SJ Berwin’s International Arbitration Grouphas grown once again since our lastissue with Justin Michaelson joining usand becoming a partner on 1 May 2007.

As befits an environmentally friendly firm,Justin is in fact a “recycled” SJ Berwinassociate. He returns to us after develop-ing his arbitration skills with CliffordChance and Weil Gotshal & Manges LLP. Inthis edition, Justin contributes a piece onthe outer limits of the anti-suit injunction.

Tim Taylor, who started his sabbaticalswiftly after speaking at the annual ASAConference in Zurich, has now returned tothe office to go straight into a Court of

Appeal hearing on an interesting point ofPublic International Law, which is likelyto be reported later in the year. We arealso pleased to announce that Tim hasrecently been appointed to the UK Panelof Arbitrators of the Independent Film &Television Alliance (I.F.T.A).

Per Runeland reports on the SpringMeeting of the American Bar Association,at which he and I together with KhawarQureshi Q.C. and Lord Slynn of Hadleywere panelists.

The guest feature in this issue iscontributed by Dr. Phillip Landolt ofTavernier Tschanz, who examines thephenomenon of competition betweendifferent seats for arbitrations.

Confined space does not permit me tosay more than “Read On!”

Contents

EDITORIAL by David Goldberg Page 1

GUEST FEATURE:Competition for Arbitrationby Dr. Philip Landolt ofTavernier Tschanz Page 2

SPOTLIGHT ON ARBITRATIONCASE: Stopping RussianProceedings in their Tracksby Justin Michaelson Page 5

ADR IN BLOOM: 9th Annual ABASection of Dispute Resolution SpringConference by Per Runeland Page 6

ARBITRATING COMPETITIONLAW ISSUES: The Dublin Forumon Arbitration and CompetitionLaw 2007 by Gordon Blanke Page 9

Special ICC UK Working Session onArbitrating Competition Law Issuesby Gordon Blanke Page 11

SWEDEN: SCC Institute hasAdopted New Rulesby Per Runeland Page 13

SJ BERWIN’S INTERNATIONALARBITRATION GROUP:Profile of Dr. Susanne Heger Page 13

FORTHCOMING EVENTS:Hot Topics in InternationalArbitration 2007 Page 15

Mediation in ResolvingCommercial Disputes Page 15

If you prefer to receive your copy byemail in future, please send details todawn.haynes@sjberwin.com

Issue 4 2007

EDITORIAL

The bi-annual newsletter of SJ Berwin’s International Arbitration Group

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David GoldbergCo-Head and Partner of theInternational Arbitration GroupSJ Berwin LLP, LondonE david.goldberg@sjberwin.com

SJ Berwin’s International Arbitration Group

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GUESTFEATURE

Competition forArbitration

1. Introduction

Everywhere and incessantly it seems,countries are vying to attractarbitrations. One might take the recentHouse of Lords’ West Tankers1

preliminary reference to the ECJ. LordHoffmann found in commercial rivalrysignificant supplementary supportfor the proposition that anti-suitinjunctions favouring arbitration shouldescape prohibition under the BrusselsJudgments Regulation2:

“the European Community is en-gaged not only with regulatingcommerce between Member Statesbut also in competing with the restof the world. If the Member Statesof the European Community areunable to offer a seat of arbitrationcapable of making orders re-straining parties from acting inbreach of the arbitration agreement,there is no shortage of other stateswhich will.”

Sometimes, the competition for arbi-trations becomes decidedly pitched.One surmises that it was the perceivedcompelling nature of commercialinterests of arbitration in England,coupled with a concern that theLuxembourg magistrates would not besufficiently alive to them, that provokedLord Hoffmann to don the mantle of anAdvocate General, and to proffer hisopinion for the ECJ’s considerationrather than making an ordinary requestfor interpretation. That this behaviourwas singular is suggested by thecursory speeches of two of the fourother Law Lords who sat in the case.Lord Rodger approved the reference tothe ECJ and the content of the opinion,but not explicitly the fact that it wasbeing addressed to the ECJ. LordNicholls less subtly confined himself toapproving the reference alone.

Recently, a legislative amendment3

came into force in Switzerland to permitarbitral tribunals to take jurisdictionover cases despite prior court orarbitral proceedings involving the samequestions between the same parties,absent serious reasons to the contrary.The Swiss government justified thismeasure, reversing a decision of theSwiss Supreme Court in the muchmaligned Fomento case4 , as follows:

“For the Federal government alsoattaches great weight to themaintenance of confidence in thisbranch of services, which is im-portant from both an economicstandpoint and for the internationalreputation of Switzerland.”5

These legal developments, and thejustificatory statements whichaccompanied them, invite hypotheseson the competition for arbitration, andwhat is really to be gained by seekingto attract arbitrations.

2. The Stakesa. General

When seeking to attract arbitrations,judges and law-makers are generallyintent on increasing the use of theirState’s arbitration law and substantivelaw, and physically hosting arbi-trations. Almost invariably, the appli-cable arbitration law follows the seat ofthe arbitration, and the seat is usuallyexpressly selected by the parties whohave practically untrammeled freedomin this choice. However, since the seatconstitutes a juridical connection witha State, the arbitration hearings andother events in the arbitration do notnecessarily take place at the seat, butin practice they very often do. There isno necessary correspondencebetween the arbitration law and thesubstantive law applicable in a case,nor does any tendency to couple thetwo seem to have been brought tolight. It is perhaps true, though, thatthe increased prestige of a State’sarbitration law will lead to increasedprestige in its substantive law, and thusto a corresponding increase indemand for the latter.

In the result, making the localarbitration law more attractive to usersprobably increases the use of the localsubstantive law to a limited degree butit in all likelihood would appreciably

Dr. Philip LandoltTavernier Tschanz, GenevaE landolt@taverniertschanz.com

1 West Tankers Inc. v. RAS Riunione Adriatica di Sicurta SpA and others, [2007] UKHL 4.2 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 12,

16.1.2001, p. 1–23.3 This amendment added a new paragraph “1bis” to Article 186 of the Swiss Private International Law Act, the unofficial English translation of which is as follows : “[The arbitral

tribunal] shall decide on its jurisdiction notwithstanding an action on the same matter between the same parties already pending before a State court or another arbitraltribunal, unless there are serious reasons to stay the proceedings.”

4 ATF 127 III 279 ; decision of 14 May 2001 in Fomento de Construcciones y Contratas S.A. v. Colon Container Terminal S.A (“Fomento”).5 Opinion of the Swiss Federal Council of 17 May 2006 on the Report of 17 February 2006 of the Legal Affairs Commission of the Federal Council concerning the

parliamentary initiative to amend Article 186 of the Swiss Private International Law Act, ad 02.415, page 4483.

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increase the number of arbitrationsphysically held within the territory ofthe State in question.

b. Work for Lawyers

Arbitration practitioners gain particularexpertise in the arbitral law where theyare based. Moreover, actions lie to thecourts of the seat for such mattersas provisional measures, the consti-tution of the arbitral tribunal, and thesetting aside of the arbitral award. Thiswork is generally reserved for lawyers atthe seat of the arbitration. There willoften be savings in time and costs inhiring arbitration counsel initiated in thearcane complexities of local civilprocedure. This is not to suggest thatlawyers based at the seat luxuriatebehind high barriers to the entry oflawyers based elsewhere, and thatarbitration practitioners survey arbi-tration law outside of their home base as“a forest of single instances”. It is ratherthe enjoyment of certain advantages,not all and not insuperable ones, whichchannels a disproportionate share ofarbitrations to lawyers based at the seat.Mainly for these reasons, increasing theattractiveness of a particular arbitralseat tends to increase the work oflawyers based there.

c. Hotel and Hospitality Industry

Since hearings are generally held at thearbitral seat, battalions of lawyers withclients, witnesses, and stenographers intheir train, occupy hotel rooms, takemeals in restaurants, and purchasegoods and services atthe seat. It is also not unknown forarbitral hearings to take place incomfortably-appointed hotel confer-ence rooms. Therefore, increasing theattractiveness of an arbitral seat mustincrease revenues for the localhospitality industry.

d. Removal of Burden ofDispute Resolution

States are required to provide disputeresolution before the courts. There aredifficulties in recovering the costs ofthis service from users. First, since theadministration of justice is traditionallyconceived of as an essential serviceand indeed an incident of statehood,there is a reluctance to treat it on acommercial basis, any more than say aState would charge (fully) for policingor diplomatic protection. Secondly,charging full user-fees for courtservices may violate the fundamentalright of access to justice, even whereprosperous businesses are con-cerned. Thirdly, since most of the costsof the administration of justice are infact fixed, there would be difficulties incosting the services to individuallitigants who can pay, and avoiding asituation, also likely to be a violation offundamental rights, where they cross-subsidise impecunious litigants.

Arbitration is so attractive to Statessince it privatises dispute resolution,and thereby largely relieves the State ofhaving to provide administration ofjustice services to a certain populationof users. Since in most legal systemsthere are relatively few legal require-ments of connection to a court’s terri-tory for its jurisdiction to be claimed,arbitration has the particular advantageof privatising the administration ofjustice in respect of foreign partiesunconnected to the State to whom theState feels no duty to offer services.

e. Prestige Spin-offs

It should not be overlooked that muchprestige attaches to a State’s acting ashost to arbitrations, as intimated in theSwiss government’s justification forreversing Fomento. Even if it is the

peace-makers who are blessed,countries putting in place theconditions under which peace-makingmay prosper bask in their reflectedglow. Choosing a foreign seat, andgiving up the certainties of one’s homecourt or even home arbitration law is aconsiderable vote of confidence in thatforeign seat. Countries can developreputations as modern, cosmopolitan,and fair by attracting arbitrationsthrough their arbitration law. Such areputation doubtless brings non-arbitration economic activity, and maybe instrumental for the modern de-velopment of legal business clusters.

f. Support for Trade generally

Arbitration is often cited as being thedispute resolution mechanism ofchoice for international business. Thevarious qualities of arbitration havebeen sufficiently extolled elsewhere. Itis noteworthy that arbitration isvaluable in and of itself as an effectivealternative to court litigation. Partieshave voted for arbitration with theirfeet, flocking to it, and forsaking courtproceedings. So a great advantage ofarbitration is its being in the service ofinternational business and addingvalue to international business.

3. Assessment of these Advantages

A model with much force to explainwhat hosting arbitrations can offer aState is the so-called “Wimbledoneffect”. The opposing parties, whohave most to gain, and to lose, in anarbitration, are generally foreign. Buthosting this tournament like hostingarbitrations brings revenues for certainsectors of local business, like thehospitality industry, and above allprestige for the host country, which canbe expected to translate into economicgains elsewhere in the local economy.

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These local advantages, even takentogether, must, however, be fairlymodest and cannot alone explain therapt and sustained attention paidby States to the improvement of theirarbitration systems. Whatever theadvantages of arbitration enjoyed bythe seat, by far the most significantbenefit of improvements to arbitrationlaws to make arbitration more attrac-tive to users must lie in facilitatinginternational trade. The fascinatingaspect of this, from an economic pointof view, is that these benefits cannotbe captured alone by the countrymoving to improve its arbitration lawsbut rather that country is in themain benefited only indirectly, by thegeneral increase in trade and thegeneral unburdening of courts, in theway a rising tide lifts all ships.

It is, however, the combination of localadvantages derived from hostingarbitration and indirect advantagesstemming chiefly from the increasein trade, which provide sufficientincentives for countries to undertakea perpetual quality review of theirarbitration laws. Of course, the localadvantages need not be massive,since the cost to the State of thatreview is not great, for much of it iscovered by private parties, such asarbitration practitioners, with a privateinterest in the expansion of arbitration.A further consideration fostering Statewillingness to review local arbitrationlaws for improvement is that, especiallyas regards sophisticated commercialparties, such improvement does notgenerally entail a policy trade-offin States’ interests in other areas. Itis specifically the interests of large

commercial parties which, when attend-ed to, create growth in inter-national trade.

Furthermore, the localised benefits ofa State’s improving its arbitration laware important in creating a sort ofregulatory competition and in effectensuring that State inference withprivate interests is pared away to thegreatest practicable degree.

Yet one might legitimately ask whetherthis is not a pernicious race to thebottom. As regards the protection ofdisputants, there is no real concern,since the large, sophisticated entitieswhich are the paradigmatic arbitrationusers can and are indeed usuallyhappy to watch out for themselves.

On the other hand, some have arguedthat a seat’s review of an arbitralaward should serve to protect theinterests of all States, and that,therefore, the public policy test shouldtake into account the mandatorynorms of other States, not just those ofthe seat, even though there is nointernational legal requirement on theseat to entertain actions to annul anarbitral award to take into account thepublic policy of any other State.

Against this view one might assert,however, that the protection of theinterests of States other than that ofthe seat is sufficiently assured bytheir power to refuse to enforce aninternational award under the NewYork Convention6, in particular for itsrepugnance to the public policy of theState of enforcement. Also, wherecertain norms are really important to a

State, public enforcement will oftenexist alongside private enforcement(arbitration), and the former will remainlargely unaffected by any impairmentin private enforcement.

Michael Reisman has argued7 that aseat’s restriction of public policyreview creates a free rider problem.This is fallacious since reductions inthat control having the effect ofattracting arbitrations are not parasiticon any other State’s (shared) entitle-ment, expense or exertions. This is tobe contrasted with tax competition,which raises concerns of Stateshosting businesses which take ad-vantage of services, employees,infrastructure or even markets therewhile being taxed exclusively orprimarily in another, lower tax State.8

4. General Consequences

Arbitration law policy should resistmercantilist, beggar-thy-neighbour in-stincts. There is comparatively little tobe gained, and, if a reduction in traderesults, all lose.

The economic interest of States isin reality to ensure that they offer thebest possible arbitration system toparties involved in international trade,typically large commercial users.Generally speaking, the arbiter ofexcellence here is State non-inter-ference in arbitrations, but assistance,where necessary, to make arbitrationefficacious. To ensure predictability, andbecause the parties are the best judgesof their own interests, that assistanceshould, wherever possible, be in accordwith the parties’ own intentions.

6 Convention on the Recognition and Enforcement of Foreign Arbitration Awards adopted in New York on 10 June 1958.7 W. M. Reisman, Systems of Control in International Adjudication & Arbitration (Durham and London: Duke University Press, 1992), at 131 – 132.8 One hastens, however, to observe that Singapore’s offering of tax incentives – most recently a 50% arbitration income exemption for approved law firms - to attract arbitrations

presents no free rider problem. Again, there is here no reaping of what others have sown or have helped to sow. The real question is whether the lower taxation enjoyed bythe same firms who select Singapore arbitration as those who may run Singapore arbitration cases, and therefore benefit from the tax exemption, introduces a perverseincentive scheme, that is, one unrelated to the comparative (undoubted) quality of Singapore arbitration. See the Singapore Ministry of Law announcement on:http://notesapp.internet.gov.sg/__48256DF20015A167.nsf/LookupContentDocsByKey/GOVI-6YF7C6?OpenDocument

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In the absence of overriding Stateinterests in attracting arbitrations, itmay also be that the fully matureexpression of arbitration law aroundthe world will be one of uniformity,perhaps even commoditisation, typi-fied by a high degree of State reserve,and involvement almost exclusively togive effect to arbitration agreements.Indeed the substantive subject matterof arbitration law is not that broad,such that there are relatively fewcomponents to bring into harmonywith their foreign counterparts. It isperhaps no surprise that theUNCITRAL Model Arbitration Law,which States the world-over accept oftheir sole, unprompted volition, hasmet with such success, whereas theefforts to develop and bring intooperation a uniform civil code confinedto the European Union, in spite of thegreat political weight of the EuropeanCommission and its Action Plan, seemsadly to be flagging.

5. West Tankers and theSwiss Amendment

With both West Tankers arbitration-friendly anti-suit injunctions and theSwiss near abrogation of thelitispendence principle for arbitratorsthere is a favouring of local arbitraljurisdiction over foreign court juris-diction. Insofar as this ensues from adesire to capture economic advan-tages at the expense of a foreignState, this is misguided. LordHoffmann’s justification in support ofpro-arbitration anti-suit injunctionsindicates that he has been lured intothis thinking. The Swiss federalgovernment’s invocation of themaintenance of confidence in arbi-tration, which is important from both aneconomic standpoint and for theinternational reputation of Switzerland,would appear to have in mind not theeconomic interests of all States in

the promotion of arbitration but theassumed peculiar interests of Switzer-land. If that is true, it is to be regretted.But the statement is correct inidentifying the increased prestige of theState as being amongst and perhapseven foremost amongst the relativelymodest advantages to be capturedfrom hosting arbitrations.

In both West Tankers and the Swissamendment there is the concern toensure that local arbitration is shieldedfrom complications arising out ofwhat foreign courts may decide. Suchintervention, or in the Swiss case non-intervention, is certainly praiseworthy inand of itself, for its concern to ensure theefficacy of arbitral proceedings.

Both situations relate to who willdetermine the parties’ intentions aboutwhether or not there is arbitraljurisdiction. In the Swiss amendmentletting the arbitrators make thisdetermination is consistent with Statesupport of arbitral jurisdiction. In WestTankers, the competition to make thisdetermination is as between two courts.The only reason to favour one court overanother in this regard is if that othercourt will not give sufficient opportunityto arbitral jurisdiction. If, however, thatcourt is bound by Article II(3) of theNew York Convention, absent specificgrounds, it should be given the benefitof the doubt.

Finally, concern for the efficiency ofarbitral proceedings does not seem toprovide a justification for anti-suitinjunctions. To prevent the incon-venience of proceedings beforea foreign court, proceedings seekingan injunction are entertained. Anti-suitinjunctions simply expand the range ofpotential proceedings which parties toarbitrations must contend with.

SPOTLIGHT ONARBITRATIONCASE

Stopping RussianProceedings intheir Tracks

In the first case of its kind, the Court ofAppeal in Bermuda upheld an anti-suitinjunction granted in our client’s favourrestraining their opponents from pro-ceeding with an action in Russia, in favourof an agreement with our client requiringarbitration in Switzerland. The case isunique in that it involves three countries:Country A (Bermuda) restraining pro-ceedings in Country B (Russia) in favour ofan arbitration agreement with a seat inCountry C (Switzerland).

Our client had been involved in arbitrationsand litigations with this opponent since2003. In 2006, proceedings were com-menced in Russia in breach of twoagreements requiring arbitration inSwitzerland. An anti-suit injunction wasordered in Bermuda and required ourclient’s opponent to (i) discontinue pro-ceedings in Russia; (ii) discharge theinjunctions it had obtained from the courtin St Petersburg freezing shareholdingsin a valuable telecoms company; and italso (iii) prohibited them from commencingany legal proceedings relating to anyclaim in respect of those shareholdings inbreach of the agreement to arbitrate.

Justin MichaelsonPartner, InternationalArbitration GroupSJ Berwin LLP, LondonE justin.michaelson@sjberwin.com

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Our client’s opponent is incorporated inBermuda, but challenged the right of thecourts in Bermuda to exercise jurisdictionover them in this way. The main issue waswhether the Bermudian court was entitledas a matter of law or jurisdiction to issuean injunction of this nature on the basis ofin personam jurisdiction only, or whetherit must, in addition, have another“sufficient” interest before it can do so.

The court relied on the following reasonsto give its conclusion:

(i) An exclusive jurisdiction or arbitrationclause contains an implied covenantnot to litigate in any other forum. It haslong been established that the courtsof equity will enforce a negativecovenant by way of injunction.

(ii) It is common ground that damages arenot an adequate remedy for breach ofan arbitration clause. An injunction willbe granted when damages are not anadequate remedy.

(iii) The court can grant an injunctionprovided that it has jurisdiction in per-sonam over the defendant. The clearestpossible case of in personam jurisdictionis where the defendant is domiciled with-in the jurisdiction of the court.

The role of the courts of the seat ofarbitration is to supervise the arbitrationitself. It is not only the courts of the seat ofarbitration which can issue the anti-suitinjunction and prevent a party breaking itscontract to arbitrate. In this case, Switzer-land did not have a similar regime asBermuda. Accordingly, the court concludedthat in personam jurisdiction alone basedon our opponent’s domicile in the juris-diction sufficed and it was not necessary torequire our client to go to a jurisdictionwhich did not have the remedy available.

ADR INBLOOM

9th Annual ABASection of DisputeResolution SpringConference

Attitudes and Latitudes:A European Perspective on Arbitration

1. This session takes a broad approach tothe discussion of issues of interest tolawyers involved in internationalarbitration or in cross-border trans-actions. There is no doubt that if weengage in international constructioncontracts, joint ventures, engineeringprojects, licensing of intellectualproperty, etc., we cannot live withoutarbitration. On the other hand, if we onlywork for banks or financial institutions,there is a fair chance that our bankingclients will prefer the courts to arbitraltribunals, but even that is becoming lesslikely. As an example, the EuropeanBank for Reconstruction and Develop-ment (“EBRD”), whose biggest share-holder is the United States, has made itknown that its standard approachto dispute resolution in sovereignoperations include the following:

• arbitration at either party’s option;• ad hoc arbitration, using UNCITRAL

Rules;• appointing authority is the President

of the International Court of Justice;• place of arbitration is The Hague,

The Netherlands;• privileges and immunities of EBRD

are expressly reserved; and• any power of arbitrators to enforce

consolidation requires EBRDapproval.

2. The EBRD’s usual approach to disputeresolution in private sector operationsis focused on a less august level:

• arbitration at either party’s option;• in addition, EBRD only has the right

to litigate in the courts of Englandor any court having jurisdiction;

• ad hoc arbitration, using UNCITRALRules;

• appointing authority is the LondonCourt of International Arbitration(LCIA);

• place of arbitration is London;• parties waive access to English

courts on points of law;• privileges and immunities of EBRD

expressly reserved; and• any power of arbitrators to enforce

consolidation requires EBRDapproval.

3. This concrete example of a formulatedpolicy for arbitration raises several ofthe standard questions that need tobe dealt with when drafting an arbi-tration clause. This session coversspecifically arbitration in England,China and Russia. It falls to me to pickup interesting points reflecting thepractice of arbitration in WesternEurope, including Scandinavia. But Imay not be able to stay away fromRussia and the Ukraine completely,considering that many of theinteresting arbitrations that are goingon at this moment involve thosecountries even if the legal entitiesinvolved may be incorporated inSwitzerland, Cyprus, the BVI or otheroff-shore jurisdictions.

Per RunelandConsultant, InternationalArbitration GroupSJ Berwin LLP, LondonE per.runeland@sjberwin.com

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4. The Swiss Arbitration Association haspublished a brochure on Do’s andDon’ts in International Arbitration.Among its conclusions, the brochuresuggests that we should not believeeverything we hear about internationalarbitration and states a number ofalmost universal untruths.

5. The first is that “arbitration clausesshould be elaborate”. I have seen elab-orate arbitration clauses that musthave cost the client at least $10,000cause further delay and expense whenan attempt is made to apply them.An interesting example involved anintricate arbitration clause that in-tended to make certain that severalcontracts in a joint-venture would besubject to the same dispute resolutionprocedure, in fact to one single arbitraltribunal, whether the dispute aroseunder the Supply Agreement, theLicensing Agreement or the CorporateJoint-Venture Agreement. The clauseprovided for arbitration under the rulesof the International Chamber ofCommerce (“ICC”), and this wasprobably a good idea because theintervention of the ICC made it im-possible to get the multi-party situationoff the ground. What could have beena very complicated arbitration in-volving many parties with diverginginterests turned into two separatearbitrations which were big butmanageable. I learnt from that ex-perience, where I was not involved indrafting the pathological arbitrationclause but in getting the arbitrationunder way, that happiness is not acomplicated arbitration clause, or thebiggest possible arbitration.

6. The Swiss want to underline that it isincorrect to assume that all ICCarbitrations are conducted in Paris. Infact, ICC arbitration is possible any-where in the world, and Switzerland isa more frequent venue than France. It

is true, however, that if no place ofarbitration has been specified in thearbitration clause, it is possible that anICC arbitration will be conducted inParis if there are no circumstancesthat make France unsuitable. Onereason why France is often suitable isthat France has arbitration laws thatare some of the most arbitration-friendly in the world, with great free-dom given to the arbitral tribunal inrespect of the organisation andconduct of the arbitration. The point offreedom in this context is not just thatthe parties and the arbitrators canhave the kind of arbitration they want.The most interesting point is thatwhere there is an absence ofmandatory rules, there is little room forthe kind of procedural irregularitiescommitted or permitted by the tribunalthat may be grounds for a laterchallenge or for difficulties at theenforcement stage. In that context wehave to take into account that partiesare rarely so much upset by theconduct of the arbitration as they arekeen to escape the enforcement of anaward that goes against them. We canforget any notion of gentlemanlyparties accepting a fair award if thereis a possibility of attacking it. Fortu-nately, for the binding force of anarbitration clause and the finality of anaward, it is true throughout Europe thatit is extremely difficult to persuade acourt to set aside an arbitral award.The arbitration-friendly climate in factstarts with the interpretation of arbi-tration clauses where any doubts areoften resolved in favour of arbitration.

7. There are hundreds of arbitrationcourses, academic programmes andseminars every year, so we might beled to believe that there must beenormous numbers of actual arbi-trations going on in various places.This is only true to a degree. At thesame time as a number of arbitrators

are very busy, there are many disappointed candidates among thethousands of graduates with a spec-ialisation in arbitration that wish to jointhe practice of arbitration every year.This is obvious even from a cursorylook at the numbers of arbitrationsdealt with by arbitral institutions. TheICC has around 500 or 600 new casesper year, close to half of which arelikely to be settled at some point, oftenin the early stages. If we look at theother major institutions, we find that theStockholm Chamber of CommerceArbitration Institute has around 100new cases per year, and the LondonCourt of International Arbitrationcomes close to that number. Thecombined number of cases for all ofthe Swiss Chambers of Commercethat now operate a uniform set of rules,the Swiss Rules of InternationalArbitration, had approximately 60 newcases in the past year. Variousattempts have been made to estimatethe number of ad hoc arbitrations,including arbitrations under the rulesof various trade associations, maritimearbitrations, commodity arbitrationsetc that are commenced every year. InLondon alone, we are talking severalthousand ad hoc arbitrations per yearaccording to statistics collected by theLondon Chamber of Commerce. Itneeds to be said that many commodityarbitrations do not provide employ-ment for arbitration lawyers, and sometrade association rules prohibit theinvolvement of lawyers in the resolutionof disputes. Based on my ownexperience from arbitrations under therules of the London Metal Exchange,this is not an approach I recommend.

8. Arbitration was the accepted methodof resolving foreign trade disputes inthe Comecon area from CentralEurope to Asia. This has led to thedevelopment of very solid arbitrationpractices at the arbitration courts

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attached to the Chambers of Com-merce in those countries. The biggestshow was, of course, in Moscow, butafter the collapse of the Soviet Union,arbitration courts were rapidly estab-lished in the outlying Republics of theformer Soviet Union, such as theUkraine, Kyrgyzstan etc. In particular,the Ukrainian experience has beenvery positive with the number of casesexceeding 800 in certain years aroundthe millennium.

9. A brief overview of Europeanarbitration would not be completewithout a look at the cost of arbitration,meaning the fees of the tribunal andthe administrative charges of anyinstitutions involved. The institutionalapproach is typically to charge feesreflecting the value of the dispute. Thealternative, also used in ad hocarbitrations, is to charge for the timespent, which often results in a highercharge to the parties. It is sometimessaid that ICC arbitration is particularlysuited for important disputes, but atleast from the financial point of view Iwould disagree. The parties get verymuch for their money when they referlow value disputes to ICC arbitration.Because of its cachet, the ICCcommands the services of respectedarbitrators from all corners of theworld, even if the fees they earn insmall cases are modest. At the otherend of the value scale, the LCIAprovides an economical alternative forhigh-value disputes. This is becausethe LCIA does not charge feesreflecting the amount in dispute. Itcharges an hourly fee for the servicesof the LCIA itself and variable hourlyfees, agreed in advance, for thearbitrators involved. If the hourly rategoes above £350 (approximatelyUS$700), the LCIA refers back to theparties for their approval of the higherfee. This has the effect of imposing a

practical upper limit on fees of £350 inmost cases. Further, the hours spentare informally monitored by the LCIA,all of which makes it possible to get avery economical service from the LCIAin cases where large amounts ofmoney are at stake. In the formerSoviet Union, arbitration costs havetypically been low and even after therecent increase of tariffs at theInternational Commercial ArbitrationCourt in Moscow, costs are still lowerthan average. Interestingly, in Moscow,the proportions are reversed, so thatthe institution, that is to say the Courtof Arbitration in Moscow, gets 70% ofthe costs of arbitration, with 30% beingallocated to the three arbitrators. Thismeans that even in a reasonablyimportant commercial case, the fee ofan arbitrator may amount to just a fewthousand dollars. If arbitrators areappointed from outside Russia, travelexpenses are collected from the partyappointing the foreign arbitrator, andthey are often a multiple of the fee. TheUkrainian International CommercialArbitration Court works on the sameprinciples, but the institution takes asmaller proportion, and the entire costis lower. This situation cannot result inarbitration quite as we know it, withhearings lasting for a week or evenseveral weeks. Justice is pretty swift inthose cases, and my conclusion is thatparties still get a lot for their money,with experienced and competentarbitrators dedicated to the resolutionof their disputes, but without thefinancial tools to do a complete job, thearbitrators can hardly achieve thesame results as in Western Europe.

10. I cannot leave the subject withoutsaying something about Scandinavia,where the oldest, biggest and mostexperienced arbitration institute isthat of the Stockholm Chamber ofCommerce. It works on a tariff system

which results in arbitration costs atmaybe 75% of ICC costs in a typicalcase. Combined with the intuitivesimplicity of arbitration procedure inSweden and the reasonable fees oflocal lawyers, there is much thatrecommends Stockholm as the placefor international arbitration, especiallyas it is a venue that enjoys broad ac-ceptance throughout Europe and theformer Soviet Union.

ARBITRATINGCOMPETITIONLAW ISSUES

The Dublin Forumon Arbitrationand CompetitionLaw 2007Thanks to the initiative of JamesBridgeman, a Chartered Arbitrator andleading barrister of the Irish bar, the DublinForum on Arbitration and Competition Lawhad its first gathering at Chambers Irelandin Dublin on 15 June 2007. Attendance atthis first Forum was confined to membersof the former International Chamber ofCommerce (ICC) Task Force on ArbitratingCompetition Law Issues, which completedits mandate in late 2006, and some selectfew from outside the institutional frame-work of the ICC. Participants included, toname but a few, Andrew Burr, a London-

Gordon Blanke MCIArbAssociate, InternationalArbitration GroupSJ Berwin LLP, LondonE gordon.blanke@sjberwin.com

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based barrister; Karl Johann Dhunér ofDhunér Järvengren Advokatbyrå, Stock-holm; Antti Järvinen of Hannes Snellman,Helsinki; Assimakis Komninos of White &Case, Brussels; Noreen Mackey, LegalAdvisor of the Irish Competition Authority;Daniel Margolis, a U.S. arbitrator andantitrust specialist; John Tirado of NortonRose, London; and Charles Verill of WileyRein, Washington. Lead discussionpapers were presented by Diederik deGroot of DLA Piper, Amsterdam, GordonBlanke of SJ Berwin LLP, London, andMichael Blechman of Kaye Scholer LLP,New York. Andrew Whittaker attended theForum in his capacity as publisher andeditor of Ireland’s leading competition lawjournal “Competition”.

The intended mission of the Dublin Forumis to provide a permanent, yet flexible anddeliberately non-institutional discussionforum for the ongoing discourse onarbitration and competition law. Therelationship between these two domainshas proven to be highly evolutionary overthe past two decades, showing a strongpotential to develop into an academic andprofessional discipline in and of its ownright. The Forum subscribes to the further-ance of this evolution and the increasedspecialism and professionalism that ac-company it.

The first Forum was carefully designed toset the stage for future Fora, introducingthe main themes of the discourse onarbitration and competition law in bothEurope and the United States of America.Diederik de Groot led the first round ofdiscussions on the “second look” in theaftermath of the legendary Eco Swiss/

Benetton judgment of the European Courtof Justice9. Appearing as former Benettoncounsel before the Dutch judiciary in thiscase, de Groot gave an insider account ofthe proceedings before the Dutch andLuxembourg courts, culminating in theECJ’s famous conclusion that Article 81 ofthe EC Treaty falls within the notion of“public policy” under Article V of the NewYork Convention , thus laying the groundsfor the application of the “second look”doctrine in Europe. In de Groot’s view, theCourt effectively used the “public policy”concept under the New York Convention10

to “unlock the second look” and theEuropean law principle of effet utile toallow it to broaden the review undertakenby the member state courts, which maywell suffer from domestic rules ofprocedural inertia or passivity. The prin-ciple of effectiveness thus supersedesany procedural allowances at the nationallevel to avoid a review if such allowancesimply that the enforcement of a company’srights under European (competition) law isrendered exceedingly difficult or im-possible11. In this context, de Groot high-lighted the varying intensity of the nationalcourts’ reviews, ranging from “minimialist”in case of the Paris Court of Appeal inThalès v. Euromissile12 to “maximalist” in therecent Dutch case of Van Raalte v. MDI13.

In Komninos’s view, the Paris Court ofAppeal’s assessment carries more weightgiven the French court’s exposure to theICC in Paris and its considerableexperience in competition law matters.Blanke raised the issue of the exactmeaning of a “substantive review” in thiscontext, it being understood that anarbitrator faced with a competition law

issue will have to provide detailedreasoning in the award on the competitionlaw considerations made by him. Review-ing such an award in detail, even withoutre-opening the case per se, may wellamount to a substantive review withinthe ordinary meaning of that term. Dis-cussions continued on the arbitrator’s exofficio duty to raise competition law issuesof his own motion, the participants beingsplit as to the existence of such a duty. DeGroot emphasised that no such duty wasexpressly laid down by the ECJ in itsjudgment in Eco Swiss. Michael Blechmanvoiced his concern that as comparedto the American approach since Mit-subishi14, European arbitrators seemed tohave surprising difficulties in dealing withantitrust issues brought before them. Inthe United States, antitrust issues wouldbe treated by the arbitrator like any otherstatutory infringement and in case theparties prevented him from dealing withan antitrust infringement in the arbitralproceedings, he would simply resign.Blanke explained that one of the reasonswhy the treatment of competition lawwas so sensitive from a Europeanperspective may well be the underlyingidea of European integration, of whichthe competition law provisions form aninseparable part. Under the EC Treaty,European citizens have rights andduties, including compliance with the ECcompetition law provisions. Komninosconfirmed that an arbitrator endorsing acompetition law infringement through anaward could potentially be treated as anundertaking within the meaning ofCommunity law and fined by the EuropeanCommission accordingly.

9 Case C-126/97, Eco Swiss China time Ltd. v. Benetton International NV, [1999] ECR I-3055.10 Convention on the Recognition and Enforcement of foreign arbitral awards, done at New York, on 10 June 1958.11Citing, by way of example, the ECJ’s judgment in Case C-312/93 - Peterbroeck Van Campenhout & Cie SCS v. Belgian State, [1995] ECR I-4599.12 Paris Court of Appeal, Decision of 18 November 2004, Thalès Air Défense v. Euromissile e.a. In this case, the Paris Court of Appeal upheld an award that did not discuss

relevant competition law issues at all given that these had not been raised by either the parties or the tribunal during the arbitral proceedings.13 Marketing Displays International Inc. v. VR Van Raalte Reclame B.V., Judgment of the Court of Appeal of The Hague of 24 March 2005. In this case, the Dutch Hooge Raad

undertook a detailed substantive review of an award discussing and adjudicating upon relevant competition law issues.14 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc, 473 U.S. 614, 628 (1985). The Mitsubishi decision sanctions the arbitrability of antitrust law issues in the U.S.

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Gordon Blanke led the second round ofdiscussions on the latest developments ofthe use of international arbitration in ECmerger control. Blanke provided a generalintroduction to the core concepts of theCommission’s practice in this field andhow a typical arbitration commitment forthe correct implementation of a behav-ioural remedy works. Blanke stressed thatmost of these remedies constitute accesscommitments, which require medium- tolong-term monitoring. Arbitration commit-ments impose a unilateral erga omnesobligation on merging parties to submit toarbitration vis-à-vis a third party bene-ficiary of rights flowing from the mergerremedy package. Non-compliance by themerged entity is likely to trigger theCommission’s own investigations, giventhat as “guardian of the Treaties”, theEuropean Commission remains respons-ible for the correct implementation of theremedies at hand. Blanke further empha-sised that in adjudicating the correctimplementation of the remedies, thearbitrator does not usurp the Com-mission’s regulatory function. In fact, thearbitrator’s mandate is complementary tothe role played by the Commission, whichpreserves its prerogative to imposetraditional public law sanctions on anintransigent merged entity. The arbitrator,in turn, is entitled to award private lawremedies, including compensatory da-mages and ordering specific performanceof the remedies under the mergerclearance decision. Blanke discussed theCommission’s latest merger clearancedecision incorporating arbitration com-mitments15. It appears from some of thesedecisions16 that the Commission is deve-loping a new role for the so-called

monitoring trustee, whose main functionused to be confined to overseeing theimplementation process of the remedies.The monitoring trustee is now attributed anactive role in the dispute resolutionmechanism, making settlement proposalsduring the preliminary negotiationsphase and providing his assistance to thearbitral tribunal during the arbitrationproceedings. These new functions of themonitoring trustee are not clearly definedand it remains questionable to what extentthe tribunal becomes exposed to undueinterference by the monitoring trustee,quod non debet. Blanke concluded bypraising the Commission’s recent move toformalise its arbitration policy in the newdraft Notice on Remedies17, cautioning,however, that the Commission would bewell-advised to clarify the role of themonitoring trustee in any of the disputeresolution mechanisms foreseen under theRemedies Notice.

In the ensuing discussions, Noreen Mackayconfirmed that it would be very importantfor the European Commission to clarify therole of the monitoring trustee in the disputeresolution commitment in order to avoidmotions for setting aside or non-enforce-ment before the national courts. Komninosalso emphasised the need for clarity andwarned that competition authorities had tobe careful not to use dispute resolutionmechanisms nonchalantly, making refer-ence to the recent use by the Office of FairTrading of a “resolution” clause in its“undertakings in lieu of reference” and theconfusing use by the French CompetitionAuthority of third-party expertise in itsrecent Merger Guidelines.

Michael Blechman led the third round ofdiscussions, giving a tour d’horizon ofcurrent issues in the U.S. on arbitratingantitrust claims. Following a brief historicaloverview and a distinct reference to thefamous Mitsubishi decision, which, inretrospect, has been interpreted as thefons origo of the arbitrability of antitrustlaws in the U.S., Blechman set out somesine qua non conditions for an antitrustdispute to be arbitrable in the U.S.,including the availability of trebledamages, the wording of the underlyingarbitration clause, the ambit of U.S.discovery provisions in arbitration pro-ceedings and the enforcement of theresulting arbitral awards. Most recently,the U.S. courts held that “[p]articipatingin arbitration may result in limiteddiscovery.”18 Interestingly, in another morerecent case19, the U.S. courts held that adistrict court of the district in which aperson resides or is found may order thatperson to give its testimony or statementor produce a document or other thing foruse in a non-U.S. arbitration. As regardsthe unique availability of class actions inthe U.S., the First Circuit recently refusedin Kristian v. Comcast20 to enforce a classaction bar where enforcement would“shield [the defendant] from privateconsumer antitrust enforcement liability,even in cases where it has violated thelaw” and would render plaintiffs “unable tovindicate their statutory rights.” It wouldappear, however, that a class action barstands where the amount claimed isminimal21. As regards the enforcement ofantirust awards, review by the U.S. courtsis minimalist: The award will therefore beenforced provided the tribunal did con-sider the underlying antitrust issue.22

15 Comp/M.3998 - Axalto/Gemplus, Commission decision of 19 May 2006; Comp/M.4180 - Gaz de France/Suez, Commission decision of 14 November 2006; Comp/M.3916 - T-MobileAustria/Tele.ring, Commission decision of 26 April 2006; and Comp/M.4314 - Johnson & Johnson/Pfizer Consumer Healthcare, Commission decision of 11 December 2006.

16 See Axalto/Gemplus, cited supra; Gaz de France/Suez, cited supra; and T-Mobile Austria/Tele.ring, cited supra.17 Commission Notice on remedies acceptable under Council Regulation (EEC) No 139/2004 and under Commission Regulation (EC) No 802/2004 (2007/), electronically

accessible at http://ec.europa.eu/comm/ competition/mergers/legislation/draft_remedies_notice.pdf.18 Kristian v. Comcast Corp, F.3d, 2006 WL 1028758 (1st Cir. Apr. 20 2006).19 Re Application of Roz Trading Limited, (N.D.Ga. 2007).20 Cited supra.21 Muhammad v. County Bank of Rehoboth Beach, (N.J. 2006).22 Baxter International v. Abbot Laboratories, 3157.3d 829 (2003).

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Komninos observed that the Frenchapproach to the enforcement of antitrustawards seemed even more “liberal” thanthe American one, recalling that in therecent Thalès decision23, the Cour d’Appelof Paris held that an award would standeven where relevant competition lawissues had not been discussed by thearbitral tribunal at all.

To mark the occasion, the Forum closedwith a convivial dinner of all participantsand their better halves at the HibernianGentlemen’s Club on Stephen’s Greenin Dublin, which was kindly hosted byJames Bridgeman.

Special ICCUK WorkingSession onArbitratingCompetitionLaw Issues

Coinciding with the American Indepen-dence Day, the ICC United Kingdom – inpartnership with Addleshaw GoddardLLP and SJ Berwin LLP – held a specialworking session on the key issues ofarbitrating competition law issues on 4July 2007, giving the floor to an array ofdistinguished speakers in the field. SJBerwin kindly hosted the event, which wasattended by leading counsel and legaladvisors from the City of London.

Following some introductory remarks byJohn Merrett, the Arbitration and ADRConsultant of the ICC UK, who emphasi-

sed the ICC’s particular interest in thesubject-matter, and Carl Nisser of SJBerwin LLP, who underlined the im-portance of competition law in inter-national arbitration more generally, MarkClough QC of Addleshaw Goddard tookthe chair.

Nicholas Green QC of BrickcourtChambers and Michael Bowsher QC ofMonckton Chambers started off thesession by giving their personal views andexperiences of arbitrating competition lawissues. Green emphasised that arbitrationissues arise with increasing regularityin international commercial disputesand need to be dealt with adequatelyby the tribunal. More specifically, Greendiscussed the frequently raised Euro-defence to avoid the enforceability of acontract that is claimed to be illegal andvoid ab initio under Article 81 of the ECTreaty, which he metaphorically referredas the “rogue’s charter”. In Green’s view,arbitrations arising in the context of ECmerger control to monitor the correctimplementation of behavioural remediesconstitute – as opposed to ordinary anti-trust arbitrations – an entirely transparentprocess, as the facts of and parties to thecase are known from the outset, i.e. sinceadoption of the original conditionalmerger clearance decision.

Michael Bowsher QC framed his personalview of the subject-matter against thebackground of the fundamental principlesof international arbitration, discussing allsacrosanct principles of arbitration andtheir significance in competition law arbi-trations. In particular, Bowsher queried theexistence of an ex officio duty on part ofthe arbitrator to raise competition lawissues of his or her own motion in theaftermath of the Eco Swiss24 jurisprudenceof the Community courts in Luxembourg

and in how far an answer to this questionmay be guided by the arbitrator’s duty torender an enforceable award. Bowsherfurther highlighted the controversial riftbetween the parties’ private interestspursued in arbitration proceedings andthe public interest that lies at the heart ofcompetition law investigations.

Dr. Assimakis Komninos of White & Case,Brussels, spoke about practical issuesthat arise in ordinary antitrust arbitrationsinvolving Articles 81 and 82 of the ECTreaty. Starting off with an explanation ofthe basic principles of the interrelation ofEC competition law and arbitration,Komninos explained that arbitration as aprivate dispute resolution mechanism isperfectly compatible with the free tradeideas of the internal market, especiallygiven that the Treaty of Rome alreadyprovided for a mechanism to be de-veloped for the free movement of arbitralawards throughout the internal market25.According to Komninos, sham arbitrations,whereby the parties try to resort to a placeof arbitration which allows them to avoidthe resolution of any competition lawissues that may arise from an ordinarycommercial dispute, have become aphenomenon of the past. For Komninosthere is no doubt that an arbitrator has aduty to apply Article 81(3) EC whendealing with contractual illegality claimsunder Article 81 EC. He also underlined

23 Cited supra.24 Case C-126/97, Eco Swiss China Time Ltd. v. Benetton International NV, [1999] ECR I-3055.25 Cf. Art. 220 of the Treaty of Rome of 25 March 1957.

Stuart Davis and Carl Nisser

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that in most leading European juris-dictions, competition law is, no doubt, ar-bitrable, the defining parameter being thescope of the underlying arbitration clausealong the lines of the English High Court’sdecision in ET Plus SA v. Welter26. Kom-ninos concluded by giving some practicalguidance, including, most importantly, thatarbitrators should and do respect thecompetition law rules and are usually verycompetent in their application and that anarbitral tribunal is very unlikely to uphold ahard core restriction, such as a cartel.

Speaking in his private capacity, Dr.Renato Nazzini of the Office of FairTrading, London, discussed the roleplayed by the European Commission andnational competition authorities in antitrustarbitrations. Nazzini distinguished merger-remedy-related arbitrations as theseexpressly allow the intervention of theEuropean Commission to the extentprovided for in the arbitration commitment.With respect to ordinary antitrust ar-bitrations, Nazzini advocated as littleintervention by the public authorities aspossible, Regulation 1/200327 not beingapplicable in the arbitration context. Theauthorities should, in fact, only intervene atthe enforcement stage of the final award,and not during the arbitration proceedingsthemselves. As regards parallel pro-ceedings before an arbitral tribunal andthe European Commission, Nazzinisuggested that an arbitrator is not obligedto stay the arbitral proceedings, pendingthe Commission’s decision, but cautionedthat according to Cooke J in Lauritzen vLady Navigation, Inc28., an arbitrationaward that was incompatible with aCommission decision would be set aside.Against this background, it is bestpractice for the arbitrator to take a relevant

Commission decision into accountwhen rendering an award. By way ofconclusion, Nazzini stressed that ar-bitrating parties should not worry aboutcompetition law issues arising in anarbitration, as arbitrators would beperfectly capable of dealing withcompetition law issues as they arise.

Gordon Blanke of SJ Berwin LLP, London,spoke about the Commission’s recent useof international arbitration in EC mergercontrol. According to Blanke, internationalarbitration is an ideal self-enforcementmechanism for behavioural remedies thatgive enforceable rights to third-partybeneficiaries. Most of such remediesconstitute so-called access commitments,whereby the merged entity promises togive access to an essential facility, keytechnology or key infrastructure it controlsto third-party competitors. Blanke em-phasised that the Community courts’express approval of the use of arbitrationin behavioural merger remedies in easyJetv. Commission29 and the Commission’sincreased use of behavioural remediessince the European Court of FirstInstance’s landmark ruling in Gencor v.Commission30 meant that merging partiescould now propose to the Commissionbehavioural remedies backed up by anarbitration commitment as a monitoringmechanism and producing quasi-structural effects on the internal market,rather than offering more burdensomestructural remedies. Third-party competi-tors, in turn, could trigger the arbitrationmechanism as en effective and cost-efficient means to enforce their rights ofe.g. access to the merged entity’sessential facility, recovering private lawdamages caused by the merged entity’sintransigence and specific performance

of the relevant behavioural remedyconcerned.

Stuart Davis, Competition Counsel of BGGroup, London, offered a user’s per-spective on arbitrating competition lawissues. Davis underlined that in businessreality, commercial parties may wellagree to enter into illegal agreements onthe basis or in the hope that thecontracted parties may never need toenforce the agreement in the future. Healso confirmed that a company would nothesitate to use a Euro-defence ininternational arbitration proceedings.With respect to the use of arbitrationcommitments in EC merger control, Davisemphasised that even though thearbitration mechanism is a viable andefficient way to monitor the medium- tolong-term implementation of behaviouralremedies, the Commission should cautionnot to accede to behavioural remedyoffers all too readily as their quasi-structural effect on the market may bedeceiving and not carry through in a realmarket environment.

Judge Nicholas Forwood of the EuropeanCourt of First Instance concluded theworking session with a view from thebench. By way of introduction, JudgeForwood explained that his understandingof the Eco Swiss jurisprudence was

26 ET Plus SA & Ors v Welter & Ors, [2005] EWHC 2115 (Comm).27 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L1, at p. 1.28 Lauritzen Cool AB v Lady Navigation Inc, Judgment of the Commercial Court of 12 November 2004, [2004] EWHC 2607.29 Case T-177/04 - easyJet v Commission, Judgment of the Court of First Instance of 4 July 2006.30 Case T-102/96 - Gencor v Commission, Judgment of the Court of First Instance of 25 March 1999, [1999] ECR II-753.

Judge Nicholas Forwood and his daughter Genevra

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that the notion of EC competition law aspublic policy was not absolute andcounterbalanced by the procedural re-quirements of the supervisory courts atthe national level. However, he also citedthe recent case of Mostaza Claro,31 on thebasis of which the public policy conceptappeared to receive a wider interpretationthan in the European judiciary’s previouscase law. Judge Forwood also confirmedthat the use of arbitration commitmentsas monitoring mechanisms to ensurethe implementation of behavioural mech-anisms in EC merger control was no doubtvery useful. He further queried whetherthe European Commission could imposean arbitration obligation within the contextof Articles 81 and 82 EC, this problemcurrently being under consideration by theEuropean courts. Pursuant to Ford Right-Hand Drive, companies should have thefreedom to decide how to bring anantitrust infringement to an end.

SWEDEN

SCC Institutehas AdoptedNew Rules

Effective 1 January 2007, new rules havebeen adopted by the SCC Institute,replacing the previous rules dating from1999. No dramatic changes have beenintroduced, but the new rules have beenredrafted so as to be understood moreeasily. They strengthen party influenceover the arbitral process in certainrespects. Further, there is now a limitedpossibility to consolidate proceedingsinvolving the same parties and legalrelationship. The rules on evidence havebeen changed, partly to reflect currentSwedish practice which conforms tomainstream international arbitration. Aseparate award may now be given incourse of the arbitration in order to force arecalcitrant party to pay requiredadvances on costs. Interim relief may begranted in the form of an order oran award. Full details are availableon the SCC Institute web site,www.sccinstitute.com. An article on thesubject authored by Annette Magnussonand Patricia Shaughnessy has beenpublished in Volume 2006:3 of theStockholm International ArbitrationReview, pp 33 -66.

SJ BERWIN’SINTERNATIONALARBITRATIONGROUP

Profile ofSusanne Heger

Susanne was born in Vienna, where shewent to school and studied law at ViennaUniversity. Having finished her studies withthe degree of a “magister iuris”, she de-cided to continue postgraduate studies atMoscow State University, making use ofthe Russian language skills she hadobtained at the “gymnasium”. Living inMoscow was very exciting in the times ofGorbatschow’s “Perestroika”. For a year,Susanne went to Lomonosov State Uni-versity, studying “joint ventures”, whichallowed the first foreign investments in theSoviet Union and their legal environment.For her legal analysis of Soviet legislationshe was awarded a doctor’s degree at theUniversity of Vienna, her work was alsopublished as one of the first studies ofSoviet business law from a Western pointof view.

Back in Vienna, Susanne gained her firstprofessional experience in the field ofinternational project finance in one ofAustria’s major banks. An offer of the lawfirm Clifford Chance to work in Moscow

31 Case C-168/05 - Mostaza Claro v. Centro Móvil, Judgment of the European Court of Justice of 26 October 2006.

Dr. Assimakis Komninos, Genevra Forwood and TaniaBaumann of the ICC UK

Per RunelandConsultant, InternationalArbitration GroupSJ Berwin LLP, LondonE per.runeland@sjberwin.com

Dr. Susanne Heger, FCIArbConsultant, InternationalArbitration Group, SJ Berwin LLPAttorney-at-Law, Partner,Heger & Partner Attorneys at LawE susanne.heger@hegerpartner.com

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was very tempting, so Susanne decided toreturn to Moscow. During her Moscowyears, Susanne practised in a perma-nently changing legal environment. Shewitnessed the collapse of the Soviet Unionand the total overthrow of the political,economical and social system. At thesame time, she gained significantprofessional experience, leading teams oflawyers in major cross-border trans-actions. In addition to her practical work atClifford Chance, Susanne studied at theInstitute of State and Law of the RussianAcademy of Sciences, which she com-pleted with a doctorate in Russian law.

After such an exciting and tense period oflife, it wasn’t easy for Susanne to return toVienna. The strict and conservative rulesof the Austrian legal profession requiredher to practise at Austrian courts andAustrian law firms to become admitted tothe Vienna Bar. She completed thatprocess, accepting it as an unavoidablenecessity and making the best out of it.

In 1999, Susanne felt confident enough toopen her own office. Soon she started tospecialise in international arbitration.Within a few years Susanne gainedsignificant experience in that field, actingas sole arbitrator, co-arbitrator, presidingarbitrator and party representative innumerous arbitrations under the “ViennaRules” of the Vienna International ArbitralCentre, under the rules of the ICC and theMoscow International Arbitration Courtand in ad hoc arbitrations under theUNCITRAL Rules.

In addition to her contentious work,Susanne spends a significant amount oftime working on general commercialmatters and real estate transactions.

Susanne’s history with SJ Berwin beganin June 2003, when she met DavidGoldberg at an arbitration conference inVienna. Initially, she helped David as atutor to run training courses for Russian

lawyers under the auspices of the Anglo-Russian Law Association and theChartered Institute of Arbitrators. WhenSJ Berwin established its InternationalArbitration Group, Susanne was invited tojoin it as a consultant.

Susanne is one of the four members of thePresidium of the Austrian ArbitrationAssociation and, in addition to being aFellow of the Chartered Institute ofArbitrators (FCIArb), an approved tutor ofthe Institute in London.

Susanne has been married for 17 yearsand she has a 13-year-old daughter and a9-year-old son.

It follows quite naturally from Susanne’sprofessional development that shedecided to present to the Russianspeaking world a book on the newAustrian arbitration legislation, whichcame into force in July 2006. Her bookwas published by Wolters Kluwer Moscow.It contains a Russian translation of theAustrian arbitration legislation and a shortcommentary on it, as well as a Russiantranslation of the “Vienna Rules” of theVienna International Arbitral Centre.

“Commentary on NewAustrian Arbitration Law”Published by:Wolters Kluwer MoscowISBN: 5-466-00210-0200 pagesPrice: RUR400

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FORTHCOMINGEVENTS

Hot Topics inInternationalArbitration 2007

Monday, 24 September 2007

at SJ Berwin LLP, 10 Queen Street Place,London EC4R 1BE, UK

The International Arbitration Group ofSJ Berwin LLP has pleasure in invitingSans Frontières readers to an eveningseminar looking at the hot topics ininternational arbitration in 2007, includingthe use of anti-suit injunctions to enforcearbitration agreements; the use of moneylaundering defences in arbitration;obtaining discovery in the U.S. in aid ofinternational arbitration using the 1782procedure; and recent challenges toarbital awards.

The highly-esteemed chairman of thisevent is Lord Grabiner QC, Head ofChambers at One Essex Court Chambers,and our impressive array of pre-eminentspeakers include Dr. Balz Gross, Partnerat Homburger; H.Bradford Glassman,Partner at Baach, Robinson & Lewis PLLC;Khawar Qureshi QC, Barrister at SerleCourt Chambers; and Justin Michaelson,our own International Arbitration Partner.

The event will start with registration at18.15hrs, seminar commencement at18.30hrs and will be followed by a drinksreception from 19.30hrs.

SJ Berwin is accredited as a provider ofcontinuing professional development by theLaw Society and other professional bodies.

Attendance at each seminar qualifies as1 CPD hour, quoting reference 012/SJBE.

RSVP by email to martin.punt@sjberwin.comincluding in the message your name andorganisation or alternatively by fax on 0207111 2000. Colleagues are welcome tocome with you or in your place.

We hope you will be able to join us in whatpromises to be an unmissable event in thearbitration industry calendar!

Mediation inResolvingCommercialDisputes

Friday, 12 October 2007

at the Moscow District Arbitration Court

SJ Berwin LLP and Mediation and LawCentre with support of the Association ofRussian Lawyers and the Anglo-RussianLaw Association are organising aconference on “Mediation as a method ofresolving commercial disputes” to be heldon 12 October 2007 at the Moscow DistrictArbitration Court.

Nowadays, mediation is graduallyintegrating into the business tool kit ofRussian companies. This is caused not onlyby the necessity of being involved ininternational activity, but by positive trends ofRussian business and society as a whole.

The conference “Mediation in resolvingcommercial disputes” will provide anopportunity to familiarise the participantswith extensive experience of Britishcolleagues in the field. Mediation hasbecome one of the most popular methodsof dispute resolution in Britain.

David Shapiro, who is a well-knownmediator in Britain and USA, will be one ofthe speakers at the event. David is amember of the Panel of IndependentMediators, solicitor, accredited member ofCentre of Effective Dispute Resolution(CEDR) and a member of the InternationalAcademy of Mediators.

Other speakers at the conference willinclude British solicitors and Russianlawyers with experience in alternativedispute resolution.

The conference will include a practicaldemonstration (mock case) in resolving acomplicated commercial dispute.

If you would like to attend the conference,please contact us to confirm yourparticipation before 30 September 2007.RSVP to Ksenia Velikina and IrinaVinogradova by email atpr@mediacia.com or by telephone;+7(495)253-11-11, 656-45-33, 544-81-84.

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SJ Berwin LLP

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Editor: Gordon Blanke MCIArbgordon.blanke@sjberwin.com

This bulletin is not intended to offer legal advice andyou should not act upon the matters referred to withinit without taking specific advice.

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