French Cour de Cassation emphasizes principle of independence of arbitrators – Alvarez decision on conflict of interest upheld

In a recent decision (Cour de Cassation, Civ. 1, 16 December 2015, N°D14-26.279), confirming the decision of the Paris Court of Appeal (Cour d'appel de Paris, pôle 1, chambre 1, n°13/13459, 14 October 2014), the French Cour de Cassation (Supreme Court) has again emphasized the principle that the independence and neutrality of arbitrators is of paramount importance.

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Filed under Arbitrators, Europe, Independence

GPC Series on the future of dispute resolution: first event in Singapore on 17-18 March 2016

Herbert Smith Freehills is proud to be a global platinum sponsor of the Global Pound Conference (GPC) Series 2016-17.  This ambitious worldwide conference series will engage all key stakeholders in a conversation about dispute resolution and how it should be used in commercial and civil conflicts in the 21st Century.

Singapore will host the first of a 36-city conference series on the 17-18 March 2016, that will bring together users of disputes resolution services, as well as advisors, providers and other stakeholders. Together, we will discuss how we can improve processes to resolve commercial and civil disputes (whether this be through litigation, arbitration, or alternative dispute resolution processes).  Further details of the programme are found below, as well as information on how to register.

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Filed under ADR, Events, Global Pound Conference, South East Asia

LCIA India to end operations

The London Court of International Arbitration (LCIA) has decided to end its physical presence in India, with the closure of its independent subsidiary, LCIA India.

The decision to end physical presence in India was based on market feedback that Indian parties were content to continue to use LCIA rules, and also owing to insufficient adopters of LCIA India clauses to justify a presence on the ground. The LCIA will revert to its traditional model of offering institutional arbitration services to Indian parties and international parties doing business with Indian counter-parties through LCIA London. It plans to develop legal, language and cultural expertise in its case-work teams to better serve the needs of the Indian market.

Arbitration continues to grow India, and recent judicial pronouncements are generally viewed as being pro-arbitration. For a round-up of recent developments, please see our recent e-bulletin here.

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Filed under India, Institutions

Podcast: 8 top tips for in house counsel in managing an arbitration

In this short podcast, Professional Support Consultants Hannah Ambrose and Vanessa Naish provide 8 top tips for in house counsel in managing an arbitration.

 

For further information or to suggest topics for future podcasts, please contact Hannah Ambrose, Professional Support Consultant, Vanessa Naish, Professional Support Consultant, or your usual Herbert Smith Freehills contact. To request a copy of the Step by Step Guide to Arbitration under the LCIA Rules 2014 referred to in the podcast, contact Arbitration.Info@hsf.com.

 

Vanessa Naish
Vanessa Naish
Professional Support Lawyer
Email
+44 20 7466 2112
Hannah Ambrose
Hannah Ambrose
Professional Support Lawyer
Email
+44 20 7466 7585

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Filed under Arbitration proceedings, Document production, Enforcement, Podcast, Podcasts

Inside Arbitration: the new global publication from Herbert Smith Freehills’ Global Arbitration Practice

We are delighted to share with you the new publication from Herbert Smith Freehills' Global Arbitration Practice, Inside Arbitration. In our first edition:

  • Dr Jacomijn van Haersolte-van Hof, Director General of the London Court of International Arbitration considers how the 2014 Rules are working in practice and the LCIA's efforts to share more information with its users
  • Craig Tevendale talks about how he came to be fluent in Arabic, and how this shapes the perspective he brings to international disputes
  • Donald Robertson and Leon Chun consider the Trans-Pacific Partnership and discusses the breadth of the agreement and the impact it will have in the region and for our clients across the globe
  • Brenda Horrigan talks through her transition from transactional lawyer to arbitration practitioner in Russia, Paris and Shanghai
  • Larry Shore, Christian Leathley and Isabelle Michou look at the various stages in making an investment at which investment risk can be mitigated by investment protection and treaty planning
  • Paula Hodges QC, Konrad de Kerloy and Ante Golem focus on an issue that arose on one of their recent cases that required some creative thinking: pre-emption rights and how to bypass them     

Herbert Smith Freehills' Global Arbitration Practice is also pleased to share with our clients and colleagues in the arbitration market an infographic providing a snapshot of our work in the two years 2013-2015. Amongst other things it identifies the volume of cases and the value of the claims and counterclaims in our portfolio in those two years. The infographic is available here and at page 11 of Inside Arbitration.

We hope that you enjoy reading this first issue of Inside Arbitration. Your comments and feedback are very welcome. 

For more information, please contact Hannah Ambrose, Professional Support Consultant, Vanessa Naish, Professional Support Consultant or your usual Herbert Smith Freehills contact.

Vanessa Naish
Vanessa Naish
Professional Support Consultant
Email | Profile
+44 20 7466 2112
Hannah Ambrose
Hannah Ambrose
Professional Support Consultant
Email | Profile
+44 20 7466 7585

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Filed under Arbitration rules, Australia, Investment Arbitration, News, Public International Law, Publications and Guides, The Americas, TPP

Herbert Smith Freehills secures victory for Kingdom of Spain in investor-state arbitration

Herbert Smith Freehills has helped secure a victory for the Kingdom of Spain in an investor-state arbitration under the Stockholm Chamber of Commerce rules commenced by two European investors Charanne B.V. (Netherlands) and Construction Investments S.à.r.l. (Luxembourg).

The disputes concerned regulatory changes made by Spain in 2010 to the Feed in Tariff regulation governing the PV sector in Spain. The claimants alleged that these regulatory changes breached the investment protection provided for in Articles 10 (fair and equitable treatment and effective means for the assertion of claims) and 13 (expropriation) of the Energy Charter Treaty.

On 21 January 2016, an international tribunal comprised of Alexis Mourre (President), Guido Tawil and Claus Von Wobeser, rejected (by majority) the totality of the claimants' claims and ordered the claimants to pay the Kingdom of Spain's costs (€1.3 million).

To read more please click here.

For further information, please contact Christian Leathley, Partner, Eduardo Soler-Tappa, Partner or your usual Herbert Smith Freehills contact.

Christian Leathley
Christian Leathley
Partner
Email | Profile
+1 917 542 7812

Eduardo Soler-Tappa
Eduardo Soler-Tappa
Partner, co-head of dispute resolution
Email | Profile
+34 91 423 4061

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Filed under Europe, Investment Arbitration, ISDS, News, Public International Law

English Court enforces arbitral award including a contractual penalty

The English High Court has enforced a Swiss-seated arbitral award (the Award) issued by the Court of Arbitration for Sport (CAS), notwithstanding that the Award ordered a payment representing enforcement of a contractual penalty.  The decision is significant because clauses which are considered penal under English law are not enforceable.  The test for whether a clause represents a penalty was recently considered and clarified by the English Supreme Court in the case of Makdessi, covered on our Litigation Notes blog here.      

The Court in this case did not consider that enforcement of the element of the Award representing the penalty would be contrary to public policy for the purposes of Article V(II) of the New York Convention 1958, finding that:

  1. there "is a strong leaning towards enforcement of foreign arbitral awards" and, given that the English law rule against penalties did not protect a "universal principle of morality", without more enforcement would not be refused; and
  2. the penalty was enforceable under the governing law as applied by the Tribunal and therefore, on application of "domestic principles", there was no reason why enforcement should be refused.

The decision is a welcome one in the context of international transactions, in which the parties may choose a governing law of a particular jurisdiction for their contractual obligations but may look to another jurisdiction for enforcement.  It is particularly important given that penalty clauses are a relatively regular feature in transactions in many sectors and jurisdictions. 

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Filed under Awards, Enforcement, New York Convention

Head of India Arbitration Practice, Nick Peacock, comments on India’s Final Text for its Model BIT for CNBC TV18’s “The Firm”

As reported in our recent India E Bulletin here, India has unveiled the final version of its Model Text for the Indian Bilateral Investment Treaty (Model BIT).  The Model BIT serves as a template for negotiation by India of bilateral investment treaties and free trade agreements.  India is a significant global trading and investment partner to many countries.  It is currently negotiating a number of free trade and economic co-operation agreements  (including with the EU, Canada and Australia).

Head of the India Arbitration Practice, Nick Peacock was invited to comment on the Final Model BIT for CNBC TV18’s The Firm, India’s only television programme covering corporate law, M&A, financial regulation, tax and audit matters.

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Filed under Asia, India, Investment Arbitration, News, Public International Law

“Any Party may submit a dispute to arbitration”: Privy Council interprets permissive language as giving parties the right to compel arbitration by giving notice after litigation begins

In the case of Anzen Limited and others (Appellants) v Hermes One Limited (Respondent) (British Virgin Islands), the Privy Council ("PC") considered the impact of a dispute resolution clause providing that "any Party may submit the dispute to binding arbitration". The PC held that this wording did not prevent a party from starting litigation in the courts but gave the other parties an option to require "the party which has commenced litigation to submit the dispute to arbitration, by making an unequivocal request to that effect and/or by applying for a corresponding stay".

Whilst, in this case, the PC upheld the right to have disputes determined by arbitration, the ambiguous wording led to additional expense for both parties and unwelcome delay. Also, parties cannot rely on a similarly benevolent approach to the construction of the arbitration agreements being taken in every case or jurisdiction. If the intention is to arbitrate all disputes under the relevant agreement, parties should include a clear, unambiguously drafted arbitration agreement to that effect.

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Filed under Arbitration Act 1996, Arbitration clauses, Jurisdiction

Dubai Court of Cassation dismisses claim for damages made against arbitral tribunal

Dubai’s Court of Cassation dismisses Meydan Group’s claim against Doug Jones, Humphrey Lloyd QC and Stephen Furst QC who were acting as arbitrators in a dispute between Meydan Group and WCT Holding.

The United Arab Emirates (UAE), and Dubai in particular, is fast building a reputation as a preferred seat for international arbitration. It is, however, crucial in attracting users that the UAE courts are seen to be supportive of arbitration. The absence of UAE legislation granting immunity to arbitrators has recently created uncertainty for both arbitrators and parties engaged in arbitration in the UAE following two recent cases in which a party to Dubai International Arbitration Centre ("DIAC") arbitration proceedings brought proceedings in the UAE courts seeking damages against the sole arbitrator in one case and tribunal in the other.

This latest case was brought by Meydan Group against the arbitral tribunal. This case was concluded in December 2015 and is summarised below.

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Filed under Arbitrators, Damages, Middle East