Posts Tagged New York Convention
Sterling v Rand. The High Court emphasises the implications for arbitral tribunal’s powers resulting from choice of curial law in favour of Beth Din arbitration and choice of law pro Jewish law.
 EWHC 2560 (Ch) Sterling v Rand concerns not so much the relationship between a Beth Din (a Jewish court) and the courts in ordinary, rather the implications for a Beth Din arbitral tribunal’s powers (here: power to transfer title in property) as a result of choice of curial law and choice of lex causae. On the various laws to be decided re arbitration, see here.
Ambrose DJ found Claimant was correct to argue that by agreeing to the application of Jewish law to the procedure of the arbitration (Jewish law as curial law), the Beth Din has power to order the transfer of the Property because Jewish law, which gives the Beth Din power to make such an order. She dismissed the route taken by the claimant to come to this conclusion (he had suggested application of S48 of the 1996 Arbitration Act, a provision regarding remedies available in an arbitration governed by the Act), rather consequentially applying parties’ arbitration agreement. Parties had referred to the Judicial Division of the London Beth Din (Court of the Chief Rabbi) for a binding arbitration under the Arbitration Act 1996, as follows:
“Re: Dispute over ownership of 4 Dunsmure Road N16 5PW I agree to the submission of this matter, including all claims and counterclaims arising in respect of it, to the Beth Din for a binding arbitration under the Arbitration Acts for the time being in force and under the following terms:
(1) The Beth Din will consist of three dayanim unless the parties agree to the substitute of a single dayan.
(2) The Beth Din’s rules of procedures are those of Jewish law.
(3) Each party to this matter shall have, by signing this document, indicated his assent to an arbitration under these terms. The Beth Din may continue the arbitration and conclude it ex parte if any party fails after receiving reasonable notice to attend any hearing.
(4) In the event that a vacancy arises in the Beth Din on account of the inability or refusal of any of its members to determine the arbitration, the Beth Din may appoint one or more of its own members to fill the vacancy, and may at its own discretion determine how the arbitration shall continue to be conducted. The Beth Din may determine that a single dayan may hear and receive evidence on behalf of the full Beth Din.…
(6) The Beth Din has the power to make both inter partes and ex parte orders from the day upon which all parties are sent the terms of this agreement until such time as the Beth Din is functus officio under Jewish law. The Beth Din has the power to make orders under Jewish law both as to its own costs, and as to the costs incurred by any party in participating, bringing or defending any claim or counterclaim. The Beth Din may make orders as to security for costs, and in respect of claims.…
(9) The Beth Din shall decide the matter under Jewish law incorporating such other laws as Jewish law deems appropriate.”
Under Jewish law, the Beth Din ordinarily has the power to order transfer of title.
Enforcement of the order was nevertheless dismissed for ordre public, following new evidence which had not been laid out to the Beth Din. At 83: ‘an order for specific performance would not be in the interests of justice, it could be contrary to public policy and it could damage the integrity (and reputation) of the Beth Din system.’
Bitcoin online resolution award refused recognition and enforcement at Amsterdam (ordre public exception of New York Convention).
I tweeted it earlier yet was asked to put a review up on the blog (which also suits my archiving purposes) of ECLI:NL:GHAMS:2019:192 X v Y (I know that does not help much) at the Amsterdam Court of Appeal, 29 January 2019. The case came to me courtesy of Freshields who have review here.
The case illustrates some of the issues involving online alternative dispute resolution, including those manned by artificial intelligence (albeit the latter was not directly at stake here).
Using an online trading platform, X provided three loans to Y, all in bitcoins at an interest rate of 5% per month. To borrow these bitcoins, Y had to agree on the conditions of the online bitcoin-trading platform applicable to the loans. These conditions included the following dispute resolution mechanism clause:
If you fail to pay principal and/or interest on the date on which the loan falls due, you will be considered in default of the Registration Agreement… Should your loan become 90 days past due (“Defaulted”) the loan will be sent to Dhami Law Firm (“Arbitrator”), an independent, international arbitration firm whose awards are recognized internationally under The United Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
I understand that in the event that I want to appear in the arbitration by email to contest the potential issuance of an award in favor of the lenders, I must send a written request to email@example.com and pay a $ 99.00 fee. Such request must be within 7 calendar days from the date of the Notice of Default. The Arbitrator’s decision shall be final and legally binding. In the event that the Arbitrator issues an award in favor of the investor, an investor may enforce that judgment in a court of competent jurisdiction.
The conditions further contained the following arbitration clause:
All claims and disputes arising under or relating to this agreement are to be settled by binding arbitration in the state of California or another location mutually agreeable to the parties. An award of arbitration may be confirmed in a court of competent jurisdiction.
Default ensued, as did ADR, and Y sought enforcement in The Netherlands. The Courts have now refused proprio motu (Y had signalled he had no objection), for the following reasons summarised by Freshfields: First, the court took issue with the circumstance that – in its view – online arbitral proceedings automatically become pending after 90 days. Second, a defendant wishing to defend itself in these arbitral proceedings had been required to write an email within seven days from receiving a notice of default. Third, the arbitral tribunal had failed to inform Y that a dispute was pending against him or of the legal grounds of the action.
At 3.5 is it is clear that the principle of audi alteram partem is the main stumbling block for the Dutch Courts. Ordre public violated. A clear flashpoint for ADR, including of the algorithmic variety.
OHADA law and arbitration at the Paris Court of appeal. A tale of overriding mandatory laws /lois de police and ordres publics.
Thank you Thomas Kendra and Thibaud Roujou de Boubée for signalling 16/25484 Cameroon v Projet Pilote Garoubé at the Paris Court of Appeal end of December 2018. The essence of the case is the Court confirming an arbitral award applying OHADA law. OHADA stands for ‘Organisation pour l’harmonisation en Afrique du droit des affaires’ – ie the Organisation for the Harmonization of Corporate Law in Africa.
Thomas and Thibaud analyse excellently – of note for this blog are the issue of non-State law as lex contractus (compare with Rome I), the recognition of same as trumping Cameronese law essentially as overriding mandatory law, and the rejection of the Cameronese argument that its wildlife laws qualify themselves as lois de police /overriding mandatory law and that the lack of recognition of same violates ordre public.
Interesting arbitration /conflicts material.
Many thanks to Filbert Lam for alerting me to Menon CJ’s most exquisite 2018 speech on cross-border insolvency law. His honour’s talk addresses forum shopping (including for cram down reasons), the Model Law, a most enlightening comparison between international commercial arbitration (particularly: the New York Convention’s role) and insolvency, and of course modified universalism (on which see also this recent post by Bob Wessels, with ia analysis of the EU position). A delightfully sharp observation of key elements of international insolvency practice and policy.
(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 5.
Update 22 February 2019 for a most excellent and critical paper by Ronald Brand calling for the 2019 Judgments Project Conference to be aware of all options for international harmonisation in the area see here.
Kraft Foods v Bega Cheese  FCA 549 was signalled to me by Michael Mitchell back in early May – now seems a good opportunity briefly to report on it. The Federal Court of Australia issued an anti-arbitration injunction to restrain a multinational food conglomerate from pursuing arbitration in New York. Kraft had pursued litigation in Australia which not only sought to restrain the respondent from certain radio and television advertising, but also sought final relief including damages.
Parties had agreed to mediate and arbitrate under the dispute resolution provisions of a Master Agreement for licensing of IP. Bega had acquired certain rights from Mondelez (a company in the Kraft group), including certain trademark rights that Kraft had licensed to Mondelez pursuant to the Master Agreement.
Of interest to the blog is the myriad number of issues that led the Court to issue the injunction, among others the fact that what was sought included interim relief, the position of which when it comes to enforcement is not entirely clear in the New York Convention. Throw intellectual property, mediation as well as arbitration, common law doctrine principles such as the Aldi rule in the mix, and the jurisdictional soup becomes quite attractive as well as complex. Precisely why intellectual property is hotly debated in the Hague Judgments project and likely to be excluded from it.
That latter brings me to the second part of the blog title: the HCCH have issued a Revised Draft Explanatory Report, and a document on the possible exclusion of anti-trust matters from the Convention as reflected in Article 2(1)(p) of the 2018 draft Convention. Both signal the continuing difficulty of the roll-out of the Hague Process, as well as continued intent to let the train roll into its end destination; although one wonders how many wagons will have been left behind en route.
(Handbook of) EU Private International Law, 2nd ed. 2016. Chapter 2.
Update 21 March 2019 the proposal has now been torpedoed by one of the parties formerly serving in Belgium’s government – the BIBC will not be created for the time being.
Update 12 December 2018. The most recent proposal, the one actually adopted in Committee, is here. Note i.a. (Article 20) that the Committee has thankfully (see below) not followed the silly rules on languages. Whether the proposal will lead to law, remains to be seen: as we speak, the Belgian Government has turned into a minority government and not much is certain to go ahead before the next elections (May 2019).
I have reported twice before on the BIBC – once viz the initial version and a second time with my short report for the Parliamentary Hearing. I have now had a minute to review the Council of State’s comments on the amended version – among others with a view to preparing for next week’s conference on hybrid courts in Doha. Note that the Council of State here acts in its advisory function: essentially its opinions aim to improve draft statute so as to avoid future litigation.
What is clear from these recent comments is that the Council does not at all embrace the regulatory competition incentives which lie at the heart of the proposal, in particular in its view on how a matter may be made ‘international’ so as to justify engagement of the BIBC. Its view (let alone the Justice Council’s fear for forum shopping?!: encouraging such shopping being the very raison d’etre of the Act) contradicts the CJEU’s flexible stance on the issue as apparent eg in Vinyls Italia. As I noted in my comments before the Committee, it is a rather odd indeed parochial requirement to insist on parties having used English in their correspondence, before they can validly engage the BIBC. Even the suggested amendment that the use of languages other than Belgium’s three official ones (French, Dutch, German) should suffice, is not convincing to the Council. One hopes the drafters will ignore the Council’s hesitation at this point.
The Council does not of course engage in the political discussions surrounding the proposal: in particular, whether in a country in which the court system arguably does not operate to satisfaction, the creation of an international commercial court may compound, rather than remedy issues.
Update 6 August 2018 the report of the hearing in Dutch and French is here.
I was at the Belgian Parliament yesterday for a hearing on the BIBC, following publication of the Government’s draft bill. For those of you who read Dutch, my notes are attached. We were limited to two pages of comments – the note is succinct.
An important change vis-a-vis the initial version (on which I commented here) is that the Court will now be subject to Belgian private international law (including primacy of EU instruments) for choice of law, rather than being able to pick the most appropriate law (arbitration panel style). That brings the court firmly within Brussels I. Also note my view and references on the Court being able to refer to the CJEU for preliminary review.