Arbitration Quarterly, Page Our Collection of the Most Interesting and Significant Developments in 01 Editors’ Remarks International Arbitration from the Last Quarter

Arbitration uarterly Q Issue No 2 – May 2013 Editors’ Remarks In This Issue

Welcome to this second edition of Debevoise’s Arbitration Quarterly, Page our collection of the most interesting and significant developments in 01 Editors’ Remarks international arbitration from the last quarter. Investment Arbitration The first months of 2013 have seen continued development towards a single system for the resolution of international disputes. We have seen 02 Recent Developments in Investment Arbitration the continued expansion of international arbitration into new areas, with Myanmar officially confirming its intention to accede to the New York Regional Focus

Convention, ICSID Tribunals allowing class actions and cases based on 06 Russian Higher Arbitrazh Court Issues complex financial instruments to proceed, and the launch in New York of a Long-Awaited Information Letter on new arbitration institution. Public Policy There have also been developments in existing arbitration spheres. The 08 Myanmar to Accede to the New York Convention publication by the Russian Higher Arbitrazh Court of its position on the meaning of “publicly policy” is welcome and confirms the trend towards 08 Hong Kong’s Court of Final Appeal Brings international homogenisation in approach to arbitration proceedings. Certainty on Setting Aside of Awards And at an institutional level, arbitration rules continue to be revised and 09 French Supreme Court Extends an updated to keep pace with parties’ needs: as we report here, the Singapore Arbitration Agreement to include a Third- Party “Involved in the Performance of the International Arbitration Centre has published an updated version of its Contract” Rules, and new versions of the HKIAC and LCIA Rules are expected in the 10 Paris Court of Appeal : A Shift in its near future. Position on Setting Aside of Awards? We hope that you will find this edition of the Arbitration Quarterly an 12 Second Circuit Holds that Federal interesting and useful summary of the key developments around the world. Common Law Defines the Scope of If any of these articles catches your attention and you would like to know “Arbitration” Under the Federal more, we would be delighted to hear from you. Arbitration Act 13 Determining the Correct Governing Law Very best wishes, has Important Consequences for Indian Contracts Catherine M. Amirfar Arbitration Practice Steven S. Michaels 14 Launch of the New York International and the International Dispute Resolution Group Arbitration Center of Debevoise & Plimpton LLP 15 The Singapore International Arbitration Centre (SIAC) Adopts New Rules

16 Forthcoming Events If there are additional individuals within your organization who would like to receive Arbitration Quarterly, please email 17 Debevoise International Dispute Deborah Enix-Ross at [email protected]. Resolution Group

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Recent Developments in Arbitration Quarterly is a publication of Investment Arbitration Debevoise & Plimpton LLP New York London In the first quarter of 2013 there have been a number of significant 919 Third Avenue Tower 42 decisions involving some of investment arbitration’s most contested issues. New York, NY 10022 Old Broad Street +1 212 909 6000 London, EC2N 1HQ From a decision confirming that investors may restructure their investments +44 20 7786 9000 to take advantage of Bilateral Investment Treaties (“BITs”) under certain circumstances, to a ruling that a third-party funder cannot be deemed Washington, D.C. Moscow to be the proper party to a claim if the funding agreement was entered 555 13th Street, N.W. Business Center Mokhovaya into after the date of filing, and to two decisions considering the seminal Washington, D.C. 20004 Ulitsa Vozdvizhenka, 4/7 +1 202 383 8000 Stroyeniye 2 Abaclat award in the context of complex financial instruments, these latest Moscow, 125009 Paris +7 495 956 3858 developments will no doubt contribute significantly to the evolving body of 4 place de l’Opéra investment law jurisprudence. In this round-up, we provide a summary of 75002 Paris Hong Kong these and other important recent developments. +33 1 40 73 12 12 13/F Entertainment Building 30 Queen’s Road Central Frankfurt Hong Kong Taubenstrasse 7-9 Investment Restructuring +852 2160 9800 60313 Frankfurt am Main In Tidewater Inc and others v Bolivarian Republic of Venezuela (ICSID +49 69 2097 5000 Shanghai Case No. ARB/10/5), the claimant had restructured its investment to take 22/F Jin Mao Tower 88 Century Boulevard advantage of the Barbados-Venezuela BIT by transferring its shares in a Pudong New District Venezuelan company from a Cayman Islands subsidiary to a Barbadian Shanghai 200121 subsidiary, and an ICSID Tribunal found that this was acceptable and that www.debevoise.com +86 21 5047 1800 it therefore had jurisdiction to hear the claimant’s expropriation claim under that BIT. Edition Editors

Adopting the approach taken in Mobil Corporation v Venezuela (ICSID Catherine M. Amirfar Case No ARB/07/27), the Tribunal found that the restructuring had taken [email protected] New York, +1 212 909 6398 place after the initial investment, but prior to the time at which the acts of Steven S. Michaels expropriation giving rise to the claim became reasonably foreseeable to the [email protected] claimants. It therefore was not an “abusive manipulation of the system”, but New York, +1 212 909 7265 was permissible. Assistant Editors The case is therefore likely to be of interest to any investors looking to Gavin Chesney take advantage of BITs or other treaty protections, particularly in the face [email protected] of various efforts by certain sovereigns to withdraw from or otherwise curtail London, +44 20 7786 5494 their treaty obligations. Jane Rahman [email protected] The decision also confirms that Article 22 of the Venezuelan Law on London, +44 20 7786 5463 the Promotion and Protection of Investments does not constitute a standing offer to arbitrate, as consistently found by three previous ICSID Tribunals.

Third-Party Funding [email protected] In Teinver SA and others v Argentine Republic (ICSID Case No. Please address inquiries regarding topics covered in this publication to the editors or to the article authors. ARB/09/1), the Tribunal was called upon to interpret the Most Favoured All content © 2013 Debevoise & Plimpton LLP. All rights reserved. The Nation clause in the Spain-Argentina BIT, to determine whether it extends articles appearing in this publication provide summary information only and are not intended as legal advice. Readers should seek specific to pre-conditions to arbitration. Endorsing the approach adopted inter legal advice before taking any action with respect to the matters alia in Maffezini v Spain (ICSID Case No. ARB/97/7), the majority of discussed herein. Any discussion of U.S. Federal tax law contained in these articles was not intended or written to be used, and it cannot be used by any taxpayer, for the purpose of avoiding penalties that may be imposed on the taxpayer under U.S. Federal tax law. Continued on page 3

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Recent Developments in two decisions in cases concerning complex arguments that the sovereign debts at issue Investment Arbitration financial instruments. were not “investments”. Continued from page 2 On 8 February 2013 an ICSID Tribunal In Deutsche Bank AG v. Democratic the Tribunal held that it did, and that the in Ambiente Ufficio SpA and Ors v Argentina Socialist Republic of Sri Lanka (ICSID Case claimant is entitled to look for the most (ICSID Case No. ARB/08/9) confirmed No. ARB/09/2) the Tribunal awarded US$ favourable pre-conditions to arbitration in the compatibility of ICSID arbitration 78 million in compensation for breaches bringing its case. with ‘multi-party’ claims involving several of the Italy-Sri Lanka BIT, in a dispute The majority in Teinver also rejected investors with similar claims against a state. concerning an Oil Hedging Agreement Argentina’s argument that a third-party As one of a number of ICSID arbitrations between Deutsche Bank and Sri Lanka’s funder rather than the claimants was in fact against Argentina comprising multi-party national petroleum corporation. Falling the real claimant, which would have resulted claims (the largest, Abaclat, comprises over oil prices meant that the state party was in the claimants being unable to satisfy the 60,000 claimants), the Ambiente Ufficio left owing Deutsche Bank over US$ 400 jurisdictional requirements of the Spain- claim is brought by 90 investors against million under the agreement. Sri Lanka’s Argentina BIT. Argentina had argued that, Argentina in relation to its treatment of Supreme Court ordered the suspension of in practice, the funder was in fact the only sovereign-debt holders under the Italy- payments while a probe was carried out into party that would potentially benefit if an Argentina BIT. The Tribunal rejected the State’s oil hedging arrangements. This award was made against Argentina. This any suggestion that Argentina needed to non-payment prompted Deutsche Bank to argument was dismissed on the basis that “consent” specifically to such “multi-party” initiate ICSID proceedings. the funding arrangement was implemented claims, finding instead that multi-party Sri Lanka raised jurisdictional after the date of filing of the claim, and arbitration is a generally accepted practice objections arguing that hedging agreements ICSID Tribunals have consistently applied in ICSID arbitration. Such proceedings did not qualify as a covered investment the principle that jurisdiction is determined would be “particularly typical” in cases for the purposes of ICSID arbitration. as of the date of filing. involving widely held instruments such as The Tribunal rejected this argument, government bonds. The decision serves as useful guidance and held that a hedging agreement is an to potential claimants considering obtaining The Tribunal also allowed the claimants “asset” within the meaning of the Italy-Sri third-party funding for their claim. a “futility exception”, holding that it would Lanka BIT, as it is legal property with an have been futile for the claimants to pursue economic value. The Tribunal further held Complex Financial litigation in Argentina before commencing that the requirement of a territorial nexus Instruments arbitration, and that therefore the BIT with Sri Lanka was satisfied. Relying on Last year’s decision on jurisdiction in requirement to pursue such litigation could the decision in Abaclat, it concluded that Abaclat & Ors v Argentina (ICSID Case No. be treated as satisfied. This reasoning it was not necessary that an investment ARB/07/5), which was recently voted the goes further than Abaclat, in which the of a purely financial nature be linked to most influential award of the last ten years Tribunal came to the same conclusion but specific operations in the territory of the by members of the Oil and Gas Energy without endorsing a futility exception per host State. It was sufficient that the funds and Mineral International Disputes online se. The Ambiente Tribunal also dismissed community, has recently been considered in other jurisdictional objections, including Continued on page 4

In other news: Argentina and Ecuador have continued to press for the creation of a new dispute resolution forum to rival ICSID, intended to resolve investment claims against member states of UNASUR, the South American trading union.

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Recent Developments in international law under the UK-Hungary more favourable than those in the treaty. Investment Arbitration BIT. The investors allege multiple breaches The Tribunal concluded that the Claimant Continued from page 3 of the BIT, including the expropriation, fair was able to rely on the MFN provisions and equitable treatment and discrimination only to the extent that they related to paid by Deutsche Bank under the Hedging provisions as well as breaches of the State’s expropriation. In so doing, the Tribunal Agreement were made available to Sri obligations under customary international clarified that customary international Lanka, and were linked to an activity taking law. Hungary filed an objection under law did not provide a separate basis for place in Sri Lanka. ICSID rule 41(5), a procedure that allows liability under that BIT, independent of the With respect to the jurisdictional tribunals to summarily dismiss claims that standards explicitly covered by the BIT’s requirements under the ICSID Convention, are “manifestly without legal merit”. It dispute resolution clause. the Tribunal held that the Hedging argued that it had not consented to arbitrate Agreement fell within the wide definition claims arising from customary international Joinder of Parties of “investment” under the Convention. It law, which the Claimants advanced as a In the early stages of Churchill Mining’s also noted that there was no requirement distinct basis for liability. UK-Indonesia BIT arbitration against the under the ICSID Convention to show that The dispute resolution clause of the Republic of Indonesia (Churchill Mining the Hedging Agreement generated stable UK-Hungary BIT makes reference only v Indonesia), Churchill has successfully returns or contributed to the host-State’s to claims under the expropriation clause. opposed a joinder application by the economic development. The Tribunal On this basis, the Tribunal held that its Government of the Regency of East Kutai went on to find Sri Lanka liable for indirect jurisdiction was limited to the question of (the Indonesian authority which allegedly expropriation of Deutsche Bank’s assets expropriation, “nothing more and nothing issued the mining licenses that were and for breaching the fair and equitable less.” It held that “neither the BIT, nor Article controversially revoked). The ICSID treatment provision of the BIT. 42(1) of the ICSID Convention, entitles Tribunal’s 5 February 2013 decision rested Both of these cases show a broad Claimants to assert customary international on the fact that Churchill’s acceptance of approach taken to the range of investments law as an independent cause of action.” It Indonesia’s standing offer to arbitrate did covered by the relevant BITs and the ICSID noted, however, that the interpretation not include consent to arbitration with Convention. With difficulties in financial and application of the BIT is governed regional authorities. Instead, the principle markets continuing, these decisions are by international law, which includes the that a State is to be treated as including and likely to be of interest and comfort to any expropriation clause within it. Therefore, it representing its regions was applied, leaving investors in complex financial instruments may not be possible to consider the scope Indonesia as the correct party to the dispute. of various forms. and content of the term “expropriation” in Enforcement of Awards Customary International the BIT without considering customary and In its Fourth Interim Award on Law Claims general principles of international law. Interim Measures in the long-running The Tribunal also rejected the In the recent jurisdictional award BIT arbitration between Chevron and investor’s argument that the BIT’s MFN in Accession Mezzanine Capital LP and Ecuador (PCA Case No. 2009-23 clause allowed the Tribunal to find that Chevron Danubius Kereskedohaz Vagyonkezelo ZRT v an expropriation breached customary Corporation & Texaco Petroleum Co. v Hungary (ICSID Case No. ARB/12/3), the , 7 February 2013), the international law, to the extent that Republic of Ecuador Tribunal ruled that it had no jurisdiction Tribunal has declared that Ecuador is in applicable rules of international law are to hear claims based on customary breach of earlier arbitral awards preventing the certification and subsequent enforcement Recognition: Debevoise partner Catherine of the US$ 18 billion Lago Agrio judgment in the Ecuadorian courts against Chevron. M. Amirfar has been recognised as a “Rising The Tribunal has indicated that Ecuador could be liable to Chevron for its costs in Star” by the New York Law Journal. various enforcement proceedings that have See http://bit.ly/12ccdkO Continued on page 5

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Recent Developments in hoc Committee in Victor Pey Casado and Investment Arbitration Foundation “Presidente Allende” v Republic Continued from page 4 of Chile (ICSID Case No. ARB/98/2, Annulment decision). The ad hoc now been commenced against Chevron in Committee presided by Yves Fortier found Canada, Brazil and Argentina. that the Tribunal had seriously departed To date, the Tribunal has issued awards from a fundamental rule of procedure by staying the execution of the Lago Agrio failing to hear the parties on the appropriate judgment pending the determination of the method for the calculation of damages, and BIT proceedings, on the basis that Chevron by giving contradictory reasons in respect could suffer irreparable harm if the Lago of its chosen method. This annulment Agrio judgment is enforced around the decision endorses the interpretation of world before the BIT proceedings – in Article 52(1)(d) of the ICSID Convention which Chevron claims Ecuador breached its according to which the ad hoc Committee BIT rights in its conduct during the Lago has no discretion as to whether to annul Agrio case – are completed. The Tribunal once it has established that the departure was concerned to ensure that Ecuador’s from a procedural rule is “serious”. commitments under the BIT were not rendered nugatory by the finalisation, For further information, please contact: enforcement or execution of the Lago Agrio Nicola Leslie judgment and that the arbitration itself was [email protected] London, +44 20 7786 5462 not rendered irrelevant by global attempts at enforcement while the judgment itself is Conway Blake in dispute. [email protected] The case is illustrative of the willingness London, +44 20 7786 5403 of tribunals to take action against parties Samuel Pape that fail to abide by the tribunal’s orders, [email protected] in this case indicating that costs may be London, +44 20 7786 3023 awarded against Ecuador that would not otherwise have been due.

Annulment of Awards An award delivered in ICSID’s most protracted proceedings—the Request for Arbitration was registered on 20 April 1998—was partially annulled in a decision delivered on 18 December 2012 by an ad

In other news: ICSID has published its most recent caseload statistics, showing that 50 new cases (40 ICSID, 8 Additional Facility and 2 Conciliation) were registered in the year to 31 December 2012. This is the highest ever number of new cases registered in one year.

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Russian Higher Arbitrazh Court Issues Long-Awaited Information Letter on Public Policy

In February this year, the Higher principles that are strongly imperative, the amount of such legal remedies is Arbitrazh Court (“HAC”), Russia’s highest universal, and that have crucial social and reasonable and not excessive; commercial court, adopted long-awaited public importance to Russia and form the • the application in a foreign court case of guidelines on the judiciary’s interpretation basis of the economic, political and legal orders for security for costs, which are not of “public policy” in the context of grounds system of the state. The Information Letter available under Russian procedural laws for refusal of recognition and enforcement explains that for a matter to be a violation and which may effectively prevent a party of foreign arbitral awards and court of public policy it must be a serious matter, from filing a claim or an appeal in those decisions. The guidelines mark a shift in giving as examples actions that are directly proceedings; and the approach of the Russian courts, which prohibited by internationally mandatory had previously been far more willing rules, and which also cause harm to the • the enforcement of a foreign arbitral than other jurisdictions to find “public sovereignty or safety of the state, affect the award against the assets of a Russian policy” reasons to refuse recognition or interests of large social groups, or infringe individual, even where the individual is enforcement of foreign arbitral awards and the constitutional rights and freedoms of married and the spouse did not participate court judgments. individuals. in the arbitration – this resolves an issue generated by the fact that, under Russian The new guidelines are embodied in law, by default any matrimonial property HAC’s Information Letter No.156 dated “[T]he Information Letter is deemed jointly owned by the spouses, 26 February 2013 (“Information Letter”), which has given rise to difficulties in and made public on 1 April 20131. . . . is in line with the enforcing awards against such joint assets Although HAC information letters are standards applied in other in the past. not formally binding under Russian law, the courts of lower circuits follow these modern jurisdictions” The Information Letter also provides guidelines in most cases since they reflect some important rules on the procedure the legal position of the court of highest Importantly, the Information Letter for applying the “public policy” exception instance. The Information Letter sets out states that mere differences between Russian to refuse recognition and enforcement of the recommended approach to the “public and foreign substantive and procedural foreign arbitral awards and court decisions. policy” exception to enforcement in respect rules cannot, per se, be deemed a violation In particular, it confirms that: of twelve specific examples drawn from of Russian public policy. The Information • the application of the “public policy” previous court practice. It covers the legal Letter gives examples of matters which are exception by Russian state courts should issues related to both foreign arbitral awards expressly not to be considered a violation of not lead to a re-examination of the case and foreign state court decisions, although public policy: on the merits; most of the examples provided concern • the application by a foreign tribunal or • Russian state courts may apply the foreign arbitral awards and the application a court of foreign legal concepts which notion of “public policy” ex officio, that is, of Article V of the New York Convention. are not known to the Russian legal on their own initiative and without either In the Information Letter, the definition system (e.g., the English concepts of party raising a “public policy” objection; of “public policy” has been substantially representations outside of a contract, or narrowed from previous practice. It of indemnities); • objections to the recognition of foreign now includes only the fundamental legal judgments or awards which allege a • the enforcement of a foreign award or violation of public policy should not be 1 Information Letter No.156 dated 26 February a foreign court decision satisfying claims accepted by the courts in cases in which 2013 on the Practice of the Arbitrazh Courts in the for payment of agreed amounts (e.g. Cases Where the Public Policy is Applied as a Ground the irregularity concerned falls within the liquidated damages) that exceed the for Refusal of Recognition and Enforcement of Foreign other grounds for non-recognition and Court Decisions and Arbitral Awards, available (in claimant’s actual losses, provided that Russian language) at http://www.arbitr.ru/as/pract/ vas_info_letter/82122.html. Continued on page 7

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Russian Higher Arbitrazh Court existence of justifiable doubts as to the approach, under which a range of public Issues Long-Awaited Information independence of an arbitrator, if proper policy reasons could be utilized to deny Continued from page 6 disclosure has been made to the parties, enforcement of awards, the Information non-enforcement listed in Article V(1) is not enough to found a “public policy Letter takes a much more restrictive of the New York Convention, and the challenge”. Instead, the Information Letter approach that is in line with the standards courts cannot apply such specific (i.e., indicates that only particularly egregious applied in other modern pro-arbitration Convention) grounds ex officio, but can violations of the principle of arbitrator jurisdictions. Out of the twelve examples of do so only at the request of a party; independence can be the basis for a situations given in the Information Letter, challenge (the example given is of a party only in two instances does the HAC indicate • the party claiming the alleged violation appointing the head of its parent company’s that an award or judgment should be of Russian public policy must provide legal department as an arbitrator, where the refused enforcement on the basis of “public evidence supporting its allegations and other party challenges that appointment policy”, emphasizing that the “public demonstrate what adverse consequences but has the challenge refused). Similarly, policy” exception should apply only in truly it has suffered as a result of such an the Information Letter states that any exceptional cases. This development will alleged breach; and application to refuse enforcement of an hopefully therefore provide further certainty • minor errors and mistakes in a foreign award as having been based on or connected and confidence for investors in Russia in award or decision which do not affect the with bribery first requires a binding and resolving their disputes. essence of the award cannot be regarded final criminal finding that bribery took For further information, please contact:

as a violation of public policy. place, and that the bribery induced the Anton V. Asoskov relevant contractual provisions. [email protected] The Information Letter also provides Moscow, +7 495 956 3858 two examples of circumstances in which the The Information Letter is therefore “public policy” exception could legitimately an important step towards improving the Alexey I. Yadykin current Russian practice in the recognition [email protected] apply. For example, Russian public policy Moscow, +7 495 956 3858 may prevent the enforcement of an award if and enforcement of foreign judgments and it is clear that one of the arbitrators giving arbitral awards. In contrast to the previous the award was not independent of the parties and impartial in the dispute, with Appointment: Mark Friedman, a partner based the result being that the award is tainted by the appearance of partiality; or if it is clear in Debevoise’s New York and London offices, that the underlying contract on which the award is based was procured by bribery, and has been appointed Vice President of the LCIA’s therefore is illegal under Russian law. North American Users’ Council. See http://bit.ly/10eR9Y1 Even in those cases, however, the Information Letter states that the mere

Recent Lecture: The Clayton Utz Lecture on “The Impact of International Arbitration on the Rule of Law”, delivered by David W. Rivkin on 13 November 2012, was shortlisted in the 2012 Global Arbitration Review Awards in the “Best lecture or speech of the past year” category. A copy of the lecture can be found at http://bit.ly/Sk7RWf

7 Issue No 2 - May 2013 Arbitration Quarterly

Myanmar to Accede to the New York Convention

In March 2013, the National Assembly awards in Myanmar. This development is has entered into Free Trade Agreements of Myanmar announced that it intends to likely to improve investor confidence, which with a number of nations. become a party to the New York Convention was already on the upswing following the The announcement to join the New on the Recognition and Enforcement of Foreign introduction of tax benefits and protections York Convention has been welcomed as Arbitral Awards. This announcement against expropriation which are included a further step towards full international follows the enactment in December 2012 in the 2012 Foreign Investment Law. participation since Daw Aung San Suu Kyi of a new Foreign Investment Law designed Although these protections have the status entered parliament in 2012. Although the to encourage foreign investment into of domestic law and are not enforceable National Assembly has not yet set a date by Myanmar, as well as the lifting and easing under international law (unlike the similar which Myanmar will formally accede to the of US and EU sanctions against Myanmar protections often contained in a bilateral Convention and this could take some time, last year. investment treaty), such developments this development shows that Myanmar is The decision to join the New York are welcome. These new measures are in actively working towards full acceptance Convention has been widely applauded. addition to specific protections for investors and utilization of international dispute Once Myanmar has formally acceded to the from India, China and the Philippines resolution practices. through bilateral investment treaties Convention, investors will have additional For further information, please contact: grounds to invoke before the Myanmar concluded between those countries and Nicola Leslie courts in litigation to uphold arbitration Myanmar, and to protections that flow from [email protected] agreements and to enforce foreign arbitral Myanmar’s membership in ASEAN, which London, +44 20 7786 5462

Hong Kong’s Court of Final Appeal Brings Certainty on Setting Aside of Awards

On 19 February 2013, Hong Kong’s The Hong Kong Court of Appeal had of Article 34(2) of the UNCITRAL highest court, the Court of Final Appeal previously held that, in order to succeed in Model Law. The allegations levelled by (“CFA”), issued an oral decision refusing setting aside an award, the applicant must the applicant included the contention that leave to appeal in Grand Pacific Holdings show that breaches of Article 34(2) were the tribunal had denied Pacific China the Ltd. v Pacific China Holdings Ltd., “serious” or “egregious” in nature. The opportunity to present its case and that the confirming the Court of Appeal’s (Hong outcome in this case confirms the rigorous tribunal had failed to follow the procedure Kong’s intermediate appellate court) requirements for successful challenge of an outlined in the parties’ agreement. judgment upholding an arbitral award and award, bringing welcome reassurance and Article 34(2) stipulates the limited refusing a challenge under Article 34(2) of certainty to parties. It further indicates that grounds on which arbitral awards may be set the Model Law. arbitration enjoys the robust support of the aside. This provision has been adopted into Hong Kong courts. domestic Hong Kong legislation by both In other news: The On 29 June 2011, the Court of First the repealed Arbitration Ordinance (which Instance (“CFI”) handed down judgment governed the arbitration in this case) and Hong Kong International on an application to set aside a US$ 55 the new Arbitration Ordinance, which came Arbitration Centre is million award rendered in favour of Grand into effect on 1 June 2011 and is considered Pacific Holdings, Ltd. (“Grand Pacific”) to provide a user-friendly legal framework expected to publish in an Hong Kong-seated ICC arbitration. for arbitration. In a controversial action The applicant, Pacific China Holdings Ltd. – not least because the tribunal included updated Rules in Q2 (“Pacific China”), claimed that there had 2013. been procedural irregularities in violation Continued on page 9

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Hong Kong’s Court of Final Appeal and emphasized the broad case management Together, the decisions of the Court of Brings Certainty powers afforded to arbitral tribunals. Appeal and CFA set a very high threshold Continued from page 8 Signalling its disapproval of the application, for challenge to an arbitral award before the Court of Appeal later refused leave to the Hong Kong courts and confirm that prominent arbitrators – the CFI had found appeal and awarded indemnity costs against “serious” or “egregious” misconduct is Article 34(2) to have been violated and had Pacific China. needed before the courts will intervene. set aside the award. After the denial of leave to appeal by These decisions offer certainty for parties On appeal, however, the Court of the Court of Appeal, Pacific China applied and, together with sanctions such as Appeal reversed the judgment of the CFI to the CFA for leave, including on the indemnity costs, should help to dissuade and confirmed the award, finding that no ground that the case raised questions of opportunistic and unworthy challenges to breaches of Article 34(2) had occurred. “great general or public importance.” In arbitral awards issued in Hong Kong. The Mr. Justice Tang of the Court of Appeal, an oral decision dated 19 February 2013, outcome in this case affirms the Hong Kong writing for the court, held that, in order to the CFA refused Pacific China leave to judiciary’s pro-enforcement stance towards succeed in setting aside an award on due appeal, expressing strong support for the arbitral awards. process grounds, the applicant must show Court of Appeal’s earlier judgment. The that the alleged breaches of Article 34(2) For further information, please contact: CFA described the challenged rulings as were “serious” or “egregious” in nature, Corey Whiting having been made “in the proper exercise demonstrating the court’s reluctance to [email protected] of [the tribunal’s] procedural and case Hong Kong, +852 2160 9817 second guess the exercise by arbitral tribunals management discretions.” It described the of discretion in procedural matters. tribunal’s conduct as “appropriate to the Xia Li The Court of Appeal further held [email protected] circumstances.” that the burden is on the applicant to Hong Kong, +852 2160 9822 demonstrate actual or potential prejudice

French Supreme Court Extends an Arbitration Agreement to include a Third-Party “Involved in the Performance of the Contract”

Over the last few decades the scope of In reality, however, the supply was carried On May 12, 2011, the Grenoble application of an arbitration clause under out by another Greek company called Court of Appeal set aside the award on French law has increased significantly, Iakovoglou Promodos, whose shareholder the basis of (former) articles 1502, 1° sometimes leading to unpredictable results. structure, representatives and headquarters and 1504 of the French Code of Civil A recent decision of the French Supreme were identical to those of Oebe TH Thotou. Procedure, finding that the arbitration Court (Cour de cassation, November 7, On September 21, 2007, Amplitude clause was not enforceable by or against 2012, Oebe TH Thotou, n°11-25.891) has notified Oebe TH Thotou of the Iakovoglou Promodos. The Court stated further broadened the range of parties that termination of the contract. In response, that the arbitrator’s ruling went beyond will be bound by an arbitration clause, both Oebe TH Thotou and Iakovoglou the agreement to arbitrate and the clause extending the scope of a clause to include Promodos sought arbitration under the included in the initial contract could not be non-signatory parties directly involved in arbitration clause. On October 7, 2009, extended to Iakovoglou Promodos, because the performance of the underlying contract. the arbitrator rendered an award in favor of the latter knowingly remained outside the In 2004, a French company called the two Greek companies. The arbitrator scope of the contract. As a consequence, Amplitude signed a contract, which confirmed that he had jurisdiction and Iakovoglou Promodos could not validly contained an arbitration clause, with held that the arbitration clause should be invoke the arbitration clause. Greek company Oebe TH Thotou for the extended to Iakovoglou Promodos. supply of orthopedic prostheses in Greece. Continued on page 10

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French Supreme Court Extends The notion of “involvement in the relevant that Iakovoglou Promodos actively an Arbitration Agreement performance of the contract,” without sought to be part of the arbitration, therefore Continued from page 9 demonstrable participation in the waiving any objections to the application of On November 7, 2012, the French negotiation of the agreement however, is the arbitration agreement. However, in the Supreme Court overturned the decision of not clearly defined. absence of specific guidance whether the the Court of Appeal. The Court concluded In particular, it is unclear whether this Oebe TH Thoutou principle extends only that Iakovoglou Promodos “having decision is an extension of the “knowledge” to situations in which the third party had substituted for Oebe TH Thotou for the criterion previously applied by the French knowledge of the arbitration agreement, performance of the supply contract, the effect of Supreme Court when extending arbitration or whether it extends to all third parties the arbitration clause contained in the initial agreements. The French Supreme Court involved in the broader “performance of the contract extends to the parties directly involved has previously ruled that “the effect of an contract”, the matter remains unclear. in performing the contract.” international arbitration clause extends to Until additional case law provides This ruling is not without precedent. a subcontractor who had knowledge of such further guidance, parties to French law The French Supreme Court had already a clause at the signing of his contract and is contracts should be mindful that any third ruled that “the effect of an international directly involved in the performance of the party “involved in the performance” of a arbitration clause extends to the parties first contact” (Cour de cassation, October 26, contract containing an arbitration clause directly involved in the performance of the 2011, n°10-17708). may potentially find itself bound by that contract and to disputes that may arise from The Oebe TH Thotou decision, however, arbitration agreement, and equally may be this contract” (Cour de cassation, March 27, does not explicitly refer to this “knowledge” able to enforce that arbitration agreement 2007, n°04-20842). The Paris Court of criterion. It may be that knowledge of against the parties to the contract. Appeal has also applied this principle (CA the arbitration agreement by Iakovoglou For further information, please contact: Paris, May 7, 2009, n°07/21973). In those Promodos could be inferred from the Alexandre Bisch cases, the arbitration clause was extended fact that the two Greek companies have a [email protected] Paris, +33 1 40 73 13 37 to a company that was not a signatory common shareholder structure and close of, but that had participated in, “both the managerial links, and it may therefore be negotiation and the execution of the contract” that this case is similar to decisions based containing the arbitration clause. upon “alter ego” analyses found in some common law countries. It may also be

Paris Court of Appeal: A Shift in Position on Setting Aside of Awards?

French law sets aside arbitration awards some debate. In that case, the Paris Court Court of Appeal re-judged the merits of only in limited circumstances. Article 1520 of Appeal refused to enforce an arbitration the arbitration, rather than confining its of the French Code of Civil Procedure award issued in Malaysia on the ground review to an assessment under one of the (former article 1502) lists the five specific that the arbitral tribunal did not have five specified grounds. grounds on which a French court would jurisdiction. The decision is controversial, In 1992, a Thai company, Thai-Lao consider setting aside the arbitration award. as the award has been challenged in several Lignite Co, Limited (“TLL”) entered into a Previous case law also shows that French jurisdictions, with different results: the contract with the Lao People’s Democratic courts strictly respect these criteria when award was upheld and enforced in New Republic (“Laos”) whereby Laos granted considering applications to set aside awards. York in 2011 and in England in November TLL, and its newly formed subsidiary A recent decision of the Paris Court 2012, but set aside in Malaysia in December Hongsa Lignite Co., Limited (“HLL”), of Appeal (CA Paris, February 19, 2013, 2012. Further, some critics have suggested that in coming to its decision the Paris n°12/09983), however, has given rise to Continued on page 11

10 Issue No 2 - May 2013 Arbitration Quarterly

Paris Court of Appeal: A Shift in own clauses for dispute resolution and that jurisdiction, and damages arising from the Position on Setting Aside of Awards? continued to exist after the entry into force Mining Agreement, where it did not have Continued from page 10 of the PDA, the arbitrators ruled in part jurisdiction. As a consequence, no part of the right to conduct lignite survey and without an arbitration agreement.” Because the award could be enforced alone. mining operations in the Hongsa region the arbitral tribunal did not differentiate After close review of the decision and (the “Mining Agreement”). In 1993, the between the damages awarded arising from other supporting case law, one can see that contract was extended. Then, in 1994, the Mining Agreement and the damages the Paris Court of Appeal has not changed TLL and Laos entered into a Project arising from the PDA, the Court set aside its position with regards to examining Development Agreement (“PDA”) that the decision of the Paris Tribunal de Grande appeals to set aside arbitration awards. The granted TLL the rights to construct an Instance granting enforcement of the award. Paris Court of Appeal refrained from re- electricity generation plant. The PDA Some have suggested that the Paris judging the merits of the arbitration, and contained an arbitration clause. Court of Appeal’s decision involved a review limited its examination to the arbitration The electricity generation plant was of the merits of the dispute, re-judging the clause in the contract. never constructed and in 2006 Laos interpretation of the contracts, and that However, the case comes as a reminder terminated the Mining Agreement and the decision was therefore an inappropriate to counsel and arbitrators that care should the PDA. In 2007, TLL and HLL began application of the narrow grounds for be taken in cases where several contracts and arbitration proceedings against Laos. An setting aside awards. This decision, claims are at issue. It must be remembered arbitration award was issued in Kuala however, is in line with case law relating to that an arbitration clause will not necessarily Lumpur on November 4, 2009. The the application of former article 1502, 1° of expand to cover all of the parties’ disputes, arbitral tribunal held that Laos had wrongly the French code of civil procedure, which and jurisdiction in respect of each claim terminated both the contracts and awarded requires that “the appeal judge control the must be established to ensure an enforceable TLL and HLL approximately US$ 56 arbitral tribunal’s decision relating to its award. jurisdiction through investigating all legal million in damages. The award was For further information, please contact: and factual elements that will enable him or enforced in France by a July 15, 2010, order Geoffroy Goubin of the Paris Tribunal de Grande Instance. her to evaluate the existence and efficiency of [email protected] Laos appealed this order, notably on a the arbitration clause” (CA Paris, January 10, Paris, +33 1 40 73 12 24 ground set forth in former article 1502 1° 2012, n°10/17158). of the French Code of Civil Procedure, i.e., Here, the Court of Appeal examined the that the arbitral tribunal had ruled without different contracts involved not with a view an arbitration clause. to assessing the merits, but to determine In its decision, the Paris Court of the scope of application of the arbitration Appeal noted that the Mining Agreement clause. It came to the conclusion that the and the PDA were two different and arbitration clause was applicable only to distinct agreements, but that the award had disputes arising from the PDA. The only provided for damages payable under both. reason that enforcement of the award was It then concluded that “in ruling the payment refused in its entirety was that no distinction of damages as a result of contracts distinct was made between damages arising from from the PDA, contracts that contained their the PDA, where the arbitral tribunal had

In other news: Hong Kong and Macau have signed a new treaty agreeing mutual recognition and enforcement of arbitral awards.

11 Issue No 2 - May 2013 Arbitration Quarterly

Second Circuit Holds that Federal Common Law Defines the Scope of “Arbitration” Under the Federal Arbitration Act

Joining a majority of the circuits to Under the Certificate, Lloyds could require granted summary judgment on the merits, have considered the issue, the United States Bakoss to be examined by a physician rendering moot Lloyds’s request that, in the Court of Appeals for the Second Circuit of its choice if it did not agree with his alternative, the court compel arbitration. held, in its January 23, 2013 decision in physician’s assessment that he was totally On appeal, the Second Circuit Bakoss v. Lloyds of London, No. 11-4371-cv, disabled; in the event of a disagreement, the confirmed that the district judge had that the meaning of “arbitration” under the two doctors selected would choose a third correctly looked to federal common law Federal Arbitration Act (“FAA”) is governed physician whose “decision on the matter” to supply the definition of “arbitration” by federal common law rather than state would be “final and binding.” After Bakoss under the FAA and to conclude that the law. In so holding, the panel reasoned that filed a claim and underwent examinations third physician provision was an arbitration “Congress intended national uniformity at Lloyds’s election, Lloyds denied coverage clause. In an opinion authored by Judge regarding the interpretation of the term” on the basis that Bakoss’s condition did Cabranes and joined by Judges Leval and and that, consequently, federal common not qualify him for benefits and that his Sack, the court noted that, as a matter of law governs. Endorsing the district court’s untimely submission of the claim relieved statutory construction, federal courts “apply application of federal common law to the Lloyds of any obligation to indemnify him. a federal standard without reference to state agreement before it, the Second Circuit Contesting this determination, Bakoss law” unless Congress indicates otherwise also confirmed that contractual language refused to comply with the third physician or clearly signals that it did not intend the submitting a dispute to a specified third provision without a prior concession of statue to be applied uniformly nationwide. party for binding resolution is sufficient, by coverage by Lloyds and, instead, filed suit. The court found no indication that itself, to manifest an agreement to arbitrate. Brought in state court as an action for Congress desired the sort of legal patchwork In the underlying suit, plaintiff- a declaratory judgment and damages and that the application of state law to the FAA appellant Imad John Bakoss (“Bakoss”) thereafter removed to federal court, the case issue under review would create. It then sought payment of contractual benefits came to the Second Circuit on appeal from a affirmed that the district court had properly allegedly owed by defendant-appellee Lloyds grant of summary judgment against Bakoss exercised jurisdiction and granted summary of London’s (“Lloyds”) under a Certificate by the United States District Court for the judgment to Lloyds. of Insurance (“Certificate”) the parties had Eastern District of New York (“EDNY”). In reaching its conclusion, the Second entered. The Certificate provided coverage The district court determined that it had Circuit joined a slim but growing majority for Bakoss’s obligation to repay a loan in removal jurisdiction over the suit because of circuits that turn to federal common the event he became “Permanently Totally the third physician provision was properly law to define “arbitration” under the FAA. Disabled” but required, as a condition construed as an arbitration clause falling In support of its holding, the court cited precedent to coverage, that he give a written under the New York Convention and as persuasive the reasoning of the First, notice of claim within a specified period. providing a defense to the action. It then Sixth, and Tenth circuits, all of which have similarly determined that Congress’s intent to create a uniform national arbitration In other news: The Shanghai and South China offices of policy necessitates the application of federal the China International Economic and Trade Arbitration common law in this context. By contrast, the panel noted that the Fifth and Ninth Commission (CIETAC) have split from the Beijing branch. Circuits, the two circuits advancing the The Shanghai branch has now set up as an independent minority view that state law should apply, have provided few reasons to justify their centre. Continued on page 13

12 Issue No 2 - May 2013 Arbitration Quarterly

Second Circuit Holds that Federal the threshold for finding an agreement to Second Circuit reaffirmed, the FAA does Common Law Defines the Scope arbitrate under the FAA is low. Endorsing not require that arbitrations resemble Continued from page 12 the district court’s holding that the third adversarial proceedings. By applying this choice. Indeed, a member of a Ninth physician provision was a jurisdiction- line of federal common law to find that Circuit panel, expressing reservations conferring agreement to arbitrate, the panel “arbitration” under the FAA encompasses about the correctness of that court’s earlier reaffirmed the Second Circuit’s conclusion, the third physician provision in Bakoss, the precedent, had observed that it seems in an earlier case, that language “clearly Second Circuit has reiterated its directive to “counter-intuitive to look to state law to manifest[ing] an intention by parties to federal courts in New York, Connecticut, define a term in a federal statute on a subject submit certain disputes to a specified third and Vermont to interpret arbitration clauses as to which Congress has declared the need party for binding resolution” constitutes an broadly. Accordingly, when drafting for national uniformity.” Portland Gen. enforceable arbitration clause. McDonnell agreements that may lead to or otherwise Elec. Co. v. U.S. Bank Trust Nat’l Ass’n as Douglas Fin. Corp. v. Pa. Power & Light Co., contemplate litigation in the District Tr. For Trust No. 1, 218 F.3d 1085, 1091 858 F.2d 825, 831 (2d Cir. 1988). In that Courts within the Second Circuit, parties (9th Cir. 2000) (Tashima, J., concurring). case, the court had found that a contractual should anticipate that contractual language By embracing this logic and holding that provision requiring appointment of consenting to submit a dispute to decision federal common law provides the meaning independent tax counsel to resolve by a third party will likely be deemed an of “arbitration” within the FAA, the disagreements signaled the parties’ intent agreement to arbitrate. Second Circuit promotes such nationwide to arbitrate such disputes. The Bakoss For further information, please contact: consistency and helpfully clarifies, for panel also cited with approval a trial level Leigh E. Sylvan contracting parties, what law they may decision by District Judge Jack B.Weinstein [email protected] New York, +1 212 909 6804 expect to inform the interpretation of their that compelled arbitration pursuant to the arbitration agreements going forward. parties’ bare-bones agreement to obtain a third party’s decision when controversies In addition to resolving this source of of a certain type arose between them. law issue, the decision also confirms that As Judge Weinstein observed, and the

Determining the Correct Governing Law has Important Consequences for Indian Contracts

In May 2012, the English Court of implied choice before finally considering slum areas in Mumbai, India. There Appeal in the Sulamérica case (Sulamérica which law has the closest and most real were four key entities, which entered into CIA Nacional de Seguros SA and others v connection with the arbitration agreement. two agreements. Both agreements stated Enesa Engenharia SA and others [2012] This test is dependent on a close that they were subject to Indian law, and EWCA Civ 638) considered the principles examination of the particular arbitration provided for disputes to be resolved by LCIA to be applied under English law when agreement entered into between the parties, Arbitration in London. As was common determining which law governs an and it was initially unclear how the test practice in Indian law contracts prior to arbitration agreement. It stated that the would be applied. However, some guidance the decision of the Indian Supreme Court law of the arbitration agreement was has been given in the recently-reported in Bharat Aluminium v Kaiser Aluminium not necessarily the same as the law of the judgment of Andrew Smith J. in the English (Balco) in September 2012, both contracts underlying contract between the parties, as High Court in Arsanovia Ltd v Cruz City also expressly excluded the application of had been assumed by some commentators. 1 Mauritius Holdings [2012] EWHC 3702 Part I of the Indian Arbitration Act, in an Instead, a three stage test must be applied, (Comm). attempt to limit intervention by the Indian considering first any express choice of law The Arsanovia case concerned a complex courts in the arbitration process. made by the parties, then looking for any joint venture for the redevelopment of Continued on page 14

13 Issue No 2 - May 2013 Arbitration Quarterly

Determining the Correct Governing law governing the arbitration agreements, opposed to the law of the underlying Law has Important Consequences which are separate and distinct under contract, is clear. Continued from page 13 English law. The Court also held that the The case will also be of particular Disputes arose and three separate choice of London as the seat did not import interest to parties with business in India. arbitrations between the parties were any express choice of English law for the Following the Indian Supreme Court’s commenced, with the same arbitrators arbitration agreement. decision in Bhatia International in 2002, hearing each case. Three awards were Following the Sulamerica test, the Court it became common practice for arbitration issued in July 2012. The losing parties then therefore considered whether the parties clauses in contracts with Indian parties launched appeals against the awards under had made an implied choice of law. It held expressly to exclude Part I of the Indian section 67 of the UK Arbitration Act 1996, that there was such an implied choice, and Arbitration Act – this practice may stop claiming: (i) that the proper law of the that choice was Indian law. This conclusion following the Balco decision last year, but arbitration agreements in both underlying was largely based on the fact that the parties many existing contracts will include such contracts was Indian law; and (ii) that under had expressly excluded the application of an exclusion. Although each contract must Indian law the Tribunal lacked jurisdiction Part I of the Indian Arbitration Act. In be interpreted on its own terms and against to make the awards rendered. The the Court’s view, this indicated that the its own factual background, the Court’s respondent opposed the appeal, contending parties had otherwise intended Indian law, conclusion in Arsanovia that this exclusion that the correct law of the arbitration including the other parts of the Indian implies that Indian law should otherwise agreement was English law, as the law of the Arbitration Act, to apply. Accordingly, the govern the arbitration agreement is likely seat and the law with the closest connection Court upheld the section 67 appeals and to have important consequences in a large to the arbitration agreement. set aside the awards for lack of jurisdiction number of cases. The High Court first noted that the under Indian law. For further information, please contact: parties had expressly chosen Indian law for This decision again confirms the Gavin Chesney the underlying contracts, but that it was importance of taking care when drafting [email protected] unclear whether this choice extended to the to ensure that the parties’ choice of law London, +44 20 7786 5494 governing the arbitration agreement, as

Launch of the New York International Arbitration Center

The highly-anticipated launch of the its Program Committee, with responsibility With our new center added to an already New York International Arbitration Center for the educational and promotional aspects impressive array of international arbitration (“NYIAC”) took place on January 23, with of the NYIAC’s activities. resources, New York is truly the place to the Center’s inaugural Annual Meeting and Speaking at the launch, Judge Kaye be.” a reception attended by 250 guests from commented that she had “watched the field The NYIAC—located in the historic New York and elsewhere. of international dispute resolution flourish Socony-Mobil building in mid-town Debevoise is one of the 33 founding as our world has globalized. Around the Manhattan—will be at the forefront of law firm members of the NYIAC, which is world there is open recognition of the efforts to advance, strengthen and promote chaired by Judge Judith Kaye, the former desirability and importance of having the conduct of international arbitration in Chief Judge of the New York Court of arbitrations centered in your home city. New York. While not itself an administering Appeals, the highest New York state court, institution, the NYIAC offers world-class and now of counsel at Skadden Arps Slate hearing and break-out rooms with up- Meagher & Flom. James H. Carter, senior Debevoise is one of the to-the minute technological capabilities. counsel at WilmerHale and independent The facilities can accommodate arbitrations arbitrator Edna Sussman are vice chairs. 33 founding law firm of any size, whether administered or non- Debevoise’s Catherine M. Amirfar sits on the members of the NYIAC. NYIAC’s Board of Directors and will chair Continued on page 15

14 Issue No 2 - May 2013 Arbitration Quarterly

Launch of the New York initiatives. New York’s position as one home to a vast pool of leading arbitrators, International Arbitration Center of the world’s leading commercial and lawyers and arbitral institutions (including Continued from page 14 cultural hubs, easily accessible for all four the AAA’s International Center for Dispute administered, under any rules. The hearing corners of the globe, makes it a natural Resolution, and a soon-to-be-opened office rooms are also available for conferences and international arbitration forum, no matter of the ICC Court’s Secretariat). other events. where the parties are located. Perhaps less The NYIAC will formally open for well-known, but equally important, are the The Center will also take on a broader business in late spring, and is already important legal and logistical advantages promotional role in maintaining and accepting bookings from July 1, 2013. that New York enjoys: a system of neutral enhancing New York’s role at the forefront More information is available on the website courts, well-versed in complex international of the international arbitration community, at www.nyiac.org. commercial disputes, and a strong legal and as a pre-eminent site for the conduct For further information, please contact: framework that provides solid support for of international arbitration, through Samantha J. Rowe international arbitrations. New York is also educational, programmatic and marketing [email protected] New York, +1 212 909 6661

The Singapore International Arbitration Centre (SIAC) Adopts New Rules

On 1 April 2013, the fifth edition of global ambitions, the SIAC Court consists only provide a valuable resource for clients the Singapore International Arbitration of 16 leading international arbitration and practitioners but help ensure that the Centre’s arbitration rules came into effect, practitioners from Asia, the Middle East, consistency and quality of arbitral awards replacing the 2010 version and making for Europe and the Americas and is led by is maintained. Among other changes, the the third amendment in six years1. The Australian founder-president Michael 2013 Rules provide for a more streamlined year 2012 was a record-breaking one for Pryles. The functions of the SIAC Court process for jurisdictional challenges prior the Asian arbitration centre in terms of case include appointing arbitrators, determining to the constitution of the tribunal (Rule 12 volume and value. Given this success, the jurisdictional challenges and challenges and 13) and determining when the notice of 2013 Rules do not deviate too far from the to arbitrators and other case management arbitration is deemed to be complete (Rule 2010 Rules but structural changes have responsibilities. 3.3). The 2013 Rules also confer powers been made with a view to facilitating the The 2013 Rules also incorporate some on the registrar to extend or shorten any administration of the SIAC’s increased procedural changes. SIAC tribunals are no timelines prescribed under the 2013 Rules caseload. longer confined to considering issues raised (Rule 2.5). The revised rules create a new “Court in pleadings (see new Rule 24(n)). As Finally, through an amendment to Rule of Arbitration” which will assume the case long as the issue has been brought to the 3.1(d), the SIAC is opening the door to administration and arbitral appointment notice of the other party and an adequate investment treaty arbitrations as well. It will functions of the previous SIAC board of opportunity to respond has been given, the be interesting to see whether this potentially directors. Effectively, the functions of the tribunal may hear it. Tribunals may now significant amendment, as well as the other previous SIAC board are now split into also award interest in respect of any period changes, will lead to the SIAC realising its two: the new SIAC board, made up of they deem appropriate, either pre- and/or ambition of becoming the world’s leading prominent lawyers and corporate leaders post-award (Rule 28.7). Both of these new international arbitration centre. will focus on business development while provisions codify recent developments in For further information, please contact: the SIAC Court will oversee the legal and Singapore arbitration case law. Alex Parker technical aspects of arbitration proceedings The 2013 rules also provide the SIAC [email protected] London, +44 20 7786 9130 administered by the centre. Reflecting its with the express power to publish any award so long as any identifying information and Saqib Alam 1 There have been five iterations of the Rules [email protected] since they first became effective: 1991, 1997, 2007, the names of parties are redacted (Rule London, +44 20 7786 5420 2010, 2013 28.10). This transparency should not 15 Issue No 2 - May 2013 Arbitration Quarterly

Forthcoming Events

• Debevoise’s London office is hosting the ICC’s Annual Symposium at Arundel House in London on November 14, 2013.

• Dietmar W. Prager will speak at the Practising Law Institute’s “Doing Deals in and with Emerging Markets: BRICs and Beyond” in New York on July 11, 2013.

• Peter Goldsmith QC will be the Keynote Speaker at the Institutional Limited Partners Association Members’ Conference dinner on June 11, 2013.

• Catherine M. Amirfar will speak on “Using U.S. Courts in Aid of International Arbitration” at the Practising Law Institute’s PLI Conference – International Arbitration 2013 in New York on June 10, 2013.

• Peter Goldsmith QC and Philip Rohlik will speak at a joint seminar hosted by Debevoise & Plimpton LLP and Wong Partnership entitled “The Globalisation of Corporate Liability: Avoiding the Reach of Attributed and Other Long- Arm Liability Laws” in Singapore on May 23, 2013.

• Peter Goldsmith QC will speak on “Risk Management in Private Equity Transactions in China” at the China World Summit Wing in Beijing on May 20, 2013.

• Christopher Tahbaz will speak on “International Arbitration - A Regional Journey” at the Fourth Annual ICC Asia-Pacific Conference in Seoul on May 19, 2013.

16 Issue No 2 - May 2013 Arbitration Quarterly

Debevoise International Dispute Resolution Group Partners and Counsel

Catherine M. Amirfar Karolos Seeger Partner, New York Partner, London [email protected] [email protected] +1 212 909 6398 +44 20 7786 9042

Donald Francis Donovan Christopher K. Tahbaz Partner, New York Partner, New York and Hong Kong [email protected] [email protected] +1 212 909 6233 +1 212 909 6543 +852 2160 9839 (Hong Kong) Mark W. Friedman Partner, New York Jean-Marie Burguburu [email protected] Of Counsel, Paris +1 212 909 6034 [email protected] +33 1 40 73 13 09 Lord Goldsmith QC Partner, London and Hong Kong Frederick T. Davis [email protected] Of Counsel, Paris +44 20 7786 9088 [email protected] +852 2160 9800 (Hong Kong) +33 1 40 73 13 10

Antoine F. Kirry Matthew Getz Partner, Paris Counsel, London [email protected] [email protected] +33 1 40 73 12 35 +44 20 7786 5518

Alyona N. Kucher Jessica Gladstone Partner, Moscow Counsel, London [email protected] [email protected] +7 495 956 3858 +44 20 7786 9166

Sophie Lamb Suzanne M. Grosso Partner, London Counsel, New York [email protected] [email protected] +44 20 7786 3040 +1 212 909 6755

John B. Missing Carl Micarelli Partner, London Counsel, New York [email protected] [email protected] +44 20 7786 9160 +1 212 909 6813

Dietmar W. Prager Steven S. Michaels Partner, New York Counsel, New York [email protected] [email protected] +1 212 909 6243 +1 212 909 7265

David W. Rivkin Philip Rohlik Partner, New York and London Counsel, Hong Kong [email protected] [email protected] +1 212 909 6671 +852 2160 9856 +44 20 7786 9171 (London)

Dr. Thomas Schürrle Partner, Frankfurt [email protected] +49 69 2097 5000