PRC Court refuses to enforce an SIAC award made under Expedited Procedure

The Shanghai No.1 Intermediate Court (the Shanghai Court) recently refused to enforce a SIAC award under Article V(1)(d) of the New York Convention, which provides that the award may be refused if “[T]he composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties…”  The SIAC award was made under the expedited procedure of the 2013 SIAC Rules (5th Edition).

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Filed under Asia, Awards, Challenges to awards, Enforcement, Hong Kong & China

PRC court enforces HKIAC arbitration award in favour of Australian gold mining company

On 21 July 2017, the Beijing No. 4 Intermediate People’s Court enforced a Hong Kong award in favour of Stonewall Resources Limited (Stonewall), an Australian listed gold mining company.  The HKIAC award is related to breach by Shandong Qixing Iron Tower Co., Ltd. (Qixing) of a share sale agreement governed by Australian law whereby Qixing had undertaken to purchase South African mining assets from Stonewall.  Notably, the disputed award was enforced in Beijing less than a year after being issued by the Hong Kong tribunal; and Stonewall is reported to have benefitted from third party funding, as a result of which its costs were reimbursed in return for 45% of the award.

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Filed under ADR, Enforcement, Hong Kong & China

India related commercial contracts: dispute resolution and governing law clauses

Herbert Smith Freehills has published a new edition of its well-regarded Guide on dispute resolution and governing law clauses in India-related commercial contracts. The Guide is intended to assist in-house counsel who handle India-related commercial contracts on behalf of non-Indian companies and who need to have a practical understanding of the nuances of drafting dispute resolution and governing law clauses in the Indian context. Continue reading

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Filed under Arbitration clauses, Asia, India, News, Publications and Guides

Taiwan’s CAA adopts new international arbitration rule

Taiwan’s Chinese Arbitration Association (“CAA“) has adopted new arbitration rules for arbitrations seated outside Taiwan. The Chinese Arbitration Association Rules, International (known as the “CAAI Rules“) came into effect on 1 July 2017 and are intended to apply to arbitrations seated outside of Taiwan. The 2001 CAA Rules will continue to apply for arbitrations seated in Taiwan.

The enactment of these Rules, coupled with the CAA’s plans to open an office in Hong Kong as part of the Hong Kong government-sponsored legal hub at the former Central Government Offices in Central, form part of the CAA’s greater ambitions to expand its offerings to arbitrations seated in jurisdictions outside Taiwan.  The CAA is hoping that these measures will allow the institution to attract more cases arising out of China’s “One Belt, One Road” plan.

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SIAC opens Representative Office in Gujarat International Finance Tec-city (GIFT) India

The Singapore International Arbitration Centre (SIAC) has opened its second representative office in India in the International Financial Services Centre (GIFT IFSC) in GIFT, Gujarat, to assist in the promotion of international commercial arbitration

Pursuant to Prime Minister Modi’s push to grow India as an international arbitration hub and the push for institutional arbitration in India (see here and here), the opening of the SIAC’s second representative office is a welcome development in the Indian arbitration landscape.

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NAFTA Renegotiation: ISDS reform objectives

The United States will lobby for changes to the investor-state dispute settlement (“ISDS”) provisions of the North American Free Trade Agreement (“NAFTA”) in the upcoming discussions to renegotiate the regional treaty.

ISDS reform is one of several “negotiating objectives” announced last month by the Office of the United States Trade Representative (the “USTR”), the federal agency with responsibility for US trade negotiations.  The disclosure was made public in accordance with a 2015 statute that requires the USTR to release objectives at least 30 days before the start of formal trade negotiations.  The NAFTA talks are set to begin in Washington D.C. on August 16.

On the agenda are modest proposals for increased transparency in the NAFTA ISDS process, such as the introduction of mandatory public access to NAFTA arbitration hearings, and submissions, and awards.  Those amendments would be broadly in line with the recent trend toward greater public transparency throughout the investment treaty space.  A more striking departure from current practice is suggested by the proposed introduction of a “right” of “non-governmental entities . . . to request making written submissions to a panel.”  Continue reading

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Filed under Investment Arbitration, ISDS, Public International Law, The Americas, Trade Agreements

MCIA recognised by the Supreme Court of India as an appointing institution

As previously reported here and here, the Mumbai Centre for International Arbitration (MCIA) was launched in October 2016, to promote institutional arbitration in India. The MCIA has been established as a joint initiative between the government of Maharashtra in India and the domestic and international business and legal communities.

In a first, of hopefully many pro-arbitration moves, we understand that the Supreme Court of India has invoked section 11 of the amended Indian Arbitration and Conciliation Act, 2015 (the Amended Act) and instructed the MCIA to appoint an arbitrator in an international dispute between Sun Pharmaceutical Industries Ltd (Indian company) and Falma Organics Limited (Nigerian company). This decision marks the first time that an Indian court has invoked section 11 of the Amended Act to designate an institution to assist with the appointment of an arbitrator.

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Filed under ADR, Arbitration laws, Asia

EU – Japan Economic Partnership Agreement announced

On 6 July 2017 the EU and Japan announced an agreement in principle on their Economic Partnership Agreement (“EPA“).  The scale of this agreement is eye-popping: once in effect the EPA will cover nearly 40 percent of all goods exports, 10 percent of the Earth’s population, and about 30 percent of global GDP.  The breadth of goods covered by the EPA will be similarly substantial and includes agricultural and food products, the forestry sector, industrial products, the automotive sector, electronics, and services.  While some tariffs, such as those on wine, will disappear from the moment the EPA enters into force, other tariffs – including those on imports of Japanese automobiles to Europe and imports of European chocolates to Japan – will disappear over a number of years.  The net effect will be to remove tariffs from 99 per cent of all goods traded between the EU and Japan with one study suggesting consequent increases in EU exports to Japan of 34% and Japanese exports to the EU of 29%.  Continue reading

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Filed under Asia, East Asia, EU, Europe, ISDS, News, Trade Agreements

Hong Kong Court upholds refusal to stay execution of enforcement order

Overview

The Hong Kong Court of First Instance (CFI) has denied leave to appeal its May 2017 decision in  Israel Sorin (IZZY) Shohat v Balram Chainrai [2017] HKEC 1118. In that decision (see our previous post), Chow J refused to stay execution of the CFI’s order to enforce an arbitral award pending the outcome of the Award Debtor (Mr Shohat)’s claim against Mr Chainrai (Award Creditor) in the Hong Kong High Court (High Court Action).

On 21 July 2017, the Award Debtor applied for leave to appeal Chow J’s decision (Leave Application), and for an interim stay of execution of the enforcement order pending the outcome of its application for leave to appeal (Stay Application).  The court also considered an application by the Award Creditor for payment out of monies that the Award Debtor had paid into court in partial satisfaction of the award (Payment Out Application).

The Court dismissed the Leave and Stay Applications. It granted the Payment Out Application, subject to a 14-day delay to allow for any further application for leave to appeal and interim stay pending appeal.

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Filed under Arbitration laws, Awards, Enforcement, Hong Kong & China

International arbitration internship (Hong Kong): applications now open

Herbert Smith Freehills is accepting applications for short-term internships with the firm’s international arbitration group in Hong Kong. Three paid internship positions are open for three to four months each (not extendable), beginning in or around January, May and September 2018.

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Filed under Hong Kong & China