FAI arbitral tribunal’s jurisdictional decision in a shareholders’ agreement dispute

Introduction

FAI arbitrators are called upon to decide all kinds of commercial disputes. Although the types of disputes submitted to FAI arbitration vary to some extent from one year to another, cases related to various corporate transactions typically constitute the largest share of all FAI arbitrations. This includes sale of business, mergers and acquisitions, and shareholders’ agreements.  (more…)

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FAI arbitral tribunal’s decision regarding a document production request

Background

Two Finnish companies, A and B, had entered into a business purchase agreement (“Agreement”) whereby B acquired from A the assets of a company engaged in private healthcare business. The Agreement was governed by Finnish law and the arbitration clause provided that any disputes shall be resolved in FAI arbitration proceedings before a sole arbitrator. (more…)

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Jurisdictional Decision Finding that an FAI Arbitration Clause in a Draft Agreement was Valid and Binding on the Parties

The post Jurisdictional Decision Finding that an FAI Arbitration Clause in a Draft Agreement was Valid and Binding on the Parties appeared first on Kluwer Arbitration Blog.

Introduction

It is not unusual that parties to FAI arbitration proceedings raise various jurisdictional objections before the Finland Arbitration Institute (“FAI”) and, provided that FAI will nonetheless allow the arbitration to proceed, subsequently also before the arbitral tribunal. Such objections come in all shapes and sizes. For example, respondent may dispute the existence of an arbitration agreement on the grounds that the main contract in which the alleged arbitration cause is embedded is merely a draft which was neither finalized nor accepted by the parties and which is therefore not binding on them. The following case from the recent FAI practice serves as an example of how an arbitral tribunal seated in Finland addressed this question under Finnish law.

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Further practice on the application of the “cut-off date” provision in Article 33.3 FAI Rules

Background

The “cut-off date” provision in Article 33.3 FAI Rules was one of the main innovations of the 2013 FAI Rules revision process. It gives the arbitral tribunal the power – after consulting with the parties – to set a specific cut-off date “prior to the commencement of any hearing”, and to “order that after the cut-off date, the parties will not be allowed to present any new claims, arguments or documentary evidence on the merits of the dispute, or to invoke any new witnesses not previously nominated, unless the arbitral tribunal in exceptional circumstances decides otherwise”.

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FAI award addressing the recoverability of the costs of injunction proceedings in the subsequent FAI arbitration

Background

In the arbitration practice, a question sometimes arises whether a party may seek reimbursement of costs that are not directly related to the arbitration itself but to some ancillary proceedings. For example, a party may have resorted to a state court for conservatory or other interim measures of protection before initiating the arbitration proceedings. Are the costs of such interim measure proceedings recoverable in the following arbitration?

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FAI award declaring a service agreement terminated due to a material breach of contract

Background

Below is a brief description of an FAI arbitral award rendered in a cross-border dispute regarding the termination of a business contract governed by Finnish substantive law. The seat of arbitration was Helsinki, and the arbitral tribunal was composed of three arbitrators, all of whom were of different nationalities (but all with a civil-law background). The factual circumstances of the dispute were as follows:

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Arbitral Tribunal’s ruling on a breach of confidentiality obligations

Background

A FAI arbitral tribunal recently rendered an award in a cross-border dispute where the tribunal had to assess the interplay between the contractual confidentiality obligations binding on the parties, on one hand, and the respondent party’s alleged right to disclose confidential information to third parties for the purposes of pleading its case in the arbitration, on the other hand. The key elements of the dispute can be summarized as follows:

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FAI award addressing the principles of contract interpretation under Finnish law

Background

An international arbitral tribunal constituted under the FAI Rules recently rendered a final award in a post-M&A dispute between Finnish company A and German company B. The dispute concerned the calculation of purchase price in an M&A transaction: Claimant (seller) A contended that the wording of the Sale and Purchase Agreement (“SPA”) concluded between A and B was accidentally formulated in a way that did not correctly reflect the parties’ mutual intention, with the result that Respondent (buyer) B had paid millions of euros less purchase price than it ought to have paid. Respondent B denied all claims raised against it, mainly relying on the unambiguous wording of the contract document.

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Sole Arbitrator’s jurisdictional decision finding that an arbitration clause contained in a loan agreement was valid and binding on both the lendee and the guarantor

Background

On 6 June 2009, A (a Finnish entity) and B (an Indian company) entered into a loan agreement, which was subsequently amended three times: twice in 2009 (the first and second amendment), and once in October 2012 (the third amendment) (hereinafter collectively referred to as the “Loan Agreement”). Pursuant to the terms of the Loan Agreement (as amended), B had received from A in three drawdowns a total amount of USD 4,214,269.12 as a loan.

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Sole Arbitrator’s decision on the interpretation of Article 33.3 FAI Rules

Article 33.3 FAI Rules contains an important provision designed to promote swift and cost-efficient resolution of a dispute submitted to FAI arbitration. It empowers the arbitral tribunal, after consulting with the parties, to set a so-called “cut-off date” prior to the commencement of an evidentiary hearing and to order that “after the cut-off date, the parties will not be allowed to present any new claims, arguments or documentary evidence on the merits of the dispute, or to invoke any new witnesses not previously nominated, unless the arbitral tribunal in exceptional circumstances decides otherwise”.

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