The document discusses the challenge of arbitral awards. It begins by explaining that awards are presumptively final but can be challenged. It then examines where (the country the award was made), when (time limits which are usually 3 months), and why (permissible grounds) a challenge can be brought. The key grounds for challenging an award are invalid arbitration agreement, denial of due process rights, awards beyond the scope of submissions, and violations of public policy. The document provides examples to illustrate the application of these challenge grounds.
The Court of Appeal of Singapore allowed an appeal in part regarding an international arbitral award that was set aside by the High Court. The Court of Appeal held that:
1) Courts should be wary of attacks on arbitral awards masquerading as allegations of natural justice breaches and should not interfere in the merits of awards.
2) The tribunal exceeded its jurisdiction by awarding damages for loss of chance without notice or submissions, but a generic damages claim can include loss of chance.
3) The tribunal had no jurisdiction over certain funds as parties since their role was limited, but breached natural justice in its loss of chance assessment.
4) Only parts of the award affected by bre
Parties involved in construction disputes must be careful instructing third parties for written and oral advocacy before tribunals. In order that the decision isn’t set aside for fraud the consultant or consultancy should be a reputable one regulated by an industry professional body such as the RICS or CICES or is a unlicensed barrister that is regulated by the BSB and Inns of Court. By using a reputable party to represent them they will get the best value and hopefully an enforceable decision that will not be overturned due to unethical conduct.
Please see my presentation on the procedure, the remedies and the costs associated with the new European Unified Patent Court _ 4th Annual Patent Expert Conference, February 9, 2016, Naples, Florida
Please see my presentation on the procedure, the remedies and the costs associated with litigating patents before the new European Unified Patent Court _ 4th Annual Patent Experts Conference; February 9, 2016; Naples, Florida
Presentacion hecha por Luis Vargas, informacion tomada de la pagina de la OMPI, del apartado de Arbitraje y expuesta en mi curso de Ingles de Negocios de la UQAM en el verano del 2010 en Montreal.
Notes on arbitration (arbitral awards)pptDarshni18
This document discusses arbitral awards and challenges to awards. It covers:
1. What constitutes an arbitral award and the requirements for form and content. Awards can be final, partial, interim, by consent, or in default of a party.
2. The types of relief that can be granted in an arbitration proceeding and whether all relief is enforceable. The applicable law and powers of the tribunal must be considered.
3. The grounds for challenging or avoiding an award, which include serious irregularity, appeal on a question of law, and resisting enforcement on limited statutory grounds such as incapacity to enter the arbitration agreement or lack of proper notice of proceedings.
An emergency arbitration is a fast-track arbitration process that can provide interim relief before a full arbitral tribunal is constituted. The emergency arbitrator must decide within a short timeframe, typically 2-3 weeks, whether to grant interim measures based on a showing of urgency and potential irreparable harm. In this case, the emergency arbitrator was asked to stay a 90-day suspension of a domain name registrar's privileges pending a full arbitration. The emergency arbitrator held a preliminary call, established a tight briefing schedule, and began drafting the award immediately to meet the deadline of 2 weeks after the hearing. This intensive process requires counsel and arbitrators to devote their full attention to the emergency proceeding.
The Court of Appeal of Singapore allowed an appeal in part regarding an international arbitral award that was set aside by the High Court. The Court of Appeal held that:
1) Courts should be wary of attacks on arbitral awards masquerading as allegations of natural justice breaches and should not interfere in the merits of awards.
2) The tribunal exceeded its jurisdiction by awarding damages for loss of chance without notice or submissions, but a generic damages claim can include loss of chance.
3) The tribunal had no jurisdiction over certain funds as parties since their role was limited, but breached natural justice in its loss of chance assessment.
4) Only parts of the award affected by bre
Parties involved in construction disputes must be careful instructing third parties for written and oral advocacy before tribunals. In order that the decision isn’t set aside for fraud the consultant or consultancy should be a reputable one regulated by an industry professional body such as the RICS or CICES or is a unlicensed barrister that is regulated by the BSB and Inns of Court. By using a reputable party to represent them they will get the best value and hopefully an enforceable decision that will not be overturned due to unethical conduct.
Please see my presentation on the procedure, the remedies and the costs associated with the new European Unified Patent Court _ 4th Annual Patent Expert Conference, February 9, 2016, Naples, Florida
Please see my presentation on the procedure, the remedies and the costs associated with litigating patents before the new European Unified Patent Court _ 4th Annual Patent Experts Conference; February 9, 2016; Naples, Florida
Presentacion hecha por Luis Vargas, informacion tomada de la pagina de la OMPI, del apartado de Arbitraje y expuesta en mi curso de Ingles de Negocios de la UQAM en el verano del 2010 en Montreal.
Notes on arbitration (arbitral awards)pptDarshni18
This document discusses arbitral awards and challenges to awards. It covers:
1. What constitutes an arbitral award and the requirements for form and content. Awards can be final, partial, interim, by consent, or in default of a party.
2. The types of relief that can be granted in an arbitration proceeding and whether all relief is enforceable. The applicable law and powers of the tribunal must be considered.
3. The grounds for challenging or avoiding an award, which include serious irregularity, appeal on a question of law, and resisting enforcement on limited statutory grounds such as incapacity to enter the arbitration agreement or lack of proper notice of proceedings.
An emergency arbitration is a fast-track arbitration process that can provide interim relief before a full arbitral tribunal is constituted. The emergency arbitrator must decide within a short timeframe, typically 2-3 weeks, whether to grant interim measures based on a showing of urgency and potential irreparable harm. In this case, the emergency arbitrator was asked to stay a 90-day suspension of a domain name registrar's privileges pending a full arbitration. The emergency arbitrator held a preliminary call, established a tight briefing schedule, and began drafting the award immediately to meet the deadline of 2 weeks after the hearing. This intensive process requires counsel and arbitrators to devote their full attention to the emergency proceeding.
(1) The demurrer to the Second Cause of Action for Interference with Economic Relations is sustained without leave to amend because the defendant did not owe the plaintiff a duty of care and the plaintiff failed to allege that the defendant's conduct was independently unlawful.
(2) The motion to strike paragraph 29 of the SAC and paragraph c of the prayer to the second cause of action is granted without leave to amend because the plaintiff did not allege sufficient facts to support that the defendant acted with malice or oppression to warrant punitive damages.
The document discusses the arbitration process between EPS and GI regarding a death insurance claim.
1) EPS must first appoint an arbitrator and notify GI within 30 days. If they fail to do so, either party can request the court to appoint an arbitrator.
2) Once appointed, the arbitrator will hold preliminary meetings to discuss procedures, dates, and evidence. They will then conduct hearings where both sides can present their case.
3) The arbitrator will make a final decision on whether the death was accidental or suicide based on the evidence provided. This decision will settle the insurance claim dispute between EPS and GI.
1. Arbitration is preferable to litigation for resolving international commercial disputes as it is typically faster, less expensive, and helps preserve business relationships.
2. Key advantages of arbitration include that arbitral awards are enforceable in many countries under the New York Convention, arbitrators can have relevant technical expertise, proceedings are often confidential, and discovery tends to be more limited than in litigation.
3. Parties can choose between ad hoc arbitration or institutional arbitration administered by organizations like the ICC or AAA. The rules selected and institution chosen if any can impact costs, process, and enforceability of awards.
This document provides an overview of pre-trial motions, including the pros and cons of filing pre-trial motions, options after a pre-trial motion is lost, the basics of filing motions, and types of common pre-trial motions such as motions to quash, motions to strike, demurrers, judgment on the pleadings, summary judgment motions, and motions in limine. It discusses the requirements and purpose of each type of motion, and provides concrete examples to illustrate how each motion may be used.
Overturning an Arbitration Award: Are the FAA’s Grounds ExclusiveStuartBoyarsky
The document discusses the history and development of the 'manifest disregard of the law' standard for vacating arbitration awards. It traces how the standard originated in the Supreme Court's Wilko v. Swan decision and was later developed by various circuit courts. However, in Hall Street Associates v. Mattel, the Supreme Court ruled that the statutory grounds under the Federal Arbitration Act are exclusive for vacating an award. This created uncertainty over whether manifest disregard remains a valid standard, leading to a circuit split that the Supreme Court has so far declined to resolve by denying certiorari in four relevant cases."
02/09/12 GARRETSON RESOLUTION GROUP - Motion To Vacate (STAMPED)VogelDenise
The Garretson Firm Resolution Group, Inc. appears to be a FRONTING Firm for United States President Barack Obama. This is Vogel Denise Newsome's REBUTTAL to Lawsuit/Complaint filed against her for exercising her FIRST AMENDMENT RIGHTS (i.e. Freedom of Speech, etc.). Information that President Barack Obama does NOT want the PUBLIC to see!
ADR - 6TH May Cpt. BHATIA (F) - 7TH LECTURE PART IIcmmindia2017
This document discusses the enforcement of foreign arbitration awards under the Arbitration and Conciliation Act of India. It covers key parts of the Act related to New York Convention awards and Geneva Convention awards. For NY Convention awards, it outlines the conditions for an award to be considered foreign and enforceable in India, including the evidence required and grounds for refusing enforcement. It also discusses the conciliation process in India, including commencement of proceedings, appointment of conciliators, their role and flexibility in procedures.
The document discusses the obligation of judicial, administrative and arbitral bodies to provide reasons for decisions, and whether inadequacy of reasons alone constitutes an error of law. It notes that while some cases have found inadequacy can be an error, the Victorian Court of Appeal in Sherlock v Lloyd found otherwise for decisions under the Administrative Law Act. The implications for reviewing decisions of VCAT and other decision-makers are discussed.
MCLE Lecture on ADR (Foreign Arbitral Awards) (Atty. Enrique dela Cruz).pdfEnriqueDelaCruz30
The document discusses key aspects of arbitration law and practice in the Philippines. It begins by mentioning the New York Convention on arbitration that the Philippines ratified in 1965. It then discusses various laws governing arbitration such as the Civil Code, Arbitration Law of 1949, and the Alternative Dispute Resolution Act of 2004. The document also summarizes the different forms of alternative dispute resolution like mediation, domestic arbitration, international commercial arbitration, and construction arbitration. It clarifies terms like international commercial arbitral awards, foreign judgments, and foreign arbitral awards. Finally, it addresses issues like the applicability of limitation periods in arbitration and the jurisdiction of courts to rule on the validity of arbitration agreements.
Kovacs v Queen Mary and Westfield CollegeJoe Sykes
This document summarizes a court ruling on whether employment tribunals should consider a party's means when deciding on costs orders. It discusses previous employment appeal tribunal rulings that suggested means should be considered. However, the most recent ruling in Beynon v Scadden found tribunals are not required to examine a party's means before making a costs order. The court here agrees with Beynon and finds that a party's restricted means are no bar to a costs order being made against them.
Arbitration panel discussion 18 May 2016Brian Decelis
The document discusses the jurisdiction of arbitrators in arbitration. It makes three key points:
1. Arbitration agreements grant jurisdictional powers to arbitrators, with jurisdiction established through party consent to private resolution over court litigation.
2. The construction, scope and validity of the arbitration agreement are important for determining the arbitral tribunal's jurisdiction.
3. In international arbitration, the tribunal initially decides its own jurisdiction, though courts can review jurisdictional decisions and refuse enforcement for lack of jurisdiction.
Arbitration presentation - Capt M. V. Naikcmmindia2017
The document summarizes key provisions of the Indian Arbitration and Conciliation Act of 1996 and 2015 amendments. It discusses:
1) The goals of providing expedient dispute resolution and minimizing court interference in arbitration processes.
2) Important definitions including what constitutes an arbitration, award, and tribunal. It also discusses the role of courts in domestic versus international commercial arbitrations.
3) The limited supervisory role of courts and their powers to refer parties to arbitration, grant interim measures, appoint arbitrators, assist in taking evidence, and handle appeals.
Convention on the Recognition and Enforcement of Foreign Arbitral Awards Joyce Williams
The document provides an overview of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. It notes that the convention was adopted in 1958 and has 156 signatories including Ghana. The key provisions discussed include that arbitration agreements must be in writing, the convention defines five grounds for refusing enforcement of an award, and courts can also refuse enforcement based on arbitrability and public policy concerns. The convention aims to encourage broad enforcement of international arbitration awards.
The document discusses key aspects of arbitration law in India, including the Arbitration and Conciliation Act of 1996 and subsequent amendments. It outlines objectives of the amendments such as minimizing court supervision of arbitrations and allowing arbitral tribunals to use mediation and conciliation. Benefits of arbitration for parties include flexibility in procedure and choice of location and laws. The document also describes when courts can intervene in arbitrations and sets out requirements for arbitration agreements and awards.
Consequences of non-appearance and setting aside of ex-parte proceedings/dec...DrSyedZulqarnainHaid
The document summarizes the consequences of non-appearance in legal proceedings. It discusses how appearance by both plaintiffs and defendants is essential. Failure to appear can result in severe consequences like dismissal of the case, ex-parte judgments against the non-appearing party, or penalties and costs being imposed. The document outlines the specific procedures and outcomes when only one party appears, neither party appears, or the defendant appears after previously not attending. These include the options of a fresh lawsuit or restoring a dismissed suit.
Someone sues you. You believe they have no reason to and you fear that, when you win, you won't be able to recover the costs you incurred to arbitrate that silly claim. Should the arbitral tribunal require the claimant to post security for costs? But then, what if a company has gone bankrupt because it was wronged by the respondent? Should it be prevented from commencing arbitration just because it cannot guarantee that it can pay the costs in the (of course, unlikely) chance that it loses? And what role does third party funding play in this game?
The document summarizes key aspects of the Arbitration and Conciliation Act 1996 in India. It defines terms like arbitration, arbitral award, arbitral tribunal. It discusses the number of arbitrators, appointment and challenge procedures. It covers interim measures by courts and arbitral tribunals. It also summarizes provisions regarding the jurisdiction of arbitral tribunals, determination of procedures, place of arbitration, language and time limits for awards. The document concludes with a brief overview of provisions regarding setting aside awards, enforcement, appeals and conciliation under the Act.
The document summarizes key aspects of the Arbitration and Conciliation Act 1996 in India, including amendments made in 2015, 2019, and 2020. It provides an overview of the parts of the act relating to domestic and foreign arbitration, conciliation procedures, enforcement of foreign awards, and the roles of courts in arbitration. It also summarizes changes introduced by the amendments, such as recognizing electronic agreements, establishing an Arbitration Council of India, relaxing time limits, ensuring confidentiality for arbitrators, and clarifying stay provisions for arbitral awards.
This document provides an overview of key sections from Chapters IV and V of the Arbitration and Conciliation Act relating to the jurisdiction of arbitral tribunals and the conduct of arbitral proceedings. It summarizes sections 16-21 which address an arbitral tribunal's jurisdiction to rule on its own authority, procedures for raising objections, interim measures, place of arbitration, and commencement of proceedings. The document also discusses related case laws that have supported arbitral tribunals' powers to determine procedures and evidence admissibility.
Defending Weapons Offence Charges: Role of Mississauga Criminal Defence LawyersHarpreetSaini48
Discover how Mississauga criminal defence lawyers defend clients facing weapon offence charges with expert legal guidance and courtroom representation.
To know more visit: https://www.saini-law.com/
(1) The demurrer to the Second Cause of Action for Interference with Economic Relations is sustained without leave to amend because the defendant did not owe the plaintiff a duty of care and the plaintiff failed to allege that the defendant's conduct was independently unlawful.
(2) The motion to strike paragraph 29 of the SAC and paragraph c of the prayer to the second cause of action is granted without leave to amend because the plaintiff did not allege sufficient facts to support that the defendant acted with malice or oppression to warrant punitive damages.
The document discusses the arbitration process between EPS and GI regarding a death insurance claim.
1) EPS must first appoint an arbitrator and notify GI within 30 days. If they fail to do so, either party can request the court to appoint an arbitrator.
2) Once appointed, the arbitrator will hold preliminary meetings to discuss procedures, dates, and evidence. They will then conduct hearings where both sides can present their case.
3) The arbitrator will make a final decision on whether the death was accidental or suicide based on the evidence provided. This decision will settle the insurance claim dispute between EPS and GI.
1. Arbitration is preferable to litigation for resolving international commercial disputes as it is typically faster, less expensive, and helps preserve business relationships.
2. Key advantages of arbitration include that arbitral awards are enforceable in many countries under the New York Convention, arbitrators can have relevant technical expertise, proceedings are often confidential, and discovery tends to be more limited than in litigation.
3. Parties can choose between ad hoc arbitration or institutional arbitration administered by organizations like the ICC or AAA. The rules selected and institution chosen if any can impact costs, process, and enforceability of awards.
This document provides an overview of pre-trial motions, including the pros and cons of filing pre-trial motions, options after a pre-trial motion is lost, the basics of filing motions, and types of common pre-trial motions such as motions to quash, motions to strike, demurrers, judgment on the pleadings, summary judgment motions, and motions in limine. It discusses the requirements and purpose of each type of motion, and provides concrete examples to illustrate how each motion may be used.
Overturning an Arbitration Award: Are the FAA’s Grounds ExclusiveStuartBoyarsky
The document discusses the history and development of the 'manifest disregard of the law' standard for vacating arbitration awards. It traces how the standard originated in the Supreme Court's Wilko v. Swan decision and was later developed by various circuit courts. However, in Hall Street Associates v. Mattel, the Supreme Court ruled that the statutory grounds under the Federal Arbitration Act are exclusive for vacating an award. This created uncertainty over whether manifest disregard remains a valid standard, leading to a circuit split that the Supreme Court has so far declined to resolve by denying certiorari in four relevant cases."
02/09/12 GARRETSON RESOLUTION GROUP - Motion To Vacate (STAMPED)VogelDenise
The Garretson Firm Resolution Group, Inc. appears to be a FRONTING Firm for United States President Barack Obama. This is Vogel Denise Newsome's REBUTTAL to Lawsuit/Complaint filed against her for exercising her FIRST AMENDMENT RIGHTS (i.e. Freedom of Speech, etc.). Information that President Barack Obama does NOT want the PUBLIC to see!
ADR - 6TH May Cpt. BHATIA (F) - 7TH LECTURE PART IIcmmindia2017
This document discusses the enforcement of foreign arbitration awards under the Arbitration and Conciliation Act of India. It covers key parts of the Act related to New York Convention awards and Geneva Convention awards. For NY Convention awards, it outlines the conditions for an award to be considered foreign and enforceable in India, including the evidence required and grounds for refusing enforcement. It also discusses the conciliation process in India, including commencement of proceedings, appointment of conciliators, their role and flexibility in procedures.
The document discusses the obligation of judicial, administrative and arbitral bodies to provide reasons for decisions, and whether inadequacy of reasons alone constitutes an error of law. It notes that while some cases have found inadequacy can be an error, the Victorian Court of Appeal in Sherlock v Lloyd found otherwise for decisions under the Administrative Law Act. The implications for reviewing decisions of VCAT and other decision-makers are discussed.
MCLE Lecture on ADR (Foreign Arbitral Awards) (Atty. Enrique dela Cruz).pdfEnriqueDelaCruz30
The document discusses key aspects of arbitration law and practice in the Philippines. It begins by mentioning the New York Convention on arbitration that the Philippines ratified in 1965. It then discusses various laws governing arbitration such as the Civil Code, Arbitration Law of 1949, and the Alternative Dispute Resolution Act of 2004. The document also summarizes the different forms of alternative dispute resolution like mediation, domestic arbitration, international commercial arbitration, and construction arbitration. It clarifies terms like international commercial arbitral awards, foreign judgments, and foreign arbitral awards. Finally, it addresses issues like the applicability of limitation periods in arbitration and the jurisdiction of courts to rule on the validity of arbitration agreements.
Kovacs v Queen Mary and Westfield CollegeJoe Sykes
This document summarizes a court ruling on whether employment tribunals should consider a party's means when deciding on costs orders. It discusses previous employment appeal tribunal rulings that suggested means should be considered. However, the most recent ruling in Beynon v Scadden found tribunals are not required to examine a party's means before making a costs order. The court here agrees with Beynon and finds that a party's restricted means are no bar to a costs order being made against them.
Arbitration panel discussion 18 May 2016Brian Decelis
The document discusses the jurisdiction of arbitrators in arbitration. It makes three key points:
1. Arbitration agreements grant jurisdictional powers to arbitrators, with jurisdiction established through party consent to private resolution over court litigation.
2. The construction, scope and validity of the arbitration agreement are important for determining the arbitral tribunal's jurisdiction.
3. In international arbitration, the tribunal initially decides its own jurisdiction, though courts can review jurisdictional decisions and refuse enforcement for lack of jurisdiction.
Arbitration presentation - Capt M. V. Naikcmmindia2017
The document summarizes key provisions of the Indian Arbitration and Conciliation Act of 1996 and 2015 amendments. It discusses:
1) The goals of providing expedient dispute resolution and minimizing court interference in arbitration processes.
2) Important definitions including what constitutes an arbitration, award, and tribunal. It also discusses the role of courts in domestic versus international commercial arbitrations.
3) The limited supervisory role of courts and their powers to refer parties to arbitration, grant interim measures, appoint arbitrators, assist in taking evidence, and handle appeals.
Convention on the Recognition and Enforcement of Foreign Arbitral Awards Joyce Williams
The document provides an overview of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. It notes that the convention was adopted in 1958 and has 156 signatories including Ghana. The key provisions discussed include that arbitration agreements must be in writing, the convention defines five grounds for refusing enforcement of an award, and courts can also refuse enforcement based on arbitrability and public policy concerns. The convention aims to encourage broad enforcement of international arbitration awards.
The document discusses key aspects of arbitration law in India, including the Arbitration and Conciliation Act of 1996 and subsequent amendments. It outlines objectives of the amendments such as minimizing court supervision of arbitrations and allowing arbitral tribunals to use mediation and conciliation. Benefits of arbitration for parties include flexibility in procedure and choice of location and laws. The document also describes when courts can intervene in arbitrations and sets out requirements for arbitration agreements and awards.
Consequences of non-appearance and setting aside of ex-parte proceedings/dec...DrSyedZulqarnainHaid
The document summarizes the consequences of non-appearance in legal proceedings. It discusses how appearance by both plaintiffs and defendants is essential. Failure to appear can result in severe consequences like dismissal of the case, ex-parte judgments against the non-appearing party, or penalties and costs being imposed. The document outlines the specific procedures and outcomes when only one party appears, neither party appears, or the defendant appears after previously not attending. These include the options of a fresh lawsuit or restoring a dismissed suit.
Someone sues you. You believe they have no reason to and you fear that, when you win, you won't be able to recover the costs you incurred to arbitrate that silly claim. Should the arbitral tribunal require the claimant to post security for costs? But then, what if a company has gone bankrupt because it was wronged by the respondent? Should it be prevented from commencing arbitration just because it cannot guarantee that it can pay the costs in the (of course, unlikely) chance that it loses? And what role does third party funding play in this game?
The document summarizes key aspects of the Arbitration and Conciliation Act 1996 in India. It defines terms like arbitration, arbitral award, arbitral tribunal. It discusses the number of arbitrators, appointment and challenge procedures. It covers interim measures by courts and arbitral tribunals. It also summarizes provisions regarding the jurisdiction of arbitral tribunals, determination of procedures, place of arbitration, language and time limits for awards. The document concludes with a brief overview of provisions regarding setting aside awards, enforcement, appeals and conciliation under the Act.
The document summarizes key aspects of the Arbitration and Conciliation Act 1996 in India, including amendments made in 2015, 2019, and 2020. It provides an overview of the parts of the act relating to domestic and foreign arbitration, conciliation procedures, enforcement of foreign awards, and the roles of courts in arbitration. It also summarizes changes introduced by the amendments, such as recognizing electronic agreements, establishing an Arbitration Council of India, relaxing time limits, ensuring confidentiality for arbitrators, and clarifying stay provisions for arbitral awards.
This document provides an overview of key sections from Chapters IV and V of the Arbitration and Conciliation Act relating to the jurisdiction of arbitral tribunals and the conduct of arbitral proceedings. It summarizes sections 16-21 which address an arbitral tribunal's jurisdiction to rule on its own authority, procedures for raising objections, interim measures, place of arbitration, and commencement of proceedings. The document also discusses related case laws that have supported arbitral tribunals' powers to determine procedures and evidence admissibility.
Defending Weapons Offence Charges: Role of Mississauga Criminal Defence LawyersHarpreetSaini48
Discover how Mississauga criminal defence lawyers defend clients facing weapon offence charges with expert legal guidance and courtroom representation.
To know more visit: https://www.saini-law.com/
The Future of Criminal Defense Lawyer in India.pdfveteranlegal
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This document briefly explains the June compliance calendar 2024 with income tax returns, PF, ESI, and important due dates, forms to be filled out, periods, and who should file them?.
Business law for the students of undergraduate level. The presentation contains the summary of all the chapters under the syllabus of State University, Contract Act, Sale of Goods Act, Negotiable Instrument Act, Partnership Act, Limited Liability Act, Consumer Protection Act.
सुप्रीम कोर्ट ने यह भी माना था कि मजिस्ट्रेट का यह कर्तव्य है कि वह सुनिश्चित करे कि अधिकारी पीएमएलए के तहत निर्धारित प्रक्रिया के साथ-साथ संवैधानिक सुरक्षा उपायों का भी उचित रूप से पालन करें।
Synopsis On Annual General Meeting/Extra Ordinary General Meeting With Ordinary And Special Businesses And Ordinary And Special Resolutions with Companies (Postal Ballot) Regulations, 2018
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Being a Paper Presented at Business Recovery and Insolvency Practitioners Association of Nigeria (BRIPAN) on Friday, August 18, 2023.
Matthew Professional CV experienced Government LiaisonMattGardner52
As an experienced Government Liaison, I have demonstrated expertise in Corporate Governance. My skill set includes senior-level management in Contract Management, Legal Support, and Diplomatic Relations. I have also gained proficiency as a Corporate Liaison, utilizing my strong background in accounting, finance, and legal, with a Bachelor's degree (B.A.) from California State University. My Administrative Skills further strengthen my ability to contribute to the growth and success of any organization.
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The legal profession, which has historically been male-dominated, has experienced a significant increase in the number of women entering the field over the past few decades. Despite this progress, women lawyers continue to encounter various challenges as they strive for top positions.
Guide on the use of Artificial Intelligence-based tools by lawyers and law fi...Massimo Talia
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against which they can evaluate those classes of AI applications that are probably the most relevant for them.
2. Introduction
• Art 35 (1) ML
• An arbitral award, irrespective of the country in which it was made,
shall be recognized as binding…
• Presumptive finality of arbitral awards
The Challenge of the Award
3. Introduction
Motivation for challenging the award
o genuine
o tactical
Likelihood of success
Alternatives to challenge
o (attempt to) resist enforecement
o appeal against award (if and where possible)
The Challenge of the Award
5. Forum for Challenge („Where“)
• Art V (1) (e) New York Convention 1958
… has been set aside or suspended by a competent authority of the
country in which, or under the law of which, that award was made.
• Country in which award was made (usually) equals
country under whose law it was made. Actions for
anullment outside the seat of arbitration „once-in-a-
blue-moon“ event (Karaha Bodas Co., 364 F.3d)
The Challenge of the Award
6. Forum for Challenge („Where“)
• Art 34 (2) ML
An arbitral award may be set aside by the court specified in article 6
• Art 6 ML
The functions referred to in articles …. 34(2) shall be performed by ... [Each
State enacting this model law specifies the court, courts or, where referred
to therein, other authority competent to perform these functions]
The Challenge of the Award
7. Forum for Challenge („Where“)
Section 615 Austrian CCP
For the action for setting aside an arbitral award and
for the action for declaration of existence or non-
existence of an arbitral award … the Supreme Court
(Oberster Gerichtshof) shall have jurisdiction.
The Challenge of the Award
8. Forum for Challenge („Where“)
• US Federal Arbitration Act 9 U.S.C. § 10
… the United States court in and for the district wherein the award was made may
make an order vacating the award upon the application of any party to the
arbitration …
• Section 1062 (1) n 4 German CPC
The higher regional court (Oberlandesgericht, OLG) designated in the arbitration
agreement or, if no such designation was made, the higher regional court in the
district of which the venue of the arbitration proceedings is located, is competent
for decisions on petitions and applications regarding …. the setting aside of an
arbitral award
The Challenge of the Award
9. Time Limits („When“)
• Art 34 (3) ML
An application for setting aside may not be made after three months have
elapsed from the date on which the party making that application had
received that award or, if a request had been made under article 33, from
the date on which that request had been disposed of by the arbitral
tribunal.
• Section 611 (4) Austrian CCP
The action for setting aside must be made within three months. The time
period shall begin with the day on which the claimant received the award
or the additional award. An application made in accordance with Article
610 paragraph (1) numbers 1 or 2 of this Law shall not extend this time
period.
The Challenge of the Award
10. Time Limits („When“)
• Section 70 (3) English Arbitration Act 1996
Any application or appeal must be brought within 28 days of the date of
the award or, if there has been any arbitral process of appeal or review, of
the date when the applicant or appellant was notified of the result of that
process.
• Art 59 China Arbitration Law
A party that wishes to apply for setting aside the arbitration award shall
submit such application within six months from the date of receipt of the
award.
The Challenge of the Award
11. Grounds for Annulment („Why“)
Eco Swiss China Time Ltd v Benetton Int‘l NV
(ECJ, 1 June 1999, Case 126/97)
„… it is in the interest of efficient abitration proceedings that
review of arbitration awards should be limited in scope and that
annulment of or refusal to recognize an award should be possible
only in exceptional cirumstances.“
The Challenge of the Award
12. Grounds for Annulment („Why“)
John J. Kerr, (34 ICLQ 1 (1985) 15)
Possibility of challenging arbitral awards at the place where they
where made is a „bulwark against corruption, arbitrariness and
bias“.
The Challenge of the Award
13. Grounds for Annulment („Why“)
• Grounds which have to be raised by the
challenging party
(Art 34 (2) (a) ML: „… the party making the application furnishes proof that:”)
• Grounds to be considered ex officio by court
(Art 34 (2) (b) ML:”… the court finds that:“)
The Challenge of the Award
14. Grounds for Annulment („Why“)
(1) Arbitration Agreement Invalid (Art 34 (2)(a)(i) ML)
(2) Party denied right to be heard / opportunity to
present its case (Art 34 (2)(a)(ii) ML)
(3) Award extra/ultra petita (Art 34 (2)(a)(iii) ML)
(infra petita?)
The Challenge of the Award
15. Grounds for Annulment („Why“)
(4) Composition of AT / arbitral procedure not in
accordance with parties‘ agreement (Art 34
(2)(a)(iv) ML)
(5) Dispute not capable of settlement by
arbitration(Art 34 (2)(b)(i) ML)
(6) Violation of public policy (Art 34 (2)(b)(ii) ML)
The Challenge of the Award
16. Grounds for Annulment („Why“)
(7) Award procured by fraud / violations of
criminal law (FAA § 10(a)(1); Austria CCP
section 611 (2) no. 6)
(8) Arbitrator‘s decision seriously flawed on
merits (section 69 EAA)
The Challenge of the Award
17. Grounds for Annulment („Why“)
Invalid Arbitration Agreement
applicable law
incapacity of party
other grounds
The Challenge of the Award
18. Grounds for Annulment („Why“)
Invalid Arbitration Agreement – applicable Law
Art V(1)(a) New York Convention 1958:
The parties to the agreement referred to in article II were, under
the law applicable to them under some incapacity, or the said
agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereon, under the law of
the country where the award was made.
The Challenge of the Award
19. Grounds for Annulment („Why“)
Invalid Arbitration Agreement – applicable Law
Art 34 (2) (a) (i) ML:
a party to the arbitration agreement referred to in article 7 was
under some incapacity; or the said agreement is not valid under
the law to which the parties have subjected it or, failing any
indication thereon, under the law of this State
The Challenge of the Award
20. Grounds for Annulment („Why“)
Invalid Arbitration Agreement – applicable Law
Section 611 (2) no 1 Austrian CCP:
…a valid arbitration agreement does not exist… or if a party was
under some incapacity under the law applicable to them to
conclude a valid arbitration agreement.
The Challenge of the Award
21. Grounds for Annulment („Why“)
Invalid Arbitration Agreement – incapacity
Person signing the arbitration agreement not duly
authorised to do so
ICC Case no 6850, XXIII YBCA 37 (1998) – power of attorney did not cover
submission to arbitration
State Bodies
Fougerolle SA v MoD of the Syrian Arabic Republic, XV YBCA 515 (1990) –
Council of State had not advised on arbitration agreement;
Societè Tunisienne d‘Electriciteè v Societè Entrepose, III YBCA 283(1978) –
under local law State bodies were not allowed to submit to arbitration
The Challenge of the Award
22. Grounds for Annulment („Why“)
Invalid Arbitration Agreement – other grounds
Written form / incorporation
Ambiguity / pathological clauses
Duress
Unconscionability
The Challenge of the Award
23. Grounds for Annulment („Why“)
Right to be heard
No proper notice of appointment of arbitrator
No proper notice of appointment of arbitral proceedings
Otherwise unable to present case
The Challenge of the Award
24. Grounds for Annulment („Why“)
Right to be heard - unable to present case
Generica Ltd v Pharmaceuticals Basics Inc, XXIII YBCA 1076(1998)
„that defence basically corresponds to the due process defence that
a party was not given the opportunity to be heard at a meaningful
time and in a meaningful manner … it is clear that an arbitrator
must provide a fundamentally fair hearing … A fundamentally fair
hearing is one that meets the minimal requirements of fairness –
adequate notice, a hearing on the evidence and an impartial
decision by the arbitrator.“
The Challenge of the Award
25. Grounds for Annulment („Why“)
Right to be heard - unable to present case
Parsons Whittemore, I YBCA 205 (1976)
„Nevertheless, parties that have chosen to remedy their disputes
through arbitration rather than litigation should not expect the same
procedures they would find in the judicial arena.“
The Challenge of the Award
26. Grounds for Annulment („Why“)
Right to be heard - unable to present case
Fair and equal treatment - Art 6 ECHR
Notification of every submission / hearing
Time Limits / Adjournment
Comment on results of taking of evidence
Obligation on AT to consider submissions / comments
Oral hearing – Austrian Supreme Court, 7 Ob 111/10i
„Surprise decision“ (?) - Austrian Supreme Court, 9 Ob 27/12d
The Challenge of the Award
27. Grounds for Annulment („Why“)
Right to be heard - unable to present case
Not: restricitions on evidence (eg number of witnesses…)
Not: failure to deal with each and every (evidentiary)
application
Not: incomplete investigation of the facts
The Challenge of the Award
28. Grounds for Annulment („Why“)
Award extra/ultra/infra petita
Extra petita: issues decided not within scope of
arbitration agreement
Ultra petita: award goes beyond relief requested
(Westland Helicopters Ltd v The Arab British Helicopter
Company, XVI YBCA 174 (1991)
Infra petita: AT does not consider all issues submitted to it
(section 68 (2) (d) EAA; Swiss PIL Art 190 (2)
The Challenge of the Award
29. Grounds for Annulment („Why“)
Composition of AT / arbitral procedure not in
accordance with parties‘ agreement
Arbitrator biased – pre/post award
(Austrian Supreme Court, 2 Ob 112/12b)
Undue influence of one party on composition of AT
Consolidation / joinder
Not: Arbitrator not on list
The Challenge of the Award
30. Grounds for Annulment („Why“)
Dispute (usually) not capable of settlement by arbitration
Family law
Criminal law
Intellectual property rights (not: licences)
Insolvency
Housing / Tenancy law
Labour law (but: after dispute has arisen; sec 618 Austrian CCP)
Consumer law (but: after dispute has arisen; sec 617 Austrian CCP)
The Challenge of the Award
31. Grounds for Annulment („Why“)
Dispute capable of settlement by arbitration
Section 582 Austrian CCP:
“Any pecuniary claim that lies within the jurisdiction of the
courts of law can be the subject of an arbitration
agreement. An arbitration agreement on non-pecuniary
claims shall be legally effective insofar as the parties are
capable of concluding a settlement concerning the matter in
dispute.”
The Challenge of the Award
32. Grounds for Annulment („Why“)
Violation of public policy („ordre public“)
Whose public policy?
National versus international public policy
Substantive v procedural ordre public
Basic notions of constitutional, criminal, procedural
and public (including EU) law (RIS-Justiz RS0110125)
The Challenge of the Award
33. Grounds for Annulment („Why“)
Violation of public policy („ordre public“)
Inconsistency of award
No taking of evidence at all
Arbitrary decisions
(substantial) violations of EU law
Interest rate of 107,35% (Austrian Supreme Court 3 Ob
221/04b)
Decisions ex aequo et bono without authority (?)
Not: „mere“ violation of mandatory provisions
The Challenge of the Award
34. Grounds for Annulment („Why“)
Award procured by violations of criminal law
Fraud
Corruption
Perjury
Fabricated evidence / forgery of (protected) documents
Coercion / duress
The Challenge of the Award
35. Grounds for Annulment („Why“)
Arbitrator‘s decision seriously flawed on merits
Basic rule: no review on the merits
But: some national laws / case law permit
review on the merits in severe cases
The Challenge of the Award
36. Grounds for Annulment („Why“)
Arbitrator‘s decision seriously flawed on merits
Section 69 EAA 1996:
(1) Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other
parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the
proceedings.
(3) Leave to appeal shall be given only if the court is satisfied—
(a) that the determination of the question will substantially affect the rights of one or more of the parties,
(b) that the question is one which the tribunal was asked to determine,
(c) that, on the basis of the findings of fact in the award—
(i) the decision of the tribunal on the question is obviously wrong, or
(ii)the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and
(d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the
court to determine the question.
(8)… leave of the court … shall not be given unless the court considers that the question is one of general
importance or is one which for some other special reason should be considered by the Court of Appeal.
The Challenge of the Award
37. Grounds for Annulment („Why“)
Arbitrator‘s decision seriously flawed on merits
re: Section 69 EAA 1996:
Question must be one of English law
(Reliance Industries Ltd v Enron Oil Gas India Ltd [2002] 1 All
ER (Comm) 59 (QBD)
The Challenge of the Award
38. Grounds for Annulment („Why“)
Arbitrator‘s decision seriously flawed on merits
US Case law: manifest disregard of the law (?)
Wilko v. Swan, 74 S. Ct. 182 (1953)
Duferco Int’l Steel Trading v. T. Llaveness Shipping A/S, 33
F.3d 383, 389-90 (2nd Cir. 2003)
Hall Street Associates v. Mattel, Inc., 128 S. Ct. 1396 (2008)
The Challenge of the Award
39. Other Considerations
Additional grounds for challenge agreed by parties?
Waiver to challenge in advance?
Waiver to challenge during proceedings?
Remission?
Effects of award having been set aside?
Arbitration agreement (still) valid after award set aside?
The Challenge of the Award
40. Other Considerations
Additional grounds for challenge agreed by parties
Hall Street Associates v. Mattel, Inc., 128 S. Ct. 1396 (2008)
„… the statutory grounds for prompt vacatur and modification
may not be supplemented by contract.“
The Challenge of the Award
41. Other Considerations
Waiver to challenge in advance
Swiss PIL Art 192 (1)
“If none of the parties have their domicile, their habitual
residence, or a business establishment in Switzerland, they may,
by an express statement in the arbitration agreement or by a
subsequent written agreement, waive fully the action for
annulment or they may limit it to one or several of the grounds
listed in Art. 190(2).”
The Challenge of the Award
42. Other Considerations
Waiver to challenge in advance
French CCP Art 1522:
“By way of a specific agreement the parties may, at any time,
expressly waive their right to bring an action to set aside.”
The Challenge of the Award
43. Other Considerations
Waiver to challenge during proceedings
ICC Rules 2012, Art 39
“A party which proceeds with the arbitration without
raising its objection to a failure to comply with any
provision of the Rules, or of any other rules applicable to
the proceedings, any direction given by the arbitral
tribunal, or any requirement under the arbitration
agreement relating to the constitution of the arbitral
tribunal or the conduct of the proceedings, shall be
deemed to have waived its right to object.”
The Challenge of the Award
44. Other Considerations
Waiver to challenge during proceedings
Section 73 (1) EAA 1996:
If a party to arbitral proceedings takes part, or continues to take part, in the proceedings without making,
either forthwith or within such time as is allowed by the arbitration agreement or the tribunal or by any
provision of this Part, any objection—
(a)that the tribunal lacks substantive jurisdiction,
(b)that the proceedings have been improperly conducted,
(c)that there has been a failure to comply with the arbitration agreement or with any provision of this
Part, or
(d)that there has been any other irregularity affecting the tribunal or the proceedings,
he may not raise that objection later, before the tribunal or the court, unless he shows that, at the time he took
part or continued to take part in the proceedings, he did not know and could not with reasonable diligence
have discovered the grounds for the objection.
The Challenge of the Award
45. Other Considerations
Waiver to challenge during proceedings
Austrian CCP section 583 (3):
“A defect of form of the arbitration agreement shall be cured in
the arbitration proceedings by entering an appearance in the
case, if a notification of the defect is not made earlier or at the
latest together with entering an appearance.”
The Challenge of the Award
46. Other Considerations
Remission to AT
Common law versus civil law
Art 34 (4) ML:
“The court, when asked to set aside an award, may, where
appropriate and so requested by a party, suspend the setting aside
proceedings for a period of time determined by it in order to give
the arbitral tribunal an opportunity to resume the arbitral
proceedings or to take such other action as in the arbitral tribunal's
opinion will eliminate the grounds for setting aside.”
The Challenge of the Award
47. Other Considerations
Effects of award having been set aside
Art V(1)(e) New York Convention 1958:
“Recognition and enforcement of the award may be
refused … if … the award has … been set aside or
suspended by a competent authority of the country
in which, or under the law of which, that award was
made”
The Challenge of the Award
48. Other Considerations
Effects of award having been set aside
General Rule: Award not enforceable
But (1): European Convention on International Commercial
Aritration 1961, Art IX (2) - setting aside of an award based on
violation of public policy does not constitute ground for refusing
enforcement of the award in another contracting state.
But (2): Artt V(1) (and VII) New York Convention 1958 -
Recognition and enforcement of the award may be refused…
The Challenge of the Award
49. Other Considerations
Effects of award having been set aside
New York Convention Art VII – Art 1502 French CCP:
Chromalloy Gas Turbine Corp v Arab Republic of Egypt
Omnium de Traitement et de Valorisation v Hilmarton
The Challenge of the Award
50. Other Considerations
Arbitration agreement (still) valid after award set aside?
General Rule: yes – section 1059(5) German CCP
“Setting aside the arbitral award shall, in the absence of any
indication to the contrary, result in the arbitration agreement
becoming operative again in respect of the subject-matter of the
dispute.”
But: if award set aside due to arbitration agreement being
invalid - no
The Challenge of the Award
51. Art 34 ML (1)
Recourse to a court against an arbitral award
may be made only by an application for setting
aside in accordance with paragraphs (2) and (3)
of this article.
The Challenge of the Award
52. Art 34 ML (2)
An arbitral award may be set aside by the court specified in article 6 only if:
(a) the party making the application furnishes proof that:
(i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not
valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this State;
or
(ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral
proceedings or was otherwise unable to present his case; or
(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration,
or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on
matters submitted to arbitration can be separated from those not so submitted, only that part of the award which
contains decisions on matters not submitted to arbitration may be set aside; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the
parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate,
or, failing such agreement, was not in accordance with this Law; or
(b) the court finds that:
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or
(ii) the award is in conflict with the public policy of this State.
The Challenge of the Award
53. Art 34 ML (3)
An application for setting aside may not be
made after three months have elapsed from the
date on which the party making that application
had received that award or, if a request had
been made under article 33, from the date on
which that request had been disposed of by the
arbitral tribunal.
The Challenge of the Award
54. Art 34 ML (3)
The court, when asked to set aside an award,
may, where appropriate and so requested by a
party, suspend the setting aside proceedings for
a period of time determined by it in order to
give the arbitral tribunal an opportunity to
resume the arbitral proceedings or to take such
other action as in the arbitral tribunal's opinion
will eliminate the grounds for setting aside.
The Challenge of the Award
55. Art 34 ML (4)
The court, when asked to set aside an award,
may, where appropriate and so requested by a
party, suspend the setting aside proceedings for
a period of time determined by it in order to
give the arbitral tribunal an opportunity to
resume the arbitral proceedings or to take such
other action as in the arbitral tribunal's opinion
will eliminate the grounds for setting aside.
The Challenge of the Award