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Former Senate aide James Wolfe arrested for lying to FBI - Fox News

Google International ADR News - Sat, 2018-06-09 15:07

Fox News

Former Senate aide James Wolfe arrested for lying to FBI
Fox News
And second of all, that we get rid of what are called alternative dispute resolution mechanisms. Well, that's a way for American businesses to get quick resolution of trade disputes with Canada which was so we want it, and no company is going to invest ...

How to Solve Property Disputes in Dubai? - Lexology

Google International ADR News - Sat, 2018-06-09 02:41

How to Solve Property Disputes in Dubai?
Lexology
Arbitration via Dubai International Arbitration Centre (DIAC) and other institutions. Arbitration as an alternative dispute resolution mechanism is highly recommended for complex commercial cases. However, some property cases cannot be arbitrated for ...

Transparency, Legitimacy, and Investor-State Dispute Settlement: What Can We Learn from the Streaming of Hearings?

Kluwer Arbitration Blog - Sat, 2018-06-09 01:40

Colin Trehearne

Herbert Smith Freehills

[I]t is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.1) R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, 259 (Lord Hewart C.J.) jQuery("#footnote_plugin_tooltip_9909_1").tooltip({ tip: "#footnote_plugin_tooltip_text_9909_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

If you sought to distil [the connection between ISDS’s transparency and legitimacy] to a single point, it would be that transparency is a necessary condition of the legitimacy of ISDS.2) Michael Douglas, “The Importance of Transparency for Legitimising Investor-State Dispute Settlement: An Australian Perspective” in the New Zealand Association of Comparative Law, Hors Serie Volume XIX (2015) Part I: Investor-State Dispute Settlement and UNCITRAL Texts on Transparency, at page 112. (“Douglas”) jQuery("#footnote_plugin_tooltip_9909_2").tooltip({ tip: "#footnote_plugin_tooltip_text_9909_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

Scholars, NGOs, and practitioners have been discussing the legitimacy of investor-state dispute settlement (“ISDS”) for years. Much of this debate has focused on the critique that ISDS, usually taking the form of confidential and binding arbitral proceedings, sees private and unelected tribunals determining matters thought to be of public importance. Some activist and media publications (such as in this local newspaper or in this news website) also allege a host of profound ills arising from ISDS: negative impacts on systems of criminal justice, the protection of kleptocracy, and the placing of pressure on host states to assist in the murder of environmental activists.3) The author notes that addressing such critiques is beyond the scope of this blog post. jQuery("#footnote_plugin_tooltip_9909_3").tooltip({ tip: "#footnote_plugin_tooltip_text_9909_3", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); All of this harm is compounded still further, it is argued, by the fact that ISDS is largely conducted behind closed doors.

The Open Court Principle

The argument that justice should be seen to be done, also known as the open court principle, is nothing new to interlocutors from (at least) the common law world. Generally speaking this principle holds that both proceedings and the record, including the evidence submitted in the matter, should be available for public scrutiny. In many jurisdictions this principle has become enshrined in law and, in some locations, in the constitutions of States. Openness is argued to foster fairness and to allow individuals to determine for themselves whether or not legal matters are being conducted in accordance with the rule of law.4) See, for example, Douglas at pages 117 and 119. jQuery("#footnote_plugin_tooltip_9909_4").tooltip({ tip: "#footnote_plugin_tooltip_text_9909_4", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Transparency is thought to foster legitimacy, and on some views, is a condition of legitimacy.

For these and other reasons, court systems throughout the world have sought to increase transparency and in many cases have begun either time-delayed or live streaming, on the internet, of proceedings. The Supreme Court of England and Wales, for example, both live streams cases and provides on-demand access to some of its past proceedings. According to the Court, about 15,000 people used the live streaming service per month in the seven months following its launch. Similar services are available in other jurisdictions, such as Canada – where the norm is to broadcast Supreme Court proceedings online and to provide video archives of almost the last 10 years of hearings. In Australia the High Court and other levels of court offer similar services. Similar efforts in China, too, demonstrate that this trend is not limited to the common law world. Courts are not alone, however, in looking to technology to improve transparency and thereby to increase perceived legitimacy.

Transparency in the Proposed Investment Court System and ISDS

In 2015 the European Commission proposed the introduction of its Investment Court System (“ICS”) for inter alia the Transatlantic Trade and Investment Partnership. In a speech introducing the idea, Commissioner Cecilia Malmström referred to a “fundamental lack of trust by the public” in the traditional ISDS system and stated that the answer to this problem was clear: “We need to introduce the same elements that lead citizens to trust their domestic courts. This is the only way to establish trust in this system.” With regard to how this will be achieved, Commissioner Malmström set out various elements of the new ICS and affirmed that: “All this will be done in a system that is even more transparent than in domestic courts. All documents will be online and hearings will be open to the public.”

Against this background, participants in and defenders of traditional ISDS have also taken significant steps to increase legitimacy through increased transparency. The adoption by the United Nations Commission on International Trade Law (“UNCITRAL”) of Rules on Transparency in Treaty-based Investor-State Arbitration (the “Transparency Rules”) were thought to hold the potential to blaze a trail towards ISDS transparency and the UN Convention on Transparency in Treaty-based Investor-State Arbitration was thought yet another step. Certain key institutions, including the International Centre for Settlement of Investment Disputes (“ICSID”), have used technology – including the live streaming of hearings – to increase transparency. It is now approaching 10 years of practice since the first case in which an ICSID hearing was publicly webcast (Pac Rim Cayman LLC v. Republic of El Salvador (ICSID Case No. ARB/09/12)). This practice has continued, most recently with BSGR et al v. Republic of Guinea (“BSGR”) — the first ISDS case to apply the Transparency Rules under the ICSID Convention, with the resulting recording available on ICSID’s YouTube channel.

BSGR

The Kluwer blog has previously considered BSGR and examined the sources and implications of its transparency provisions. Interestingly, however, we are now better placed to answer a question posed in previous posts: whether open hearings will attract a huge crowd of spectators or whether the purported public interest in ISDS proceedings is much ado about nothing. If an ISDS hearing was likely to attract public attention, BSGR seems a reasonable candidate for the role: in an era of Wikileaks and the Panama papers, the matter involved the mining industry, allegations of a political conspiracy,5) BSG Resources Limited v The Republic of Guinea, Request for Arbitration at paragraph 75 jQuery("#footnote_plugin_tooltip_9909_5").tooltip({ tip: "#footnote_plugin_tooltip_text_9909_5", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); allegations relating to corruption6) Request for Arbitration at paragraph 60 jQuery("#footnote_plugin_tooltip_9909_6").tooltip({ tip: "#footnote_plugin_tooltip_text_9909_6", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); and allegations of the wrongful involvement of billionaire George Soros,7) Request for Arbitration at paragraphs 57ff jQuery("#footnote_plugin_tooltip_9909_7").tooltip({ tip: "#footnote_plugin_tooltip_text_9909_7", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); and a failed application for disqualification of all of the tribunal members.8) Decision on the Proposal to Disqualify All Members of the Arbitral Tribunal (28 December 2016), available here jQuery("#footnote_plugin_tooltip_9909_8").tooltip({ tip: "#footnote_plugin_tooltip_text_9909_8", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); One might expect, therefore, various civil society actors, institutions, scholars, and the public to be keenly interested in the hearing. An initial analysis suggests that this is not the case; public interest in ISDS hearings, based on BSGR at least, appears to be minimal.

BSGR and View Counts

While few members of the public have the resources, time, and ability to attend public ISDS hearings, billions of people are online and have ready access to free platforms like YouTube, Vimeo, and Dailymotion. So while the UN General Assembly9) General Assembly Resolution 69/116 of 10 December 2014 jQuery("#footnote_plugin_tooltip_9909_9").tooltip({ tip: "#footnote_plugin_tooltip_text_9909_9", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); recognized “the need for provisions on transparency in [ISDS] disputes to take account of the public interest involved”, the view counts visible on uploaded ISDS videos suggest more concretely the actual amount of public interest. The BSGR hearing is, it bears noting, a relatively recent upload to YouTube (published on 29 March 2018) but the view counts are extremely low: the English version of the hearing videos has (as at 7 May 2018) fewer than 150 views for day 1 and no more than 30 views for any of the other days made available. These figures, it bears noting, may also overstate or understate the amount of public interest: YouTube’s view count only indicates that the video was loaded and does not indicate whether the video was actually watched in part or in full, nor does a single view count capture all views where hearings are available on multiple websites (such as the Vattenfall v Germany hearing, available on YouTube and Livestream). What these numbers do suggest, nevertheless, is that there has so far been minimal public interest in observing ISDS cases. A recent video on how to pick up cats safely recorded more than 2 million views in 5 days, and a video showing a silent black screen with a blinking red dot recorded more views than the BSGR hearing in less than 24 hours. What can be gleaned from this?

The goal of increased transparency and open courts is generally a worthy one, provided that appropriate protections are in place as needs be and as national courts regularly put into effect in addressing risks that can arise from cameras in court rooms. As institutions and policymakers take steps towards greater ISDS transparency,10) It bears noting, of course, that these are limited steps as evidenced by the slow adoption of the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration of 2014. As of May 2018 this convention has only three parties. jQuery("#footnote_plugin_tooltip_9909_10").tooltip({ tip: "#footnote_plugin_tooltip_text_9909_10", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); an (admittedly) cursory examination of the ISDS hearings available online suggests that too much is being made of the ability of transparency to improve public perceptions of legitimacy. While there may be small gains to legitimacy for those especially interested in a given matter, few people appear to have the time or inclination to meaningfully engage with the technology-assisted offerings nor is there evidence that ICSID’s streaming of hearings for almost a decade has improved opinions of ISDS legitimacy. While streaming and uploading hearings may be one part of improving the perceived legitimacy of ISDS, the view counts suggest that much more will need to be done if the link between transparency and legitimacy is as strong as some suggest.

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

References   [ + ]

1. ↑ R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, 259 (Lord Hewart C.J.) 2. ↑ Michael Douglas, “The Importance of Transparency for Legitimising Investor-State Dispute Settlement: An Australian Perspective” in the New Zealand Association of Comparative Law, Hors Serie Volume XIX (2015) Part I: Investor-State Dispute Settlement and UNCITRAL Texts on Transparency, at page 112. (“Douglas”) 3. ↑ The author notes that addressing such critiques is beyond the scope of this blog post. 4. ↑ See, for example, Douglas at pages 117 and 119. 5. ↑ BSG Resources Limited v The Republic of Guinea, Request for Arbitration at paragraph 75 6. ↑ Request for Arbitration at paragraph 60 7. ↑ Request for Arbitration at paragraphs 57ff 8. ↑ Decision on the Proposal to Disqualify All Members of the Arbitral Tribunal (28 December 2016), available here 9. ↑ General Assembly Resolution 69/116 of 10 December 2014 10. ↑ It bears noting, of course, that these are limited steps as evidenced by the slow adoption of the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration of 2014. As of May 2018 this convention has only three parties. function footnote_expand_reference_container() { jQuery("#footnote_references_container").show(); jQuery("#footnote_reference_container_collapse_button").text("-"); } function footnote_collapse_reference_container() { jQuery("#footnote_references_container").hide(); jQuery("#footnote_reference_container_collapse_button").text("+"); } function footnote_expand_collapse_reference_container() { if (jQuery("#footnote_references_container").is(":hidden")) { footnote_expand_reference_container(); } else { footnote_collapse_reference_container(); } } function footnote_moveToAnchor(p_str_TargetID) { footnote_expand_reference_container(); var l_obj_Target = jQuery("#" + p_str_TargetID); if(l_obj_Target.length) { jQuery('html, body').animate({ scrollTop: l_obj_Target.offset().top - window.innerHeight/2 }, 1000); } }More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
€ 240


The post Transparency, Legitimacy, and Investor-State Dispute Settlement: What Can We Learn from the Streaming of Hearings? appeared first on Kluwer Arbitration Blog.

How to create leading dispute resolution centre - Vantage Asia

Google International ADR News - Fri, 2018-06-08 21:11

Vantage Asia

How to create leading dispute resolution centre
Vantage Asia
As an NGO observer to the United Nations Commission on International Trade Law, CIETAC also sends representatives each year to attend CMC meetings, endeavoring to change China's role as “bystander” to the international rules, and to contribute “Chinese ...

CoE Rep Verna Taylor on Georgia's 2016-2019 Action Plan - Georgia Today

Google International ADR News - Fri, 2018-06-08 08:28

Georgia Today

CoE Rep Verna Taylor on Georgia's 2016-2019 Action Plan
Georgia Today
As partner international organisations in Georgia have been actively involved in assisting the country to further enhance alternative dispute resolution mechanisms, the Council of Europe has assumed the task of providing expertise on introducing and ...

and more »

Irreparable or Near-Irreparable Harm that Can Result from Non-Enforceability of Judgments

Kluwer Arbitration Blog - Fri, 2018-06-08 01:52

Maja Stanivukovic

Enforcement for some may be a chimera, an overrated factor in choosing the dispute resolution methods.1)Cameron Ford, The Enforcement Chimera, Kluwer Arbitration Blog, May 10. 2018. jQuery("#footnote_plugin_tooltip_7904_1").tooltip({ tip: "#footnote_plugin_tooltip_text_7904_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Yet, efforts that have been invested in enforcement of judgments within the Hague Conference on Private International Law2)See the Draft Judgments Convention jQuery("#footnote_plugin_tooltip_7904_2").tooltip({ tip: "#footnote_plugin_tooltip_text_7904_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); and of international commercial settlement agreements reached in mediation within UNCITRAL3)See materials of the UNCITRAL Working Group II jQuery("#footnote_plugin_tooltip_7904_3").tooltip({ tip: "#footnote_plugin_tooltip_text_7904_3", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); suggest that enforcement is not an entirely fictional animal. The topic of this post is how enforceability of judgments can indirectly affect enforcement of a domestic arbitral award in Serbia.

Efforts to improve efficiency of enforcement in Serbia

On 1 July 2016, the 2015 Enforcement and Security Act (ESA) came into force in Serbia.4)Zakon o izvršenju i obezbeđenju, “Official Journal,” 106/2015. This is the fourth Enforcement and Security Act in row since 2000. jQuery("#footnote_plugin_tooltip_7904_4").tooltip({ tip: "#footnote_plugin_tooltip_text_7904_4", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); It introduces significant changes in the enforcement procedure.5)One of the major changes introduced by the 2015 ESA is that most enforcement procedures including those based on arbitral awards are now conducted by public enforcement agents, under the supervision of the court. Public enforcement agents are graduated lawyers appointed by the Minister of Justice to exercise public powers entrusted to them under the law, in particular enforcement of judgments. They were introduced as a new legal profession by the 2011 Enforcement and Security Act. jQuery("#footnote_plugin_tooltip_7904_5").tooltip({ tip: "#footnote_plugin_tooltip_text_7904_5", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); The most important reasons for its adoption are: low efficiency in enforcement procedures,6)The European Court of Human Rights has found on numerous occasions that Serbia has committed violations of Art. 6(1) of the Convention and Art. 1 of Protocol no. 1 due to the failure to timely enforce final judgments. See one of the latest cases Vukosavljević v. Serbia, Application no. 23496/13, Judgment dated 27 September 2016. jQuery("#footnote_plugin_tooltip_7904_6").tooltip({ tip: "#footnote_plugin_tooltip_text_7904_6", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); a large backlog of enforcement cases pending in courts, and general dissatisfaction of creditors.

Article 15(1) of the ESA provides that enforcement proceedings are urgent. Articles 41 and 42(1) expressly recognize domestic arbitral awards as valid legal bases for the institution of enforcement proceedings.7)Article 64(1) of the Arbitration Act provides that a domestic arbitral award shall have the force of a final domestic judgment. This means domestic arbitral awards may be enforced in accordance with the provisions of the statute regulating enforcement procedure, which is currently the 2015 ESA. jQuery("#footnote_plugin_tooltip_7904_7").tooltip({ tip: "#footnote_plugin_tooltip_text_7904_7", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

A final domestic arbitral award is enforceable after the time for voluntary execution has expired, or other conditions specified in the award have been fulfilled. If no time is specified, the time for voluntary execution is eight days (ESA, Art. 47(1)).

The public enforcement agent has a duty to rule on the request for enforcement of a domestic arbitral award within eight days from the date of lodging of the request for enforcement in ex parte proceedings (ESA, Art. 15(4)). The debtor then has eight days to appeal the decision to the court (Art. 25(1)).

As a rule, lodging of the appeal does not suspend enforcement (ESA, Art. 25(3)). Execution against assets may be obtained as soon as the decision granting enforcement is rendered.

Suspension of enforcement

The sole remedy against the domestic arbitral awards is the action for annulment (setting aside) which must be filed within three months of the receipt of the award (Arbitration Act, Art. 59(1)). It may happen that an enforcement proceeding has been initiated while the action for setting aside is pending. The debtor in such case may wish to request suspension of the enforcement proceedings until the decision on the setting aside is made.

The Arbitration Act does not provide for suspension of enforcement proceedings because an action for setting aside of the domestic award has been filed. Furthermore, the 2015 ESA does not envisage it, either.

Nevertheless, the 2015 ESA provides that the enforcement proceedings may be suspended at the request of the debtor if the debtor establishes likelihood that enforcement would cause him irreparable or near-irreparable harm exceeding the harm caused to the creditor due to suspension (Article 122).8)It should be noted that the possibility of suspension of enforcement proceedings at the request of the debtor was not provided by the previous 2011 Enforcement and Security Act. jQuery("#footnote_plugin_tooltip_7904_8").tooltip({ tip: "#footnote_plugin_tooltip_text_7904_8", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); Additionally, the debtor is required to show that the suspension is justified by special reasons which the debtor can substantiate with an authentic or duly certified document. Further, suspension may be conditioned upon deposit of security by the debtor.

The proposal for suspension may be filed only once during the enforcement proceedings (Article 122(1)). The public enforcement agent must decide on the proposal within five days of receipt (Article 124(1)). This decision is subject to a review by the court upon the debtor’s objection (Article 124(2)). The time for which enforcement is suspended is determined by the public enforcement agent, following the request of the debtor.

How it works in practice

Although suspension is envisaged as an exceptional remedy, the practice confirms a case where the suspension was granted.9)Rešenje Privrednog suda u Beogradu, Posl. br. 8 IPV (I) 375/17 Ii 639/17 Veza 8 Ipv (I) 255/17 dated 22 January 2018. The case, unpublished, has been reported by Nikola Bodiroga, Odlaganje izvršenja domaće arbitražne odluke, Privreda i pravo no. 4-6/2018, pp. 277-281. See also, Nenad Tešić, Odlaganje izvršenja arbitražne odluke – Periculum in Mora ili Ultima ratio u odbrani dužnika od neopravdanog osigromašenja, soon to be published. jQuery("#footnote_plugin_tooltip_7904_9").tooltip({ tip: "#footnote_plugin_tooltip_text_7904_9", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); In this case, an Austrian creditor sought enforcement of a domestic award against a Serbian debtor. The creditor sought enforcement by blocking the debtor’s business account and by attaching debtor’s real estate for sale. The debtor requested suspension for at least two years or until the setting aside proceedings initiated before the Commercial Court in Belgrade were finalized.

The public enforcement agent initially rejected the debtor’s request. The debtor then filed an objection to the Commercial Court in Belgrade.

The grounds for the objection were that the attached property was of considerably higher value compared to the amount of the debt, that the blocking of the debtor’s business account prevented the debtor’s operation and could eventually lead to its bankruptcy, and that the creditor was domiciled in Austria and had no property in Serbia or abroad from which the collected amount could be recuperated in case the award was eventually set aside.

The court found that the debtor’s objection was well-founded. In the opinion of the court, the debtor had established likelihood that enforcement would cause him irreparable harm, and that such damage would exceed the harm that would be caused to the creditor due to suspension.

The court attributed particular importance to the fact that there was no treaty on enforcement of judgments between Serbia and Austria, Austria being known as a country requiring a treaty with the judgment country. Therefore, the debtor would not be able to recover the collected amount from the creditor if the award was subsequently annulled. On the other hand, the creditor’s claim was secured by an entry of the decision on enforcement in the real property cadastre. By making an entry, the creditor obtained priority over any other creditor that might later acquire claims against the same debtor. The court therefore quashed the decision that rejected the request of the debtor for suspension and ordered the public enforcement agent to reconsider the grounds for suspension taking into account the holding of the court. Acting upon the court’s decision, the public enforcement agent then granted the request for suspension.

Conclusion

The fact that judgments of Serbian commercial courts are not enforceable in Austria has been critical to the court’s decision to suspend the enforcement proceedings based upon the domestic award. The irony of it is that the prime motive for selecting arbitration in commercial contracts between Austrian and Serbian partners may often be to circumvent the non-enforceability of judgments.

The case indicates that under the 2015 ESA there may be a greater risk than before of delay in enforcement of domestic awards rendered in international cases if the award debtor is established abroad, in a country with which reciprocity in enforcement of judgments is lacking.

The potential duration of the suspension is considerable. The setting-aside proceedings can last up to a year and appeal proceedings for another year and a half. The procedure for setting aside, although usually unsuccessful, can thus indirectly affect the efficiency of the domestic arbitration proceedings, and undermine one of the goals set by 2015 ESA, as well as the 2006 Arbitration Act: efficient enforcement of domestic arbitral awards.10)In 2010 Serbia has been held liable for a violation of Article 1 of Protocol No. 1 of the European Convention on Human Rights due to the partial non-enforcement of a domestic arbitration award. Kin-Stib and Majkić v. Serbia, no. 12312/05, ECtHR (Second Section), Judgment (Merits and Just Satisfaction) 24 April 2010. jQuery("#footnote_plugin_tooltip_7904_10").tooltip({ tip: "#footnote_plugin_tooltip_text_7904_10", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); For this reason alone, courts should administer this remedy sparingly.

Professor Stanivukovic is the author of the ICCA Handbook National Report on Serbia, recently completely revised and updated, and now available here. With thanks to prof. Milena Đorđević for helpful comments.

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

References   [ + ]

1. ↑ Cameron Ford, The Enforcement Chimera, Kluwer Arbitration Blog, May 10. 2018. 2. ↑ See the Draft Judgments Convention 3. ↑ See materials of the UNCITRAL Working Group II 4. ↑ Zakon o izvršenju i obezbeđenju, “Official Journal,” 106/2015. This is the fourth Enforcement and Security Act in row since 2000. 5. ↑ One of the major changes introduced by the 2015 ESA is that most enforcement procedures including those based on arbitral awards are now conducted by public enforcement agents, under the supervision of the court. Public enforcement agents are graduated lawyers appointed by the Minister of Justice to exercise public powers entrusted to them under the law, in particular enforcement of judgments. They were introduced as a new legal profession by the 2011 Enforcement and Security Act. 6. ↑ The European Court of Human Rights has found on numerous occasions that Serbia has committed violations of Art. 6(1) of the Convention and Art. 1 of Protocol no. 1 due to the failure to timely enforce final judgments. See one of the latest cases Vukosavljević v. Serbia, Application no. 23496/13, Judgment dated 27 September 2016. 7. ↑ Article 64(1) of the Arbitration Act provides that a domestic arbitral award shall have the force of a final domestic judgment. This means domestic arbitral awards may be enforced in accordance with the provisions of the statute regulating enforcement procedure, which is currently the 2015 ESA. 8. ↑ It should be noted that the possibility of suspension of enforcement proceedings at the request of the debtor was not provided by the previous 2011 Enforcement and Security Act. 9. ↑ Rešenje Privrednog suda u Beogradu, Posl. br. 8 IPV (I) 375/17 Ii 639/17 Veza 8 Ipv (I) 255/17 dated 22 January 2018. The case, unpublished, has been reported by Nikola Bodiroga, Odlaganje izvršenja domaće arbitražne odluke, Privreda i pravo no. 4-6/2018, pp. 277-281. See also, Nenad Tešić, Odlaganje izvršenja arbitražne odluke – Periculum in Mora ili Ultima ratio u odbrani dužnika od neopravdanog osigromašenja, soon to be published. 10. ↑ In 2010 Serbia has been held liable for a violation of Article 1 of Protocol No. 1 of the European Convention on Human Rights due to the partial non-enforcement of a domestic arbitration award. Kin-Stib and Majkić v. Serbia, no. 12312/05, ECtHR (Second Section), Judgment (Merits and Just Satisfaction) 24 April 2010. 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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Board of Education-Leslie Coker - SoMdNews.com

Google International ADR News - Thu, 2018-06-07 23:40

SoMdNews.com

Board of Education-Leslie Coker
SoMdNews.com
I plan to bring Alternative Dispute Resolution (ADR) education and awareness programs to Charles County Public Schools to help address the issues previously mentioned and improve communication between parents, students and school staff. My degree in ...

Workflows: Royer Cooper Adds ERISA Expertise - Bloomberg Big Law Business

Google International ADR News - Thu, 2018-06-07 09:51

Bloomberg Big Law Business

Workflows: Royer Cooper Adds ERISA Expertise
Bloomberg Big Law Business
He will handle immigration and visa matters as well as international trade, data privacy, and national security matters. McGinnis Lochridge in ... His primary practice areas are labor and employment law and alternative dispute resolution. Cumberbatch ...

Wake Up Call: Deloitte Links with US Immigration Law Firm - Bloomberg Big Law Business

Google International ADR News - Thu, 2018-06-07 06:34

Bloomberg Big Law Business

Wake Up Call: Deloitte Links with US Immigration Law Firm
Bloomberg Big Law Business
Alexandra Dosman, Vannin's new managing director in New York City, is a former Shearman & Sterling lawyer and most recently executive director of the New York International Arbitration Center. The company separately said its new office in Bonn, Germany ...

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Third Party Funding for Arbitration in Nigeria: Yea or Nay?

Kluwer Arbitration Blog - Thu, 2018-06-07 03:38

Joseph Onele

Introduction

 

It is no longer news that Third-Party-Funding (TPF) has captured the attention of the arbitration community in recent times and has become increasingly popular even in international commercial and investment arbitration. No doubt, the recent expansion of TPF in international commercial and investment arbitration has spurred debates with regard to its regulation, both on a national and an international level.

 

Whilst noting that it is virtually impossible to address all issues with a single set of rules, and the need to avoid the risk of over-regulating as there is no ‘one size fits all’ approach, this article proceeds to contribute to the debate on the need for TPF regulation in Nigeria. Specifically, given the Arbitration and Conciliation Act (Repeal and Re-Enactment) Bill 2017 (The Bill) currently pending before the House of Representatives, the second legislative chambers of the National Assembly (the legislative arm of the Federal Republic of Nigeria), this article considers the propriety or otherwise of regulating TPF for arbitration in Nigeria. This article comes to complement the previous post on this issue authored by Joshua Karton and Abayomi Okubote, given the wide interest in TPF and arbitration.

 

This article stems from the implicit recognition of TPF in Arbitration in Article 41(2)(g) (Definition of Costs), Article 50(1) (Costs of the Arbitration), and Article 83 (Interpretation) of the Bill. It argues that the Bill, earlier passed by the Nigerian Senate, but now awaiting the concurrence of the House of Representatives, must go beyond ‘implied’ recognition of TPF and include express provisions to make TPF for Arbitration in Nigeria accord with best practices.

 

Recent Move towards Third-Party Funding in Arbitration in Nigeria: What about the Blurred Lines in the Bill?

 

A careful reading of the Bill will reveal that the Bill tacitly recognizes TPF in arbitration. Apart from defining the ‘costs’ in arbitration to include TPF in Article 41(2)(g) of the Bill, Article 50(1) empowers the arbitral tribunal to fix ‘costs of arbitration’ in its award and further defines the term ‘costs’ to include ‘the costs of obtaining Third Party Funding.’ Furthermore, Article 83 defines TPF as arrangement between an individual or corporate entity (the funder) and a party involved in the arbitration, whereby the funder agrees to finance some or all of the party’s legal fees in exchange for being remunerated from proceeds of the award. It is submitted that the above stated provision tacitly recognises TPF in arbitration in Nigeria to the extent that it contemplates increasing access to justice and preventing a situation where a party is unable to arbitrate a dispute on account of costs associated with arbitration.

 

The foregoing submission notwithstanding, it could be argued, particularly, by those belonging to the ‘liberal’ school of thought – canvassing that TPF should be allowed in arbitration – that a careful reading of the Bill reveals an intention by drafters to allow TPF in arbitration in Nigeria. However, this position could be countered by those belonging to the ‘restrictive’ school of thought. The proponents of the restrictive school of thought are likely to argue that a mere mention of TPF under the provisions on costs or the ‘Interpretation’ section does not suffice. It could further be argued that the drafters, if indeed desirous of permitting TPF in arbitration, should have included a substantive provision expressly stating that TPF is allowed in arbitration.

 

Making a Case for Third-Party Funding in Arbitration in Nigeria

 

With the above in mind, it is, therefore, essential that TPF in arbitration in Nigeria be given a befitting place in the body of the Bill, to avoid providing a fertile ground for undue controversy on the question as to whether the Bill actually allows TPF in arbitration. Whilst the Bill’s implied recognition of TPF in arbitration is commendable, it is crucial the drafters go further to include at least a substantive provision expressly stating that TPF in arbitration is allowed. This is to ensure all existing or potential obstacles to the realisation of the TPF in Arbitration in Nigeria are swiftly dealt with and no doubt is left as to the enforceability of agreements stemming from TPF in arbitration ‘seated’in Nigeria.

 

The Nigerian lawmakers will do well to go beyond the tacit recognition of TPF in arbitration in Nigeria and enact substantive provisions allowing TPF in arbitration in Nigeria. This will definitely clear all doubts the statutory provision supersedes the common law position precluding champerty and maintenance. This is because it is a well settled principle of Nigerian law that where a statutory provision differs from common law, the common law gives way to the statute. The Bill, no doubt, will go a long way in providing a more enabling business climate for investors, boosting investors’ confidence and encouraging parties to choose Nigeria as a seat of arbitration.

 

Revisiting the Debate on Third-Funding in (International) Arbitration: What about it?

 

Arguably originating in Australia, and initially designed to support parties that did not have the means to pursue claims, it could be conveniently argued that TPF helps with the costs of arbitral proceedings, increases access to justice and allows a claimant to allocate risks and costs while continuing its business operations with a steady cash flow.

 

Whilst it is incontrovertible that TPF improves access to justice, one needs no soothsayer to realise that it equally attracts some challenges. Some of the issues TPF raises include: conflicts of interest, disclosure, security for costs, and control over the claim, amongst others.

 

The above issues notwithstanding, it is submitted that the advantages of allowing TPF in arbitration, should sway the lawmakers in the affirmative. The choice of Singapore and Hong-Kong as preferred seats for arbitration, ranking as third and fourth most preferred arbitration seat globally, after London and Paris, is arguably not far-fetched from the Singapore and Hong-Kong permitting TPF in arbitration.

 

Lessons for Nigeria from Singapore and Hong-Kong

 

The Federal House of Representatives can readily draw relevant examples from Singapore and Hong-Kong. The Singaporean Parliament, on 10 January 2017, passed the Civil Law (Amendment) Act (Bill No. 38/2016) (the Act), which entered into force in March 2017. The Act amends Singapore law to permit TPF for international arbitration and related court proceedings under certain conditions, with further regulations prescribing specific eligibility requirements for funders. Similarly, further inspiration can be drawn from the Hong-Kong Legislative Council which recently adopted a new law permitting the TPF of arbitration, bringing Hong Kong into line with other common law jurisdictions and further strengthening the position of the Hong Kong International Arbitration Center.

 

Conclusion

 

In all, should the Bill go beyond the definition of TPF and contain substantive provisions allowing TPF in arbitration in Nigeria, it is argued that the Bill, upon being passed to law would have effectively overridden the common law position precluding champerty and maintenance.This is because it is a well settled principle of Nigerian law that where a statutory provision is in conflict or differs from common law, the common law gives way to the statute. This much has equally been alluded to by the Supreme Court of Nigeria in Patkun Industries Ltd v. Niger Shoes Ltd (1988) NWLR (Pt. 93) 138; (1988) LPELR-2906(SC), Per Nnamani JSC.

 

Giving the attraction of Nigeria as a preferred seat of arbitration and the potentials such offer for the Nigerian economy, the Nigerian lawmakers are advised to go beyond the tacit recognition of TPF in arbitration in Nigeria and enact substantive provisions allowing TPF in arbitration in Nigeria.

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The post Third Party Funding for Arbitration in Nigeria: Yea or Nay? appeared first on Kluwer Arbitration Blog.

Amendments spur renewal of interest in arbitration - Vantage Asia

Google International ADR News - Wed, 2018-06-06 23:31

Vantage Asia

Amendments spur renewal of interest in arbitration
Vantage Asia
In order to make India a hub for international arbitration and to facilitate quick enforcement of contracts, easy recovery of monetary claims and faster disposal of cases in courts, the 1996 act was amended in October 2015. Some of the major changes ...

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Vannin Capital Bolsters US Arbitration Practice with Managing Directors in Washington and New York - Litigation Finance Journal (blog)

Google International ADR News - Wed, 2018-06-06 14:40

Vannin Capital Bolsters US Arbitration Practice with Managing Directors in Washington and New York
Litigation Finance Journal (blog)
José Antonio will work with parties from a wide range of industries that require funding to solve their disputes through international arbitration and alternative dispute resolution. His sophisticated understanding of international investment and ...

WIP Conference Registration Open

ADR Prof Blog - Wed, 2018-06-06 12:58
From our good friend Deb Eisenberg at Maryland via the listserv: Registration is now open for the 12th Annual AALS ADR Works-in-Progress Conference at Maryland Carey Law! We are so excited to host you in Baltimore next October 4-6, 2018. Details and registration here: https://umbforms.wufoo.com/forms/aals-adr-worksinprogress-conference/. Wishing you all a productive and wonderful summer. See you … Continue reading WIP Conference Registration Open →

Cindy Yvette Wakio — death steals before we can say how we feel - Daily Nation (blog)

Google International ADR News - Wed, 2018-06-06 09:10

Daily Nation (blog)

Cindy Yvette Wakio — death steals before we can say how we feel
Daily Nation (blog)
I will always remember the day I asked her, after a Public International Law class, “Cindy, you know all the answers to the questions I am asking in class, why do you keep quiet?” She said slowly, “I don't want people to think I know it all; it is also ...

United Arab Emirates: How To Solve Property Disputes In Dubai? - Mondaq News Alerts

Google International ADR News - Wed, 2018-06-06 04:32

United Arab Emirates: How To Solve Property Disputes In Dubai?
Mondaq News Alerts
During the 2008 financial crisis, we experienced major real estate disputes that helped to test Dubai real estate laws and identify its weaknesses. After almost a decade of implementation, Dubai's real estate laws and practice are much more robust ...

Speech by SFST at 2018 Annual Conference of In-House Lawyers - 7thSpace Interactive (press release)

Google International ADR News - Tue, 2018-06-05 23:11

Speech by SFST at 2018 Annual Conference of In-House Lawyers
7thSpace Interactive (press release)
Yet another international law firm developed its own AI platform to read and analyse clauses in loan agreements. The system emulates the decision-making process of a human being, extracting, reviewing and analysing key contract risks, and .... Apart ...

Onnoghen Seeks Inclusion Of CSR Concept In Nigerian Laws - Independent Newspapers Limited

Google International ADR News - Tue, 2018-06-05 20:00

Independent Newspapers Limited

Onnoghen Seeks Inclusion Of CSR Concept In Nigerian Laws
Independent Newspapers Limited
Abuja – Walter Onnoghen, Chief Justice of Nigeria (CJN) and chairman, Board of Governors, National Judicial Institute (NJI), on Tuesday, sought the inclusion of Corporate Social Responsibility (CSR) concept in Nigeria's laws. Justice Onnoghen made the ...

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KP lawyers hail appointment of Justice Dost Muhammad as caretaker CM - The News International (blog)

Google International ADR News - Tue, 2018-06-05 19:45

KP lawyers hail appointment of Justice Dost Muhammad as caretaker CM
The News International (blog)
The other achievements of Justice Dost Muhammad Khan include introducing of mobile courts in the province as well as country's history, established of the international level KP Judicial Academy and then established Alternative Dispute Resolution (ADR) ...

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Lawyers hail appointment of Justice Dost Muhammad as caretaker CM - The News International (blog)

Google International ADR News - Tue, 2018-06-05 19:45

Lawyers hail appointment of Justice Dost Muhammad as caretaker CM
The News International (blog)
The other achievements of Justice Dost Muhammad Khan include introducing of mobile courts in the province as well as country's history, established of the international level KP Judicial Academy and then established Alternative Dispute Resolution (ADR) ...

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UAE Federal Arbitration Law Adopted at Long Last: All Well that Ends Well?

Kluwer Arbitration Blog - Tue, 2018-06-05 17:05

Gordon Blanke

The adoption of the UAE Federal Arbitration Law  has kept the specialist arbitration profession in the waiting for the better part of a decade. It was finally adopted earlier this week, to the great acclaim of the local and international arbitration community. The new Law, Law No. 6 of 2018, will apply within 30 days from publication in the UAE Official Gazette to all ongoing and newly initiated arbitration proceedings seated in the UAE or to those proceedings that are governed by the provisions of the new Law by reason of another connecting factor (Article 2). The new Law repeals the provisions of the UAE Arbitration Chapter, i.e. Articles 203 through to 218 and 236 of the UAE Civil Procedures Code, which have governed UAE-seated arbitrations to date.

The UAE Arbitration Chapter has routinely been criticised for being an archaic instrument of local arbitration, which is out of time with the requirements of arbitration in a modern age. That said, albeit based on the UNCITRAL Model Law and bringing welcome change to the limited procedural scope of the UAE Arbitration Chapter, the new Law essentially fails to deliver on the ambitious promises that previous drafts once held. The better part of the new Law codifies existing case law precedent that stems from the UAE courts’ interpretation of the provisions of the UAE Arbitration Chapter since its adoption in 1992. That case law precedent is remarkably arbitration-friendly and has given rise to a jurisprudence constantethat has provided reliable guidance in the application of the UAE Arbitration Chapter over the years (see in particular the detailed article-by-article commentary on the practice and procedure under the UAE Arbitration Chapter for a full study: G. Blanke, Commentary on the UAE Arbitration Chapter, Thomson Reuters/Sweet & Maxwell, 2017). By way of example, the principle of party autonomy, pursuant to which the arbitration process is a matter for contractual agreement between the parties; the separability of the arbitration agreement from the main contract, which allows a tribunal to investigate matters of invalidity affecting the main contract; the principle of kompetenz-kompetenz, whereby the arbitral tribunal is empowered to determine its own jurisdiction; the distinction between arbitration agreements and submission agreements; the incorporation by reference of arbitration agreements; the distinction between seat and venue of the arbitration; the res judicataeffect of awards; and the partial enforcement or nullification of arbitration awards are all concepts of arbitration well known from arbitration practice under the UAE Arbitration Chapter. Whilst derived from prevailing case law precedent under the UAE Arbitration Chapter, these fundamental concepts of arbitration now find express codification in the new Law.

The new Law also provides detailed guidance on the formation of the arbitral tribunal and potential challenges and the replacement of arbitrators, the tribunal’s procedural and substantive decision-making as well as the termination of the arbitration reference. Further, the new Law contains detailed wording on the process of the arbitration going forward, such as the exchange of substantive pleadings by the parties, including the statement of claim and statement of defense and counterclaim, the language of the arbitration, the submission of evidence (including tribunal and party-appointed experts), the presentation of witness testimony, the power of the tribunal to determine the applicable law, the form and content requirements of a resultant award as well as the confidentiality of awards and the interpretation, correction and the issuance of additional awards. Most of these provisions are closely modeled on the UNCITRAL Model Law and will as such be by and large familiar to the discerning practitioner (depending always on the quality of the English translation in hand, the text of the law having as yet only been published in its Arabic original). That said, virtually all of these provisions have existed before in one form or another in arbitration practice under UAE Arbitration Chapter in combination with a leading set of arbitration rules, whether e.g. the local DIAC Rules, the ICC Rules or the free zone DIFC-LCIA Rules. In this sense, the new Law provides no doubt a useful stand-alone framework for ad hoc arbitration outside a firm institutional context and as such, on its own, is no doubt superior to the provisions of the UAE Arbitration Chapter. That said, leading local institutional rules – in addition to the UNCITRAL Rules – have proven to be a suitable and helpful procedural complement to the UAE Arbitration Chapter over the years in order to avoid undesirable stalemate in an ad hoc context.

Be that as it may, some of the provisions of the new Law are more innovative and do bring change – for better or worse. Some of the better changes include in no particular order the following:

  • The parties’ free choice of impartial and independent arbitrators (subject to an express prohibition to appoint members of staff of arbitration institutions in charge of the administration of an individual reference) (Article 10);
  • the arbitrability of tortious causes of actions (Article 2(3));
  • the introduction of a wide definition of “international” arbitration, which may lay the basis for the gradual formation of a domestic/international public policy dichotomy, the latter being typically more restrictive than the former;
  • the more broadly available arbitration defense, which – in the terms of the new Law (Article 8(1)) – no longer needs to be advanced “in the first session/hearing”before the court, a term that used to cause interpretive challenges under Article 203(5) of the UAE Arbitration Chapter;
  • the express and wide power given to the courts to support the arbitral process through interim measures both before and after initiation of the arbitration as appropriate (Articles 18) and supplementary powers to similar effect granted to the arbitral tribunal (Article 21);
  • the tribunal’s power to join a third party to the arbitration process (Article 22);
  • the confidentiality of the arbitration proceedings (Article 33(1));
  • hearings (Article 33(3)), including the hearing of witnesses, by means of modern means of communication (such as video-conferencing), their physical presence at the hearing not being required (Article 35);
  • the award being deemed issued at the seat of the arbitration, there being no requirement for arbitrators e.g. from outside the UAE to be present in the UAE for a valid execution of the award (Article 41(6)); and
  • the tribunal’s express power to render interim and partial awards (Article 39), which – pursuant to Article 39(2) – are enforceable before the UAE courts.

 

Under the new Law, there is also no longer a requirement for a Preliminary Meeting in the terms of Article 208(1) of the UAE Arbitration Chapter, which will no doubt streamline the arbitration process and remove one procedural stumbling bloc encountered under the UAE Arbitration Chapter. In stark contrast to the position under Article 211 of the UAE Arbitration Chapter, there is also no longer an express requirement for taking witness testimony on oath, a requirement that may, however, survive given the mandatory character it has been accorded by existing case law precedent (see Dubai Court of Cassation Case No. 503/2003 – Bechtel).

Further, all court supportive functions under the new Law are initiated before the competent court of appeal, with the decisions of that court mostly being taken as final and binding and not being subject to further appeal.

Great disappointment is caused by provisions that either create procedural uncertainty, confirm a previously criticised positive law position or add new procedural requirements, which – if anything – render the successful conduct of an arbitration under the new Law more cumbersome. These include in no particular order:

  • The cumbersome minuting requirement kept alive by the new Law with respect to any meetings with the parties (Article 28(b));
  • the continued requirement for special powers of attorney for valid representation of a party in arbitration or a party’s valid submission to an arbitration process (subject to, of course, the application of apparent authority to the formation of arbitration agreements in the terms ordained by the UAE courts under the UAE Arbitration Chapter) (Article 4);
  • the requirement to add the arbitrators’ nationality in the text of the award (Article 41(5));
  • the absence of an express tribunal power to award party costs, these being expressly “at [a party’s] own expense”(Article 33(4) read together with Article 46), thus confirming the position taken under the UAE Arbitration Chapter (see Dubai Court of Cassation Case No. 282/2012);
  • the requirement to render an award “within six months from the date of the first session in the arbitration”, subject to extension by the arbitrator by an additional six months and party agreement to any further extensions (further extensions without party agreement being subject to approval by the UAE courts) (Article 42), essentially confirming the cumbersome provisions on time-limits under the UAE Arbitration Chapter; and
  • the need to serve a copy of the award within as little as 15 days after issuance (Article 44).

Finally, under the new Law, the enforcement and onward execution of an award still requires the completion of a ratification (or validation) process before the UAE courts (Article 52) in terms similar to those under Article 215(1) of the UAE Arbitration Chapter. Importantly, under the new Law, both a supervisory court ruling ratifying an award and a ruling setting aside an arbitral award can be appealed (Article 54), thus essentially keeping in place a fully-fledged appeal process. Equally, a ruling on an action for annulment, which cannot be brought in defense to an action for enforcement under the new Law, generally remains subject to appeal (Article 54). In this sense, the new Law will be no more enforcement-friendly with respect to domestic awards than the UAE Arbitration Chapter. That said, the appeal process is shortened by one stage, any application for enforcement or nullification being initiated before the competent court of appeal, subject to further appeal only to the competent court of cassation. Further, unlike the present situation under the UAE Arbitration Chapter, the underlying arbitration agreement remains valid and the parties will have to pursue the resolution of their pending dispute in an arbitral forum. Article 54 also provides for the award to be remitted to the arbitrator to avoid nullification in the terms presently prevailing under Article 214 of the UAE Arbitration Chapter. The grounds for challenge of an arbitral award under the new Law are identical to those of the UNCITRAL Model Law and hence perceived as more arbitration-friendly, even though this is not necessarily the case in practice given the UAE courts’ interpretation of the corresponding provisions in favorem arbitrandi. Importantly, an application for annulment does not automatically suspend the execution of the award (Article 56). Under the new Law, like the position under the UAE Arbitration Chapter, both a decision by the UAE court to execute an award and one against can be appealed (Article 57).

To conclude, whether the adage that all is well that ends well applies to the new UAE Federal Arbitration Law is highly questionable. With the passage of time, it will be seen whether the adoption of the new Law has been a step in the right direction.

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