Litigation and Alternative Dispute Resolution
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Nysingh advocaten-notarissen N.V.
Harper Grey LLP
Williams Mullen (NC)
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Litigation and Alternative Dispute Resolution
Due to the principle of autonomy / separability of an arbitration agreement from the underlying contract, the validity of the underlying contract and the arbitration agreement should be evaluated independent of each other1. However, it should be analyzed whether this autonomy effects the determination of the applicable law to both agreements. In other words, whether the principle of separability causes the laws that are applicable to the arbitration agreement and to underlying contract to be different2.
This issue is particularly encountered when an arbitration clause is stipulated under the underlying contract. Under the international commercial agreements, the dispute resolution clause and the choice of law clause are stipulated together. At times, these two choices are regulated in the same sentence, sometimes in different sub-articles of the same article, and sometimes in subsequent articles. However, in such cases, it is unclear whether the choice of law refers also to the arbitration agreement. Consequently, it will be controversial whether the law determined to be applicable to the substance of the dispute should also be applied to the arbitration agreement.
Such issue may raise different problems. Firstly, it can be considered whether it is possible to determine the law applicable to the underlying contract and law applicable to the arbitration agreement to be different from each other. In other words, can the parties determine the law applicable to the arbitration agreement in addition to the applicable law to the underlying contract? Later, it should be considered whether it is possible for the law that is determined to be applicable to the underlying contract by the parties or arbitrators or state courts can also apply to the arbitration agreement. If such solution is impossible, should this law be determined separately on the basis that the law applicable to the arbitration agreement is undetermined?
The issue of costs in arbitration is one of the factors to considered before deciding whether to resolve a dispute through arbitration or not. Indeed, arbitration is sometimes criticized as being an "expensive" dispute resolution mechanism. This article provides a general overview of costs and fees in arbitration, as well as the repartition of costs, in light of the survey conducted by the Chartered Institute of Arbitrators ("CIArb") titled "CIArb Costs of International Arbitration Survey 2011"1 ("Survey") and, finally, addresses the issue of how to reduce costs in arbitration.
Compensation for moral damages in disputes to be resolved before an arbitral tribunal is a substantial topic. This Article covers the issue of moral damages claims in investment arbitration in light of significant arbitral awards ruled on this matter.
In some cases, it is harder for the decision-makers to rule on compensation for moral damages due to its subjective nature. It is often argued that the distinction between material and moral damages blurs in some circumstances1. Below, the details of moral damages claims in investment arbitration will be examined under two sections according to the claimant of the moral damages which may be either the investor or the host state.
Authors: Luciano de Souza Godoy and Marcela Machado Martiniano
Since the enactment of the Brazilian Arbitration Act (Law No. 9,307/1996), the Brazilian legal framework has undergone remarkable changes that helped improve and strengthen arbitration as an alternative method of dispute resolution.
In 2002, the 1958 New York Convention came into force in Brazil, notably contributing to the development of arbitration in the country, particularly in respect to the recognition and enforcement of foreign arbitral awards.
More recently, the new Brazilian Civil Procedure Code (Law No. 13,105/2015) accommodated the kompetenz-kompetenz principle, under which it is up to the arbitrator to determine his or her own competence by examining the validity of the arbitration clause and the agreement in which it is inserted.
Author: Sean Barrett
A property developer who relied on an estate agent's sales brochure has had his award of €350,000 in damages for negligent misstatement overturned by the Supreme Court by a 3:2 majority.
In 2007, the High Court awarded €350,000 in damages to Mr David Walsh for negligent misstatement arising from information contained in a sales brochure produced by Jones Lang LaSalle (JLL) on behalf of the seller of a property.
JLL appealed the finding to the Supreme Court.
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- Enforcement of Arbitral Awards Set Aside at the Seat of Arbitration
- ICC Expedited Procedure Rules in accordance with the ICC Note on the Conduct of Arbitration
- International Arbitration in Banking and Finance Sector within the Context of the ICC Commission Report