Arbitration Publications

Members of the BGS Institute of Arbitration regularly publish short articles on a variety of arbitration related topics. With members from 110 different countries, BGS has an international reach.

To publish your article : Contact : matteobordoni78@gmail.com and f.peter@wengervieli.ch + in CC communications@berkeleyglobalsociety.com

Speed Read #4

 

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After a century of success, the 2010 IBA Rules on the Taking of Evidence were revised. The revised version of the IBA Rules can be found here, alongside a helpful Commentary of the IBA 2020 Review
Task Force, shedding light on the considerations behind the changes made.

While the modifications are generally unobtrusive, in the wake of the global COVID-19 pandemic the 2020 Review Task Force amended the IBA Rules “to better reflect the tools implemented and the practices adopted by parties and arbitral tribunals during this period” (see Commentary, p. 25). Hence, the IBA Rules now contain a new provision in Article 8 (2) dedicated to the conduct of a “Remote Hearing”, making clear that “at the request of a Party or on its own motion, the Arbitral Tribunal may, after consultation with the Parties, order that the Evidentiary Hearing be conducted as a Remote Hearing”. In such case, the Tribunal and the Parties should establish a protocol that assures an efficient and fair conduct of such Remote Hearing “to the extent possible, without unintended interruptions”. The IBA Rules further point to some of the most important considerationswhen discussing and establishing a protocol for a Remote Hearing.

The 2020 IBA Rules on the Taking of Evidence, thus, seem to move with the times, reflecting the current practices and remaining a useful tool for the arbitration practitioners.

 

CISG applicable to arbitration agreements? - Speed Read #3

 

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In a judgement dated 26 November 2020, the German Federal Court of Justice (BGH) answered the question if and to what extent the United Nations Convention on Contracts for the International Sale of Goods (CISG) is applicable to arbitration agreements.

The defendant, a Dutch seller of mace flowers, provided the German plaintiff with order confirmations referring to general terms of the Dutch Spice Association (General Terms). The General Terms contained an arbitration clause with seat in Amsterdam and a governing law clause applying the law of The Netherlands to the contract explicitly excluding CISG. However, the defendant did neither provide the plaintiff with the General Terms nor was the relevant order confirmation signed by the plaintiff. The defendant challenged the German courts’ jurisdiction claiming a valid arbitration agreement.

The BGH considered the arbitration clause invalid and held that the CISG applies to the validity of the arbitration agreement at least in cases where the arbitration agreement is not in compliance with the formal requirements of Art. II para. 2 NYC. In such cases, the national substantive law or conflict of laws can be applied in accordance with the most-favored-nation principle of Art. VII para.1 NYC. Therefore, the BGH applied Sec. 1031 Code of Civil Procedure (German arbitration law) referring to German substantive law, including CISG and assessed if the reference to the General Terms constituted an arbitration agreement. The BGH highlighted that even if the contract is subject to CISG, the formal validity of an arbitration agreement is governed by the lex specialis such as NYC or Sec. 1031 Code of Civil Procedure. Therefore, Art. 11 Sent. 1 CISG (freedom of form) was not considered.

The judgment shows the importance and application of the separability principle. The arbitration agreement has to be treated as a separate agreement from the underlying contract. From a German perspective, this might even result in cases where the formal validity of an arbitration agreement can be governed by a different set of rules than its substantive validity.

Reach out if you have any questions on the above and stay tuned for further arbitration news.

Updates on Arbitration Laws and Institutional Arbitration Rules - Speed Read #2

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In the course of the last year the international arbitration community has seen a number of revisions of arbitration laws and institutional arbitration rules. For instance, after the revised LCIA Rules entered into force on 1 October 2020, the ICC issued its revised set of rules effective as per 1 January 2021. And it is no secret that more institutional rules will see revisions in the near future. Indeed, not only has Switzerland most recently seen a revision of the law on international arbitration (i.e. the revised 12th Chapter of the Swiss Private International Law Act) which just entered into effect at the beginning of this year, but also the Swiss Rules of International Arbitration (for cases administered by the SCAI, the Swiss Chambers’ Arbitration Institution) will be subject to a “touch-up”. It is yet to be seen to what extent the Swiss Rules will be revised in detail.

However, the most recent “updates” of the LCIA Rules and the ICC Rules, which take into account the notorious circumstances related to the global pandemic,
certainly set the standard.

To find out more on the updated LCIA Rules and the revised ICC Rules in comparison to the Swiss Rules, do not hesitate to check the free recording of the webinar that was jointly organized by ASAb40 and ICC YAF:
https://event.webinarjam.com/replay/73/gq6g8szxtvxs2vs96z

For further news, stay tuned!

The Technical Advisory Bord in Italian Public Works Contracts - Speed Read #1

 

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As a response to certain effects of the COVID-19 pandemic, the Italian Government adopted the Law Decree No. 76, dated 16 July 2020, converted into Law No. 120 dated 11 September 2020 (the “Law Decree”) concerning urgent measures in Public Works. Article 6 of the Law Decree sets forth that by 31 December 2021, each Contracting Authority has to mandatorily appoint a Technical Advisory Board (“TAB“) to settle all disputes in relation to Public Works with an amount equal or above the European Relevance threshold (which is the monetary value to whom the EU harmonized set of rules apply). The TAB has many similarities with a Dispute Boards often used in international construction contracts.

 

Pursuant to Article 6 (3) of the Law Decree the determination of the Technical Advisory Board is generally qualified a “contractual arbitral award” as set forth by Article 808 ter of the Italian Code of Civil Procedure (“Arbitrato Irrituale”). The Arbitrato Irrituale, however, does not follow the provisions of the Italian Code of Civil Procedure but other rules established by the parties or by special institutions and ends by a decision of the TAB, which in its nature is considered a contract between the parties.

 

As highlighted by first authors (see, Francesco Campione, Il c.d. decreto semplificazioni e la figura del collegio consultivo tecnico, Judicium, 16 December 2020) such mechanism raises issues as to the compatibility of a mandatory arbitration in public contracts with the principle of the contractual autonomy of the parties and the right of access to ordinary justice pursuant to article 24 of the Italian Constitution. Another open question is whether such “contractual award” rendered by the TAB is enforceable under 1958 New York Convention.

To find out more, stay tuned…

 

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