International Arbitration

Streamlining, While Competition Heats Up

Careful drafting is also necessary when prescribing eligibility requirements for prospective arbitrators. An arbitration agreement providing that only persons of a certain religious belief could act as arbitrator has been held void on the ground of religious discrimination (Jivraj v Hashwani [2010] EWCA Civ 172). Arbitration clauses prescribing requirements concerning gender, nationality or age are likely to fall foul of UK anti-discrimination legislation.

Support of arbitral proceedings

English courts have demonstrated an inclination to support, rather than review, the arbitral process. They have resisted assuming the tribunal’s role by conducting a full re-examination of the merits of a tribunal’s peremptory order. In Emmott, the High Court emphasised that its power to review peremptory orders by a tribunal is limited, and that its proper role is to support the tribunal and ensure that its peremptory orders are respected by the parties.

Enforcement of awards

English courts have made it clear that they are willing and able to exercise their review powers, as the enforcing court under the New York Convention, to safeguard the fundamental rights of the parties (Dallah v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46). When doing so, an English court may have regard to the reasoning and findings of the arbitral tribunal, if they are helpful, but it is neither bound nor restricted by them. In Dallah, the Supreme Court refused to enforce a French award because there was no valid arbitration agreement. Dallah does not, however, reflect an anti-enforcement approach by the English courts. Indeed, this is only the third recorded case in the last 35 years where an international award has been refused enforcement in England.


On 14 January 2011, France published its greatly anticipated new arbitration law, Decree No. 2011-48 (the decree). 30 years after the previous law, this reform confirms France’s position as a leading arbitration jurisdiction with modern, arbitration-friendly legislation. The decree concerns both domestic and international arbitration and comes into effect on 1 May 2011, save for several specific provisions.

The decree

The decree largely aims to codify existing case law; for example, both the French Supreme Court and the Paris Court of Appeal have recognised the rule that a party who, without legitimate excuse, fails to raise an irregularity in the arbitral process on becoming aware of it, is estopped from doing so at the enforcement or annulment stage (Cass. 1st Civil Chamber, Golshani v Islamic Republic of Iran, 6 July 2005, Case no. 01-15912; Paris Court of Appeal, Baste SA v Lady Cake Feine Kuchen GmbH, 20 September 2007, Case no. 05-21985). The decree codifies this principle in Article 1466 of the French Code of Civil Procedure (CPC).

The decree also confirms and reinforces the powers of arbitral tribunals; for example, Article 1467 of the CPC recognises the arbitral tribunal’s authority to order a party to produce documentary evidence, subject to a penalty should it fail to do so. Article 1468 of the CPC also allows the arbitral tribunal to order conservatory or interim measures.

The decree introduces two new provisions relating to enforcement or annulment proceedings. Article 1522 of the CPC provides that, by way of a specific agreement, the parties may, at any time, expressly waive their right to bring an action to set aside the arbitral award. The parties’ waiver under this provision (which applies only to arbitration agreements entered into after 1 May 2011) does not, however, affect their right to challenge any decision to enforce the award in France. The practical advantage of such a waiver is to avoid a challenge of the award in France when its enforcement is sought only abroad. In addition, Article 1526 of the CPC confirms that a challenge to the award will not, in itself, stay its enforcement. Therefore, arbitral awards rendered after 1 May 2011 are provisionally enforceable pending challenge (reversing the previous rule).

French courts

French courts continue to prove their pro-arbitration stance. In Dallah, the Paris Court of Appeal, deciding on the same facts and law as the UK Supreme Court, came to the exact opposite conclusion and confirmed that the arbitration award could be validly enforced in France against a non-signatory party (Paris Court of Appeal, 17 February 2011).

In addition, consistent with its decision in Hilmarton v OTV, the French Supreme Court held in Societe PT Putrabali Adyamulia v Societe Rena Holding that a foreign award may be enforced in France despite its annulment in the country of the seat of the arbitration and its replacement by another award issued by the same arbitral tribunal (Cass. 1st Civil Chamber, 10 June 1997; Cass. 1st Civil Chamber, 29 June 2007). The court said that the foreign award, which is not linked to any national legal order, is a decision of international justice whose legality is to be assessed under the rules applicable in the country where its enforcement is requested. Applying the New York Convention, the court explained that the annulment of an award at the seat of arbitration is not a ground to set it aside or refuse either its recognition or its enforcement in France.


Recent developments in Germany illustrate that the country is becoming an increasingly established venue for international arbitration.

Legal framework

In 1998, the statutory regulations for arbitration in the German Code of Civil Procedure (ZPO) were revised, based on the UNCITRAL model law. These regulations are user-friendly, contain few mandatory provisions and provide the parties with significant freedom to fix their own rules for the proceedings.

Arbitration rules

The arbitration rules of the German Institute for Arbitration (DIS) provide for comparably short and cost-effective proceedings; for example, they only provide for limited document production. In addition, the DIS introduced Supplementary Rules for Expedited Proceedings in April 2008. These provide for:

  • A sole arbitrator (unless the parties agree otherwise).
  • A limitation on the number of briefs exchanged.
  • An oral hearing.
  • The termination of proceedings within six months (in the case of a sole arbitrator) or nine months (in the case of a three-member tribunal) of the commencement of proceedings.

In 2010, the DIS enacted new rules on various alternative dispute resolution mechanisms, including expert opinion, expert determination and adjudication. The new rules regarding adjudication concentrate on dispute boards, appointed at the outset of a project, which are responsible for the resolution of disputes throughout the project’s life.