Tuesday, November 23, 2010

HKIAC and PCA sign cooperation agreement

The Hong Kong International Arbitration Center (HKIAC) and the Permanent Court of Arbitration (PCA) at the Hague entered into a cooperation agreement on the occasion of the 25th anniversary of HKIAC. The terms of this agreement are not yet known. 

Previously, PCA had entered into a cooperation agreement with China International Economic and Trade Arbitration Commission (CIETAC)  to facilitate cooperation in organizing conferences, lectures, and seminars on arbitration and other means of dispute resolution.

Monday, November 22, 2010

International Arbitration, In Brief!

Here is an intersting and concise write-up on International Arbitration which has been prepared by Kathryn Helne Nickerson for Office of the Chief Counsel for International Commerce (OCC-IC), United States. The readers can always come back and refer this write up occasionally to see for any new development.(As the header of the article says it would be continously updated, however the last update was in 2005).

Sunday, November 21, 2010

Old wine of arbitration - An interesting link

Ever wondered what the earliest arbitral awards looked like? This link has two of the oldest surviving arbitral awards in England, one from AD 19 and the other from AD 118. The script is illegible. However, translations have been added.

In addition, the site also has a rich collection of other useful resources from different periods of time.

Image from here under Creative Commons License.

Saturday, November 20, 2010

New Rules of Court of Alberta stipulate "Mandatory" dispute settlement.

The Rules of Court which lay down the procedure to be followed in civil litigation in the Alberta, Canada have undergone a major overhaul after almost 40 years. Among other areas, one area which has been given great emphasis is “Mandatory” dispute resolution. The relevant Rules enlisting these changes are R. 4.16(1), R. 4.16(2) and R. 8.4.

R. 4.16(1) requires mandatory requirement of participation in good faith dispute resolution process before going ahead with the trial. The dispute resolution process could be of various types and may be either judicial dispute resolution or private mediation.

R. 4.16(2) entails various situations when these requirements can be waived. The situations are if: (a) the parties engaged in a dispute resolution process before filing the claim, (b) the nature of the claim is not one to likely result in agreement, (c) there is compelling reason why a process should not be attempted, or (d) the court is satisfied that the process would be futile. 

Thursday, November 18, 2010

Hong Kong passes new Arbitration Ordinance

Hong Kong has passed a new Arbitration Ordinance which is available here

Among other things, the new Ordinance is expected to facilitate hybrid dispute resolution mechanisms through Sections 32 and 33 which (i) precludes challenges to a person acting as an arbitrator on the ground that (s)he has acted as a mediator in te same dispute and (ii) allows the arbitrator, after the commencement of the arbitration, to act as a conciliator if all parties to the proceedings consent to the same in writing. It is also interesting that statutory functions like appointment of arbitrators, upon the failure of parties to do so, which are generally functions vested in courts in most Common Law jurisdictions, have been vested to the Hong Kong International Arbitration Center.  

Tuesday, November 16, 2010

India's very own Sports Arbitration.

Here is a very interesting piece of news regarding sports arbitration. It is about Rajasthan Royals, Kings XI and BCCI seeking arbitration on IPL ouster. As is evident from this piece of news not only the parties have expressed their intentions to arbitrate but also plan to go for a growing form of ADR, “mediation”. And yes they are pretty serious about mediation as they have consulted Justice BN Srikrishna to conduct the mediation proceedings. I will follow the news and keep the readers updated about any new event.

Norm creation (ADR) and arbitration

Guest post by Badrinath Srinivasan

ADR Prof Blog has a post on the interesting topic of ADR and Norm Creation. In that post, the blawger provides two rare examples of ADR in creating norms. 

One of the complaints against ADR processes is that they undermine the rule or norm-creating role of adjudication. By taking disputes from the norm-creating sphere of public adjudication to private and confidential tribunals, the role of precedents and norm-creation are undermined. The problem is  further complicated because the review of ADR decisions (in a generic sense of term), if any, are on the basis of possibility-standards and not on the basis of substantive correctness of the decision. We had discussed this issue in the sidelines while discussing the case of Sumitomo Heavy Industries v ONGC. There, we had commented:

"Though the SC's decision seems to be reasonable, it is sad that the court did not consider the law on the liability of a contractual party to bear increase in costs due to change of law during the currency of the contract. This is the problem with arbitration. The courts are forced to rule on whether the award was perverse or not rather than consider what should actually be the law on the issue. The main issue is taken outside the realm of the court. Essentially what the court has stated here is that Article 17.3 could either be narrowly construed like the Division Bench wanted it to be or broadly constructed as was done by the arbitrator. But what is the true law?"

Monday, November 15, 2010

Vindobona Junction - Some tips on writing a Vis Memo (Part II)

In part I of this post, Rukmini covered a number of tips that we hope would be of assistance to the Vis Moot teams. In this post, I wish to add nothing more. Instead, I share the Respondent memorials of our team for the 16th Vis with the comments we received from the memo judges. Though I am searching for the Claimant memorial with the comments, I am yet to locate it. As both the memorials secured Honourable Mentions, the comments and suggestions written on them by the memo judges could be the best indicator of what distinguishes a good memo from the Best Memo.

The memorial, along with the comments can be found here, here, here and here. The original versions of the memorials, without the comments, can be accessed here and here.

Statutory Warning: Reading certain handwritings can be too stressful and injurious to the eye. Neither Lex Arbitri nor the author assumes any liability for any such injury.

We wish all the teams all the very best for the approaching Claimant submission.

Sunday, November 14, 2010

Mediation in Hong Kong

Here, one can find the keynote speech by the Secretary for Justice, Mr Wong Yan Lung, SC, on mediation in Hong Kong. It gives a very brief, yet comprehensive overview of the mediation scenario in Hong Kong.

Thursday, November 11, 2010

Dallah v. Pakistan: Why The Buzz?

Since, this case promises to be a landmark judgment in current development of international arbitration revolving around the most fundamental concepts of arbitration such as the "principle of competence-competence", "parties to an arbitration agreement" and "enforcement of awards" which is very important for the beginners and advanced learners of arbitration alike, I shall try and put forth this case and issues involved in as simple and defined way as possible.

Lord Collins has already described this as a caseof “International Importance” in the context of interpretation of Article V(1) (a) of theNew York Convention(NYC) whereby an award can be set aside if it is not valid. This case went up till the Supreme Court of UK which affirmed the decisions of the High Court and the Court of Appeal. Also, apart from this case there are only 2 other reported cases where the English courts have refused enforcement of international arbitration awards under NYC, namely Irvani v Irvani,1999 and Kanoria v Guiness,2006.

Islamic Arbitration, Islamophobia and some concerns - Guest post by Jay Sayta

Jay Sayta's post on Panchayat's as a mode of Alternative Dispute Resolution has received appreciation from several of our readers. In this post, he discusses the emergence of Islamic arbitration in the West and certain concerns surrounding it.

Both Islamic extremists and
Islamophobes find this slogan
attractive, though in different senses.
Muslim population has grown exponentially in the West. Most of the Muslims in the West are immigrants from Asia and Africa, migrating to the European countries after the era of decolonisation. Currently, there are around 16 million Muslims in the European Union, accounting for around 3% of the total population. The members of this sizeable Muslim population have attempted to use Sharia Law to solve various legal problems. This has led to the emergence of the concept of ‘Islamic Arbitration’- for Muslims having a dispute to legally solve their dispute using the principles of Sharia Law. The United Kingdom allows such ‘Islamic Arbitration’ centres to function legally within the framework of the Arbitration Act, 1996. 

What is Islamic Arbitration? 
Islamic Sharia Councils are now recognised as Arbitration Tribunals in the United Kingdom under the 1996 Arbitration Act, and are a part of the Alternate Dispute Resolution (ADR) procedure available to UK citizens. These Sharia Councils have the power to hear all civil and family matters; all parties must however agree to have the matter judged by an arbitrator. The arbiter’s order is final and binding on both the parties and the parties cannot appeal against the decision of the arbiter, unless there has been a clear violation of any existing law in the United Kingdom. The aggrieved party cannot appeal only on the ground that he/she would have been treated differently in a regular Court unless the judgment is outrageously unfair. The Muslim Arbitration Tribunal (MAT) thus provides arbitration services in more than six cities in the United Kingdom. Some of the matters which the MAT deals with include: forced marriages, domestic violence, commercial disputes, inheritance disputes and mosque disputes.

Wednesday, November 10, 2010

Vindobona Junction - Some tips on writing a Vis Memo (Part I)

A mooter's best friend
The shortage of posts on Vindobona Junction in a while is due to the fact that my co-blogger and I were writing a moot memo and it was the last week before the deadline. Having submitted the memo and caught up on the pending sleep, I thought I would share some tips on Vis memos here.

I divide this post into two parts. In the first part, I will share some general tips on Vis memorials. In the second part, what I intend to share is the feedback I received for my memos for the 16th Vis. As both my memos had secured Honourable Mentions, those comments will tell you what exactly makes the difference between an Honourable Mention and a Memo Award.

Why write a good memo?
The memo does not decide your fate at the Vis to the extent that it does in many other moots. In theory, you can have a really bad memo and still win the competition (and I know a team which has done exactly that). Memo scores are not counted in deciding the outcome of an argument, and consequently the progress to the next round, in Vis. But there are separate awards for the memo. In effect, Vis boils down to three competitions - one to prevail in the oral rounds, one for the best memorial for the claimant and the other for the best memorial for the respondent. The memo awards are almost as prestigious and competitive as the awards in oral rounds. Moreover, though one's arguments in Vis are not restricted by the memo (arbitrators hardly ever open the memo or look at it while a team is speaking), writing a good memo helps one understand the structure and flow of various arguments. Both in writing a memo and in speaking at the oral rounds, a mooter is articulating an argument. So, chances are high that a person who has already articulated the argument well in a memo would be better equipped to articulate the same argument better at the oral round than a person who has not done so.

Foreign lawyers to finally get entry, albeit a back-door one?

In a previous post, I had discussed why India's ban on foreign lawyers pauses a threat to its emergence as an arbitration hub. A proposed legislation to enhance professional standards among Indian lawyers and protect the interests of their clients will knowingly or unknowingly remove the legal basis of the decision in Lawyers Collective v Bar Council of India which prohibited foreign lawyers from carrying on any law-related activity in India including the activities of liaison offices of foreign law firms. 

The proposed legislation

By way of background, it may be noted that the National Consumer Disputes Redressal Commission had ruled in D.K. Gandhi v M. Mathias that despite the existence of separate regulatory regime for lawyers under the Advocates Act, 1961, the legal services rendered by Advocates are "services" and hence clients could initiate proceedings against their lawyer under the Consumer Protection Act, 1986. Though the decision has been appealed before the Supreme Court, the matter is yet to be conclusively decided.

Monday, November 8, 2010

Introducing Ashutosh Ray: Our new contributor

I have the pleasure of introducing Ashutosh Ray, a fourth year student of Gujarat National Law University, Gandhinagar (Gujarat) as a new contributor to Lex Arbitri. Some of our readers may already familiar with him from the Guest Post he contributed to Vindobona Junction. Having participated in the Vis Moot, he will write some pieces in Vindobona Junction. However, his focus will be on contemporary developments in Indian arbitration law.

I hope the readers will enjoy his posts and welcome him to the group.

Sunday, November 7, 2010

Choices in International Arbitration - Part II

I had posted recently on factors that influence corporate choices about the main aspects of international arbitration.

Here's more on the same.

Choices Regarding Arbitrators
Most respondents in the survey (87%) preferred a 3-arbitrator panel, believing greater neutrality, better decision-making and a more balanced award would be the outcome. Another important advantage of a 3-member tribunal is the freedom to appoint one of the arbitrators of the tribunal. Cultural diversity was also one reason for preferring a 3-member tribunal, which leads to input of varied experience and, in turn, a balanced award. On the other hand, a disadvantage of a 3-member tribunal is that larger the number of arbitrators, higher the costs.

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