Sonatrach v Statoil: backdoor attempt to challenge the tribunal’s findings of fact receives short shrift from the English Court

In the case of La Societe pour la Recherche La Production Le Transport La Transformation et la Commercialisation des Hydrocarbures SPA v Statoil Natural Gas LLC [2014] EWHC 875 Comm, the Commercial Court considered an application under section 68 of the Arbitration Act 1996 (the “Act”) by the claimant (“Sonatrach”) to set aside an arbitration award.

Sonatrach argued that under section 68(2)(a) of the Act the tribunal had failed to comply with its general duty under section 33 of the Act by overlooking and mischaracterising two pieces of evidence and improperly using an administrative secretary. Sonatrach’s application to set aside the Award for serious irregularity under section 68 of the Act was dismissed on the grounds that Sonatrach was attempting to contest findings of fact made by the tribunal.

Sonatrach also made an application to set aside the Order of Cooke J granting the defendant (“Statoil”) permission under section 66 of the Act to enforce the award in the same manner as a judgment. Sonatrach challenged the award of interest at 8% under the Judgments Act 1838 on the damages and costs awarded by the tribunal from the date of the Order until payment. Sonatrach’s application to set aside the Order of Cooke J was dismissed.

Continue reading

Leave a Comment

Filed under Arbitrators, Challenges to awards

The English Court of Appeal refuse a challenge to the enforcement of a New York Convention award founded on “hollow formalism”

In the case of Lombard-Knight & Anor v Rainstorm Pictures Inc [2014] EWCA Civ 356, the Court of Appeal considered an application by the Defendants to challenge an order of the English Court for the enforcement of a New York Convention Award. The Defendants argued that the Claimant, Rainstorm, had not complied with the formal requirements of s. 102 of the Arbitration Act 1996 (the Act) by failing to provide certified copies of the arbitration agreements on which the Arbitral Award in question had been made.

Recognising the pro-enforcement bias of both the Convention and the Act, the Court of Appeal refused the challenge, finding that the arbitration agreements provided had indeed been certified. In any event, in a situation (as in this case) where both parties accepted that the photocopies produced were true copies of the original arbitration agreements, any failure to fulfill the formal requirements of certification should be irrelevant to the question of whether the award should be enforced.

Continue reading

Leave a Comment

Filed under Enforcement, Europe, New York Convention

Commercial Arbitration in Australia: Restraining Arbitration to Protect the Integrity of the Court Process

In the recent decision of Caratti v Caratti [No 2],1 Justice Allanson of the Supreme Court of Western Australia granted an interlocutory injunction restraining a party to the proceedings from commencing arbitration. In so doing, His Honour clarified the operation of section 8(2) of the Commercial Arbitration Act 2012 (WA) (CAA), a provision that is based on the text of Article 8(2) of the UNCITRAL Model Law2 and is replicated in the domestic commercial arbitration legislation of all Australian states and territories (save for the ACT).

The decision clarifies that the ability under section 8(2) CAA to commence arbitration in parallel to court proceedings is subject to the court’s power to protect the integrity of its own processes.

Continue reading

Leave a Comment

Filed under Arbitration clauses, Australia

SIAC emergency arbitrator awards – a speedier route to interim relief before the Indian Courts?

The Singapore International Arbitration Centre (the SIAC) introduced emergency arbitrator provisions in its arbitration rules in July 2010 and has had 34 applications filed before it to date where parties have asked for an emergency arbitrator to be appointed. The SIAC further reports that 9 out of the 34 emergency arbitrator applications have involved Indian parties (5 where the Indian party was the respondent and 4 where Indian parties were both the claimant and the respondent).

An emergency arbitrator is typically approached by parties where the Tribunal has not been constituted and a party may require urgent interim relief including, amongst others, orders for preservation of properties, freezing accounts, orders against the dissipation of assets etc. Seeking relief from an emergency arbitrator is increasingly been chosen as an alternative to seeking injunctive relief from the courts (in support of the arbitration). According to statistics released by the SIAC, the average time taken by an emergency arbitrator to pass an award after having heard the parties ranges from 8-10 days, with the shortest period being 2 days to pass an award.

Continue reading

Leave a Comment

Filed under Arbitration rules, Arbitrators, Asia, India, Institutions

Ecuadorian Bill for the Enforcement of Awards and Judgments: will recent developments give the bill further impetus?

The Bill for the Enforcement of Awards and Judgments was introduced into the National Assembly of Ecuador in December 2013, against the backdrop of the ongoing dispute between Chevron and Ecuador which is playing out in a number of fora. Recent developments in this matter, as well as the US Supreme Court’s decision in the case of BG v Argentina, in which Ecuador had submitted an amicus curiae brief in support of Argentina, may give Ecuador further will to bring the Bill into law.

The Bill seeks to amend various pieces of legislation, including Ecuador’s Arbitration Law (the “Ley de Arbitraje y Mediación”), with the objective of strengthening the mechanisms of protection of public resources and services. The Bill attempts to achieve its purpose by two broad means, firstly, by amending provisions relating to the enforcement of foreign awards and other measures issued by arbitral tribunals and secondly, by amending laws to bolster the protection given to State assets and resources.

According to the Explanatory Memorandum of the Bill, existing mechanisms have proven insufficient to preserve the integrity of public resources from “illegitimate” enforcements, attachments and other measures taken against State property in the satisfaction of judgments and arbitral awards against the State, an experience expressly stated as one similarly shared by Ecuador’s sister republics, and specifically, the Republic of Argentina. The Explanatory Memorandum also highlights the need for the creation of rules to regulate the performance and compliance of the Ecuadorian State with rulings adverse to its interests.

Whilst Ecuador has signed the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, if passed into law, the Bill will have the effect of making enforcement of foreign awards more onerous and enforcement against state assets more difficult.

Continue reading

Leave a Comment

Filed under Investment Arbitration, New York Convention, The Americas

Indonesia indicates intention to terminate all of its Bilateral Investment Treaties?

According to the Netherlands Embassy in Jakarta, Indonesia has informed the Netherlands that it has decided to terminate the Bilateral Investment Treaty between the two nations from 1 July 2015. The Embassy also states that “the Indonesian Government has mentioned it intends to terminate all of its 67 bilateral investment treaties“.

Continue reading

Leave a Comment

Filed under Europe, Investment Arbitration, South East Asia

Ukraine – EU imposes asset freeze and travel ban on 21 Russian individuals; US introduces additional Executive Order and imposes asset freeze and visa ban on 11 Ukrainian and Russian individuals

Herbert Smith Freehills has published its latest Sanctions Update e-bulletin, on the imposition targeted sanctions by the EU and US in response to the recent Crimea referendum.

On 17 March 2014, the EU introduced an asset freeze and travel ban applying to 21 Russian individuals. On the same day, the US introduced a second Executive Order, allowing it to sanction Russian individuals and released a list of 11 Russian and Ukrainian individuals subject to an asset freeze and visa ban under its Executive Orders.

For further information, please contact Rod Fletcher, Partner, Susannah Cogman, Partner, Daniel Hudson, Partner, or your usual Herbert Smith Freehills contact.

Rod Fletcher
Rod Fletcher
Partner
Email | Profile
+44 20 7466 2411
Susannah Cogman
Susannah Cogman
Partner
Email | Profile
+44 20 7466 2580
Daniel Hudson
Daniel Hudson
Partner
Email | Profile
+44 20 7466 2470

Leave a Comment

Filed under Europe, Sanctions, The Americas

Herbert Smith Freehills appoints new head of global disputes

Herbert Smith Freehills LLP announced today the appointment of partner Justin D’Agostino as Global Head of Dispute Resolution. Justin will commence the new role from 1 May 2014 for a period of 4 years.

Justin is a high profile disputes partner, having spent his entire legal career with the firm. He has worked in London, Singapore, Bangkok and, most recently, Hong Kong from where he has helped to build the leading international arbitration practice in Asia and is regularly singled out by clients, peers and the legal directories as a leader in his field.

As Global Head of Practice, Justin will continue to be based in Hong Kong. He will also continue to be involved with clients and in winning work, which will allow him to maintain his contacts and market-leading practice. Herbert Smith Freehills is a global player and positioning its new global disputes head in Asia is an important step in connecting the practice across the world.

Justin will be supported in the management of the practice by the Regional Heads: Geoff McClellan (who will continue as global Deputy and as Regional Head of disputes for Australia), Mark Shillito (UK/US) and Peter Godwin (Asia), with whom he will work closely.

Outgoing head of HSF’s global disputes practice and joint CEO-elect Sonya Leydecker commented:

I am delighted by Justin’s appointment to this important role in the firm. Justin hails from our incredibly strong bench of disputes partners and has an impressive track record of achievement in both legal practice and management. He possesses exceptional energy, drive and commitment and has a clear vision for the disputes practice globally. With Justin at the helm, supported by the strong team of regional heads of practice in Australia, the UK/US and in Asia, as well as our practice area leaders including Tim Parkes in his new role, our successful global disputes business is perfectly placed for the next stage of development.”

Justin D’Agostino commented:

It is a huge honour to have been appointed Global Head of Practice. I am both very grateful for and tremendously excited by the opportunities ahead. Herbert Smith Freehills’ global disputes practice occupies an outstanding market position and we continue to set the benchmark for brand, reputation and success in the main places in which we operate. We have also shown over the last decade that we are not only the market leaders, but innovators and trend-setters. I look forward to building on that tradition and demonstrating the success of our newly merged firm in all respects. My international arbitration practice also remains important to me and I look forward to continuing my practice both in Asia and around the world.”

Justin D'Agostino
Justin D'Agostino
Managing partner, Greater China
Email | Profile
+852 2101 4010
Sonya Leydecker
Sonya Leydecker
Partner, global head of dispute resolution
Email | Profile
+44 20 7466 2337

Leave a Comment

Filed under News

ICJ orders provisional measures in proceedings between East Timor and Australia

The International Court of Justice (ICJ) has handed down its decision in respect of provisional measures sought by East Timor in a pending case before the Court. The principal claim relates to documents and data seized by the Australian Security Intelligence Organisation (ASIO) from the office of an Australian lawyer representing East Timor in an upcoming arbitration with Australia.¹

At least some of the materials seized relate to a pending arbitration between East Timor and Australia concerning allegations by East Timor that Australia engaged in spying during negotiations to sign the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). In that arbitration, East Timor contends that Australian espionage invalidates CMATS, a $40 billion gas and oil treaty, as the treaty was not negotiated in good faith.

The Court has ordered that Australia:

  • ensure that the content of the seized material is not used to the disadvantage of East Timor before the principal claim is determined;
  • keep the seized materials and any copies thereof under seal; and
  • not interfere in any way in communications between East Timor and its legal advisors in relation to the CMATS arbitration.

However, the Court did not order that Australia deliver the seized materials into the custody of the ICJ or deliver to East Timor and the ICJ a list of the materials seized in the raid that have been disclosed to any person and a list of those to whom the materials had been disclosed, as requested in East Timor’s request for provisional measures.

Continue reading

Leave a Comment

Filed under Australia, Public International Law, South East Asia

Ukraine – EU imposes asset freeze on members of former government and issues a statement in relation to Russia; US introduces Executive Order permitting the blocking of assets

Herbert Smith Freehills has issued its latest Sanctions Update e-bulletin, concerning the EU and US response to recent events in Ukraine.

On 5 March 2014, the EU introduced an asset freeze applying to former President Yanukovych and other former government officials and persons associated with the former government. The UK has introduced domestic legislation criminalising breaches of this asset freeze. The EU also held an emergency Heads of State meeting on 6 March. The conclusions from that meeting indicate that there is a possibility of EU sanctions being imposed on Russia in the absence of negotiations between Russia and Ukraine which produce results within a limited timeframe. Also on 6 March the US introduced an Executive Order which would permit the imposition of an asset freeze and visa bans although no companies or individuals have yet been designated.

For further information, please contact Rod Fletcher, Partner, Susannah Cogman, Partner, Daniel Hudson, Partner, or your usual Herbert Smith Freehills contact.

Rod Fletcher
Rod Fletcher
Partner
Email | Profile
+44 20 7466 2411
Susannah Cogman
Susannah Cogman
Partner
Email | Profile
+44 20 7466 2580
Daniel Hudson
Daniel Hudson
Partner
Email | Profile
+44 20 7466 2470

Leave a Comment

Filed under Europe, Sanctions, The Americas