REUTERS | Ilya Naymushin

It is trite law that arbitration is a consensual matter. The source of arbitrators’ powers is found in the relevant arbitration agreement. By contrast, parties have access to at least some competent court as of right, and the court’s power is vested in the relevant procedural law. This distinction has a number of important practical consequences, in particular when it comes to the binding effect of decisions rendered by arbitrators and judges. Whereas courts are usually able to issue decisions binding on the third parties (be it an interim order, an order for production of documents or an order for joinder of a third party), arbitrators’ powers are limited by the consent of the parties, being the natural limits of arbitration. Continue reading

REUTERS | Steve Crisp

In a sequence of recent rulings starting in 2015, the Dubai courts have confirmed that the doctrine of apparent authority does, after all, apply to the formation of arbitration agreements. The former prevailing position was that apparent authority did not have a place in arbitration, which requires a special (rather than just a general) power of attorney for an attorney’s agreement to arbitrate to bind the original rights holder (see Article 58 read together with Article 203(4), UAE Civil Procedures Code, and the extensive commentary provided in G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell, 2017, at II-017 and II-032 – II-037). In its more recent case law precedent, the Dubai Court of Cassation takes the firm view that a natural person signing an arbitration agreement on behalf of a legal person binds that person to arbitration unless proven otherwise. In this sense also, an agent has been taken to bind a principal to arbitration to some extent in the past (G. Blanke, Commentary on the UAE Arbitration Chapter, at I-108 and II-018). This development is encouraging and demonstrates yet again the often understated arbitration-friendly nature of the United Arab Emirates (UAE) and, in particular, the Dubai courts. Given their importance to the successful enforceability of arbitration agreements against original rights holders, all of the Dubai Court of Cassation judgments referred to below deserve closer scrutiny. Continue reading

REUTERS | Srdjan Zivulovic

The spectre of the “fourth arbitrator” has been discussed in numerous articles and at many a conference. Guidance notes, guidelines and training schemes abound. However, judicial consideration of the use of tribunal secretaries has been relatively limited.

The arbitration market may be grateful, therefore, that an email sent in error to the wrong person gave rise to considerable discussion on the use of tribunal secretaries in the recent English court decision in P v Q. Continue reading

REUTERS | Denis Balibouse

Swiss law is one of the most frequently chosen governing laws in international contracts. As such, it is important for parties to arbitration proceedings where Swiss law has been chosen as the governing law of their contractual relationship to understand the framework of Swiss contract law. More particularly, it is crucial for those parties to understand why characterising (properly) a contract matters under Swiss law. For that reason, I have decided to reflect briefly in this contribution on one area of Swiss contract law which, in practice, is likely to spark debate between parties to an arbitration; that is whether a contract (usually for the design or manufacturing of a good) should be characterised as a sales contract, a contract for works or a so-called “innominate” contract. Continue reading

REUTERS | Carlo Allegri

How to speed up arbitration and save costs? At the risk of stating the obvious, most practitioners know the answer: focus on the real issues, use common sense and cooperate with the other side on procedural issues. Much waste and delay can be saved where the parties avoid pressing hopeless points, refrain from procedural posturing and show flexibility on points that are of relatively marginal importance. The International Chamber of Commerce (ICC) Commission’s Report on Controlling Time and Costs in Arbitration provides excellent guidance on specific issues that often arise in practice. Continue reading

REUTERS | Jacky Naegelen

Co-organised by Paris, the Home of International Arbitration, the International Chamber of Commerce (ICC) and the Comité Français de l’Arbitrage, the first Paris Arbitration Week (PAW) was a significant success. The numerous conferences, presentations and meetings, which took place from 24 to 28 April 2017, attracted members of the arbitration community from all corners of the globe. Continue reading

REUTERS | Alan Ortega

To mark International Women’s Day on 8 March 2017, Practical Law Arbitration is carrying out a series of interviews with prominent women in arbitration.

In this, the third interview in the series, we interview Adriana San Román, arbitration partner at Wöss & Partners, Mexico City – Washington DC, and member of the International Council for Commercial Arbitration – American Society of International Law (ICCA-ASIL) Task Force on Damages. Adriana started her career in corporate finance before moving to a career in law. She is a leading damages consultant and damages expert in international arbitration and litigation. She has co–authored the book Damages in International Arbitration under Complex Long-term Contracts and several articles on damages in international arbitration.

In Part One, Adriana discussed her leap from finance to law, experience as an arbitral damages expert and her role in the ICCA-ASIL Task Force on Damages. In Part Two, she considers women in arbitration, the future and some career tips. Continue reading

REUTERS | Mike Hutchings

In line with international trends, commercial arbitration of disputes in South Africa has become more popular over the last 15 years. This is particularly so in disputes which require the arbitrator to have specialised commercial skills, for example, in disputes that are commercially complex or transnational in scope, or where a particular expertise is required, such as in construction or engineering disputes. Another major factor leading to the proliferation of consensual private arbitrations has been the significant delays in obtaining multi-day trial listings in the High Court (which can be up to 18 months from close of pleadings) and the ease with which trials are vacated on the first morning, for a variety of reasons, including the unavailability of judges to hear commercial matters. Continue reading