The U.S. Court of Appeals for the Second Circuit (Circuit Judges Pooler, Parker, and Lohier) has recently upped the pressure against the practice of resisting arbitration awards with its opinion in Enmon et al v. Prospect Capital Corporation et al, docket no. 10-2811-cv (2nd Cir. April 6, 2012). In the Enmon opinion, it upheld a decision of the U.S. District Court for the Southern District of New York (the “SDNY Court”) to sanction Texas-based law firm Arnold & Itkin LLP for undermining the efforts of the (opposing) Claimant in litigation proceedings to enforce an arbitration agreement, compel arbitration, and ultimately to confirm the resulting arbitration award.

The English Commercial Court, part of the Queen’s Bench Division of the English High Court, has recently rendered its judgment in the case of Chantiers De L’Atantique S.A v. Gaztransport & Technigaz S.A.S [2011] EWHC 3383 (Comm). The dispute related to the issue of the extent to which fraudulent conduct by a party in an arbitration may affect the validity of an arbitral award.

Third party funding of litigious disputes is a modern disguise of a traditional contingency fee agreements. The commercial background for litigation financing lies in the remuneration of funding of an action for recovery in case the claim proves to be successful. In several ways, third-party funding shares characteristics with contingency fee arrangements.
Contingency fee agreements and champerty have origins in common law countries. They had been inadmissible for a long time, but started to make their way into the legal practice at the beginning of the twentieth century. Contingency fee arrangements have become quite common over the course of the past several decades. Third party funding, however, has been gaining wider acceptance only in the course of the past few years.
Notwithstanding this, the feasibility and the weighing of potential gains against the dangers of third party funding continue to form the subject of debate.

In recent decades, investment arbitration has continued to be an expanding category of public international law. This growth is fueled by the fact that the law applied to international investment disputes is derived from numerous sources. Examples include bilateral investment treaties (“BITs”), multilateral investment treaties (“MITs”) and arbitral awards. Due to this diversity, certain dilemmas arise over the suitable manner in which these legal sources should be interconnected. One frequently asked question is whether it is accurate to say that a system of precedent operates within investment arbitration.

In June 2008, the International Olympic Committee (IOC) enacted a new rule that became known as the “Osaka Rule” and came into effect in July of the same year. Under this regulation, any athlete who was found guilty of violating anti doping rules and was suspended for a period of six months or longer and was automatically ineligible for participation in the following/next Olympic Games. This rule came under scrutiny in a number of cases concerning US athletes who had been found guilty of violating anti-doping rules.

On 15 September 2011, the Court of Justice of the European Union (the “Court”) issued the judgment in case C-264/09 (Commission v. Slovak Republic) (the “Judgment”).

The Court made an important clarification with respect to relevance of Article 307 EC Treaty, dealing with treaties concluded by EU members with non-EU members (the “Third States”) before accession to the EU, to bilateral investment treaties (the “BITs”).

On 20 July 2011, a Commercial Court of the Kemerovo region in Russia (the “Court”) recognized an ICC arbitral award in Ciments Français vs Sibirsky Cement Holding Company that had been set aside by a domestic court in the state of the seat of arbitration. In doing so, the Court applied Article IX of the European Convention on International Commercial Arbitration of 1961 (“European Convention”). This decision raises hopes that Russia’s reputation as an arbitration unfriendly country might take a turn for the better.

On 12 September 2011, the International Chamber of Commerce unveiled its newly revised ICC Rules of Arbitration (“New Rules”). Going into effect on 1 January 2012, the New Rules are the result of over two years of discussion and development by a special committee made up of members of the ICC Commission on Arbitration, representatives of the ICC International Court of Arbitration Secretariat, as well as practitioners, drawing on input from a 200-member Commission task force. Formally adopted this June, the new rules will revise the current framework which has been in place for the past 13 years and has provided a legal basis for over 8,000 arbitrations worldwide.

On 1 July 2011 the Supreme Court of Sweden entertained the enforcement claim of Mr. Franz Sedelmayer and admitted execution of an arbitral award by means of distraint of rental income from a building located in Sweden, which had once been utilized by the USSR Trade Mission to Sweden (case no. Ö 170-10).

The background of the dispute dates back to 1990, when SGC, an American company owned by Mr. Sedelmayer, entered into negotiations with the Police Department of St. Petersburg (“GUVD”) regarding the supply of law enforcement equipment, services on training in using this equipment, and the establishment of a security agency. For that purpose, SGC and GUVD formed the joint stock company Kammenij Ostrov (‘KOC’) with a 50/50 shareholding structure. Mr. Sedelmayer was elected Director General of KOC and GUVD paid in a part of its share in the form of certain buildings to be used by KOC as well as by Mr. Sedelmayer and his family members. In 1996 these buildings were seized under a Decree of the President of Russia and transferred to a Russian state agency. Mr. Sedelmayer initiated arbitration with the Arbitration Institute of the Stockholm Chamber of Commerce based on the 1989 BIT between Germany and the USSR. In its subsequent award of 1998 the tribunal found that the pertinent state measures constituted expropriation and ordered Russia to pay compensation to Mr. Sedelmayer in the amount of USD 2,350,000 plus interest.

The UK Supreme Court has recently rendered its much anticipated judgment in the case of Jivraj v Hashwani [2011] UKSC 40. The dispute had lead to concerns in the UK arbitration community and further afield for the restrictions it may have caused parties to adhere to under English law when choosing arbitrators to regulate their disputes.