We are pleased to announce that Herbert Smith Freehills’ Public International Law Group has launched a new blog dedicated to know-how and news about public international law. To subscribe to the Public International Law Blog please click here and follow the instructions.
The Public International Law Blog covers developments from around the world on:
- investment protection and investor-state treatyÂ arbitration;
- treaty negotiation, interpretation and impact;
- state immunity;
- international human rights;
- trade/WTO; and
- state contracts, stabilisation clauses and disputes
For further information, please contact Dominic Roughton, Partner, or Matthew Weiniger, Partner or your usual Herbert Smith Freehills contact.
In the case of PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation (Indonesia)  SGHC 146, the Singapore Court of Appeal considered the enforceability of interim awards under the Singapore International Arbitration Act (the IAA).Â This judgment provides a useful analysis of what constitutes an enforceable award in Singapore and helpfully clarifies that an interim award which may be subject to further determination will still be enforced by the Singapore courts.Â This is a welcome decision on an issue which remains unsettled on an international level and should provide particular comfort to construction practitioners.
Practitioners and arbitral institutions alike are constantly looking for ways to smooth and improve the arbitral process. One of the latest contribution to this effort is a June 2014 guide from the International Chamber of Commerce (ICC) entitled “Effective Management of Arbitration: A Guide for In-House Counsel and Other Party Representatives” (the Guide).
The ICC has released its case statistics for 2013 which demonstrate another strong year for the ICC and international arbitration in general, having maintained a high number of newly registered cases involving parties, seats and governing laws from across the world. In this post we take a look at some of the key statistics and how they reflect on the continued strong growth in international arbitration.
As trade, industry and investment becomes increasingly complex and cross-border in nature, so to do the disputes that arise therefrom. As the ICC’s caseload shows, international arbitration continues to be the go-to-choice for resolving those disputes and the ICC continues one of the world’s leading arbitration institutions.
As Scotland is poised to decide on its future, a number of questions remain unexplored and unresolved in the politics of the Referendum debate.
In our July 2014 webinar, “Cutting through the politics of the Scottish Independence Referendum: The International Law Implications of Independence”, our speakers considered the legal ramifications of an independent Scotland from an international law perspective; including
- Would Scotland automatically be bound by, and benefit from, the UK’s international treaties after independence, and would the remaining UK’s international law rights and obligations be affected?
- How can Scotland negotiate continued membership of the EU and what are the implications?
- How would Scotland’s maritime boundaries be drawn in the event of independence and how does that impact oil and gas reserves in the North Sea?
- What impact would independence have on oil and gas sector regulation?
To access a recording of this webinar, please contact Jane Webber.
With the question of independence on the agenda in Scotland and Kurdistan to name only two, the possible creation of new states has potentially significant ramifications for business, and particularly investments, risk assessments and contracts. Today a panel comprised of Akok Manyuat Madut, Counsellor, Embassy of the Republic of South Sudan, Greg Marten, Associate General Counsel, Shell International B.V., Dominic Roughton, Global Head of Public International Law, and Andrew Cannon, Partner, addressed attendees from a number of different industries and national governments on issues pertaining to state succession.
Drawing on their own experiences, the panel considered: the process and challenges of achieving statehood; the practical and legal effects of state succession from the point of view of those who invest and do business where a new state has been, or may be, created; how states and governments are recognised; the consequences of state continuity and state succession; the private law implications of the creation of a new state on existing contracts; and how land and maritime boundaries can be drawn in the event of independence.
For further information about these issues, please contact Dominic Roughton or Andrew Cannon, or any other member of Public International Law Group at Herbert Smith Freehills.
Burundi, a state in East Africa, has become the 150th state party to the New York Convention 1958 (the Convention). Burundi made a “commerciality reservation” to the Convention, which means that the Convention will only apply to disputes characterized as commercial under municipal law. So long as this requirement is met, as of 21 September 2014 (the date the Convention comes into force in Burundi), arbitral awards made in Burundi will be enforceable in all states that are party to the New York Convention, and awards made in other states will be enforceable in Burundi.
No doubt, this is likely to improve the confidence of foreign investors not only in Burundi, but East Africa generally, as all members of the East African Community (comprising the Republics of Burundi, Kenya, Uganda and the United Republic of Tanzania) have now become party to the New York Convention. In the last few years, East Africa has become a new hot spot for foreign investors particularly as new oil reserves have been discovered in Kenya and Uganda, and given the presence of hydrocarbons generally in East Africa. It is apparent that governments of the member states of the East African Community have recognized that to retain these foreign investors and attract new ones, they must ensure their legal framework has been modernized and that visible steps are taken to demonstrate their seriousness in doing so. For example, Rwanda opened the Kigali International Arbitration Centre in 2012, and Kenya has recently announced the opening of the Nairobi International Arbitration Centre. These are all encouraging and positive steps which are likely to have a significant impact on investor confidence in East Africa.
For further information, please contact Andrew Cannon, Partner, Saloni Kantaria, Senior Associate, or your usual Herbert Smith Freehills contact.
Saloni KantariaSenior AssociateEmail
+971 4 428 6346
In the recent decision in BLC and ors v. BLB and anor  SGCA 40 (“the BLC decision”), the Singapore Court of Appeal reversed the decision of the High Court to set aside part of an arbitration award (“Award”) on the ground of a breach of natural justice. The court also provided valuable guidance on Articles 33(3) and 34(4) of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”).
InÂ GroupeÂ AntoineÂ TabetÂ c/ la RĂ©publique du Congo, Cass. Civ. 1re, nÂ° 11-16444 of 25 June 2014, the French Supreme Court (Cour de cassation) considered an application to have anÂ awardÂ set aside on the grounds that the President of the tribunal had failed to disclose a relationship that was capable of raising doubts as to his independence.
The French Supreme Court upheld the awardÂ rendered at the International Court of Arbitration of the International Chamber of Commerce (ICC) in favour of the Republic of the Congo. The court refused to set aside theÂ award, finding that there was no conflict of interest giving rise to a risk that the President of the tribunal might not have been independent and impartial. The court rejected the argument that the assessment of the arbitrator’s independence and impartiality should have involved an investigation into the substantive reasons behind the conclusion of certain contracts.
The judgment provides a welcome reminder of the limits to the court’s supervisory function, offering a clear indication that the role of the courts does not extend to independent investigation of the facts at issue. The decision also contributes to the ongoing development of French law in respect of arbitrators’ obligations of disclosure.
Craig Shepherd and Mike McClure from the HSF office in Dubai are co-editing a TDM (Transnational Dispute Management) Special entitled “Arbitration in the Middle East – expectations and challenges for the future”.
The volume of international business either in the Middle East or with a Middle Eastern element is increasing and many of the contracts being used provide for arbitration.Â While arbitration (“tahkim” in Arabic) has long-standing religious and cultural roots in the Middle East, there are a number of differences and tensions between the Western perception of arbitration and certain Islamic legal principles.
The TDM Special will aim to collect views of experienced practitioners, academics, and policymakers in the region. In particular, the Special will look at some of the differences between the Western and Middle Eastern perceptions of arbitration, and will also consider expectations for the future.Â Some potential topics include: (a) the legislative framework to support arbitration, including new arbitration laws and regional arbitral centres; (b) whether the modern concept of arbitration can resolve Shari’a disputes; (c) the role public policy should play in relation to judicial involvement with the arbitral process and enforcement or arbitral awards; (d) whether arbitral processes or arbitral laws could or should be reformed so that arbitration better suits the needs of today’s Middle Eastern users; and (e) claims under international investment treaties arising out of regional regime change, particularly in North Africa.
If you are interested in contributing or would like to know more about the forthcoming Special, please contact the editors. Papers should be submitted directly to the editors on or before 30 September 2014 – email@example.com and firstname.lastname@example.org – with a copy to email@example.com.
This call for papers can also be found on the TDM website here:
Mike McClureSenior AssociateEmail
+971 4 428 6364