Inside Arbitration: Issue #5 of the publication from Herbert Smith Freehills’ Global Arbitration Practice

We are delighted to share with you the latest issue of the publication from the Herbert Smith Freehills Global Arbitration Practice, Inside Arbitration.

In addition to sharing knowledge and insights about the markets and industries in which our clients operate, the publication offers personal perspectives of our international arbitration partners from across the globe.

Continue reading

French Supreme Court finds that tribunal acted within Terms of Reference

In Cass. Civ. 1, n° 14-12.077, 18 March 2015, Semapa Investimento E Gestao SGPS v CRH PLC, the French Supreme Court considered an appeal from a Paris Court of Appeal decision dismissing an application to set aside an ICC arbitral award.

The French Supreme Court (Cour de cassation) has dismissed an appeal against a Paris Court of Appeal decision refusing to set aside an ICC arbitral award rendered under a shareholders’ agreement. In the underlying proceedings, the claimant had argued that the tribunal had acted ultra petita, failed to respect principles of due process, and violated international public policy.

The Supreme Court upheld the Court of Appeal decision in its entirety, finding that the tribunal had acted within the authority granted by the Terms of Reference and had not violated due process. Further, the Court of Appeal had not misinterpreted the claimant’s submissions and had been entitled to conclude that recognition and enforcement of the award would not be contrary to public policy.

The Supreme Court’s decision does not break new ground. However, it is an important reaffirmation of the principle that, in circumstances where a tribunal has respected the authority granted to it by the Terms of Reference, and asked the parties to express their views on the relevant issues, an award will not normally be open to attack in the French courts on the grounds of violation of due process. (Cass. Civ. 1, n° 14-12.077, 18 March 2015, Semapa Investimento E Gestao SGPS v CRH PLC.)  Continue reading

Paris Court of Appeal enforces award under ICSID Additional Facility Rules between Gold Reserve and Venezuela

Abstract: In République Bolivarienne du Venezuela c/ Société Gold Reserve INC, Cour d’appel de Paris, Pôle 1 – Chambre 1, RG N° 14/21103, a judge sitting in the Paris Court of Appeal considered opposing applications regarding an award issued under the ICSID Additional Facility Rules, with one side seeking enforcement of the award and the other seeking a stay of enforcement.

Speedread

A judge sitting in the Paris Court of Appeal has granted Gold Reserve’s application for enforcement of an award issued under the International Centre for Settlement of Investment Disputes (ICSID) Additional Facility Rules. In doing so, the judge rejected Venezuela’s application for a stay of enforcement.

This decision is another example of the French courts adopting a robust approach to the enforcement of arbitral awards. While every case will turn on its facts, the decision is a clear indication that, in the absence of convincing evidence of serious prejudice to a party’s rights, a stay is unlikely to be granted – even if the sums involved are significant. (République Bolivarienne du Venezuela c/ Société Gold Reserve INC, Cour d’appel de Paris, Pôle 1 – Chambre 1, RG N° 14/21103.)

Continue reading

Paris Court of Appeal considers scope of arbitrator’s obligation to disclose any potential conflicts of interest

 The Paris Court of Appeal has overturned a judgment granting exequatur (order for enforcement) of an arbitral award as a result of the sole arbitrator’s failure to disclose a potential conflict of interest. At the time of his appointment in September 2009, the arbitrator had disclosed that “a partner in my firm’s Toronto office has represented” the sole shareholder of one of the parties to the arbitration “over a number of years“. However, in December 2010, the firm published a report that it had advised that same shareholder on a recently concluded transaction.

The case is a reminder of the burden on arbitrators to provide a full disclosure of any potential conflicts, and to update such disclosure should new conflicts arise during the course of an arbitration. (S.A. Auto Guadeloupe Investissements (AGI) c/ Columbus Acquisitions Inc, Cour d’appel de Paris, Pôle 1 – Chambre 1, n° 13/13459 (14 October 2014).)

Continue reading