to apply any national system of law to questions of validity.16) The substantive rules approach accepted in France is also available to most arbitrators and would not normally be overturned by annulment courts. jQuery("#footnote_plugin_tooltip_4593_16").tooltip({ tip: "#footnote_plugin_tooltip_text_4593_16", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); It then makes no sense for a court that might not even be the supervisory court, to apply a single domestic conflicts default rule from its own country in answering the validity question solely for the purpose of mandated recognition of arbitration agreements under the New York Convention. Default conflicts rules were developed unilaterally so as to deal with cross-border matters within the court’s jurisdiction. They were never intended to be the basis for the mandated international interpretation of the Model Law and the treaty promise to recognise arbitration agreements under the New York Convention. That becomes obvious when one sees that there is no consensus as to the default rule for interpreting arbitration agreements, some looking to the otherwise applicable law, with others looking to the law of the Seat.

The key point is that the deferential approach proposed in this blog, is not a normative suggestion as seems to be propounded by some commentators, but is instead, an argument as to the proper way to interpret Article 8 of the Model Law purposively and contextually, which would eschew both parochial conflicts rules or definitive determinations by Art 8(1) courts. The related thesis is that it is also illogical to claim that a deferential approach is being applied, but then ignore the options available to a tribunal and instead apply a domestic default rule or presumption as to implied intent.

Part II continues the analysis, including consideration of the applicable law norms in NYC and Arts 35 and 36 Model Law.

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References   [ + ]

1. ↑ For example, Accentuate Ltd v ASIGRA Inc [2009] EWHC 2655 2. ↑ For example, Weisfisch v Julius [2006] EWCA Civ 218; [2006] 2 All ER (Comm) 504. 3. ↑ For example, a request for assistance in appointing a tribunal or a request for interim measures or an anti-suit injunction. 4. ↑ Civilian jurisdictions decline jurisdiction, while common law jurisdictions tend to stay judicial proceedings, but the effect in each case is the same, recognising and respecting the arbitration agreement and declining to proceed with litigation. 5. ↑ Article 8(1) Model Law and Article II(3) New York Convention 6. ↑ In the scenarios where injunctive relief is sought in aid of either arbitration or litigation, a court may, in addition to considering these gateway elements of validity, also consider its own additional discretionary domestic principles as to when to allow such relief, such as the balance of convenience test, even if it finds the arbitration agreement to be valid or invalid. In the context of this blog, a court asked to support arbitration through some interim measure may also need to form a more definitive view as to arbitral validity, as a precursor to consideration of such a discretion. 7. ↑ The Full Federal Court in Australia opined that it remains a discretionary matter in Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170 8. ↑ This blog only addresses jurisdictions that apply the Model Law or whose lex arbitri have the same policy structure. In some other jurisdictions, express variations can either promote the relative role of the courts, or clearly express a position that greater deference should be given to tribunals. 9. ↑ As noted above, the situation is different where the court is asked to aid arbitration via some injunction against pursuing court action or via some interim measure in aid of the arbitration. Here a court would need to be satisfied of arbitral validity before taking such steps. 10. ↑ The preferred approach would also be consistent with the due process spirit of Article 18 of the Model Law, even though that provision is not directed at courts. 11. ↑ A tentative suggestion to this effect can be found in the judgment in Arsanovia Ltd & Ors v Cruz City 1 Mauritius Holdings [2012] EWHC 3702 (Comm), although the presiding judge did not so hold as it was not argued. One may agree or disagree as to the conclusion of fact, but that is separate to the core question in this blog as to whether and why there should be a default rule in the absence of express or implied choice. 12. ↑ SulAmérica Cia Nacional De Seguros S.A. and others v Enesa Engenharia S.A. [2012] 1 Lloyd’s Rep 671. The case was outside the main thrust of this blog as it dealt with an application to stay foreign litigation. In such a case, a court needs to take a view on balance that the arbitration agreement is valid before exercising such a power. Even then, it must if necessary, consider by what applicable law that should be determined. The case is problematic as much for how it is likely to be seen to have set up a presumption as to intended law that this blog suggests should not apply to classic Art 8 ML scenarios. It should also be noted that the court held against the presumption it proposed, based in part on an unproven (and unlikely) argument that the clause would have been invalid under Brazilian law, the proper law of the contract. Furthermore the key judgment noted that applicable law was not needed to support its conclusion of validity, yet opined at great length on the issue of how to discern that law. It is also not clear whether the aim of the supposed presumption is to shift the onus of proof in a common law setting, which would be undesirable. 13. ↑ FirstLink Investments Corp Ltd v GT Payment Pte Ltd and others [2014] SGHCR 12 14. ↑ In this sense, cases seeking to apply SulAmérica or any other presumption, are likely to take less note than they should of Lord Neuberger’s salutary reminder in that case, that as implied intent is a factual question, it will need to be considered on a case by case basis, hence properly situating and undermining the value of any presumption. 15. ↑ Dependent on whether arbitration has commenced or is only proposed. 16. ↑ The substantive rules approach accepted in France is also available to most arbitrators and would not normally be overturned by annulment courts. 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
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The post How Should a Court Asked to Apply Article 8 of the Model Law Approach its Task: Challenges for the Arbitral/Court Interface (I) appeared first on Kluwer Arbitration Blog.

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