Nightmare on the Newcastle Express
In the “Newcastle Express”, the Court of Appeal, in apparent disregard of Lord Hoffman’s views in the Fiona Trust, has ruled that an arbitrator had no jurisdiction to rule on whether the condition precedent to the creation of the contract in which the relevant clause was contained. There is Swedish and Swiss Supreme Court authority […]
Looking for the Geneva Protocol 1923 in its centenary
We are coming ever closer to the centenary of the 1923 Geneva Protocol. On a recent library excursion, it became apparent that this League of Nations initiative almost passed unnoticed at the time. Yet, it forced countries to change their arbitration laws towards the near automatic enforcement of arbitration clauses at least in international cases […]
The French Cour de cassation (Supreme Court) gets Kabab-Ji right by affirming the Cour d’appel de Paris
8. Ayant souverainement retenu que le choix du droit anglais comme loi régissant les contrats, ainsi que la stipulation selon laquelle il était interdit aux arbitres d’appliquer des règles qui contrediraient les contrats, ne suffisaient pas à établir la commune volonté des parties de soumettre l’efficacité de la convention d’arbitrage au droit anglais, par dérogation […]
Time for law journals to be less precious about rejected articles
I had an experience this week that reminded me of something that happened to me in the late 1980s and it was not particularly pleasant. I wrote a piece for a conference knowing that the organizers were not going to publish the papers. So, I sent it to a law journal who sent a slightly […]
2023 – the centenary of the Geneva Protocol
Next year marks the centenary of an event largely ignored at the time and almost forgotten about now: the Geneva Protocol on Arbitration Clauses. The Protocol, though, has a significance far beyond the shallow memories of the 21st Century. It was the first ratified international treaty on the enforcement of private arbitration agreements. It laid […]
Include a choice of law to govern the arbitration clause – after the UK Supreme Court’s decisions in Kabab-Ji and Chubb
The Supreme Court in its Kabab-Ji decision emphasised the importance of lawyers agreeing on the law to govern the arbitration clause as distinct from that to apply to the substance of the contract. It declined to enforce an award rendered in France against which an application to set aside the award has already failed in […]
Insolvency and English arbitration law – a quick reminder
Financial Conduct Authority v Carillion Plc [2021] EWHC 2871 (Ch) reminds arbitration lawyers that section 130(2) of the Insolvency Act requires the claimant to seek the leave of the insolvency court to start an arbitration against a company where a winding-up order has been made or a provisional liquidator appointed. Section 130(2) says: When a […]
The US Supreme Court and the minimalist interpretation of Article II of the New York Arbitration Convention
In an unusual sighting in 2020, Justice Thomas wrote a pretty good judgement for the whole court, explaining that waiver or notions of estoppel could be applied bya court to disable a ground for refusing enforcement of an arbitration agreement under Article II(3) of the New York Convention: https://www.supremecourt.gov/opinions/19pdf/18-1048_8ok0.pdf. This is all about the disabling […]