Category: Europe

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K&L Gates’ Arbitration World, Spring 2008
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Power of Court to Uphold Arbitral Award on Alternative Grounds
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Court Intervenes Where Arbitrator Held Not to Have Power to Act Effectively
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Considerations in Exercise of Court’s Power to Grant Anti-Suit Injunction
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Existence of Dispute for Purposes of Obtaining Stay of Judicial Proceedings
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Award Overturned for Serious Irregularity Where Decision Based on Issues Not Argued
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K&L Gates’ Arbitration World, Summer 2007
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More Than Just Buying Paperclips
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K&L Gates’ Arbitration World, Winter 2006/2007
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K&LNG’s Arbitration World, Summer 2006

K&L Gates’ Arbitration World, Spring 2008

By K&L Gates attorneys Peter R. Morton, Ian Meredith, John L. Boos, Joanna A. Diakos.

Arbitration World is an update for clients and contacts on recent development in international arbitration law and practice.

Welcome to the Fifth Edition of Arbitration World, a publication from K&L Gates’ Arbitration Group which aims to highlight significant developments and issues in international arbitration for executives and in-house counsel with responsibility for dispute resolution.

In this edition, in terms of U.S. developments, we look at the growth of “class arbitration” in the U.S. and Canada, review the case law on challenging the scope of submission to an arbitrator in the U.S. and take an early look at an important Supreme Court case regarding the scope for Federal Courts to review arbitral awards as well as the proposed “Arbitration Fairness Act.”

We consider two aspects of the continuing development of the ethical framework for arbitrators:  guidelines from the Chartered Institute of Arbitrators on the interviewing of prospective arbitrators and a U.S. Court of Appeal case on the duty to investigate potential conflicts of interest.

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Power of Court to Uphold Arbitral Award on Alternative Grounds

CTI Group Inc. v. Transclear SA (The Mary Nour), 2007 WL 3001775, [2007] EWHC 2340 (Queen’s Bench Div., Commercial Court)

This case arose out of the non-delivery by the sellers of a quantity of cement.  The sellers had argued that the contract had been frustrated by the actions of the Mexican cement cartel.  The Tribunal held that the contract had been frustrated but, if they were wrong on that, the buyers had a valid claim for damages.  The buyers appealed to the English High Court on the main finding of frustration of contract.  The appeal succeeded, the High Court finding the wrong legal test for frustration had been applied.
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Court Intervenes Where Arbitrator Held Not to Have Power to Act Effectively

Pacific Maritime (Asia) Ltd. v. Holystone Overseas Ltd., 2007 WL 2944844, [2007] EWHC 2319 (Queen’s Bench Div., Commercial Ct.)

Pacific sold an accommodation vessel to Holystone under an agreement which made special provision for the return of a block of accommodation or its equivalent to Pacific.  Under s.44 of the Arbitration Act 1996 (the “Act”), and in advance of commencement of arbitration, Pacific applied for and obtained a freezing order on the grounds of Holystone’s failure to provide a replacement accommodation block.  Arbitration then commenced and Holystone applied for the discharge of the freezing order partly on grounds that the arbitrator had jurisdiction to grant the relief Pacific wanted. Read More

Considerations in Exercise of Court’s Power to Grant Anti-Suit Injunction

(1) Starlight Shipping Co. (2) Overseas Marine Enters. Inc. v. (1) Tai Ping Ins. Co. (2) Int’l Econ. & Trading Corp., Wugang Group, 2007 WL 2186944, [2007] EWHC 1893 (Queen’s Bench Div., Commercial Ct.)

In this case, the owner (Starlight) and the manager of a ship (Overseas) applied for an injunction restraining proceedings brought by the respondent insurer (Tai Ping) in the Maritime Court of Wuhan in China.  Starlight had chartered its vessel subject to an arbitration agreement which was incorporated into a bill of lading to which a sub-charterer (Wugang) had then become a party.  The ship and cargo were lost en route from Brazil to China.  Tai Ping commenced proceedings for recovery of sums paid in indemnification of Wugang.  Starlight and Overseas disputed jurisdiction of the Chinese court on grounds of breach of the arbitration agreement, and sought an injunction in the English Commercial Court in restraint of those proceedings.  Tai Ping and Wugang argued that they were not bound by the arbitration agreement as a matter of Chinese law. Read More

Existence of Dispute for Purposes of Obtaining Stay of Judicial Proceedings

Loon Energy, Inc. v. Integra Mining, 2007 WL 2139992, [2007] EWHC 1876 (Queen’s Bench Div., Commercial Ct.)

In this case, the court considered the application of s.9 of the Arbitration Act 1996 which requires it to stay its proceedings if the dispute before it is one falling within the scope of an arbitration clause.  Loon sought and obtained specific declarations in relation to oil exploration rights under English law contracts.  In the meantime, Integra launched arbitration in accordance with the terms of a Texas law confidentiality agreement into which the parties had entered prior to concluding the English law contracts.  Loon amended its own claim for relief to include a declaration that the confidentiality agreement had been superseded.  Integra sought to stay Loon’s application under s.9.  Loon countered that at the time it issued its own claims there was no dispute in existence in relation to the confidentiality agreement and that therefore there was no obligation on the court under s.9. Read More

Award Overturned for Serious Irregularity Where Decision Based on Issues Not Argued

OAO N. Shipping Co. v. Remolcadores De Marin SL, 2007 WL 2139977, [2007] EWHC 1821 (Queen’s Bench Div., Commercial Ct.)

In this case, buyers of a tug boat had brought a claim for damages for a misrepresentation by the sellers as to the total rated power of the vessel’s engine which had induced the contract.  The sellers argued, inter alia, that the representation, made in the form of a certificate of total rated power, was true, that the buyers had not relied on the representation, and had not shown that the representation was false.  The tribunal held that there had not been a representation by the sellers as to the “truth” of the certificate, but only as to its “authenticity.”  The buyers appealed the award under s.68 of the Arbitration Act 1996 (the “Act”) on the basis that no argument had been heard on the point. Read More

K&L Gates’ Arbitration World, Summer 2007

By K&L Gates attorneys Wing L. Cheung, Martha J. Dawson, Ira S. Kaufman, Ian Meredith, Sarah A. Munro, Glenn R. Reichardt, Thomas M. Reiter, Stephen A. Smith, Sarah Turpin and Tiffany Yeung.

Arbitration World highlights the significant developments and issues in international arbitration that matter to in-house counsel and company executives with responsibility for dispute resolution.

Welcome to the Fourth Edition of “Arbitration World,” a publication from K&L Gates’ Arbitration Group which aims to highlight significant developments and issues in international arbitration that matter to executives and in-house counsel with responsibility for dispute resolution.

In this edition we look back at the firm’s third annual London International Arbitration Seminar at the Mandarin Oriental Hotel in Knightsbridge in April and look forward to hosting a similar event in San Francisco on 4-5 October 2007 (details in the Forthcoming Events section on the back page).

We are pleased to include a guest contribution from Petter Tornquist of Setterwalls, the leading Swedish law firm, on the new rules of the Arbitration Institute of the Stockholm Chamber of Commerce.

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More Than Just Buying Paperclips

This article, by K&L Gates London partner Christopher G. Causer, appears in the April 2007 edition of RICS Construction Journal.  It explains the "ins and outs" associated with PFIs and presents arguments for making the whole process easier, and more accessible, for all parties.

PFI has its detractors and it is sometimes difficult to draw out any clear principles from the mass of claims, counterclaims and innuendo appearing in the press – and even in academic journals.  But there is one undeniable fact:  as a procurement method, PFI is complex and requires a high level of intervention from external legal advisors.  It is hard to envisage a PFI project reaching contractual close without at least three sets of lawyers working on it.

So how has the nature of the lawyers’ work changed since PFI started in the early 1990s?  What changes are likely in the next few years, and are there any obvious ways in which the delivery of services can be improved?

View the full article herePosted with permission.

K&L Gates’ Arbitration World, Winter 2006/2007

By K&L Gates attorneys Ian Meredith, Michael D. Napoli, Martin J. King, Andrew H. Davies, Douglas J. Simmons, Ben Morgan, Clare Tanner, Brian R. Davidson, Kari M. Horner, Sarah A. Munro and Rachel G. Stephens.

Arbitration World highlights the significant developments and issues in international arbitration that matter to in-house counsel and company executives with responsibility for dispute resolution.

Welcome to the third edition of “Arbitration World” and the first edition, we are proud to say, following the combination of Kirkpatrick & Lockhart Nicholson Graham LLP with Preston Gates Ellis LLP, effective 1 January 2007, to form Kirkpatrick & Lockhart Preston Gates Ellis LLP – “K&L Gates.”

In light of this development, page 3 of this issue includes a short commentary on arbitration in Asia and a profile of the firm’s Asian offices which enable the firm to advise clients in arbitration in this increasingly strategic part of the world.

For those reading for the first time, “Arbitration World” aims to highlight significant developments and issues in international arbitration that matter to in-house counsel and company executives with responsibility for dispute resolution.

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K&LNG’s Arbitration World, Summer 2006

By Ian Meredith, Linda A. Kent, Peter R. Morton, Kelly D. Talcott, Matthew E. Smith, Clare Tanner, Sarah A. Munro.

Arbitration World, a publication of Kirkpatrick & Lockhart Nicholson Graham, highlights the significant developments and issues in international arbitration that matter to in-house counsel and company executives with responsibility for dispute resolution.

Welcome to the second edition of “Arbitration World,” a publication from Kirkpatrick & Lockhart Nicholson Graham LLP’s Arbitration Group.  “Arbitration World” aims to highlight significant developments and issues in international arbitration that matter to in-house counsel and company executives with responsibility for dispute resolution.

In this significantly expanded edition:

  • We look back at our International Arbitration Seminar held at Claridge’s, London in March this year and look forward to our forthcoming International Arbitration Webinar programme in the Autumn;
  • We examine some practical considerations in relation to arbitration clauses in insurance contracts, consider the issue of whether an arbitrator has authority to grant rescission of the contract as a remedy in arbitration and offer some thoughts on ways to deal with the tricky area of arbitration of multiparty disputes with particular reference to the construction sector;

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