Dispute Resolution International - October 2016

 
 

Vol 10 No 2 – October 2016

International arbitration has come a long way since its humble beginnings but challenges continue to arise to its seemingly unstoppable growth.
One issue which is important to address is the growing uncertainty over the international framework governing the recognition and enforcement of arbitral awards. The tension lies in two competing theories: (1) the 'territorial approach' – under which an award that is set aside at the seat of the arbitration ceases to have any legal existence or effect; and (2) the 'transnational approach' – under which an award does not derive its validity and legitimacy from a particular local system of law, leaving it open for the enforcement court to enforce the award notwithstanding the decision of the seat court to set aside the award. This article examines the debate surrounding both theories, the approach of several jurisdictions, and concludes with suggestions for the way forward in favour of greater convergence in the practice of the courts across jurisdictions.

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The 2005 Hague Convention on Choice of Court Agreements came into force on 1 October 2015. It provides an international framework for rules on choice of court (jurisdiction) agreements, as well as the recognition and enforcement between contracting states of court judgments in civil and commercial matters. When it came into force, it was heralded by some as a New York Convention for litigation, but opinion was divided generally as to its impact given the limited number of contracting states outside of the EU. Since the UK's decision to leave the EU, however, there has been renewed interest in the Hague Convention as one of the possible options for maintaining certainty on issues of jurisdiction and enforcement between the UK and EU Member States.

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The combination of mediation with arbitration during the course of arbitral proceedings is commonly known as 'Med-Arb'. This article outlines the legal framework of Med-Arb procedures in China including recent cases, institutional rules, advantages and existing pitfalls. It then reflects on recent developments and areas of learning from other jurisdictions.

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Switzerland's private banking industry is currently undergoing fundamental changes. In particular, it will move from operating under a relatively tight secrecy obligation in relation to foreign tax authorities to a new regime of automatic exchange of information with various foreign tax authorities. Despite Switzerland's comparatively small home market, because of its role as a leading financial centre and as an offshore private banking centre, Swiss jurisdiction may be relevant for foreign creditors who seek to secure or enforce a claim. This article first describes the Swiss asset attachment regime pursuant to the Swiss Debt Enforcement and Bankruptcy Act of 11 April 1889, as amended. It then discusses in more detail three practical and relevant legal aspects of the asset attachment regime.

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Recent litigation about Argentina's sovereign debt workout and the enforcement of arbitral awards against foreign sovereigns has cast a spotlight on foreign sovereign immunity rules. It tells of diverse national rules of such complexity that they demand concise explanation. This brief article attempts to provide such explanation, following a panel discussion at the 2015 IBA Annual Meeting in Vienna where panellists discussed the prospects of boilerplate, catch-all contractual waiver clauses and global rule convergence. What emerged was a sense that we need to find a way out of the thicket of rules, and the unpredictability, of foreign sovereign immunity litigation. This article expands on remarks originally made in Vienna, and contends that neither boilerplate contractual text nor global convergence are likely to offer wholly satisfactory solutions, and illustrates this with examples and explains some of the hidden strengths of our current practices.

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How to Master Commercial Mediation: An Essential Three-Part Manual for Business Mediators

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Third Party Litigation Funding

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Finding, Freezing and Attaching Assets – a Multi-Jurisdictional Handbook

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