INTERNATIONAL ARBITRATION AND PUBLIC POLICY

Transcription

1 INTERNATIONAL ARBITRATION AND PUBLIC POLICY Devin Bray Heather L. Bray Editors JURIS

2 Questions About This Publication For assistance with shipments, billing or other customer service matters, please call our Customer Services Department at: To obtain a copy of this book, call our Sales Department: Fax: Toll Free Order Line: (United States & Canada) See our webpage about this book: COPYRIGHT 2015 JurisNet, LLC All rights reserved. No part of this publication may be reproduced in any form or by any electronic or mechanical means including information storage and retrieval systems without permission in writing from the publisher. Printed in the United States of America. ISBN JurisNet, LLC 71 New Street Huntington, New York USA

3 Summary Table of Contents About the Editors... xi About the Authors... xiii Foreword... xxiii Part I: Public Policy - An Overview Chapter 1 An Introduction to International Public Policy Lord (Peter) Goldsmith... 3 Chapter 2 Standards of Procedural International Public Policy Richard Kreindler... 9 Chapter 3 Issues of Substantive Transnational Public Policy Stephen Jagusch Part II: Specific Manifestations Chapter 4 The SNF v. International Chamber of Commerce Case and the Obligation to Conduct Arbitration Proceedings with "Expected Dispatch" Elie Kleiman Chapter 5 Navigating in the Archipelago of Swedish Due Process Safeguards: A Sea Chart Indicating a Few Treacherous Reefs Finn Madsen Chapter 6 Recent Swiss Developments on Exclusion Agreements Laurent Lévy and Tetiana Bersheda iii

4 iv INTERNATIONAL ARBITRATION AND PUBLIC POLICY Chapter 7 Public Policy in Swiss International Arbitration Law: For Once, Adjectives Make a Difference Pierre A. Karrer Chapter 8 Dispute Resolution of Shareholder Agreements in Ukraine: For Better or Worse? Timur Bondaryev and Markian Malskyy Chapter 9 The Scope of Review in Annulment Proceedings Piero Bernardini Chapter 10 Public Policy as Ground for Annulment of or Non-recognition of Enforcement of Arbitral Awards in East Asia Michael Hwang and Shaun Lee INDEX

5 Table of Contents Part I: Public Policy - An Overview Chapter 1 An Introduction to International Public Policy Lord (Peter) Goldsmith... 3 I. The Basis of Public Policy... 5 II. The Mutability of Public Policy... 6 III. The Nature of International Public Policy... 7 IV. Conclusion... 8 Chapter 2 Standards of Procedural International Public Policy Richard H. Kreindler... 9 I. Transnational Procedural and Substantive Public Policy II. Equal Treatment versus Due Process III. Public Policy Violations and Treaty-Based Arbitration IV. Violations of Procedural Public Policy Across Jurisdictions V. Violations of Transnational Procedural Public Policy VI. Conclusion Chapter 3 Issues of Substantive Transnational Public Policy Stephen Jagusch I. Introduction II. What Is Transnational Public Policy? III. What Is Substantive Transnational Public Policy? A. How Substantive Transnational Public Policy Is Identified Arbitral Awards v

6 vi INTERNATIONAL ARBITRATION AND PUBLIC POLICY 2. National Court Decisions International Conventions Inter-Governmental Organizations (IGOs), Non-Governmental Organizations (NGOs) and General Principles of Law B. Problems in Defining Public Policy C. Core Matters of Substantive Transnational Public Policy Observing Obligations (especially arbitration agreements) Corruption and Bribery Money Laundering Antitrust D. Applying Substantive Transnational Public Policy Discretion to Apply Consequences of Application IV. Conclusion Part II: Specific Manifestations Chapter 4 The SNF v. International Chamber of Commerce Case and the Obligation to Conduct Arbitration Proceedings with "Expected Dispatch" Elie Kleiman I. Responsibility of Arbitral Institutions to Ensure the Expected Dispatch of the Proceedings A. The Contractual Nature of the Obligation to Provide the Expected Dispatch for a Case B. The Extent of the Contractual Obligation of the Arbitral Institution to Ensure the Expected Dispatch of the Proceedings II. Responsibility of the Other Actors of an International Arbitration to Ensure the Expected Dispatch for a Case A. Responsibility of Arbitrators B. Responsibility of the Parties and Their Counsels... 89

7 TABLE OF CONTENTS vii Chapter 5 Navigating in the Archipelago of Swedish Due Process Safeguards: A Sea Chart Indicating a Few Treacherous Reefs Finn Madsen I. Background II. The Legal Framework for the Procedure in Arbitrations in Sweden A. The SAA as the Lex Arbitri and its Implications B. Are the Procedural Safeguards in Swedish Arbitration Law to be Applied Differently in Domestic and International Arbitrations? III. The Swedish Reefs to Watch Out For A. The Importance of the Request for Relief Submitted by the Parties and the Limits on the Mandate of the Arbitrators Set Forth in the Request for Relief B. Factual Circumstances Invoked C. Separate Arbitral Award Separate Issue or Part of the Matter D. The Irregularity Ground IV. Conclusions Chapter 6 Recent Swiss Developments on Exclusion Agreements Laurent Lévy and Tetiana Bersheda I. Introduction II. The Law Governing Exclusion Agreements III. The Case Law of the Swiss Federal Court A. General Rules B. Examples of Valid Exclusion Agreements C. Examples of Invalid Exclusion Agreements IV. The Scope of Exclusion Agreements V. The Compatibility with Public Policy VI. Conclusion

8 viii INTERNATIONAL ARBITRATION AND PUBLIC POLICY Chapter 7 Public Policy in Swiss International Arbitration Law: For Once, Adjectives Make a Difference Pierre A. Karrer I. Judicial Review A. Swiss Court s Review Public Policy B. Procedural Public Policy C. Arbitral Tribunal s Decision Public Policy II. Recognition and Enforcement Public Policy Chapter 8 Dispute Resolution of Shareholder Agreements in Ukraine: For Better or Worse? Timur Bondaryev and Markian Malskyy I. Introduction A. Historic Background B. Current Trends in Corporate Disputes in Ukraine II. The Recommendations 2007 of the Presidium of the Highest Commercial Court of Ukraine A. Regulation of Shareholder Agreements by Foreign Governing Law is Null and Void B. Regulation of Shareholder Agreements by Foreign Governing Law Infringes the Public Policy of Ukraine C. Disputes Regarding Shareholder Agreements May Not Be Referred to International Commercial Arbitration III. Resolution 2008 of the Plenum of the Supreme Court of Ukraine IV. Amendment of the Ukrainian Commercial Procedural Code in V. Recent Court Practice Concerning Non-Arbitrability of Corporate Disputes A. Recognition of Arbitral Award in the Ukrainian Local Court

9 TABLE OF CONTENTS ix B. Related Case C. Feasible Alternative Defining the Hardship Corporate Structuring Outside of Ukraine VI. Conclusion Chapter 9 The Scope of Review in Annulment Proceedings Piero Bernardini I. The Development of International Arbitration II. Public Policy in International Arbitration A. Is the Operation of Public Policy the same in Award Annulment and Enforcement Cases? B. Cases Where Such Operation Is Different C. The Content of International Public Policy D. The Extent of Court Control Regarding Public Policy E. The Need for an Effective Control of Public Policy Chapter 10 Public Policy as Ground for Annulment of or Non-recognition of Enforcement of Arbitral Awards in East Asia Michael Hwang and Shaun Lee I. Introduction II. Judicial Approach to Setting Aside, Recognition and Enforcement III. The Scope of Public Policy A. Source of Public Policy B. Enforcement and Recognition C. Errors of Fact and Law D. Costs E. Violation of Domestic Law F. Parallel Litigation

10 x INTERNATIONAL ARBITRATION AND PUBLIC POLICY G. Grounds for Non-enforcement or Annulment: Exclusive or Non-exclusive? IV. Conclusion INDEX