In its recent judgment AMEC Foster Wheeler Group Limited v Morgan Sindall Professional Services Limited & Ors  EWHC 2012 (TCC) (available here), the English High Court (the Court) ordered that arbitration documents be disclosed by a party conducting arbitration to a party with a financial interest and practical involvement in the dispute.
The arbitration arose in relation to construction works at a naval base. The Secretary of State for Defence (SSD) had engaged a contractor (TES) to carry out works. Part of those works was subcontracted by TES to the claimant (AMEC). AMEC then sold its business to the defendants, who were assigned AMEC’s rights and agreed to carry out AMEC’s obligations under the relevant subcontract.
Disputes under the main contract and the subcontract arose, and arbitral proceedings between SSD and TES commenced. Under a name borrowing agreement between TES and AMEC (i.e. an agreement under which a party agrees to pursue or defend a legal claim in the name of another), AMEC, agreed to conduct the arbitration between TES and SSD on behalf of TES. AMEC and the defendants then agreed that the defendants would conduct the arbitration as AMEC’s agents.
The defendants conducted the arbitration without any involvement from AMEC. When AMEC sought copies of the arbitration documents, the defendants refused to provide them. The claimant brought proceedings before the Court for orders that the documents be disclosed.
The Court ordered that the documents be disclosed on the basis that they were held by the defendants as agent for AMEC. In reaching this decision, the Court rejected the defendants’ argument that disclosure should be refused on the basis that the arbitration documents were confidential.
The Court’s decision focussed largely on the relationship between the parties and little attention was given to the issue of confidentiality in arbitration proceedings. This in itself makes the decision noteworthy: the Court made clear that the legal obligation to provide the documents to AMEC (by virtue of the relationship between principal and agent) effectively ‘trumped’ any question of a duty of confidentiality owed to a third party (in this case, the SSD), in arbitration proceedings. Whilst the circumstances of this case were unusual, the decision may have broader application where there is an arbitration between an agent (whether disclosed or undisclosed) and a third party.
The Singapore International Arbitration Centre (SIAC) has this week announced that it is formally commencing the process of reviewing the SIAC Arbitration Rules (the Rules) with a view to issuing an updated version in mid-2016. This update to the Rules will encompass recent developments in international arbitration practice and procedure, and attempt to better serve the needs of the businesses, financial institutions and governments that use SIAC.Â Continue reading
This 1Â½ day East African Oil and Gas conference in Nairobi provides a unique forum for an engaging and interactive legal discussion on the state of play and road ahead for the oil and gas sector in East Africa. The conference will held inÂ conjunctionÂ with The University of DundeeâsÂ Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP) and includesÂ speakers from Herbert Smith Freehills, CEPMLP and Anjarwalla & Khanna. The keynote speechÂ will be delivered byÂ the Kenyan Attorney General, Hon. Prof Githu Muigai.
||Thursday 17 September 2015Friday 18 September 2015 (am only)
||17 September: 8am: Registration and breakfast (lunch included) 9am: Keynote speech 6pm: Cocktail reception18 September: 8:30am: Registration 2pm: Finish (lunch included)
||Villa Rosa Kempinski Nairobi Hotel, Chiromo Road, Nairobi, Kenya Please click here to view map
For more informationÂ about the conference programme, please see below. To register your interest in attending, pleaseÂ contact Paul McKeating.
Herbert Smith Freehills is a leading global law firm in the energy sector with over three decades of experience advising clients across the African continent. CEMPLP is an internationally renowned graduate school in the field of natural resources and energy law and policy.
The conference will provide an opportunity to explore the most important international and domestic themes surrounding the continued developments in the oil and gas industry in East Africa. The programme has been specifically tailored to the interests of in-house counsel and commercial representatives involved in this area. Topics for discussion will include:
- Exploration and Upstream developments: the road ahead
- Route to market
- Financing and bankability
- Applicable tax laws and mitigating structures
- Stakeholder engagement and human rights
- Anti-bribery and corruption issues
- Avoiding disputes and managing crises
- Dispute resolution â international and domestic litigation and arbitration
Our confirmed speakers currently include:
- Hon. Prof. Githu Muigai, Attorney General, Government of Kenya
- Prof Peter Cameron, Director and Professor of International Energy Law and Policy, CEPMLP
- Stephen Dow, Lecturer in Energy Law, CEPMLP
- Paula Hodges QC, Head of Global Arbitration, Herbert Smith Freehills (London)
- StÃ©phane Brabant, Chairman, Africa Practice, Herbert Smith Freehills (Paris)
- Martin Kavanagh, Co-head of Africa Practice, Herbert Smith Freehills (London)
- Rebecca Major, Partner, Herbert Smith Freehills (Paris)
- Chris Parker, Partner, Herbert Smith Freehills (New York/London)
- Andrew Cannon, Partner, Herbert Smith Freehills (Paris)
- Daniel Hudson, Partner, Herbert Smith Freehills (London)
- Aleem Tharani, Senior Associate, Herbert Smith Freehills (London)
- Karim Anjarwalla, Managing Partner, Anjarwalla & Khanna
- Sonal Sejpal, Director, Anjarwalla & Khanna
- Amyn Mussa, SeniorÂ Partner, Anjarwalla & Khanna
- Daniel Ngumy, Partner, Anjarwalla & Khanna
- Rosa Nduati-Mutero, Partner, Anjarwalla & Khanna
- Aisha Abdallah, Partner, Anjarwalla & Khanna
Further updates and confirmation of additional speakers to follow. We look forward to seeing you in Nairobi on 17 September. Places are limited, so please be sure to register your interest.
Paula Hodges QCPartner, Head of global arbitration practiceEmail
+44 20 7466 2027
Chris ParkerPartner, Legal Consultant (admitted to the practice of law in England)Email
+1 212 519 9880
+44 20 7466 2733
Herbert Smith Freehills is now accepting applications for short-term internships with the firmâs international arbitration group in Hong Kong. Two paid internship positions are open for three months each (not extendable), the first starting in January 2016 and the second starting in or around June/July 2016.
Interns will work alongside our Greater China international arbitration team and will have a varied workload, including assisting with current arbitrations and other client work; arbitration-related research; writing papers and journal articles; producing arbitration-related internal know-how and similar projects.Â
For more details please refer to the HSF Careers page (click “apply now” and search Hong Kong openings):
Applications must be submitted online via the HSF Careers page on or before 11 September 2015.
The Hong Kong Court of Appeal has rejected a challenge to the constitutionality of s.81(4) of the Arbitration Ordinance (Cap. 609), under which a party who wishes to appeal a Court of First Instance (CFI) decision on setting aside an arbitral award must obtain leave to appeal from the CFI.
Article 82 of the Basic Law, which operates as Hong Kong’s constitutional document, vests the power of final adjudication in the Court of Final Appeal (CFA). The Applicant in China International Fund Limited v Dennis Lau & Ng Chun Man Architects & Engineers (HK) Limited v Secretary for Justice argued that s.81(4) of the Arbitration Ordinance is unconstitutional, in that it disproportionately restricts the CFA’s power of final adjudication under the Basic Law.
In its 12 August judgment, the Court of Appeal confirmed that, although s. 81(4) constitutes a restriction of the power of final adjudication vested in the Court of Final Appeal, such restriction is no more than is necessary to achieve legitimate aims, and hence is proportionate and constitutional. The Court of Appeal further held that, notwithstanding the apparent finality of s.81(4), it retains a residual jurisdiction to supervise the process in the CFI in cases of refusal of leave, and to provide redress, but that this jurisdiction will be invoked only in extreme situations.
The Court of Appeal ordered costs on the indemnity basis, as is now the norm for arbitration-related cases in Hong Kong.
This is a significant decision, and likely to be the authority on the constitutionality of the relevant statutory provisions of the Arbitration Ordinance and the Court of Appeal’s residual jurisdiction in the appeal process in arbitration cases.
Herbert Smith Freehills acted for the successful Respondent in the arbitration and court proceedings. Continue reading
The Supreme People’s Court of the People’s Republic of China (the “SPC”) recently released statistics on cases handled by the PRC courts under the Cross-Straits Joint Crime Combating and Mutual Legal Assistance Agreement (æµ·å³¡ä¸¤å²¸å
±åæå»ç¯ç½ªåå¸æ³äºå©åè®®) (the “Agreement“) since it entered into force in June 2009. The SPC has also published new regulations, consolidating and revising the old judicial regulations on recognition and enforcement of Taiwan civil judgments and arbitral awards. These include the Regulations on the Recognition and Enforcement of Arbitral Awards of the Taiwan District (the “Arbitral Awards Enforcement Regulations“) and the Regulations on the Recognition and Enforcement of Civil Judgments of the Courts of the Taiwan District (the “Civil Judgments Enforcement Regulations“) (together, the “Regulations“), which came into effect on 1 July 2015. Continue reading
In Re Ikon Group Ltd (No 2)  NSWSC 981, the New South Wales Supreme Court granted a stay of proceedings in favour of international commercial arbitration.Â Â
The relevant arbitration clause was contained in an addendum to a joint venture agreement.Â Â It referred â[a]ny and all Disputes including any question regarding the existence, validity or termination of any of the JV Documents or the Third Addendum [ â¦ ]â to arbitration under the LCIA Rules.Â It expressly revoked or amended an exclusive jurisdiction clause contained in the original joint venture agreement.Â Â Continue reading
The World Council of the Internal Chamber of Commerce (ICC) has reappointed Herbert Smith Freehills’ Vanina Sucharitkul to the International Court of Arbitration for a three-year term, effective 1 July 2015.
Based in Bangkok, senior associate Vanina has been Thailand’s member to the ICC International Court of Arbitration since 2012, and is also the youngest member appointed to the Court. Continue reading
In this video post in the “Observations on Arbitration” series, Christian Leathley provides an Introduction to Investment Arbitration, discussing the ways in which an investment arbitration can arise, explaining what bilateral investment treaties (BITs) are and outlining the nature of the obligations owed by a state to an investor under such agreements. Continue reading
On 15 July 2015, the Supreme People’s Court in China (the “SPC“) issued a binding judicial interpretation on how lower courts are to handle various issues arising out of the CIETAC split (the “SPC Reply“). The interpretation responded to requests from the Shanghai High People’s Court, the Jiangsu High People’s Court and the Guangdong High People’s Court. The SPC Reply becomes effective today, 17 July 2015.Â
The SPC Reply confirms the position lower courts must take regarding: (1) the validity of arbitration agreements; and (2) potential challenges to arbitral awards in setting aside or enforcement proceedings. In essence:Â
- If an arbitration agreement referring to the “CIETAC Shanghai Sub-Commission” or the “South China Sub-Commission” was concluded before the former CIETAC sub-commissions renamed themselves as a result of the CIETAC split, then the newly-formed Shanghai International Economic and Trade Arbitration Commission/Shanghai International Arbitration Centre (“SHIAC“) or South China International Economic and Trade Arbitration Commission/Shenzhen Court of International Arbitration (“SCIA“) will have jurisdiction over those disputes.
- In all other cases, CIETAC will retain jurisdiction over disputes submitted under arbitration agreements referring to CIETAC sub-commissions.Â
The SPC’s interpretations seek to take into account the historical relationship between CIETAC and its former sub-commissions, whilst also upholding parties’ intentions and promoting China as an arbitration-friendly jurisdiction. The SPC Reply ends the uncertainty on jurisdiction issues arising from the CIETAC split. Continue reading