International Dispute Resolution 23/24

1. Pathological Arbitration Clauses X concluded areinsurance contract with Y. The reinsurance contract was contained in a reinsurance slip which expressly stated that the contract would be subject to English law and jurisdiction. It also provided that the contract's wording was to be as per the Joint Excess Loss Committee excess loss clauses. Those clauses included an arbitration clause. X contends that the slip did not incorporate the arbitration clause into the contract because that would be inconsistent with the jurisdiction clause. Advise Y.

2. Separability WorldShipping Ltd. entered into a contract for the delivery of goods with WorldFood Ltd. The contract contained a clause providing for 'any dispute arising under this contract ' to be referred to arbitration. WorldShipping Ltd. brought court proceedings. They claimed among others that the contract had been induced by bribery. WorldFood Ltd. applied under section 9 of the Arbitration Act 1996 to stay court proceedings. They claim that the dispute falls within the arbitration clause. Advise WorldShipping Ltd.

3. Recognition and Enforcement of Arbitral Awards under the New York Convention On 25 April 2021, the parties, NedTrans and ALT, meet at the ALT headquarters in Zurich to discuss whether ALT will comply voluntarily with the tribunal's holding. In that meeting, ALT's representative, Dr Mueller, show a strong interest in negotiating a settlement on the basis of the tribunal's holding and in the interest of the two companies' ongoing business relationship. NedTrans' representative, Mr Bakker, however, points out the final and binding nature of the award and insists that ALT comply with it. During the discussion, the representatives of NedTrans realize that ALT is running into financial problems. It is reported that various customers have cancelled their sales contracts with ALT because the company was not able to maintain its price structure due to the problems with its Southeast Asian supplier. Back in London, Mr Bakker emails Mr Stels, a Swiss lawyer, and instructs him ' to take legal action immediately and have the award enforced against ALT before it's too late '. On 5 May 2021, Mr Stels files a brief with the Zurich court in which he requests recognition and enforcement of the award against ALT pursuant to Art. 194 Swiss Statute on Private International Law and the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Zurich court invitesALT to file a brief in response toNedTrans'request within two weeks. On 18 May 2021, ALT files a brief with the court in which it requests the judge to reject NedTrans' motion for the recognition and enforcement of the award under Art. V New York Convention on the following grounds:

A. The tribunal misinterpreted Art. 79 CISG and the hardship concept (Art. V(2)(b) New York Convention); B. The tribunal rejected ALT's motion to hear the expert witness Professor Bell on the impact of the Southeast Asian economic crisis on ALT's contractual duties vis--vis NedTrans without giving reasons for this refusal (Art. V(1)(d) and 2(b) New York Convention); C. In the hearing before the court on 28 June 2021, NedTrans argues that ALT may not raise grounds against recognition and enforcement, which have already been brought forth before the English court in setting aside proceedings in London. It also maintains that the Zurich court is bound by the London Commercial Court's decision to reject ALT's motion to have the award set aside on these grounds.