The Bulletin in Brief
You can read the Bulletin in Brief from the latest issue of the Bulletin

Vol. 40 (2022), Issue 1
PDFs of all previous Bulletin in Brief publications are available below

In his message Happy 1st Anniversary of Swiss Arbitration! ASA President Felix DASSER celebrates the first year of Swiss Arbitration as well as the achievements already accomplished both in terms of branding and successful collaboration with other organizations and announces the innovations yet to come.

Articles

An arbitral award, like any other asset, has a market value and, like any other commodity, can be monetized. The monetization of awards has emerged in recent years as a possible solution to limit the risks inherent to arbitration and the difficulties of enforcing awards against recalcitrant parties. Carine DUPEYRON and Michela LAVIANI MANCINELLI explore this recent practice by analysing its rationale, describing the key provisions that should be included in an agreement assigning the rights under the award to a third party and identifying the legal issues that may be encountered when enforcing an “assigned” award. (Carine DUPEYRON, Michela LAVIANI MANCINELLI, The Emerging Practice of Assigning Arbitration Awards: Rationale, Structure and Potential Hurdles.)

While it is generally accepted that the principle of res judicata applies to arbitral awards, its definition and effects vary greatly across jurisdictions. Céline Deborah KELLMANN examines the law governing the principle of res judicata in international commercial arbitration based on a comparative analysis of literature and case law. Starting with the definition of res judicata, she then examines its procedural qualifications before discussing the possible rules that may come into play and apply to issues of res judicata. (Céline Deborah KELLMANN, Choice-of-Law Rules Governing Preclusive Effects. On Transcending Res Judicata’s State of Ambiguity in International Commercial Arbitration.)

Robert BRADSHAW questions the (unspoken) conventional assumption that a witness’s demeanour or non-verbal behaviour is useful in assessing the latter’s credibility, drawing on recent research in the field of psychology and the experience of national courts. He submits that there is evidence that judgments based on witness demeanour are often unreliable and even biased, particularly where there are cultural or linguistic differences between the witness and arbitrators. (Robert BRADSHAW, Witness Credibility and the (Un)Reliability of Demeanour Evidence.)

Rule 16.4 of the SIAC Rules precludes parties from appealing the SIAC Court’s decisions on arbitrator challenges as opposed to Rule 40.2, which specifically preserves the right of the parties to appeal the SIAC Court’s decision on challenge rendered under Article 16. As a result, it is difficult to discern whether the parties are entitled to appeal the decision or not. Harshal MORWALE undertakes a cross-jurisdictional analysis and explores the interplay of Rule 16.4 with Article 13 of the UNCITRAL Model Law as well as various contractual and statutory interpretation rules to reconcile Rule 16.4 and Rule 40.2. He also proposes linguistic modifications to Rule 16.4 and Rule 40.2 to resolve the conflict. (Harshal MORWALE, Appealing the SIAC Court’s Decisions on Arbitrator Challenges: A Case for Reassessing Rule 16.4.)

In a recent judgment regarding the development of the port of Damietta, the Egyptian Court of Cassation held that public policy considerations prevent arbitral tribunals from ruling on Cabinet approvals of certain government contracts. Alexander HILLER provides an overview of the key tenets of the judgment and their impact on government contract arbitration in the Middle East. In particular, he explains that the Court of Cassation’s qualification of the approval of the contract as an administrative decision had as a consequence that the existence and validity of the approval was held to be inarbitrable – even if the arbitration did not concern the approval as such, but rather the financial rights arising out of the concession. Hence, investors entering into such contracts are well-advised to ensure that all necessary approvals are clear and unequivocal; parties and arbitrators alike should be aware that an award may be susceptible to a challenge and enforcement may be necessary outside of Egypt. (Alexander HILLER, Arbitrating Government Contracts in Egypt. Observations on DIPCO v. Damietta Port Authority.)

Caroline DOS SANTOS reports on Swiss Supreme Court decision 4A_516/2020 of 8 April 2021, upholding an ICC award rendered in the context of a dispute arising under the most-favoured nation provision of the Syria-Turkey bilateral investment treaty. The Supreme Court ruled that the award was not incompatible with substantive public policy or the principle of extra petita, even though it granted compensation in a different currency than the currency requested by the claimants. (Caroline DOS SANTOS, Rewriting Investors’ Claim Labelled in USD in Near Worthless Syrian Pounds not Extra Petita or Violation of Public Policy. Swiss Supreme Court Decision 4A_516/2020 of 8 April 2021.)

Swiss Federal Supreme Court Decisions

4A_516/2020 du 8 avril 2021 [Treaty case – Awarding damages in near worthless Syrian Pounds rather than USD as claimed – No violation of public policy or extra petita]

4A_240/2021 vom 2. November 2021 [Factual findings contrary to the arbitral record – Award partially annulled]

4A_438/2020 vom 15. März 2021 [Document production rightly denied by arbitral tribunal (fishing expedition)]

4A_268/2019 du 17 octobre 2019 [FIFA Rules provide no self-standing basis for appeal to CAS against decisions of national federations]

4A_422/2019 du 21 avril 2020 [Award need not specifically mention every single argument raised by a party]

4A_618/2019 du 17 septembre 2020 [Default proceedings – Arbitral Tribunal entitled to investigate jurisdiction on its own motion]

4A_486/2019 du du 17 août 2020 [Finding of lack of standing no violation of public policy – No right to public hearing]

4A_478/2017 du 2 mai 2018 [Award partially annulled for omission to consider prayers]

4A_264/2021 du 11 novembre 2021 [Distributor not entitled to lost profits under a distribution agreement absent actual orders]

4A_338/2018 vom 28. November 2018 [Ratification of agreement concluded by agent without authority – Application of the law on arbitrators’ own motion (iura novit curia)]

4A_341/2018 del 15 aprile 2019 [Diverging opinions of arbitrators on challenge – Application of adverse inferences rule not a violation of the principle of equal treatment]

4A_200/2021 du 21 juillet 2021 [Claim against a party under insolvency proceedings – No subject-matter arbitrability]

Matthias Scherer & Catherine A. Kunz

Editors

Access the ASA Bulletin
Matthias Scherer (Editor in Chief), Catherine Anne Kunz (Editor)

You can order the ASA Bulletin at Kluwer Law International.
Order now

ASA Members can download the ASA Bulletin published since 2002 from the Kluwer homepage through the secured download page.

For more information, or to obtain your password, please contact info@swissarbitration.org.

Hear first about the latest
resources