By Amel Abdallah (Assistant professor at College of Law –Sultan Qaboos University-Oman)
Sultanate of Oman has shown an increased willingness to attract foreign investment by updating its legal environment. In particular, Omani courts have recognized that public entities can validly enter arbitration agreements with private entities. In doing so, any disputes arising out of a contract underlying the arbitration agreement will be subject to arbitration rather than to the Omani courts.
The first step in changing the legal landscape was in 1994, with the adoption of Article 14 of the Omani Foreign Capital Investment Law (“OFCIL”). This law permitted disputing parties to settle their disputes by arbitration (Art. 14 Royal Decree No. 102/1994: “It may be agreed to refer any dispute between the foreign investment projects and third parties to a local or international arbitration tribunal.”). Moreover, the new law was an exception to Omani civil and commercial procedure law OCCPL, which required all disputes with Omani nationals to be resolved by Omani courts (see Art. 29 Omani civil and commercial procedure law –Royal Decree 29/2002).
Continue reading Arbitration in Administrative Disputes in Oman
By Daniel Becker Paes Barreto Pinto (Legal intern at Tauil & Chequer Advogados in association with Mayer Brown LLP) and Matheus Sousa Ramalho (Legal intern at Karim Vakil & Cruz Vizaco Advogados)
In 2007, Paranapanema S.A.(Paranapanema), a metallurgical company, took a loan from two financial institutions: Banco Santander S.A. (Santander) and BTG Pactual S.A (Pactual). A clause in this loan agreement allowed Paranapanema to pay the debt with its own stocks. However, in order to ensure that the stocks would cover the whole debt, the parties decided to enter into several collateral subordinated risk swap agreements.
Continue reading Suspension of the effects of an arbitral award by virtue of the breach of the equal treatment of the parties: the Paranapanema Case
By Elodie Dulac (Senior Associate, King & Spalding, Singapore)
Ethiopia is a developing country which is increasingly attracting foreign investment and is “new” to international arbitration. It is of course not an isolated example in this respect. I picked Ethiopia because it is a country I have been regularly travelling to for the past few years. It is interesting to hear the perspective on international arbitration of Ethiopian lawyers and businessmen. For those who will be involved in international transactions, most of these transactions will not be high-value ones going to the top 5 arbitration institutions and arbitration seats worldwide. These are not the users of international arbitration most of us are usually exposed to. How available is international arbitration to them in practice, or how available do they perceive it to be?
Continue reading International Arbitration Through the Prism of Users from a Developing Country, Ethiopia
By Dr. Stavros Brekoulakis (Professor in International Arbitration and Commercial Law, School of International Arbitration, Queen Mary University of London)
As international arbitration becomes increasingly more popular, certain aspects of private decision-making come under scrutiny, often under intense criticism. Although criticism against investment and commercial arbitration arises in different fashion and volume, critical voices coming from both the public domain and academia raise legitimate questions, such as: who are these individuals that act as arbitrators and have the power to decide issues with important implications on national public policy and sovereignty? How do arbitrators decide?
Continue reading Arbitral decision-making and ethical regulation of arbitration: Have we gone too far?
By Epaminontas Triantafilou, (Of Counsel, Quinn Emanuel, London)
Witness examination, and in particular cross-examination, is a legal process familiar to many due to its frequent use in the numerous legal TV shows and in cinema – discounting of course for the several inaccuracies inserted in the name of poetic license that have caused at least one seasoned professional to leap from his armchair “in a shower of biscuits and fury“.
Rooted in the common law, the practice of counsel examining a fact or expect witness is a well-established way of seeking to confirm or impeach the veracity and accuracy of evidence, or the credibility of the witness. Simultaneously, counsel for the side that presents the witness has the opportunity to defend the witness during cross-examination, and to rehabilitate the witness on re-direct.
It is perhaps trite to note that cross-examination in international arbitration takes place astride the rift that exists between the civil law and the common law as to the presentation of evidence. In simple terms, the civil law lays emphasis on documentary evidence and in many instances discounts entirely the testimony of “partial” witnesses. By contrast, the common law encourages the “testing” of witness evidence by direct confrontation in open court, and allows for credible witness testimony to supersede documents in evidentiary value. In common law systems, cross-examination is a potent weapon, if deployed effectively.
Continue reading Witness examination in international arbitration: doing it right is only the beginning