Arbitrability meaning

What was the background to the dispute? The arbitration stems from an actio ut singuli brought by Mr [J], a minority investor in Petrobras, against the União, seeking compensation for harm allegedly sustained by Petrobras after the appointment of board members reportedly linked to the Brazilian ‘Lava Jato’ corruption affair. Petrobras is a Brazilian mixed-economy entity engaged in the production, exploration, refining and sale of oil and gas. Its by-laws include an arbitration clause. On that footing, MUDES launched CAM arbitration proceedings in March 2017, and Mr [J] filed separate CAM proceedings in October 2017, both directed at the União. The União contested the clause’s applicability, denied being bound to arbitrate, and challenged the objective arbitrability of the case, invoking its public-law prerogatives. The two proceedings were consolidated in April 2018. On 15 January 2020, the arbitral tribunal issued an interim award confirming its jurisdiction. On 26 January 2023, the President of the Paris Judicial Court granted exequatur in France to the partial award...

The doughnut itself The doughnut itself—namely the first, outer ring—symbolises the parties’ merits dispute, such as a breach of contract claim. That substantive quarrel is not at issue when arbitrability is challenged. It remains untouched in such proceedings. Where a contract between the parties includes an arbitration clause, they may fall out not only over the merits but also over the forum in which the merits should be determined—before arbitrators or in court. For example, one party might insist the court should hear the case because the arbitration clause is invalid, or argue the controversy sits beyond its scope. Such attacks on arbitration clauses are called arbitrability challenges. In the doughnut analogy, they are the hole—the second ring. In 1967, the Supreme Court in Prima Paint Corp v Flood & Conklin Manufacturing Co held that any arbitrability challenge must be aimed ‘specifically’ at the arbitration clause, rather than at the contract that contains it. Put differently, a party cannot sidestep an arbitration clause merely by impeaching the agreement as...

Renewable energy award cases at the DC Circuit The DC Circuit is presently considering three high-stakes appeals seeking a determination on whether arbitral awards worth hundreds of millions of euros against Spain can be enforced in the US, a move that could place the US judiciary at odds with European courts. The court of appeals will examine enforceability even though Europe’s highest court has found the arbitration clause in the Energy Charter Treaty to be invalid. The DC Circuit’s ruling will influence not only these awards, but also more than a dozen additional awards against Spain, as well as any other past and potential future arbitral awards granted to EU investors against EU Member States. In these matters, Dutch subsidiaries of US-based NextEra Energy Inc, Luxembourg-based 9REN Holding SARL and Blasket Renewable Investments LLC are urging the appeals court to enforce their awards against Spain, which collectively total about €359.3m (approximately US$394.4m). Blasket received its award by assignment from two Dutch solar energy investors. The awards were rendered after...

This Practice Note explores the recognition and enforcement of arbitral awards under Austrian law Note The decisions of the Austrian Supreme Court (Oberster Gerichtshof) (OGH) mentioned below are not reported by LexisNexis®. Austria’s regime for recognising and enforcing foreign arbitral awards consists of national statutes, international treaties, and bilateral and multilateral accords. Two domestic statutes are central: the Austrian Enforcement Act (AEA) and the Austrian Code of Civil Procedure (ACCP), which sets out Austrian arbitration provisions. Section 614 ACCP governs the recognition and declaration of enforceability of foreign arbitral awards, meaning awards issued by tribunals seated outside Austria: recognition and the declaration of enforceability of foreign arbitral awards proceed under the Enforcement Act (Exekutionsordnung), unless international law or EU legal instruments provide otherwise. The formal requirements for the arbitration agreement are also satisfied if the agreement complies both with section 583 and with the formal requirements under the law governing the arbitration agreement the production...

Class action litigation has long been a fixture of US courts, its modern trajectory often linked to the US Supreme Court’s decision in Green Tree Financial Corp v Bazzle, 539 U.S. 444 (2003) (Bazzle). US case law recognises that class disputes may proceed in arbitration where an arbitration agreement allows it. Persistent uncertainties remain, however, about what amounts to consent to class arbitration and whether that gateway issue is for a court or an arbitral tribunal to decide. Nevertheless, several prominent arbitral institutions have introduced rules addressing class arbitration. Note: the US judgments mentioned in this Practice Note are not reported by LexisNexis UK. What is class action dispute resolution? Class actions were created to manage alike claims held by many claimants within a single proceeding. A representative plaintiff brings the case on behalf of others in comparable positions and applies to the court to ‘certify’ the matter as a class action. Certification is governed by established criteria and is generally warranted only where numerous claimants assert similar...

The Technology, Media and Telecoms (TMT) sector has a central role in the world economy. As a cornerstone of the global economy, the Technology, Media and Telecoms (TMT) arena shapes how we live and work. Tools and platforms spanning blockchain and cryptocurrency, 5G, Web3, artificial intelligence, data analytics, virtual reality, the metaverse and the Internet of Things have moved from novelty to everyday essentials. While governments around the world confront fresh legal and policy questions prompted by these technologies and their broad deployment, technology businesses face mounting regulatory scrutiny. Unsurprisingly, the volume of technology disputes is rising. Arbitration is frequently cited as the favoured mechanism for resolving TMT disagreements. In the 2016 Queen Mary University of London survey (the 2016 QMUL survey), 92% of respondents viewed arbitration as well suited to TMT disputes and 43% regarded it as the preferred dispute resolution method. Moreover, 81% of participants in the 2018 International Arbitration Survey by Queen Mary University of London together with White & Case: 'The Evolution of International Arbitration'...