Baker & McKenzie International Arbitration Yearbook: 2011-2012 - Downloadable Electronic Product

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This is the fifth edition of the Baker & McKenzie International Arbitration Yearbook, an annual series established by the Firm in 2007. This collection of articles is comprised of reports in key jurisdictions around the globe on arbitration. Leading lawyers of the Firm’s International Arbitration Practice Group, a division of the Firm’s Global Dispute Resolution Practice Group, report on recent developments in national laws relating to arbitration and address current arbitral trends and tendencies in the jurisdictions in which they practice.

This Yearbook highlights the more important recent developments in international arbitration, without aspiring to be an exhaustive case reporter or a text-book to arbitration in the broad sense. This volume will prove a useful tool for those contemplating and using arbitration to resolve international business disputes.

TABLE OF CONTENTS
Foreword xxxi
About the 2011-2012 B&M Yearbook Editors xxxiii
Abbreviations and Acronyms xxxix
 

ARGENTINA
Gonzalo E Cáceres and Santiago L Capparelli
A Legislation, Trends and Tendencies
A1 Legislation
A2 Draft Legislation
B Cases
B1 Enforcement of the Arbitration Agreement
B2 Autonomy, Scope and Validity of the Arbitration Clause
B3 Annulment of Award for Defects While Constituting
the Arbitral Tribunal
C Public Policy in International Arbitration
C1 Does Public Policy Affect Arbitrability?
C2 Public Policy and Enforcement of the Award
 

AUSTRALIA
Leigh Duthie and Sarah Lancaster
A Legislation, Trends and Tendencies
A1 Legislative Framework
A2 Amendments to Australia’s Legislative Framework
A3 Investor-State Arbitrations
A4 Trends
B Cases
B1 Gordian Runoff: Standard of Reasons in
Arbitral Awards
B2 IMC Aviation Solutions v Altain Khuder:
Enforcement against Non-Party
B3 TeleMates v SoftTel: Challenge to Jurisdiction
of Arbitrator
B4 Uganda Telecom v Hi-Tech: Enforcement of
Foreign Award
B5 Wilson & Partners v Robert Nicholls:
Arbitration and Court Proceedings
C Public Policy in International Arbitration
C1 Introduction
C2 Public Policy at the Stage of Recognition
and Enforcement
C3 Public Policy and Arbitrability
 

AUSTRIA
Stefan Riegler and Heidrun E Preidt
A Legislation, Trends and Tendencies
B Cases
B1 Lack of an Arbitrator’s Signature on the Arbitral
Award Does Not Violate Public Policy
B2 A Substantive Review of the Arbitral Award Is
Inadmissible
B3 The “Duly Certified” Copy of the Arbitral Award
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public Policy
C3 What Constitutes “Public Policy”?
C4 Review of Alleged Breaches of Public Policy
 

AZERBAIJAN
Gunduz Karimov and Jamil Alizada
A Legislation, Trends and Tendencies
A1 General
A2 Types of Arbitration
A3 Regulation of International Arbitration
A4 The International Commercial Arbitration Court
A5 Protection of Foreign Investment
B Cases
B1 General
B2 Recognition of Cases in 2010
B3 Recognition of Cases in 2011
B4 ICAC Cases
C Public Policy in International Arbitration
 

BELARUS
Alexander Korobeinikov
A Legislation, Trends and Tendencies
A1 Domestic Legislation
A2 International Treaties
A3 Trends and Tendencies
B Cases
B1 Arbitration Clause Providing for Disputes to Be
Resolved by Arbitration Is Effective Notwithstanding
Differences between Russian and English Versions
of Clause
B2 Reference to Resolving Disputes in an Arbitration
Court is Sufficient to Render the Arbitration Clause
Valid
C Public Policy in International Arbitration
C1 Legal Framework
C2 Application of the Concept of Public Policy
by Belarusian Courts
 

BELGIUM
Arne Gutermann, Joeri Vananroye and Koen De Winter
A Legislation, Trends and Tendencies
A1 Recent Legislation
A2 Validity of the “Hybrid Arbitration Clause”
B Cases
B1 Invalidity Due to Conflicting Reasons in Award
B2 Invalidity because of Conflict with Public Policy
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Rules that Constitute “Public Policy”—
Recent Examples
C3 Review of Alleged Breaches of Public Policy
 

BRAZIL
Joaquim T de Paiva Muniz, Luis Alberto Salton Peretti
and Leonardo Mäder Furtado
A Legislation, Trends and Tendencies
B Cases
B1 Conflict of Competence between Arbitral Tribunals
B2 Nationality of Arbitration Awards
B3 Arbitration Clause and Public Bidding
B4 Arbitration of Employment Disputes
B5 Writ of Mandamus against Decisions in Arbitrations
B6 Lack of Signature on the Arbitration Agreement
C Public Policy in International Arbitration
C1 Sources of the Public Policy Exception
C2 Application of International Public Policy in Brazil
 

CANADA
J Brian Casey and Christina I Doria
A Legislation, Trends and Tendencies
A1 Legislation
A2 Trends and Tendencies
B Cases
B1 Seidel v TELUS Communications Inc
B2 United Mexican States v Cargill, Inc
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public Policy
C3 Rules that Constitute “Public Policy”
C4 Review of Alleged Breaches of Public Policy
 

CHILE
Antonio Ortúzar, Sr, Rodrigo Díaz de Valdés and
Francisco Grob Duhalde
A Legislation, Trends and Tendencies
A1 Legislative Framework
A2 Enforcement of Foreign Arbitral Awards
A3 Trends and Tendencies
B Cases
B1 Enforcement of an Arbitral Award Annulled at
the Place of Arbitration
B2 Enforceability of the Arbitration Clause
C Public Policy in International Arbitration
C1 Concept of Public Policy under Chilean Law
C2 Violation of Public Policy as a Ground for Refusing
Recognition of an Arbitral Award
 

CHINA
James Kwan, Peng Shen and Sarah Zhu
A Legislation, Trends and Tendencies
A1 SPC Comments
A2 New Proposed CIETAC Rules
B Cases
B1 Subway International BV v Beijing Sabowei
Catering
B2 Liupanshui Hidili Industry Co, Ltd v Zhang
Hongxing (2010) Min Er Zhong Zi No 86
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public Policy
C3 Rules that Constitute “Public Policy”
C4 Review of Alleged Breaches of Public Policy
 

COLOMBIA
Claudia Benavides
A Legislation, Trends and Tendencies
A1 Overview of the Arbitral Legal Framework
A2 Specifics of International Arbitration
A3 Trends and Tendencies
B Cases
B1 Rules that Constitute “Public Policy”
B2 The Public Policy Defense Does Not Need to Be
Invoked before the Arbitral Tribunal in Order to Be
Relied upon at the Enforcement Stage
B3 Applicable Standards to Decide Whether a Foreign
Award Shall Be Recognized in Colombia
B4 Arbitrability of Contractual Controversies Where
the State Is a Party to the Contract
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public Policy
C3 Review of Alleged Breaches of Public Policy
 

CZECH REPUBLIC
Martin Hrodek and Jan Zrcek
A Legislation, Trends and Tendencies
A1 Recent Developments in Legislation
A2 Trends
B Cases
B1 Permanent Arbitration Courts versus Czech
Private Companies Administering Arbitrations
B2 A Party’s Opportunity to Present Its Case
B3 Regulation No 44/2001 and Court Proceedings
Relating to Arbitration
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public
Policy
C3 Rules that Constitute “Public Policy”
C4 Review of Alleged Breaches of Public Policy
C5 Conclusion
 

FRANCE
Jean-Dominique Touraille and Eric Borysewicz
A Legislation, Trends and Tendencies
B Cases
B1 A Non-Signatory to an Arbitration Agreement May
Be Considered a Party to That Agreement If It
Acts in a Manner Consistent with Being a Party
B2 An Arbitral Award Does Not Violate Due Process
or International Public Policy If, during Arbitral
Proceedings, the Tribunal Has Been Shown
Classified Documents, So Long As the Tribunal Does
Not Base Its Decision on Such Documents
B3 A Domestic Arbitral Award Rendered Abroad and
Set Aside May Still Be Enforced in France
B4 The Party Claiming Absence of Fair Deliberations
Must Overcome a Presumption of Fair Deliberations
between Arbitrators
B5 When a Party Delegates to a Third Party Its Rights
and Duties under a Contract Containing an Arbitration
Clause, the Third Party Will Be Bound If It Has
Knowledge of the Arbitration Clause and has
Participated in the Performance of the Contract
B6 An Arbitrator Must Disclose Having Worked in the
Same Firm as a Party’s Counsel, but Being a
“Facebook Friend” with Counsel Did Not Give
Rise to a Reasonable Doubt as to the Arbitrator’s
Independence
B7 Arbitrators Are Expected to Provide Parties with
Statements of Independence When Requested
B8 The Allocation of Interest Is Considered an Issue
Pertaining to the Performance of an Agreement
B9 Tort Actions against Arbitrators Are Not Covered
by the Arbitration Clause under Which They Were
Appointed
B10 A Party Is Estopped from Challenging a State
Court’s Jurisdiction If It Has Already
Waived Its Rights under the Arbitration Clause
B11 A Partner in a Company Can Be Deemed to Have
Validly Agreed to an Arbitration Clause Found
in the Company’s Bylaws
B12 Arbitrators Have a Duty to Disclose Factual
Circumstances Involving Firms to Which They
Belong and Parties May Still Seek to Set Aside
the Award despite Not Having Challenged the
Arbitrator during the Proceedings
B13 The Conseil Contitutionnel Does Not Have
Jurisdiction to Rule on a Preliminary Question of
Constitutionality From an Arbitral Tribunal
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public
Policy
C3 Rules that Constitute “Public Policy”
C4 Review of Alleged Breaches of Public Policy

GERMANY
Ragnar Harbst, Heiko Plassmeier and Jürgen Mark
A Legislation, Trends and Tendencies
A1 Duration and Cost of Arbitration Proceedings
A2 What is the Cause for the Complaints?
A3 Is There a Cure?
B Cases
B1 No Preclusion of the Right to Resist Enforcement
of an Award in Germany for Failure to Challenge at
the Place of Arbitration
B2 Termination of an Arbitrator’s Mandate for Undue
Delay of the Proceedings
B3 Form Requirements for Arbitration Agreements
with Consumers
B4 Consumers Cannot Decide to Treat Invalid
Arbitration Clauses as Valid
B5 Effect of Choice of Non-Performance in Insolvency
on Arbitration Agreement
B6 Setting Aside an Arbitral Award for Breach of
Agreements between the Parties
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public Policy
C3 Rules that Constitute “Public Policy”
C4 Review of Alleged Breaches of Public Policy

HONG KONG
James Kwan and Jasmine Chan
A Legislation, Trends and Tendencies
A1 The New Hong Kong Arbitration Ordinance
A2 Latest Developments in Hong Kong Arbitration
B Cases
B1 Enforcement against a Sovereign State in
Hong Kong
B2 Setting Aside Award for Procedural Irregularity
B3 Upholding Enforcement of Award
C Public Policy in International Arbitration
C1 Reliance on Public Policy
C2 Rules That Constitute “Public Policy”
C3 Review of Alleged Breaches of Public Policy

HUNGARY
József Antal and László Burger
A Legislation, Trends and Tendencies
A1 Legislation
A2 Trends and Tendencies
B Cases
B1 Arbitration Agreement Incapable of Being Performed
—Lack of Accurate Determination of the Arbitration
Court
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public Policy
C3 Rules that Constitute “Public Policy”

INDONESIA
Timur Sukirno, Andi Yusuf Kadir and Reno Hirdarisvita
A Legislation, Trends and Tendencies
B Cases
B1 Common Tactics to Defeat Arbitration Clauses
B2 Indonesian Courts’ Jurisdiction to Annul Foreign
Arbitral Awards
C Public Policy in International Arbitration

ITALY
Gianfranco Di Garbo
A Legislation, Trends and Tendencies
B Cases
B1 Enforceability of an Arbitral Award against
the Public Administration
B2 Arbitration and Insolvency Procedure
B3 Rules of Procedure in Arbitration Proceedings
B4 Arbitration Clause in International Arbitration
C Public Policy in International Arbitration
C1 Relevance of Public Policy in the Enforcement of
Arbitral Awards
C2 The Meaning of “Public Policy” under Italian Law
C3 Examples of Breaches of Substantive Public
Policy
C4 Examples of Breaches of Procedural Public
Policy

JAPAN
Haig Oghigian, Mami Ohara and Hiroyuki Hamai
A Legislation, Trends and Tendencies
A1 Historical Background
A2 Main Features of the Arbitration Law
B Cases
B1 Court Assistance in Taking Evidence
B2 Separability of Arbitration Agreement
B3 Public Policy
B4 Enforcement Order
C Public Policy in International Arbitration
C1 Effect of Arbitral Awards Conflicting with
Public Policy
C2 Setting Aside Arbitral Awards
C3 Enforcement and Recognition of Arbitral Awards
C4 Invalidity of Arbitration Awards
C5 Pending Arbitration

KAZAKHSTAN
Azamat Kuatbekov and Alexander Korobeinikov
A Legislation, Trends and Tendencies
A1 Domestic Legislation
A2 International Treaties
A3 Recent Amendments Concerning Mediation and the
Arbitrability of Disputes Involving Consumers
A4 Trends
B Cases
B1 Investment Disputes
B2 Commercial Arbitration Disputes
C Public Policy in International Arbitration
C1 Definition of Public Policy under Kazakh Law
C2 Application of Public Policy

MALAYSIA
Elaine Yap
A Legislation, Trends and Tendencies
A1 Legislative Framework
A2 Trends and Tendencies
B Cases
B1 Construction of Arbitration Clauses
B2 Setting Aside Arbitral Awards
B3 Recognition and Enforcement of Arbitral Awards
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public Policy
C3 Rules that Constitute “Public Policy”
C4 Review of Alleged Breaches of Public Policy

MEXICO
Salvador Fonseca-González and Javier L Navarro-Treviño
A Legislation Trends and Tendencies
A1 Constitutional Recognition
A2 Mexico as a Seat for Arbitration
A3 Recognition and Enforcement of Foreign Commercial
Arbitral Awards in Mexico
A4 Interim Relief
A5 Competence
B Cases
C Public Policy in International Arbitration

THE NETHERLANDS
Frank Kroes and Saskia Temme
A Legislation, Trends and Tendencies
A1 Legislation
A2 Proposed Changes to the Dutch Arbitration Act
A3 Trends and Tendencies
B Cases
B1 Court Proceedings: Recognition of Foreign Arbitral
Awards in the Netherlands
B2 Court Proceedings: Inclusion of Arbitration Clause in
General Terms and Conditions Found to be an
Unreasonable Burden for the Consumer
B3 Court Proceedings: Jurisdiction of Dutch Courts over
Claim for Limited Discovery where Arbitration is
Outside the Netherlands
B4 Arbitration Proceedings: Interpretation of a Contractual
Clause on Dispute Resolution as a Valid Arbitration
Agreement
C Public Policy in International Arbitration
C1 Reliance on Public Policy before Dutch State Courts
C2 Reliance on Public Policy in Arbitral Proceedings
C3 Rules that Constitute “Public Policy”

PHILIPPINES
Emmanuel S Buenaventura, Lemuel D Lopez and
Jay Patrick R Santiago
A Legislation, Trends and Tendencies
A1 ADR Rules of Court
A2 IPO Arbitration Rules
A3 Court-Annexed Mediation
B Cases
B1 Jurisdiction of the Arbitral Tribunal vis-à-vis the
Trial Court
B2 Trial Court’s Power to Issue Interim Relief
B3 Enforcement of Foreign Arbitral Award
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public
Policy
C3 Rules that Constitute “Public Policy”
C4 Review of Alleged Breaches of Public Policy

POLAND
Marcin Aslanowicz and Sylwia Piotrowska
A Legislation, Trends and Tendencies
A1 Sources of Arbitration Law in Poland
A2 Arbitrability
A3 Arbitration Agreement
A4 Arbitrators
A5 Jurisdiction of an Arbitral Tribunal
A6 Proceedings before an Arbitral Tribunal
A7 Conclusion of Arbitral Proceedings
A8 Appeals against Arbitration Awards
A9 Recognition and Enforcement of an Arbitral Award
B Cases
C Public Policy in International Arbitration

RUSSIAN FEDERATION
Vladimir Khvalei and Irina Varyushina
A Legislation, Trends and Tendencies
B Cases
B1 Stena RoRo AB (Sweden) v Baltiysky Zavod
OJSC (RF)
B2 Tabellion Limited (the Republic of Cyprus) v
A G Ischuk (Russian Federation)
B3 Ciments Francais (France) v Holding Company
Sibirsky Cement OJSC (Russia) and İstanbul
Çimento Yatırımları Anonim Şirketi (Turkey)
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public Policy
C3 Rules that Constitute “Public Policy”

SINGAPORE
Chan Leng Sun, SC, Celeste Ang, Gerald Kuppusamy
and Shum Wai Keong
A Legislation, Trends and Tendencies
A1 Proposed Amendments to the International Arbitration
Act (Cap 143A, 2002 Rev Ed) (“IAA”)
A2 Proposed Enactment of Foreign Limitations Periods
Bill
B Cases
B1 Avoidance Claims in Insolvency Non-Arbitrable, but
Pre-Insolvency Disputes Remain Arbitrable after the
Commencement of Winding Up
B2 Setting Aside Arbitration Awards for Exceeding the
Scope of Submission to Arbitration
B3 Arbitrators May Only Decide within the Boundaries
of the Parties’ Pleadings
B4 Arbitral Award May Be Set Aside on Public Policy
Grounds If It Enforces an Agreement with the Object
of Breaching International Comity
C Public Policy in International Arbitration
C1 Reliance on Public Policy
C2 Rules that Constitute Public Policy
C3 Limitations on and Review of Alleged Breaches of
Public Policy

SPAIN
José Ramón Casado and Víctor Mercedes
A Legislation, Trends and Tendencies
A1 Amendment of the Spanish Arbitration Act
A2 Procedural Aspects of the Amendment
A3 Arbitration in Equity
A4 Suitability of Arbitrators and Their Liability
A5 Challenging Corporate Resolutions
A6 Arbitration of Disputes between Public
Administrations and Other Public Bodies
A7 Insolvency Aspects of the Reform
B Cases
B1 Invalidity of an Arbitration Provision where Dispute
Resolution Clauses are Contradictory
B2 Annulment of an Award Rendered in an Arbitration
Commenced after an Insolvency Filing
B3 Denial of Enforcement of an English Judgment on an
Award
B4 Special Matters Subject to Arbitration
B5 Arbitration Clauses in Swap Agreements
B6 Criminal Lis Pendens in an Arbitration Case
B7 Infringement of Procedural Public Policy Leads
to the Annulment of an Award
B8 Dismissal of an Action for Annulment of an Award
Based on an Infringement of Public Policy Unrelated
to Basic Constitutional Rights
B9 Public Policy as a Pretext to Review an Arbitrator’s
Decision
B10 It Is Not Possible to Use Arbitration in Equity
to Obviate Mandatory Substantive Regulation
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public Policy
C3 Rules that Constitute “Public Policy”
C4 Review of Alleged Breaches of Public Policy

SWEDEN
Anders Isgren, Jonas Benedictsson, Stefan Bessman,
Magnus Stålmarker and Anders Nilsson
A Legislation, Trends and Tendencies
B Cases
B1 Arbitrator’s Impartiality
B2 Discovery of Trade Secrets in Arbitration Proceedings
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public Policy
C3 Rules that Constitute “Public Policy”
C4 Review of Alleged Breaches of Public Policy

SWITZERLAND
Urs Zenhäusern, Joachim Frick, Anne-Catherine Hahn
and Luca Beffa
A Legislation, Trends and Tendencies
A1 New Swiss Federal Code of Civil Procedure
A2 Revisions to the Swiss Rules of International
Arbitration
A3 Proposals and Initiatives
B Cases
B1 “Truncated Arbitral Tribunals” and Ne Bis In Idem
B2 Challenge against Refusal to Render an Additional
Award and Power to Award Interest
B3 Legitimate Interest in Challenging an Award
B4 Extension of an Arbitration Clause to a Third Party
Where a Contract is in Favor of That Third Party
B5 Multi-Tier Dispute Resolution Clauses
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public Policy
C3 Rules that Constitute “Public Policy”
C4 Review of Alleged Breaches of Public Policy

TAIWAN
Tiffany Huang and Amber Hsu
A Legislation, Trends and Tendencies
A1 Overview
A2 Arbitration Associations
A3 Recent Developments across the Taiwan Strait
B Cases
B1 Definition of a Valid and Effective Arbitration
Agreement
B2 Ad hoc Arbitration
B3 Appointment of Arbitrators by the Court or
Arbitration Association
B4 Challenge and Withdrawal of Arbitrators
B5 Notification of an Intervention in the Arbitration
B6 Time Limit for Rendering Arbitral Awards
B7 Enforceability of Arbitral Awards
B8 Revocation of Arbitral Awards
B9 Enforcement of Foreign Arbitral Awards
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public
Policy
C3 Rules that Constitute “Public Policy”
C4 Review of Alleged Breaches of Public Policy

TURKEY
Ismail G Esin and Ali Yesilirmak
A Legislation, Trends and Tendencies
A1 General
A2 Part I—General Provisions of the IAL
A3 Part II—The Arbitration Agreement
A4 Part III—The Appointment, Challenge, Liability,
Jurisdiction and Termination of Office of the
Arbitrator(s)
A5 Part IV—The Arbitral Proceedings
A6 Part V—Challenging Arbitral Awards
A7 Part VI—Costs of Arbitration
B Cases
B1 Jurisdiction of the Courts to Determine Whether the
Arbitration Agreement is Valid
B2 An Arbitration Agreement Can Be Incorporated into
Another Agreement by Reference
B3 The Principle of Severability
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public
Policy
C3 Rules that Constitute Public Policy
C4 Review of Alleged Breaches of Public Policy

UKRAINE
Svitlana Romanova, Olga Shenk and
Kseniia Pogruzhalska
A Legislation, Trends and Tendencies
A1 Introduction
A2 Short Overview of Ukrainian Legislation regarding
Arbitration
A3 Recently Adopted Ukrainian Legislation regarding
Arbitration—Corporate Disputes May Not Be
Subject to International Commercial Arbitration
A4 International Commercial Arbitration Court of
Ukrainian Chamber of Commerce (“ICAC”)
B Cases
B1 Investment Disputes
B2 Arbitration Disputes against Ukraine
B3 Shares Sale and Purchase Agreement Is Not a
“Corporate Relationship” under Ukrainian Law
B4 Refusal to Recognize and Enforce an Arbitral Award
against a Ukrainian Debtor for Failure of Notice
B5 Ukrainian State Enforcement Service Refused to
Enforce Arbitral Award against a Ukrainian Debtor
Due to Technicality
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public Policy
C3 Rules that Constitute “Public Policy”
C4 Review of Alleged Breaches of Public Policy

UNITED KINGDOM
Edward Poulton, Kate Corby, Fiona Lockhart and
Katherine Wilde
A Legislation, Trends and Tendencies
B Cases
B1 Legality of Arbitration Agreements
B2 Anti-Suit Injunctions
B3 Enforceability of Declaratory Award
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Modes and Limitations of Reliance on Public
Policy
C3 Rules that Constitute “Public Policy”
C4 Review of Alleged Breaches of Public Policy

UNITED STATES
Donald J Hayden, Jose A Avila, Ethan A Berghoff
and Karen Sewell
A Legislation, Trends and Tendencies
A1 Legislation
A2 Trends and Tendencies
B Cases
B1 Supreme Court, Others Uphold Class Action
Waivers in Consumer Arbitration Agreements
B2 Supreme Court Holds Arbitrability of Some but Not
All Claims Still Requires Arbitration of Those Claims
Parties Agreed to Arbitrate
B3 New York State Appellate Court Holds That Debt
Owed to Foreign Party Can Be Attached in Anticipation
of an Arbitration Award against the Foreign Party,
Even Where There is No Jurisdictional Connection
to New York
B4 DC Circuit Holds that a District Court May Not
Extend the Time Limit under the Federal Arbitration
Act for Serving Notice of Motions to Vacate or
Modify an Arbitral Award
C Public Policy in International Arbitration

VENEZUELA
Henry Torrealba, Edmundo Martínez, and
Gabriel De Jesus
A Legislation, Trends and Tendencies
B Cases
B1 Admissibility of Arbitration
B2 Consent of the State to International Arbitration
B3 Enforcement of Awards against State-Owned Entities

VIETNAM
Fred Burke, Chi Anh Tran, and Andrew Fitanides
A Legislation, Trends and Tendencies
A1 Background and Overview of the Applicable Law
A2 Arbitration in Vietnam
A3 Enforcement of an Arbitral Award
A4 Trends and Tendencies
B Cases
B1 Lack of Capacity to Enter Arbitration Agreement
B2 Violations of Arbitration Proceedings
B3 Unspecified Dispute Resolution Body
B4 Public Policy Objections
C Public Policy in International Arbitration
C1 Scenarios of Reliance on Public Policy
C2 Rules that Constitute “Public Policy”
 

ABOUT THE 2011-2012 B&M YEARBOOK EDITORS

Executive Editor:
Nancy M. Thevenin is Special Counsel in the New York office of Baker & McKenzie and the global coordinator of the Firm’s International Arbitration Practice Group. She routinely advises on arbitration institutions, mediation, disputes boards and expertise proceedings, ad hoc cases and use of pre-arbitral referee procedures. Her experience includes handling international commercial mediation and arbitration under the auspices of the AAA, ICC and ICDR. Ms. Thevenin has handled disputes in
various industries, including construction and engineering, financial services, commercial real estate and aviation, often involving issues concerning M&A, sales, distribution, licensing, technology transfer and leasing agreements. She currently serves as co-chair of the International Arbitration & ADR Committee of the International Law Section of the New York State Bar Association, vice-chair of the Arbitration Law Committee of the Inter-American Bar Association and executive committee member of the American Branch of the International Law Association. Before joining Baker & McKenzie, Ms. Thevenin served as deputy director of arbitration and ADR for North America for the ICC International Court of Arbitration in New York.

Regional Editors

Asia-Pacific:
Gerald Kuppusamy is a Senior Associate in the Singapore office of Baker & McKenzie. He advises clients on cross-border litigation and international arbitration in a wide variety of commercial disputes. He has represented clients in courts in Singapore and New York, and in arbitrations under the arbitration rules of the ICC, SIAC, NASD (now FINRA), AAA and in ad hoc arbitrations under UNCITRAL rules. He is a Fellow of both the Chartered Institute of Arbitrators and the Singapore Institute of Arbitrators.

Europe and Eastern Europe:
Jürgen Mark is a Partner in the Düsseldorf office of Baker & McKenzie and a member of the Firm’s European Dispute Resolution Practice Group Steering Committee. His practice covers a wide range of domestic and international disputes involving litigation and arbitration in the areas of commercial and company law, product liability law and distribution law. He has handled complex litigation, as well as ICC, DIS and ad hoc arbitrations. Mr. Mark has also acted as arbitrator on arbitration panels for the ICC and DIS relating to corporate and post-M&A disputes, major construction projects, product distribution and product liability. He is a member of the German Lawyer’s Association, International Bar Association, German Institution of Arbitration (DIS), London Court of International Arbitration, Swiss Arbitration Association, International Law Association, German Association for Intellectual Property & Copyright,
German-American Lawyers’ Association and Canadian-German Lawyers’ Association.

Edward Poulton is a Partner in the London office of Baker & McKenzie and a member of the Firm’s Global Dispute Resolution Practice Group. He focuses his practice on international arbitration, complex litigation, commercial and investment treaty arbitration and public international law. His experience ranges from contract and M&A disputes to more specialist claims in the banking sector and investment treaty claims. He has acted as advisor and advocate in many international arbitrations under the rules of the major arbitral institutions, and is currently serving as arbitrator under both the ICC and LCIA rules. Mr. Poulton’s client base covers a wide range of sectors, including financial services, electronics, aviation and telecommunications. He is a member of the Law Society of England & Wales, ICC, LCIA, Young International Arbitration Group and Investment Protection Forum of the British Institute of International and Comparative Law.

Jeremy Winter is a Partner in the London office of Baker & McKenzie and a member of the Firm’s Global Dispute Resolution Group. Mr. Winter advises on a wide range of construction and infrastructure projects and has experience doing so in over 30 different countries, particularly in Europe, the Middle East, the CIS and Africa. His experience includes a wide range of contractual disputes, with a strong focus on international arbitration. He has been increasingly successful in resolving issues before they must be handled through formal litigation or arbitration. As solicitor advocate, he is able to conduct cases in the
high courts – including appeals from arbitrations and adjudications. Mr. Winter is a contributing author of International Arbitration Checklists, 2nd Ed. (Juris 2008) and International Commercial Arbitration – Practical Perspectives (CCLM 2001).

Mathias Wittinghofer is a Partner in the Frankfurt office of Baker & McKenzie and a member of the Firm’s Global Dispute Resolution Practice Group. A member of the Chartered Institute of Arbitrators and double-qualified as a German attorney-at-law and a solicitor (England & Wales), Mr. Wittinghofer routinely handles international arbitration proceedings, most notably in the areas of post-M&A and banking and finance dispute resolution. He has handled a wide variety of disputes both before German state courts as well as in national and international arbitrations before all major arbitral institutions. His clients include international corporations, banks, private equity firms and other members of the banking & finance industry. Mr. Wittinghofer has published several articles and spoken extensively on the topic of
international arbitration, and recently completed the theoretical training required to qualify as a Fachanwalt für Bank- und Kapitalmarktrecht (attorney specialized in banking and finance).

Urs Zenhäusern is a Partner in the Zurich office of Baker & McKenzie. Mr. Zenhäusern mainly handles commercial, transactional and intellectual property disputes before state courts and international arbitral tribunals. He has acted as sole arbitrator, chairman and secretary of arbitration panels and as counsel in domestic and international litigation and arbitration. He also advises clients on antitrust law and sports law, as well as on legal matters related to unfair competition and distribution, agency and licensing contracts. Mr. Zenhäusern is a frequent writer and speaker at seminars on litigation and arbitration law and intellectual property law topics. He is a member of the Swiss Arbitration Association, German Institution of Arbitration, International Bar Association, International Law Association, Licensing Executives Society, AIPPI and INGRES.

Latin America:
Grant Hanessian is a Partner in the New York office of Baker & McKenzie. Mr. Hanessian serves as co-chair of the Firm’s International Arbitration Practice Group and chair of the Litigation/Dispute Resolution department of the New York office. He has more than 25 years of experience serving as counsel and arbitrator in disputes concerning contract, energy, construction, commodities, financial services, insurance, intellectual property and other matters. Mr. Hanessian is a member of the Commission on Arbitration of the ICC and the ICC Task Force on Arbitration Involving States or State Entities, as well as the American Society of International Law, American Bar Association, Association of the Bar of the City of New York, American Arbitration Association and London Court of International Arbitration. He is an editor of this publication and co-editor of the Gulf War Claims Reporter (ILI/Kluwer, 1998) and International Arbitration Checklists (Juris Pub., 2d ed., 2008).

Luis Peretti is a Senior Associate in the São Paulo office of Trench Rossi e Watanabe, which is the Brazilian firm associated with Baker & McKenzie. Mr. Peretti handles both international and domestic arbitration cases, including ancillary court proceedings. He has experience in arbitrations administered by the ICC and the largest Brazilian arbitration institutions. His experience covers disputes concerning resolution of construction, engineering, corporate, distribution and intellectual property agreements. He is a member of the ICC Young Arbitrators Forum and of the Young Chinese European Arbitration Centre (CEAC). He is also a member of the Brazilian Bar Association.

North America:
David Zaslowsky is a Partner in the New York office of Baker & McKenzie. Mr. Zaslowsky has practiced in the area of international commercial litigation and arbitration for more than 27 years. He has appeared in various federal and state courts (trial and appellate) throughout the country and has participated in arbitrations, both inside and outside the United States, before the AAA, ICC, ICDR, Iran-United States Claims Tribunal, HKIAC and NASD, as well as in ad hoc arbitrations. Mr. Zaslowsky currently serves on the ICC Task Force on Decisions as to Costs. He is included in the Chambers USA Guide for his expertise in International Arbitration. He is also on the roster of arbitrators for the ICDR and the AAA.

"The authors do a creditable job of providing a contemporaneous baseline of knowledge for each of the countries covered and thus a basis for high-level comparative analysis. In summary, and with some important caveats, this is a resource that is likely to provide utility to a range of individuals involved in international commerce, trade and investment. Those engaged in the negotiation of contracts, or the resolution of disputes as counsel or arbitrator, are all likely to find something of use, as are students of the subject matter."
-The Expert and Dispute Resolver (TEDR); review by Craig Kersey