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Silicon Valley Business Law Firm announces the addition of litigation attorney Austin Jackson to the Structure Law ... - PR Web (press release)

Google International ADR News - Mon, 2018-10-01 01:13

PR Web (press release)

Silicon Valley Business Law Firm announces the addition of litigation attorney Austin Jackson to the Structure Law ...
PR Web (press release)
Mr. Jackson's practice is focused primarily on mediation, arbitration, and alternative dispute resolution. His business litigation practice also includes contract and licensing dispute resolutions, trade secret misappropriation, ... Structure Law Group ...

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Silicon Valley Business Law Firm announces the addition of litigation attorney Austin Jackson to the Structure Law ... - Markets Insider

Google International ADR News - Mon, 2018-10-01 01:12

Silicon Valley Business Law Firm announces the addition of litigation attorney Austin Jackson to the Structure Law ...
Markets Insider
Mr. Jackson's practice is focused primarily on mediation, arbitration, and alternative dispute resolution. His business litigation practice also includes contract and licensing dispute resolutions, trade secret misappropriation, ... Structure Law Group ...

and more »

FIFA Ban on Third-Party Ownership: A Pyrrhic Victory for FIFA in Front of the Swiss Federal Supreme Court?

Kluwer Arbitration Blog - Sun, 2018-09-30 23:41

Simon Bianchi

Young ICCA

Over the last few years, third-party ownership of soccer players (“TPO”) has become controversial. TPO is a mechanism through which a soccer club assigns a player’s economic rights, including the right to benefit from transfer fees every time the player is transferred to another club, to third-party investors in return for a financial counterpart. Considering that TPO threatens the integrity of sporting competitions, the Fédération Internationale de Football Association (“FIFA”) eventually banned TPO in 2015. On 20 February 2018, the Swiss Federal Supreme Court rendered decision 4A_260/2017 addressing two important legal issues in this context: (i) the legality of the prohibition of TPO and (ii) the independence of the Court of Arbitration for Sport (the “CAS”) towards FIFA. In this decision, the Supreme Court rejected an appeal from the Belgian club RFC Seraing against a CAS award confirming the validity under European and Swiss law of Articles 18bis and 18ter of the FIFA Regulations on the Status and Transfer of Players (“RSTP”), which prohibit TPO agreements.

The dispute originated from two contracts entered into between RFC Seraing and Doyen Sports Investments Limited (“Doyen”) in 2015, according to which Doyen acquired ownership of certain soccer players’ economic rights against payment of a fixed fee to RFC Seraing. On 4 September 2015, the FIFA Disciplinary Committee found that RFC Seraing had violated Articles 18bis and 18ter RSTP and sentenced it to (i) a ban on recruitment for four consecutive registration periods and (ii) a fine in the amount of CHF 150,000 (approx. EUR 132,000).

On 9 March 2016, RFC Seraing brought the case before the CAS arguing that the decision of the FIFA Disciplinary Committee was to be rescinded as Articles 18bis and 18ter RSTP were in breach of (i) the free movement of persons, services and capital enshrined in the Treaty on the Functioning of the European Union (“TFEU”), (ii) European and Swiss competition laws, and (iii) RFC Seraing’s right to respect for private and family life under the European Convention on Human Rights (“ECHR”). Furthermore, RFC Seraing submitted that, in a previous case leading to the decision 4A_116/2016, the Swiss Federal Supreme Court following the CAS had already recognized the legality of TPO agreements.

In its final award dated 9 March 2017, the CAS rejected all legal arguments raised by RFC Seraing. In a nutshell, the CAS found the following:

(i) Even though Articles 18bis and 18ter RSTP restricted the free movement of persons, services and capital, these restrictions pursued legitimate objectives, such as preserving the regularity of sporting competitions and ensuring the independence and autonomy of soccer clubs and players. Furthermore, the possible anti-competitive effects of such restrictions were inherent to the pursuit of these objectives and proportionate to their achievement, especially since other financing schemes remained available to soccer clubs.
(ii) With regard to European competition law, it had already been recognized by the European Commission that FIFA constituted an association of undertakings within the meaning of Article 101 TFEU. However, Articles 18bis and 18ter RSTP did not have as their object the prevention, restriction or distortion of competition, but rather the regulation of the transfer market for soccer players in order to reach the above-mentioned legitimate objectives. In addition, RFC Seraing did not produce any documents evidencing the anti-competitive effects of these Articles. These considerations applied mutatis mutandis for Swiss competition law.
(iii) As to Article 8 ECHR, RFC Seraing did not demonstrate how it would apply and in which way Articles 18bis and 18ter RSTP would violate such provision.
(iv) Regarding the previous decision 4A_116/2016, the dispute did neither concern the conformity of TPO agreements with Articles 18bis and 18ter RSTP, nor deal with the legality of these Articles in light of the above-mentioned statutory provisions. Since the ratio decidendi of this decision did not concern the subject-matter of the present case, it did not bind the CAS in any respect.

Therefore, the CAS concluded that Articles 18bis and 18ter RSTP were valid under European and Swiss law and that the TPO agreements entered into between RFC Seraing and Doyen constituted a breach of these Articles. However, in light of the proportionality principle, the CAS reduced the ban on recruitment to three consecutive registration periods since the infringements occurred during the transitional period of the RSTP in its new version.

The Swiss Federal Supreme Court Decision
On 15 May 2017, RFC Seraing lodged an appeal to the Supreme Court against the CAS award and raised three legal arguments. First, the award was rendered by an arbitral tribunal which had been improperly constituted under Article 190(2)(a) of the Private International Law Act (“PILA”), in particular the CAS did not qualify as a proper arbitral tribunal because it lacked structural and economic independence from FIFA. Second, the arbitral award rendered by the CAS was incompatible with substantive public policy (Article 190(2)(e) PILA). Third, its right to be heard had been violated by the CAS (Article 190(2)(d) PILA).

The Supreme Court rejected RFC Seraing’s appeal and upheld the CAS award. In its judgment, the Supreme Court recalled the Lazutina decision, which recognized the CAS independence towards the International Olympic Committee, and affirmed that there is no prima facie justification to depart from this jurisprudence. Furthermore, since the Lazutina decision, the CAS had implemented numerous measures to reinforce its structural independence vis-à-vis sports federations. Concerning the economic dependence, FIFA financial participation to the CAS general expenses represented less than 10 % of the CAS total budget. That said, the Supreme Court also referred to the decision rendered in the Pechstein case by the German Federal Court of Justice which, after an extensive review of the CAS functioning, considered that it constituted a proper, independent and impartial arbitral tribunal. In conclusion, the Supreme Court did not find any valid legal ground to overturn its previous jurisprudence and confirmed that the independence of the CAS from FIFA was sufficient to consider the former as an independent and impartial arbitral tribunal.

Concerning the alleged breach of substantive public policy, the Supreme Court reiterated that competition law provisions, whether Swiss or European, do not form part of substantive public policy within the meaning of Article 190(2)(e) PILA as already decided in the Tensacciai case. Therefore, despite the fact that a Swiss arbitral tribunal shall consider Swiss and European competition laws when rendering an award, the Supreme Court would not review how the arbitral tribunal applied these competition law provisions in appeal proceedings.

Furthermore, the Supreme Court rejected RFC Seraing’s submission that TPO agreements were already declared lawful in the decision 4A_116/2016. Indeed, this decision concerned TPO agreements entered into prior to the ban adopted by FIFA, so that the CAS and the Supreme Court only reviewed whether such agreements were contrary to mandatory provisions of European and Swiss law. More specifically, the CAS and the Supreme Court noted in their respective decision that issues related to the financing of professional soccer clubs, such as the legality of TPO, had to be regulated by the relevant sports authorities. Therefore, these previous decisions did neither prevent FIFA from banning TPO, nor address the validity of such prohibition under European and Swiss law.

Finally, RFC Seraing’s contention that the prohibition of TPO violates Article 27(2) of the Swiss Civil Code, as it constitutes an excessive contractual restriction to its economic freedom, was dismissed since RFC Seraing remained free to resort to alternative financing mechanisms.

As to the alleged violation of RFC Seraing’s right to be heard, the Supreme Court found that RFC Seraing shall be precluded from raising such argument since it did not react immediately during the arbitral proceedings.

The Legality of TPO Remains Uncertain

While this decision of the Supreme Court adds to the already existing decisions about the independence of the CAS so that this issue can almost be considered as finally settled, the legality of the prohibition of TPO under European law remains far from being definitively confirmed. Indeed, the Brussels Court of Appeal, seized by RFC Seraing in parallel to the proceedings in front of the Swiss Supreme Court, rendered a partial decision on 29 August 2018 affirming that the obligation for soccer clubs to submit to the jurisdiction of the CAS was null and void as the corresponding arbitration clause was overly broad and not limited to a defined legal relationship (Article II of the New York Convention). Now that the objection to jurisdiction raised by FIFA has been rejected, the Belgian court is expected to address whether the prohibition of TPO is lawful under European law. To add complexity to this issue, the FIFA Disciplinary Committee issued a press release on 26 June 2018 indicating that players were not to be considered as “third party” under Article 18ter RSTP, which could trigger the return of TPO in another form. The TPO saga is just beginning and the Swiss Supreme Court decision might turn out to be a Pyrrhic victory for FIFA.

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The Kavanaugh Hearings Through the Lens of Arbitration

ADR Prof Blog - Sun, 2018-09-30 22:01
Greetings from Hong Kong, where the Kavanaugh hearings have been the subject of much discussion among non-American colleagues based here, many of whom stayed up into the night to watch the hearings live.  I have wanted to say something about this for a while now, and so I thank Jen Reynolds and John Lande for … Continue reading The Kavanaugh Hearings Through the Lens of Arbitration →

State Courts and BIT Arbitrations: Cautious Optimism in the Vodafone v. India Saga?

Kluwer Arbitration Blog - Sun, 2018-09-30 21:51

Aman Deep Borthakur

Young ICCA

A key issue that has assumed importance in BIT arbitrations today is the role of state courts vis-à-vis investment tribunals. Two aspects of this issue become particularly relevant when courts are faced with claims of vexatious BIT arbitrations: (i) the law applicable in the court’s supervisory capacity, and (ii) the extent to which courts can intervene in such arbitrations. On 7 May 2018, the Delhi High Court addressed these issues from the Indian perspective in Vodafone’s long-running retrospective taxation dispute with the Indian authorities. Its judgement is significant for the 20 plus investment disputes India is currently embroiled in.

Factual Background

On 17 April 2014, the Dutch company, Vodafone International Holdings B.V., initiated an arbitration under the Netherlands-India Bilateral Investment Promotion and Protection Agreement (BIPA), now terminated, disputing its tax liability under Indian statute. Several years later, on 24 January, 2017, Vodafone UK initiated an arbitration under the UK-India BIPA. The Indian government approached the Delhi High Court seeking an anti-arbitration injunction since both arbitrations were related to the same question. The Court dismissed the Indian government’s plea (CS(OS) 383/2017 & I.A.No.9460/2017).

The Ruling of the Delhi High Court

The Court adopted a pro-arbitration outlook while declining to issue the anti-arbitration injunction. It held that the UK-India tribunal was the appropriate authority to decide on the question of abuse of process caused by a multiplicity of proceedings under different BITs. Three related questions were adjudicated upon by the Court: (1) the jurisdiction of state courts to deal with BIT arbitrations, (2) the law applicable to such arbitrations, and (3) multiplicity of BIT proceedings.

Firstly, as regards the jurisdiction of national courts in investment arbitrations, the Court recognised that a signatory to the ICSID Convention would agree to completely negate the jurisdiction of national courts as made clear by Article 26 of the Convention. Countries such as India which are not signatories to the Convention are therefore not bound by this requirement. Hence, a national court in an ICSID non-signatory state such as India has the power to intervene in a BIT arbitration to decide jurisdictional questions if the subject matter of the dispute was in that country. In other words, there is no threshold bar to the jurisdiction of state courts in BIT arbitrations. However, due to the kompetenz-kompetenz principle, courts should exercise this power only in exceptional circumstances such as when no alternative efficacious remedy is possible.

Secondly, on the nature of an investor state arbitration, the Court drew a distinction between an international commercial arbitration and an investor state arbitration. It overruled India’s first investment arbitration court case (Board of Trustees of the Port of Calcutta v. Louis Dreyfus, decided by the Calcutta High Court), holding that commercial arbitrations are born out of the consent of private parties, while the latter is based on state guarantees arising out of treaties. Consequently, a BIT arbitration would not be subject to domestic arbitration statutes but to international law.

The third issue which the Court ruled on was the initiation of separate arbitration proceedings under a different treaty by an entity in the same vertical structure, in this case the U.K. based parent company. It observed that since such multiple proceedings would not per se be vexatious or oppressive, this was not an extraordinary circumstance warranting the court’s intervention. Therefore, this question was ultimately left to the India-UK tribunal.


The judgement in Vodafone is certainly a step forward in making India a more preferred seat for investment arbitrations. The court rightly recognised the competence of the UK-BIPA tribunal in being better placed to rule on its own jurisdiction.

However, a number of crucial issues merit clarification and improvement. For instance, the judgement does not define the extent to which international law would be applicable to a BIT arbitration, given specific choice of law clauses now common in a number of BITs. It also implicitly indicates a differential standard of scrutiny for intervention by a state court (whether the proceeding is abusive per se) as opposed to a tribunal. This requires clarity on what constitutes this prima facie standard of abuse of process on which the state court itself could intervene.

Furthermore, the Delhi High Court relied on international investment law cases instead of relying on the domestic Arbitration and Conciliation Act of India. This approach takes the distinction between investment and commercial arbitration too far by completely precluding the application of the Act. This is so because solely for the purpose of supervisory jurisdiction of a state court, an investment arbitration should not be treated differently from a foreign seated commercial arbitration. There is a need to draw a distinction between the substance of a country’s treaty obligations and the procedural aspects of a BIT arbitration. A state court should not intervene in questions such as whether an entity qualifies as an ‘investor’ under a treaty. These are matters that should be left entirely to the domain of a tribunal. However, the characteristic of a BIT proceeding as an arbitration should allow a state court to consider questions such as the granting of provisional measures, assisting in the taking of evidence or injunct vexatious BIT proceedings, as in this case. Adopting an entirely deferential stance towards international investment tribunals (especially problematic when the country in question is not a signatory to the ICSID Convention) would render courts unable to aid parties during BIT proceedings.

Therefore, while the substance of a BIT dispute may be governed by both public and private international law, procedurally it must be looked at from the lens of domestic law of the state court as if it were a commercial arbitration. As a consequence, Part II and Sections 9, 27 and 37 of Part I of the Arbitration Act (provisions applicable to foreign seated commercial arbitrations) would apply even to an investment arbitration with a foreign seat or no designated seat as in this case. Similar powers can be invoked under the statutes of other jurisdictions, most notably Sections 12A and 44 of the Singapore and UK arbitration legislations respectively. Furthermore, if the Act were to not be applicable, several practical issues would arise when invoking the supervisory jurisdiction of a state court. For instance, there would be no statutory scheme for the granting of interim measures by a court or execution of an investment award.

Courts have routinely applied domestic statutes while deciding on the recognition and/or enforcement of investment treaty awards. In both Sanum Investments v. Laos (PCA Case No. 2013-13) and Ecuador v. Occidental Exploration Company (LCIA Case No. UN3467), courts in Singapore and the U.K. respectively determined whether to set aside BIT awards based on provisions in their domestic arbitration statutes.

Lastly, while the court recognises the power of Indian courts to restrain/annul vexatious BIT arbitrations, it refuses to exercise its inherent power in this case on the ground that since Vodafone had offered to consolidate proceedings, there is no question of a double remedy (a view also taken by the CME v. Czech Republic Tribunal). However, there are other reasons apart from multiple awards as to why such arbitrations initiated by companies in the same vertical structure on the same facts are vexatious. The host state is put under a more onerous obligation of defending all of these arbitrations simultaneously while the investor need succeed in just one. However, as the Delhi High Court concurs, the abovementioned tactic is not per se unlawful and has been used in a number of arbitrations such as OI European Group BV v. Bolivarian Republic of Venezuela (ICSID Case No ARB/11/25). It is yet to be seen if Indian courts remain similarly cautious when called upon to exercise their powers to restrain such claims.


This decision has important consequences for the 51 countries India has BITs with at present. It firmly establishes that there is no threshold bar to the jurisdiction of Indian courts to issue anti-arbitration injunctions in investment arbitrations. The wide jurisdiction granted by Section 9 of India’s Civil Procedure Code and recognised by the court can potentially lead to greater court scrutiny of investment awards.

The Delhi High Court’s position on international law being applicable highlights another aspect of non-ICSID investment arbitrations. Article 42 of the Washington Convention provides for parties to agree on the applicable law failing which the law of the host state (including Conflict of Laws Principles) and international law become applicable. Since India is not an ICSID signatory, the BIT provisions must be relied upon. Most Indian BITs, including the UK-India BIPA, contain a clause to the effect that the dispute is to be decided in accordance with the provisions of the BIT. The judgement gives an indication that the interpretation of BIT provisions or any investor-state contracts which contain similar arbitration clauses will now take place in accordance with international principles and will not be subject to the same kind of grounds for annulment as in domestic law.

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The post State Courts and BIT Arbitrations: Cautious Optimism in the Vodafone v. India Saga? appeared first on Kluwer Arbitration Blog.

Teaching the Kavanaugh Hearings

ADR Prof Blog - Sun, 2018-09-30 16:47
On Thursday, I decided not to teach my scheduled ethics class and, instead, put on the Kavanaugh hearings.  During a break, we had about 30 minutes to talk as a class about the students’ impressions which ranged from he is lying to she is lying and everything in between (including the interruptions by the Judge, … Continue reading Teaching the Kavanaugh Hearings →

Marriage advice from divorce lawyers - The Standard

Google International ADR News - Sun, 2018-09-30 01:23

The Standard

Marriage advice from divorce lawyers
The Standard
He is the President of the Mediation Training Institute International in East Africa. Experience: 18 years ... All family law experts will tell you that before filing for divorce, couples should attempt alternative dispute resolution mechanisms. Such ...

China’s International Commercial Court: A Strong Competitor to Arbitration?

Kluwer Arbitration Blog - Sat, 2018-09-29 20:00

Li Huanzhi

In June 2018, China launched its first and second International Commercial Courts (the “CICC”). The advent of them represents a prolonged attempt of China to upgrade its judicial system by transplanting the advanced international practices to, according to the Supreme Court of China (the “SPC”), “provide services and protection for the “Belt-and-Road” construction (the “BAR”)”.

International commercial courts are certainly no novelty to the international dispute resolution (“DR”) community. Numerous ones have emerged during the past decade with the goal of enhancing the attractiveness of their host countries in the purview of the intense competition on international DR market as one of their main pursuits. However, such aim was rarely mentioned when establishing the CICC. The idea of building a mechanism and corresponding institution for solving disputes in servicing the BAR was first put forward in January 2018 by a CPC Central Committee Opinion. This Opinion set the tone for the CICC by emphasizing its ability to serve, instead of its attractiveness for international parties. The corresponding purpose is stipulated in the Recital of the Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court (the “Provisions”), which can be summarized as, firstly, to better manage international commercial cases, secondly, to create a better judicial environment for transnational players, and lastly, to facilitate the BAR construction. Although an avenue through which parties can voluntarily submit their disputes to the CICC is created, and some of the reforms made by the Provisions are indeed unprecedented, the CICC’s attraction for international cases may remain limited. I explain in this post why the CICC might only be a good “starting point” for China in the cause of being recognized as an attractive place for BAR disputes and could not, for the time being, replace international arbitration as the mainstream avenue.

1. Difficulties posed by the CICC’s jurisdictional approach

According to article 2(1) of the Provisions, parties can submit the first instance international commercial cases with actual connection with China and with an amount in dispute of at least 300 million RMB to the CICC by a jurisdiction agreement. Obviously, such approach leaves limited room for consensual jurisdiction and in practice, poses several difficulties for lawyers intending to select the CICC as the DR forum.

The first difficulty would be how to draft an effective DR clause to select the CICC. There is not always a positive correlation between the total value of a contract and the amount in dispute arising out of such contact. In other words, one cannot predict the “size” of the dispute when drafting a DR clause. Selecting the CICC in a jurisdiction agreement would produce too much uncertainty regardless of the “size” of the contract.

A “safe” way to select the CICC would be to adopt a “non-exclusive” choice of court clause stipulating that disputes over 300 million RMB will be submitted to the CICC and other disputes would be submitted to an arbitral tribunal or other Chinese courts. Nevertheless, the amount in dispute is not always fixed during a proceeding, as Mr. Wei Sun pointed out in his earlier post on this Blog. Cases where the amount in dispute exceed 300 million RMB after the acceptance of other courts either by the change of the claims by the claimant or filing counter-claims by the defendant, might have trouble reaching the CICC. Moreover, one cannot assume that cases with smaller amount in dispute are necessarily easier. Last, it is the truism that the Higher Court or the SPC could transfer tricky cases with the amount in dispute less than 300 million RMB to the CICC if they agree or decide to. Nevertheless, party autonomy would be completely deprived. Setting this quantifiable threshold might lessen the CICC’s workload at the first appearance, but the practical difficulties posed by this may result in parties not selecting the CICC at all.

It is also noted that only cases with actual connection with China can be submitted to the CICC. Here the stubborn Chinese judicial tradition, i.e., Article 34 of the Civil Procedure Law, comes into play. Article 34 enumerates several locations which parties can choose via a written jurisdictional agreement to enable the court of such locations exercising jurisdiction over their disputes. It specifically emphasizes that for a consensual venue to be valid, such venue must have actual connection with the dispute. Thus, the CICC would be difficult to satisfy the demands of parties seeking a neutral forum for BAR disputes.

Taking the other four types of jurisdiction of the CICC into consideration (i. cases transferred from the first instance Higher Court; ii. cases with significant nationwide impact; iii. cases involving application for preservation measure in arbitration and setting aside or enforcement of international commercial arbitration awards; and iv. cases designated by the SPC when it deems appropriate), essentially, they operate only as an internal allocation of jurisdiction inside of the Chinese court system. In other words, with the restriction on the consensual jurisdiction, the CICC might only facilitate the resolution of cases which are already under the Chinese jurisdiction. Moreover, in terms of the CICC’s judicial assistance for the enforcement of preservation measures and awards of international arbitration, parties would, in a way, be encouraged to use arbitration proceedings for BAR disputes.

There are significant differences between the CICC and other international commercial courts. The Singapore International Commercial Court (the “SICC”) requires only a written jurisdiction agreement for an action to be heard by it even where the dispute has no actual connection with Singapore. Similar approach is adopted by the Dubai International Financial Centre Courts (the “DIFCC”). As for the CICC, one may argue that the arrangement with regard to consensual jurisdiction would only enable international parties willing to bring cases to Chinese courts to have their disputes resolved by a more professional bench, instead of vying for jurisdiction with international institutions.

2. Difficulties posed by the Chinese upper laws

Building an international commercial court is never an isolated event. In the absence of a full-scale revision of the current laws, setting some special procedures for the CICC would not be able to eliminate parties’ concerns towards the Chinese judicial system.

A fully-internationalized commercial court requires the participation of reputable foreign judges and highly-professional international lawyers. However, according to Article 9 of the Chinese Judges Law, foreign experts are prohibited from sitting as judges on the CICC, because a judge must possess Chinese nationality. And only Chinese-admitted lawyers can act as legal representatives according to the Chinese Civil Procedure Law, even when the applicable law is foreign law. With its limited room for institutional innovation, the CICC created an internal International Commercial Expert Committee. Parties can use this Committee as the mediator after a case is accepted by the CICC. This approach does, somehow, inexplicably remove the meditation function from the collegial panel, while improving the enforceability of the mediation agreement by allowing the CICC to issue a conciliation statement or a judgment based on the mediation agreement upon parties’ request. The practical value of this Committee remains to be seen. However, it is obvious that this limited approach can by no means possess the same attractiveness compares to other courts with benches comprising leading international experts and flexible rules of representation for foreign lawyers, such as the SICC and the DIFCC, not to mention, to the international arbitration.

Moreover, the Chinese Civil Procedure Law does not provide any compulsive requirement for evidence disclosure before the start of hearings. The possibility of facing surprising evidence might be one of the biggest obstacles preventing a lawyer with common law background from trusting the Chinese judicial proceedings. The Provisions could have learnt from the SICC practices and opened a small window by allowing parties to exclude the application of the Chinese evidential rules and thereby grant more autonomy for parties to manage the proceeding. Regrettably, this issue remains unsolved.

In light of the preceding discussions, foreign lawyers’ reluctance in selecting Chinese courts as DR forum and their “medieval” impression of the Chinese judicial system can hardly be converted by the establishment of the CICC. Despite that, the CICC did achieve what it set out to achieve by helping transfer international commercial cases to the hands of a more professional and internationalized bench and creating a much more flexible and efficient procedure for those cases. The CICC may not be able to compete with international arbitration at this moment, but who is to say it will not be a good starting point?


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More Observations about the Kavanaugh Hearing

ADR Prof Blog - Sat, 2018-09-29 11:37
Yesterday, Jen wrote an insightful post analyzing Judge Kavanaugh’s problematic apology to Senator Klobuchar.  Interestingly, he committed the same offense with Senator Whitehouse – arrogantly responding to a question about his drinking by asking the senator about his drinking – but didn’t apologize to him. This post provides a few more observations about this remarkable … Continue reading More Observations about the Kavanaugh Hearing →

Turkey’s Court of Cassation Refuses to Enforce an Arbitration Clause in English Based on a Turkish Language Requirement

Kluwer Arbitration Blog - Sat, 2018-09-29 01:08

Courtney Kirkman Gucuk and Can Talaz

In a recent decision, Turkey’s Court of Cassation refused to enforce an arbitration clause in an English language contract between a Turkish party and a foreign party based on Turkey’s national language requirement for commercial enterprises, the Code on the Mandatory Usage of the Turkish Language in Commercial Enterprises No. 805 (“Law No. 805”).

The Contract

The contract at issue is a Licensing and Distribution Contract (“Contract”) between a Swiss company that produces and sells health products (“Swiss Co.”), as licensor, and a Turkish company that handles the import, export, marketing, and sales of health products (“Turkish Co.”), as licensee. The parties signed the Contract in English, without a Turkish counterpart. The Contract is governed by Swiss law and includes an arbitration clause.

The Turkish Court Proceedings

Swiss Co. filed for a declaratory judgment against Turkish Co. in the Turkish court of first instance, the 12thCivil Commercial Court of Ankara (“Commercial Court”). Swiss Co. asked the Commercial Court to declare that Swiss Co. had rightfully terminated the Contract based on Turkish Co.’s non-performance of its contractual obligations. Turkish Co. objected to the request of the Commercial Court to hear the merits of the case because of the existence of an arbitration clause. This argument was accepted by the Commercial Court.

Swiss Co. appealed the Commercial Court’s decision. The Court of Cassation overruled the Commercial Court’s decision on the grounds that the Commercial Court had failed to take into account in its decision Law No. 805 and the obligation of Turkish parties to draft contracts in the Turkish language, and it remanded the case to the Commercial Court.

On remand, the Commercial Court accepted the Court of Cassation’s reasoning and denied Turkish Co.’s objection to its jurisdiction to hear the substantive case based on the arbitration clause. The Commercial Court noted that while the contract is valid, the arbitration clause could not be invoked by Turkish Co. Accordingly, the Commercial Court made a substantive ruling on the merits and decided that Swiss Co. had rightfully terminated the Contract.

Turkish Co. appealed the Commercial Court’s decision, and argued that Law No. 805 did not apply to commercial contracts, but only to commercial books and records. The Court of Cassation rejected Turkish Co.’s argument and upheld the Commercial Court’s decision. It found that based on Article 4 of Law No. 805, Turkish Co. could not invoke the arbitration clause because it was in English. The Court of Cassation upheld the Commercial Court’s decision that Swiss Co. rightfully terminated the Contract.

Turkish Co. has appealed the Court of Cassation’s decision and asked for a correction of the judgment (karar düzeltme) and the case is currently pending before the 11thCivil Law Chamber of the Court of Cassation.

Law No. 805

Law No. 805 is relatively short, comprised of only nine articles. It was adopted in 1926, shortly after Turkey became a Republic in 1923, when Turkey was actively promoting the use of the Turkish language as state policy.

The most important provisions of Law No. 805 are as follows:

Article 1: “All types of Turkish companies and enterprises shall use the Turkish language in all kinds of transactions, contracts, communication and bookkeeping in Turkey.”

Article 2: “For foreign companies and enterprises, this obligation applies to all kinds of transactions and communications with Turkish companies and persons, and whenever foreign companies are obliged to disclose documents and company books to government bodies or officials.” Unlike Article 1, Article 2 does not include the word “contracts”.

Article 3: “Even though the companies referred in Article 2 can use a secondary foreign language in their transactions, the Turkish copy shall prevail, and the binding signatures shall be put on the Turkish copy of such documents. In case the signatures are on the foreign language copy of the contract despite this prohibition, the Turkish text shall be acknowledged.”

Article 4: “Documents and papers that are drafted after this Law becomes effective and are in violation of the above articles will not be taken into consideration for the benefit of the companies and enterprises.”

Article 7: “Any person that acts in contradiction with the provisions of this Law shall be imposed with a judicial fine that is not less than one hundred days.”


Although Turkish parties and foreign parties routinely enter into contracts only in English, to our knowledge this decision is one of less than a dozen cases in which the Turkish courts have applied Law No. 805. The Court of Cassation selectively applied Law No. 805 to deny enforcement of the arbitration clause by Turkish Co., but enforced the rest of the Contract (also in English) on behalf of Swiss Co. Unfortunately, the Court of Cassation did not give a detailed analysis in its decision.

A look back at the few decisions in which Law No. 805 has been applied by the Turkish courts does not provide much guidance.

  • 1977: The court enforced a clause which was written in the English language and contained in a Turkish contract, finding that the clause was customarily in English.
  • 1979: The court refused to enforce a due date clause which was in English and contained in a bank security letter in Turkish given to a government office.
  • 1986: The court dismissed the argument that a foreign company doing business in Turkey should execute a contract in Turkish.
  • 2006: In a dispute between a Turkish bank customer and a Turkish branch of a foreign bank, the court of appeals found that the lower court should have considered Law No. 805.
  • 2009: In the same dispute, on remand the lower court decided that the Turkish branch of a foreign bank could not rely on a contract that was not in Turkish.
  • 2012: The Court of Cassation directed the lower court to consider, because both parties to the contract were Turkish, whether Law No. 805 applied to the dispute, and if so, to decide whether the arbitration-related clauses of the contract would benefit the defendant.
  • 2014: In a dispute between a foreign pharmaceutical company and a Turkish distributor, the court dismissed the case because it found the arbitration clause was invalid in the contract as it was drafted in English.
  • 2015: In a dispute between two Turkish companies related to a sales agreement in English, the Court of Cassation remanded the case because the lower court did not consider Law No. 805. On a second appeal, the Court of Cassation remanded again, finding that the dispute should not be resolved based on the contract but on general Turkish laws.


While the Court of Cassation’s recent decision sheds some light on the interpretation of Law No. 805, it also leaves some questions. Significantly, the Court of Cassation’s application of Law No. 805 to the Contract resulted in the enforcement of the Contract except for the arbitration clause. Because the Court of Cassation (and the Commercial Court in the earlier decisions) did not explain its reasoning in detail, we cannot be sure of the entire legal basis for the denial of Turkish Co.’s invocation of the Contract’s arbitration clause.

The Court of Cassation may have differentiated between the parties, as Law No. 805 imposes slightly different obligations on Turkish and foreign parties. In fact, it reasoned, applying Article 4, that the arbitration clause could not be taken into account for the benefit of Turkish Co. That is, Turkish Co. failed to comply with Law No. 805 in making the arbitration agreement and cannot invoke arbitration as a defense in seeking termination of the Turkish court litigation against it. The Court of Cassation also may have reasoned that the arbitration clause was rendered inapplicable for both parties because an arbitration clause that could be invoked by only one party (here, Swiss Co., as a result of Article 4 operating to preclude Turkish Co. from invoking the arbitration clause) would be invalid under Turkish law. The Court of Cassation has a very high standard for assessing the validity of arbitration agreements, which must establish explicitly, exclusively, with certainty, and without any doubt the parties’ agreement to arbitration. Here the Court of Cassation may have decided that an arbitration clause in violation of Law No. 805 is not exclusive, if not valid.

Going Forward

We await the final decision of the Court of Cassation, which could clarify the scope of application of Law No. 805. Until then, foreign and Turkish parties doing business together in Turkey should be cautious and may wish to execute their arbitration agreements as separate contracts in English and Turkish versions. For existing contracts including arbitration clauses between foreign parties and Turkish parties that have been executed in only English, if the parties agree, a Turkish version of at least the arbitration clause can always be executed to avoid possible future complications.

The case reference is: X v. Y, Court of Cassation, 11th Civil Law Chamber, File No. 2016/5836, K. 2017/4720, dated 26/09/2017.

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Calif. Court To Review $414M Award Nixed Over Bad Service - Law360

Google International ADR News - Fri, 2018-09-28 17:01

Calif. Court To Review $414M Award Nixed Over Bad Service
Ltd. in a default judgment after the Chinese company failed to show up for an arbitration stemming from their soured business deal to market international fonts. The American company then had the award confirmed in California trial court in a ...

Calif. Court To Review $414M Award Nixed Over Bad Service - Law360

Google International ADR News - Fri, 2018-09-28 16:56

Calif. Court To Review $414M Award Nixed Over Bad Service
Ltd. in a default judgment after the Chinese company failed to show up for an arbitration stemming from their soured business deal to market international fonts. The American company then had the award confirmed in California trial court in a ...

Kavanaugh Apologizes to Klobuchar

ADR Prof Blog - Fri, 2018-09-28 16:42
In case you hadn’t heard, yesterday Judge Kavanaugh appeared before the Senate Judiciary Committee to respond to Dr. Christine Blasey Ford’s allegation that he sexually assaulted her when they were teenagers. His testimony, both what he said and how he said it, provides much for us to analyze. Consider this exchange with Senator Amy Klobuchar: … Continue reading Kavanaugh Apologizes to Klobuchar →

Challenging arbitral awards - Lexology

Google International ADR News - Fri, 2018-09-28 03:08

Challenging arbitral awards
In any case, the Greek courts are reluctant to set aside arbitral awards or refuse their enforcement, thus indicating that recourse to arbitration for local and international cases is a valuable instrument in alternative dispute resolution, especially ...

Ryanair strike: 250 flights cancelled in walkout - The Independent

Google International ADR News - Fri, 2018-09-28 02:39

The Independent

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The Independent
Ryanair cancelled 250 flights, affecting around 40,000 passengers, ahead of a coordinated one-day strike on Friday 28 September by pilots and cabin crew in Spain, Portugal, Belgium, the Netherlands, Italy and Germany. Various unions called for their ...
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Mediation Summit in Changsha, China

Business Conflict Blog - Mon, 2018-09-17 04:46

The China Council for Promotion of International Trade (CPPIT) in conjunction with its Hunan Province Sub-Council convened a dynamic Mediation Summit in Changcha, China, on 12-13 September 2018.

The first panel discussed implications of the Belt/Road Initiative, announced five years ago.

GAO Xiaoli, Deputy Chief Judge of the Civil Tribunal of the Supreme People’s Court, addressed how Chinese courts can provide assistance in international disputes, particularly international commercial mediation.  She noted that increased engagement in international trade has challenged China’s capacity to resolve commercial trading disputes efficiently and in line with disputants’ interests.  She rejected the model of mediation as a substitute for litigation, and suggested that there is no need to approach the challenge with an “either/or” attitude.  It does require that mediated agreements be enforceable (either judicially or through the notary process), strengthening the effectiveness of the international mediation process.  Enforcement proceedings should also be quick and not protracted, and sensitive to commercial demands.  She proposed certain procedural administrative improvements to support the growth of mediated resolutions.  Some of these – such as court-appointed mediation — were promulgated already by decree dated 27 June 2018.    (A later panel, which I moderated, addressed enforcement of mediated settlement agreements through the newly promulgated Singapore Convention.)

Pasit ASAWAWATTANAPORN, Managing Director of the Thailand Arbitration Center, noted that his country is an important trade and investment partner with China.  It has benefited from China’s aggressive investment activities in connection with Belt/Road, resulting in a 10% growth in Chinese trade.  Thailand’s own infrastructure plans are heavily influenced by Belt/Road, for example the high-speed train from China through Laos to Thailand.  These public and private investments amount to at least 1.5 trillion baht (USD 45 billion) in the past five years, including roads, airports, hospitals, ports and tourism.  In acknowledgement of the critical nature of the success of these projects, the Thai government has eased restrictions on foreign workers, loosened regulations of procurement laws, and – in the case of the high-speed train project – taken actions to anticipate and forestall disputes.  He noted that arbitration is not the ideal approach inasmuch as disputes in this area are best addressed early, inexpensively, and with the goal of a consensual outcome.

CHEN Fuyong, Deputy Secretary General of the Beijing Arbitration Commission, offered several case studies of disputes that have arisen from activities associated with Belt/Road.  One was a construction dispute between a Hong Kong and Beijing corporations to complete a construction located in Russia, featuring an arbitration clause before the Beijing Arbitration Center.  Claimant initiated such an action, but Respondent sought to enforce the requirement of mediation prior to arbitration.  The arbitral tribunal interpreted the Russian “Development Project General Contract” to be too general to enforce, and permitted the arbitration to go ahead.  In another case involved a purchase agreement providing for payment by the acquired company of contingent debt or outcomes of lending legal proceedings.  Dispute resolution proceedings were sufficiently vague as to be commercially ineffective.  The lesson is a general one – clarity matters when drafting dispute resolution agreements and when transferring risk through contracts of insurance.

Prachant KUMAR, of the Bar Association of India, noted you can choose friends and enemies but not neighbors, and the close regional reliance with China has dictated consensual, non-confrontational dispute resolution processes between Chinese and Indian businesses.  Cultural traditions such as frugality, efficiency, and attention to elders inform the use of consensual resolution processes in the region; it is simpler and more cost-effective than alternatives.  He warned of the risk that, as happened with international arbitration, the simple features of mediation may be made obscure, legalistic and expensive if appropriated by the legal community.  He used an iPhone as an example of something that contains much expertise, but is designed to be very simple for the user of the device.  He urged that companies engaging in cross-border deals opt for simple agreement language, close monitoring of local advisors, and early attention to operational issues that, if left unattended, could develop into formal, disruptive disputes.  He reported on a 2018 initiative in Indian courts that commercial disputes be mandatorily referred to mediation – an effort that, if successful, could have a substantial and welcome impact on the state of civil justice in India.


Supreme Court Grants Cert Addressing Delegation of Arbitrability

Business Conflict Blog - Thu, 2018-07-05 13:46

Upon reconvening in October 2018, the Supreme Court will take up  an interesting question involving the familiar rules of First Options v. Kaplan:  Who is to decide whether a claim is subject to arbitration — a court or the arbitrator?  The peculiar facts giving rise to that concern in Archer and White Sales Inc. v. Henry Schein Inc. broaden, rather than limit, the case’s interest.

Archer, a distributor and seller of dental equipment, brought a suit against Schein, a manufacturer, alleging violations of the Sherman Antitrust Act through a pattern of conduct including price-fixing and anti-competitive agreements that were continuing.  The suit sought both money damages and an injunction prohibiting the continuing conduct.

Schein moved to compel arbitration pursuant to an arbitration agreement that required the application of AAA Rules and that carved out of its scope “actions seeking injunctive relief.”  The Magistrate Judge granted the defendants’ motion to compel arbitration on the grounds that (a) the choice of AAA Rules evince an intention to delegate arbitrability to the arbitrator, and that (b) the arbitration agreement can be reasonably construed as contemplating the inclusion of this dispute.

(AAA Rule 7(a) provides that an “arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.”)

The district court vacated the Magistrate Judge’s order and held that the dispute was not arbitrable  pursuant to the arbitration agreement, because it expressly carved out any claim for the injunctive relief sought by the plaintiff in the action.

Upon appeal to the Fifth Circuit, the parties agreed to the existence of an arbitration agreement, but not to whether its scope included the filed action.  Following its precedent in Douglas v. Regions Bank, the court entered into a two-step analysis, asking first whether the parties “clearly and unmistakably” intended to delegate the question of arbitrability to an arbitrator, and second whether there is a plausible argument for the claim’s being arbitrable.  This is so because, according to the Douglas analysis, if the argument of arbitrability is “wholly groundless,” it made no sense to send to an arbitrator a dispute as to which there are no grounds whatsoever for arbitration.

As to the first step — whether the parties unmistakably agreed to delegate arbitrability — the court skirted the question of whether AAA Rule 7(a) delegated the question of arbitrability to claims that are subject to the carve-out in the arbitration agreement.  Instead, it held that the second Douglas step was dispositive irrespective of the resolution of that first inquiry.  That second-step analysis was straightforward, according to the Fifth Circuit.  The arbitration agreement “expressly excludes certain types of disputes,” and among them are claims for injunctive relief.  Here we have a dispute where the claimant seeks injunctive relief.  Any conclusion  that the claim is subject to arbitration is therefore “wholly groundless,” and the court could see “no plausible argument that the arbitration clause applies” to it.  The district court therefore properly determined that the action was not subject to arbitration, and its order denying defendants’ motion to compel was affirmed.  “The mere fact that the arbitration clause allows [plaintiff] to avoid arbitration by adding a claim for injunctive relief does not change the clause’s plain meaning.”

[Note to Self:  Revise slide 19 of the “Drafting Arbitration Clauses” Power Point!]

So we have several interesting questions.  Does a clause carving out “actions seeking injunctive relief” carve out that portion of an action that seeks an injunction, but preserve that portion that seeks monetary damages?  Is the idea of booting “wholly groundless” claims of arbitrability properly applicable only to claims having nothing whatsoever to do with the contract at issue (say, a claim for an unrelated, non-contractual injury)? In determining the “wholly groundless” nature of the assertion of arbitrability, is the court improperly construing the arbitration agreement, in derogation of the parties’ determination that the arbitrator should do so pursuant to AAA Rule 7(a)?  Is there an at-least-colorable construction of the carve-out language that would hold that the parties may come to court to seek injunctive relief, but must arbitrate claims for money damages?

At least we will have no doubt about “who decides” these questions — the Supreme Court will.

Music for Mediators

The Mediation Times - Sun, 2013-05-26 16:07
For years I have talked about the similarity of mediation with both photography and music, particularly jazz. I have been clearing out my inbox and came across an hilarious email trail between some of the UK’s top mediators. The topic – songs for mediators, parties and mediation! I thought I would share … Thank to [...]
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