UK: International Arbitration Newsletter - Q3 2010

Last Updated: 7 September 2010

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

Contents

  • Europe
    New IBA Rules on the Taking of Evidence in International Arbitration
    Spain to review Arbitration Law
  • Americas
    US Supreme Court decision confirms arbitrators' jurisdiction to decide questions of arbitrability
    Commercial Court decision could revive arbitration in the BVI
  • News from the Arbitration Institutions
    Revised UNCITRAL Arbitration Rules

NEW IBA RULES ON THE TAKING OF EVIDENCE IN INTERNATIONAL ARBITRATION
By Nick Marsh and Maria Alcalde, London

The International Bar Association (IBA) has adopted the new IBA Rules on the Taking of Evidence in International Arbitration (the new IBA Rules), which have since replaced the 1999 version of the Rules.

Like the 1999 Rules, the new IBA Rules, which were adopted on 29 May 2010, acknowledge that expansive documentary discovery is usually inappropriate in international arbitration and also preserve the arbitral tribunal's discretion to determine the admissibility, relevance, materiality and weight of the evidence.

Parties to arbitrations, as well as arbitral tribunals, are free to adopt the new IBA Rules (in whole or in part) to govern arbitration proceedings, or they may vary them or use them as guidelines in developing their own procedures. The new IBA Rules are not intended to limit the flexibility that is inherent in, and an advantage of, international arbitration and parties and arbitral tribunals are free to adapt the Rules to suit the particular circumstances of each arbitration.

To read our brief overview of the key updates in the new IBA Rules, please visit our website:

http://www.dlapiper.com/new-iba-rules-on-the-taking-of-evidencein-international-arbitration/

SPAIN TO REVIEW ARBITRATION LAW
By Josep Maria Julià, Madrid

The Spanish Council of Ministers has approved a draft bill to amend the 2003 Spanish Arbitration Act, which will now be submitted for approval by the Spanish parliament.

The draft bill, which was approved in mid-July, contains provisions similar to draft proposals that were announced in February 2010 by the Spanish Minister of Justice.

The draft bill includes certain improvements in relation to international arbitration procedure, but could also introduce some controversial elements into arbitration in Spain. It is hoped that, as the Spanish parliament reviews the draft bill, it will reconsider and then eliminate these controversial elements.

To read our brief overview of the draft bill please visit our website:

http://www.dlapiper.com/spain-to-review-arbitration-law/

US SUPREME COURT DECISION CONFIRMS ARBITRATORS' JURISDICTION TO DECIDE QUESTIONS OF ARBITRABILITY
By J.P. Duffy, New York

The United States Supreme Court recently held in Rent- A-Center, West, Inc. v Jackson that arbitrators, rather than the courts, have jurisdiction to determine challenges to the validity of arbitration clauses in which questions of arbitrability are delegated to the arbitrator, unless the challenging party specifically alleges that the delegation provision is invalid.

The ruling is significant for international arbitration practitioners because it reinforces the well-established concepts of competence-competence and severability and reaffirms the pro-arbitration stance that has been asserted by US courts in recent years. The decision is also relevant to the ongoing debate in the US regarding the Arbitration Fairness Act.

To read our brief overview of the Rent-A-Center decision, please visit our website:

http://www.dlapiper.com/us-supreme-court-decision-confirmsarbitrators-jurisdiction-to-decide-questions-of-arbitrability/

COMMERCIAL COURT DECISION COULD REVIVE ARBITRATION IN THE BVI
By Sarah Masson,* British Virgin Islands

A recent decision on the effect of an arbitration clause in a company's articles of association could mark the beginning of a new wave of arbitration in the British Virgin Islands (BVI).

Arbitration in the BVI is governed by the BVI Arbitration Ordinance 1976, which is based on the English Arbitration Act 1950. Despite this longestablished recognition of arbitration as a viable alternative to court proceedings for the resolution of domestic and international commercial disputes, and the fact that a procedure for the recognition and enforcement of arbitration awards has existed in the territory since 1922, arbitration in the BVI is extremely rare.

This is rather surprising, given that, until relatively recently, the Articles of Association of companies incorporated in the BVI tended to contain an arbitration clause as standard. This arbitration agreement was recently considered by the BVI Commercial Court in Ennio Zanotti v Interlog Finance Corp. & Ors.

To learn more about the case, please visit our website:

http://www.dlapiper.com/commercial-court-decision-could-revivearbitration-in-bvi/

NEWS FROM THE ARBITRATION INSTITUTIONS

Revised UNCITRAL Arbitration Rules

The United Nations Commission on International Trade Law has issued its revised Arbitration Rules. The revised Rules, which are aimed at enhancing the efficiency of arbitration under the Rules, will replace the 1976 version and will be effective as of 15 August 2010. The parties to an arbitration agreement concluded after 15 August 2010 shall be presumed to have referred to the Rules in effect on the date of commencement of the arbitration, unless the parties have agreed to apply a particular version of the Rules.

To read the revised rules, please log onto:

http://www.uncitral.org/pdf/english/texts/arbitration/arb-rulesrevised/ pre-arb-rules-revised.pdf

Report on the implementation and review of Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

The European Parliament's Committee on Legal Affairs has prepared a report on the European Commission's proposal to amend Council Regulation (EC) No. 44/2001, known as the Brussels Regulation. The report opposes the deletion of the arbitration exclusion in the Brussels Regulation and recommends clarifying the fact that judicial proceedings ruling on the validity of arbitral competence are also excluded from the scope of the Brussels Regulation. The report further recommends that Article 31 of the Brussels Regulation should be revised to provide that no judgment should be recognised in European Union member states if the court concerned disregarded an arbitration rule of the state in which recognition is sought.

To read the report please log onto:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP// NONSGML+REPORT+A7-2010-0219+0+DOC+PDF+V0// EN&language=EN

New SIAC Rules 2010

The Singapore International Arbitration Centre (SIAC) has announced the release of the new SIAC Rules 2010, which came into effect on 1 July 2010. A new Schedule of Fees also came into force on the same date. The amended Rules offer an expedited procedure for disputes not exceeding S$5 million, where the parties agree or in cases of exceptional urgency. The amended Rules also include fuller provisions for multi-party appointment of arbitrators, provide for the SIAC to determine preliminary disputes as to jurisdiction prior to the appointment of the tribunal and provide for interim and emergency relief procedures, particularly prior to the constitution of the tribunal, including the appointment of an emergency arbitrator.

The revised Rules are available on the SIAC website, as is the revised fee schedule, effective from the same date.

http://www.siac.org.sg/cms/images/stories/documents/news/2010/SIAC_Rules_2010.pdf

http://www.siac.org.sg/cms/index.php?option=com_content&view=article&id=70&Itemid=91

Cyprus International Arbitration Centre launched

The launch of the Cyprus International Arbitration Centre (CIAC) was announced in May this year. The new centre will handle domestic and international arbitrations under either its own Arbitration Rules or the UNCITRAL Arbitration Rules.

To learn more, please visit:

http://www.cypruslawblog.net/tag/arbitration/

Adaptation of the CEAC Model Arbitration Clause

At a meeting on 17 June 2010, the Advisory Board of the Chinese European Arbitration Centre (CEAC) decided to adapt the CEAC Model Arbitration Clause in order to underline the need to have arbitration proceedings relating to China administered by an arbitration institution. Old contracts that contain the old CEAC Model Arbitration Clause will not be negatively affected.

To read the press release please visit:

http://www.ceac-arbitration.com/Read-News.79.0.html? &no_cache=1&tx_ttnews%5btt_news%5d=157&tx_ttnews% 5bbackPid%5d=77&cHash=e09d920587

*Sarah Masson is an associate in the Litigation & Insolvency practice of Appleby, based in Tortola, British Virgin Islands.

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.

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