Stockholm International Arbitration Review (SIAR)

EDITORIAL

Stephen R. Bond, General Editor

ARTICLES

The Future of Manifest Disregard
Christopher R. Drahozal

The SNF v. International Chamber of Commerce Case and the Obligation to Conduct Arbitration Proceedings with “Expected Dispatch”
Elie Kleiman

INVESTMENT DISPUTES

Award on Preliminary Objections Rendered in 2009 in SCC Case No. Arbitration V (024/2007), Renta 4 S.V.S.A. and Others v. The Russian Federation

Subject Matter:

Whether the arbitral tribunal has subject-matter jurisdiction under Articles 10 and 5 of the Spain/Russia BIT, whether it has personal jurisdiction over the seven claimants, whether the claimants had made investments and, if so, whether their claims are admissible:

(i)   Whether Article 10 of the Spain/Russia BIT, which creates arbitral jurisdiction over any “dispute between one Party and an investor of the other Party relating to the amount or method of payment of the compensation due under article 6 of this Agreement” includes the jurisdiction to decide on matters other than quantum for established expropriation?

(ii)   Whether Article 5 of the Spain/Russia BIT, which provides most favoured nation guarantees of fair and equitable treatment, permits the expansion of jurisdiction under Article 10 of the Spain/Russia BIT.

(iii)   Whether certain Claimants qualified as “investors” under Article 1 of the Spain/Russia BIT?

(iv)   Whether American Depository Receipts qualified as “investments” under Article 1 of the Spain/Russia BIT?

(v)   Whether the Claimants had sufficiently demonstrated ownership over their investments?

(vi)   Whether the claims were admissible?

Yukos and Some of Its Progeny
Observations by Lucia Raimanova

ARBITRAL AWARDS

Final Arbitral Award Rendered in December 2007 in SCC Case No. 30/2003

Subject Matter:

Issue of jurisdiction. Did Clamant and Respondent sign the arbitration agreements and their capacity as agents under United Arab Emirates law?

Observations by Ania Farren

Separate Award Rendered in December 2008 in SCC case No. 33/2007

Subject Matter:

Applicable law.

Observations by Therese Isaksson and Natalie Holm
Observations by Niklas Åstenius and Lisa Björk

COURT DECISIONS ON ARBITRATION
Canada

Alberta Court of Appeal Decision in Case no: 0701-0230-AC on August 5, 2008
“Yugraneft Corporation vs. Rexx Management Corporation”

Subject Matter:

Limitation period governing application seeking the recognition and enforcement of a foreign arbitral award.

Musings on the Yugraneft Decision and the Limitation Period for Recognition and Enforcement Proceedings
Observations by Gerald W. Ghikas, Q.C.

Canada and Germany

Court of Appeal of Quebec Decision in Case No: 500-09-016097-057 on March 11, 2008 “Smart Systems Technologies Inc. vs. Domotique Secant Inc.”

Subject Matter:

Whether a foreign award should be denied recognition and enforcement on the grounds that it was unreasoned, that the arbitrators exceeded their jurisdiction and that one of the arbitrators improper communicated with one of the parties. Whether the respondent is estopped from resisting the application on the ground that it failed to challenge the award before the courts of the seat of arbitration.

Federal Court of Justice Order on April 17th, 2008 in Proceedings for the Declaration of Enforceability of an Arbitral Award in Case No: III ZB 97/06

Subject Matter:

Circumstances under which a party may be estopped from invoking one of the defenses set out in Article V of the New York Convention—Whether the respondent is estopped from resisting an application seeking the recognition and enforcement of a foreign award on the ground that it failed to challenge the award before the courts of the seat of arbitration.

The Principle of Good Faith in Enforcement of Foreign Awards – the Taming of Another “Unruly Horse” in German Law
Observations by Dr. Stefan Kröll & Dmitry Marenkov

The Netherlands

Decision of the Amsterdam Court of Appeal Rendered on April 28 2009 in Case No. 200.005.269/01 “Yukos Capital S.A.R.L. vs. OAO Rosneft”

Subject Matter:

Application seeking the recognition and enforcement of arbitral awards made in Moscow under the rules of the International Court of Commercial Arbitration at the Chamber of Trade and Industry the Russian Federation—Awards subsequently annulled by Russian Courts—Whether awards can nevertheless be recognized and enforced in the Netherlands.

Zombie Awards: Annulled But Not Dead
Observations by Eric A. Schwartz

Supreme Court (Hoge Raad), The Netherlands Decision On 5 December 2008 in Case No. C07/166HR (LJN: BF3799; NJ 2009, 6)

Subject Matter:

Annulment of an arbitral award made in the Netherlands due to defective signature. The award was signed only by two of the three arbitrators, while the declaration that the third arbitrator had refused to sign the award, was not signed by these two arbitrators.

Dutch Courts Uphold Signature Requirements
Observations by Diederik de Groot

NOTES & INFORMATION

SCC Strengthens Its Arbitration Rules: By Making Interim Measures Available When Needed

Recent Amendments to Ukraine’s Arbitration Law
Markiyan Kliuchkovskyi and Olga Glukhovska

BOOK REVIEW - Handbook of ICC Arbitration,
Michael W. Bühler and Thomas H. Webster, 2nd ed. (2008)
Reviewed by Matthew Secomb

BOOK REVIEW – Arbitration Institute of the Stockholm Chamber of Commerce: A Handbook with Commentary on Arbitration Rules (Stockholms Handelskammares Skiljedomsinstitut: en handbok och regelkommentar för skiljeförfaranden)
Marie Öhrström
Reviewed by Claes Zettermarck

General Editor
Stephen R. Bond

Assistant General Editor
Marie Öhrström

Editorial Assistant
David Ramsjö

Articles
Editor: Patricia Shaughnessy
Co-editor: Timur Aitkulov
Co-editor: John Fellas

Court Decisions
Editor: Frédéric Bachand
Co-editor: Olivier Caprasse

Investment Arbitration
Editor: Noah Rubins
Co-editor: Devashish Krishan
Co-editor: Lisa Bingham

Arbitral Awards
Editor: Annette Magnusson
Co-editor: Grant Hanessian
Co-editor: Linn Bergman

Notes and Information
Editor: Olga Mouraviova
Co-editor: Jeffrey M. Hertzfeld

Why Choose Stockholm: Reflections of an English Lawyer After Two Years of Practising International Arbitration in Sweden
James Hope

Emergency and Pre-Tribunal Arbitral Relief: Current Approaches of the Key Arbitral Institutions
Peter Hillerström

SPECIAL FORUM: PUBLIC POLICY IN INTERNATIONAL ARBITRATION ASSOCIATION CONFERENCE ON PUBLIC POLICY IN INTERNATIONAL ARBITRATION, SEPTEMBER 4-5, 2008

The Common Law Approach to Public Policy in International Arbitration
Jeffrey M. Hertzfeld

Public Policy as Ground for Annulment of or Non-recognition of Enforcement of Arbitral Awards in East Asia
Michael Kwang S.C. and Shaun Lee

Public Policy in Swiss International Arbitration Law: For Once, Adjectives Make a Difference
Pierre A. Karrer

The Public Policy Exception to the Enforcement of International Arbitral Awards
David W. Rivkin

Sedelmayer v. Russian Federation: Court Decisions in Germany in January and March 2008
Observations by Friederike Stumpe

District Court of the Hague, The Netherlands, Decisions on 1 August 2007, Case No. LJN: BB1424, 255948 / HA ZA 05-3983

Book Review: Comparative Law of International Arbitration, Second Edition, Professor Jean-François Poudret and Dr. Sebastien Besson
Christopher R. Seppällä

Thomas Wälde (1949- 2008) In Memoriam
Devashish Krishan

SCC Practice: Challenges to Arbitrators – SCC Board decisions 2005–2007
Helena Jung

Hall Street Associates, LLC v. Mattel, Inc.: – A New Englander’s Tale of Statutory Supremacy in Arbitration Law
Thomas E. Carbonneau

Court Recommendations in December 2007 by the Presidium of the Highest Commercial Court of Ukraine “Ukrainian Court
Edict”

Subject Matters:
1)   Activities of and corporate relations concerning a Ukrainian joint stock company shall be governed
      exclusively by the laws of Ukraine.
2)   Agreements providing for the application of foreign law to Ukrainian corporate relationships including
      the relationships between shareholders are null and void and violate Ukrainian public policy.
3)   Agreements limiting the scope or effect of Ukrainian mandatory legal provisions (such as competition law
      and rules regarding the invalidity of agreements) are null and void.
4)   Shareholders’ agreements, even under foreign law and entered into by, for instance, non-Ukrainian holding
      companies cannot govern questions of corporate governance in a Ukrainian company and, hence,
      cannot be enforced to the extent they are at variance with Ukrainian company law.
5)   The Recommendations seek to exclude Ukrainian corporate disputes from determination by international
     arbitration (paragraph 2 of Section 6.2).

Observations by Serhii Sviriba and Olga Glukhovska
Observations by Tatiana Slipachuk and Per Runeland
Observations by Alexander Vaneev

Subject Matter:
Judicial review of awards — Enforceability of clauses providing for expanded judicial review under the U.S.
Federal Arbitration Act.

UNCITRAL Arbitral Award on Jurisdiction, made on 28 January, 2008 in Washington D.C., U.S. “Canadian
Cattlemen for Fair Trade vs. United States of America”

Subject Matter:
Jurisdiction of Tribunal to hear a claim brought under Chapter Eleven of the NAFTA (North American Free
Trade Agreement). Territorial location requirement for protected investments and investors.

Monetizing Natural Gas: A Contribution to the Problem of Emissions and Climate Change
– Anthony Connerty

New rules for international arbitration in Ukraine: Improved structure, changes in procedure and substance
– Tatyana Slipachuk and Per Runeland

Hans-Gunnar Solerud in Memoriam – Johan Munck, Chief Justice of the Supreme Court of Sweden, Leif Thorson, Justice of the Supreme Court of Sweden