This is a reproduction of the spring edition of our quarterly electronic newsletter.

CONTENTS

  • Europe
     LCIA's Power to Order Security for Disputed Amounts
  • Australia
     Bill Promotes Australia as an Effective Forum
  • United States
     Appellate Court Sanctions Lawyers for Appealing Arbitral Award
  • Latin America
    Recognition of Foreign Arbitral Awards in Brazil

News from the Arbitration Institutions

LCIA ARBITRATION: TRIBUNAL'S POWER TO ORDER SECURITY FOR THE AMOUNT IN DISPUTE
By Hannah Khawaja, London

In the current economic climate, parties to commercial disputes are increasingly concerned about the recovery risk involved in pursuing arbitration proceedings, in particular the risk that an opponent may not be able to comply with an arbitral award made against it or that an opponent's future financial security becomes uncertain (such as a risk of insolvency arising after proceedings have been commenced). The likelihood of successfully enforcing an arbitration award is typically a key consideration for parties considering commencing or continuing arbitration proceedings.

The arbitration rules of the London Court of International Arbitration allow claimants to avail themselves of a unique protection in the form of interim relief - to seek payment of security for the amount of a claim or counterclaim.

To read the full article please visit our website: http://www.dlapiper.com/lcia-arbitration-tribunalspower- to-order-security-for-the-amount-in-dispute/

INTERNATIONAL ARBITRATION AMENDMENT BILL PROMOTES AUSTRALIA AS AN EFFECTIVE FORUM
By Geoffrey Lee and Lindsay Stirton, DLA Phillips Fox, Sydney

The Federal Attorney-General of Australia, Robert McClelland, has introduced the International Arbitration Amendment Bill 2009 (Cth) (Bill), which proposes significant amendments to the current International Arbitration Act 1974 (Cth) (IAA).

Although the Bill, which was introduced in late 2009, has not yet been passed into law, it appears likely that this will occur this year.

The Bill is seen as the most significant reform of its kind in Australia since the United Nations Commission on International Trade Law (UNCITRAL) Model Law was implemented into the IAA in 1989. It is part of the federal government's broader push to promote alternative dispute resolution and, in particular, Australia's international arbitration capability. The Bill is intended to bring greater certainty to foreign awards and also to encourage and attract parties to nominate Australia as their seat for international arbitration.

A brief overview of the Bill can be read on our website: http://www.dlapiper.com/international-arbitrationamendment- bill-promotes-australia-as-an-effectiveforum/

DMA INTERNATIONAL, INC., V. QWEST US FEDERAL APPELLATE COURT SANCTIONS LAWYERS FOR APPEALING DECISION TO CONFIRM AN AWARD
By J.P. Duffy, Annie Chen and Leon C. Skornicki, New York

In DMA International, Inc., v. Qwest Communications International Inc., (DMA International) the US Court of Appeals for the Tenth Circuit (Tenth Circuit) sanctioned lawyers for appealing the confirmation of an arbitral award and ordered those lawyers personally to pay the opposing party's attorneys' fees.

While DMA International involved proceedings to confirm a domestic arbitral award brought under Chapter 1 of the US Federal Arbitration Act (FAA), the decision has clear implications for international arbitral awards (which are subject to Chapters 2 and 3 of the FAA) because the Tenth Circuit did not limit its rationale to Chapter 1 domestic awards.

Consequently, DMA International is not restricted to domestic confirmation proceedings brought under the FAA's Chapter 1 but could also apply to international arbitral awards falling under Chapters 2 and 3, which incorporate the New York and Panama Conventions into US law.

Please read our overview of this outcome on our website: http://www.dlapiper.com/dma-international-inc-v-qwestus- federal-appellate-court-sanctions-lawyers-forappealing- decision-to-confirm-an-award/

THE RECOGNITION OF FOREIGN ARBITRAL AWARDS IN BRAZIL
By Fabiana Videira Lopes, Campos Mello Advogados, Rio de Janeiro

Arbitration is increasingly being chosen as a method of resolving disputes in contracts involving Brazilian parties. A key concern, both for Brazilian parties and for international parties doing business with Brazilian parties, is whether arbitral awards made in another jurisdiction can be recognized and, as a result, enforced, against counterparties with assets in Brazil.

Please read our brief overview of the issues surrounding the use of arbitration to settle disputes in Brazil on our website: http://www.dlapiper.com/the-recognition-of-foreignarbitral- awards-in-brazil/

NEWS FROM THE ARBITRATION INSTITUTIONS

Group of experts: Brussels I Regulation (Regulation 44/2001)

The European Commission has invited applications from individuals with a view to establishing a list of experts who could participate in the Group of Experts dealing with the interface between the Brussels I Regulation (Regulation 44/2001) and arbitration. The Commission is currently assessing the impact of amending the Brussels Regulation and may consult the group of experts on any matter relating to arbitration and the Brussels Regulation. The group will consist of 15 experts and will be established for an initial period of two years.

The Group's terms of reference and an application form can be found on the European Judicial Network website: http://ec.europa.eu/civiljustice/news/whatsnew_en.htm

LCIA India Arbitration Rules

The LCIA India Arbitration Rules have been adopted to take effect for arbitrations commencing on or after 17 April 2010. The Rules are based on the LCIA's own arbitration rules, but with certain provisions reworked to reflect the interface with the Indian Arbitration and Conciliation Act 1996 and to address the recurring issues of delay and cost inherent in many ad hoc arbitrations. The rules include several new provisions aimed specifically at expediting proceedings.

For more information please visit: http://www.lciaindia.org/Arbitration.aspx

HKIAC appoints Chiann Bao as its new Secretary- General

The Hong Kong International Arbitration Centre has appointed Chiann Bao to the position of Secretary- General commencing 1 May 2010. She succeeds Secretary-General Gary Soo, who has returned to private practice. Ms Bao is a graduate of Cornell University and was a Fulbright Scholar in China. She obtained a J.D. from the University of Wisconsin Law School and a Master of Arts in Arbitration and Dispute Resolution from the City University of Hong Kong. She is a member of the Chartered Institute of Arbitrators and is admitted to the New York Bar. Until recently, Ms Bao was a lawyer with DLA Piper's Litigation and International Arbitration group in New York.

Please visit the following website to read the press release about her appointment: http://www.hkiac.org/ newspdf/HKIAC Appoints Ms Chiann BAO as New SG.pdf

New arbitration centre planned for Sydney

A new arbitration centre dedicated to international arbitration is planned for Sydney, Australia. It will be jointly funded by the federal government and the New South Wales state government together with the Australian Centre for International Commercial Arbitration (ACICA) and the Australian Commercial Disputes Centre.

For more information please visit: http:// www.attorneygeneral.gov.au/www/ministers/ mcclelland.nsf/Page/ MediaReleases_2010_FirstQuarter_3March2010- EstablishmentoftheAustralianInternationalDisputesCentre

CIArb publishes Model Mediation Agreement

The Chartered Institute of Arbitrators has added to its suite of mediation documents by publishing a mediation agreement. The document has been drafted by the CIArb's Mediation Sub-Committee and is for use in conjunction with the CIArb's Mediation Rules. The agreement does not specifically state that the discussions will be without prejudice; neither does it state that the mediator shall be indemnified as to any costs incurred as a result of being called as a witness to give evidence on the mediation. It does, however, require all attendees to sign a specific confidentiality agreement.

The Press Release can be found on the following website: http://www.ciarb.org/news/ciarb-news/ciarbpublishes-model-mediation-agreement.php and the Agreement itself on this website: http://www.ciarb.org/dispute-resolution/2010/01/29/CIArb%20Model%20Mediation%20Agreement.pdf

CEDR publishes revised model documents

The Centre for Effective Dispute Resolution (CEDR) has published three revised model documents:

  • model ADR contract clauses;
  • a model settlement agreement and Tomlin Order; and
  • a model mediation agreement, notably containing provisions for a mediator to be paid costs in the event an application is made for the mediator to provide evidence in litigation.

For more information please visit: http://www.cedr.com/about_us/library/documents.php

ICC issues new checklist for drafting ICC arbitral awards The ICC International Court of Arbitration has issued a new checklist for drafting ICC arbitral awards. The checklist prompts arbitrators on the key information that they should be providing when preparing their awards for submission to the ICC. The checklist is part of an ongoing drive to improve efficiency at the ICC. For more information visit: http://www.iccwbo.org/court/ arbitration/index.html?id=35114

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.