Paris Court of Appeal considers scope of arbitrator’s obligation to disclose any potential conflicts of interest

 The Paris Court of Appeal has overturned a judgment granting exequatur (order for enforcement) of an arbitral award as a result of the sole arbitrator’s failure to disclose a potential conflict of interest. At the time of his appointment in September 2009, the arbitrator had disclosed that “a partner in my firm’s Toronto office has represented” the sole shareholder of one of the parties to the arbitration “over a number of years“. However, in December 2010, the firm published a report that it had advised that same shareholder on a recently concluded transaction.

The case is a reminder of the burden on arbitrators to provide a full disclosure of any potential conflicts, and to update such disclosure should new conflicts arise during the course of an arbitration. (S.A. Auto Guadeloupe Investissements (AGI) c/ Columbus Acquisitions Inc, Cour d’appel de Paris, Pôle 1 – Chambre 1, n° 13/13459 (14 October 2014).)

Continue reading

Leave a Comment

Filed under Arbitrators, Enforcement, Enforcement - Europe, Europe, Uncategorized

CMAC opens its Hong Kong Arbitration Centre

The China Maritime Arbitration Commission (CMAC) inaugurated its Hong Kong Arbitration Centre on 19 November 2014, its first centre outside Mainland China. The inauguration ceremony was coupled with an international maritime arbitration seminar, to discuss latest trends in maritime arbitration and to promote the use of maritime legal and dispute resolution services in Hong Kong. The seminar was organised by the Department of Justice of Hong Kong SAR, CMAC, HKIAC and the Hong Kong Trade Development Council. Both the seminar and the inauguration ceremony formed part of the 2014 Asian Logistics and Maritime Conference in Hong Kong.

In addition, the new arbitration rules of CMAC will take effect on 1 January 2015. Earlier this year, CMAC appointed its new panel of arbitrators, consisting of a total of 279 arbitrators, of whom 24 are from Hong Kong, Macau or Taiwan and 39 from overseas.

Leave a Comment

Filed under Asia, Hong Kong & China

Procedural fairness as a ground for setting aside awards: what’s fair is fair

In its recent decision in Triulzi Cesare SRL v Xinyi Group (Glass) Co Ltd [2014] SGHC 220, the Singapore High Court considered the grounds on which an arbitral award may be set aside for procedural unfairness and, in doing so, reaffirmed that the Singapore courts will be reluctant to interfere with a Tribunal’s case management powers unless strictly necessary for the proper administration of justice. The Court emphasised that whilst procedural fairness and affording each party a reasonable opportunity to be heard are core principles, a balance must be struck with the needs of procedural efficiency and economy. In particular, it noted that Tribunals must not “sacrifice all efficiency in order to accommodate unreasonable procedural demands by a party“. Rather, the Court should take into account the materiality of the alleged procedural breach, including evidence of prejudice or a reasonable chance of prejudice as a result of a Tribunal’s conduct.

Continue reading

Leave a Comment

Filed under Arbitrators, Awards, Challenges to awards, Enforcement, South East Asia, Uncategorized

The future of investor-state arbitration

We live in interesting times for investment arbitration. There is wider public engagement with investment protection than there has ever been, prompted by the European Commission’s public consultation on the proposed Transatlantic Trade and Investment Partnership (TTIP) between the EU and the US, and the agreement in principle of the text of the Comprehensive Economic Trade Agreement (CETA) between the EU and Canada.

Continue reading

Leave a Comment

Filed under Investment Arbitration, Public International Law, Uncategorized

Exploiting the advantages of an English arbitral seat? Commercial Court confirms the validity of an arbitration agreement and tribunal’s substantive jurisdiction whilst parallel proceedings continue in Italy

The English Commercial Court has granted an application under section 32 of the English Arbitration Act 1996 (the Act), determining that a tribunal appointed by the Refined Sugar Association has substantive jurisdiction to hear a dispute that has arisen out of a sugar sale between Toyota Tsusho Sugar Trading Limited (Toyota) and Prolat S.R.L. (Prolat). Section 32 provides that, if certain conditions are satisfied, a court may determine any question as to the substantive jurisdiction of the tribunal.

The application arose because Prolat had brought proceedings against Toyota in the Italian courts contending, among other things, that there was no arbitration agreement. Toyota had started arbitration proceedings in London against Prolat on the basis that the parties had concluded an agreement to arbitrate.

The Court first considered its jurisdiction to consider the question of the existence of the arbitration agreement given that Prolat had commenced proceedings in Italy, and the relevance of the Brussels Regulation (and the Recast Brussels Regulation to take effect on 10 January 2015 – see our blog post). It concluded that the existence of the Italian proceedings did not encroach on its jurisdiction to make a determination on the issue of the tribunal’s jurisdiction as arbitration fell outside the Brussels Regulation and it was not being asked to interfere with the Italian proceedings which fell within the Brussels Regulation.

The Court focused on an analysis of the contract and the arbitration clause and found that (a) on the facts, the contract and the arbitration clause were valid and governed by English law; and (b) the dispute between the parties fell within the scope of the arbitration clause.

This case highlights the possibility, provided by section 32 of the Act, of creating a “shield” judgment to try to prevent enforcement in England of a judgment made in Member State court proceedings brought in breach of an arbitration agreement.

Continue reading

Leave a Comment

Filed under Arbitration Act 1996, Brussels Regulation, Jurisdiction

International Arbitration Internship (Singapore): Applications Now Open

Herbert Smith Freehills is now accepting applications for short-term internships with the firm’s international arbitration group in Singapore.  Three paid positions are open for two to three month periods each (not extendable), the first starting in January 2015, the second starting in April 2015 and the third starting in July 2015.

Interns will work alongside our 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.

For more details please refer to our LinkedIn post or the HSF Careers page.

Applications must be submitted online via the HSF Careers page on or before 5 December 2014.

Leave a Comment

Filed under Asia

US District Court for the Southern District of New York confirms interim arbitration award

In Companion Property and Casualty Insurance Company v Allied Provident Insurance, Inc. (2014 U.S. Dist. LEXIS 136473), District Judge Nathan in the Southern District of New York (SDNY) confirmed an interim arbitration award ordering payment of security for certain contractual amounts. The judgment usefully summarizes the court’s power to review, confirm or vacate interim arbitration awards, and its power to order arbitrator replacements when one arbitrator is unable to discharge his duties due to illness.

The decision also raises important arbitration agreement drafting points, and exhibits the robust approach of New York courts in upholding the integrity of the arbitral process.

Continue reading

Leave a Comment

Filed under Arbitration clauses, Awards, Challenges to awards, Enforcement, The Americas

NAFTA tribunal considers issues of res judicata and the customary international law minimum standard of treatment

In Apotex Holdings Inc. and Apotex Inc. v United States of America, (ICSID Case No. ARB(AF)/12/1), a NAFTA chapter eleven tribunal considered issues of res judicata and the customary international law minimum standard of treatment.

In a case notable for its discussion of res judicata and the customary international law minimum standard of treatment, a NAFTA Chapter Eleven tribunal has allowed jurisdictional objections over a significant part of the alleged claims. With respect to the claimants’ remaining claims, the tribunal concluded, on the merits, that the US had not breached any of its commitments under international law.

The tribunal analysed international jurisprudence on res judicata in detail, applying a flexible approach to the question of when claims will be precluded by a prior decision. Following previous NAFTA awards, the award explored the complex relationship between the customary international law minimum standard and the guarantee of fair and equitable treatment and full protection and security contained in NAFTA Article 1105(1).

It did so in the context of the claimants’ novel claims about the status of due process among the protections required by the customary international law minimum standard of treatment. However, the tribunal left for a future tribunal to decide whether NAFTA’s guarantee of most-favoured-nation (MFN) treatment can be used to expand the substantive protections under Article 1105 – a critical topic, in the light of all NAFTA states’ unanimous opposition to that interpretation. (Apotex Holdings Inc. and Apotex Inc. v United States of America, (ICSID Case No. ARB(AF)/12/1).)

Continue reading

Leave a Comment

Filed under Investment Arbitration, The Americas

The future of investment agreements: meeting of the World Investment Forum

The number and diversity of parties with interests in the future of international investment protection has never been greater – a result of tremendous growth in cross-border investment and rapid economic development in many parts of the world. At the same time, many stakeholders, including states and NGOs, have argued that the existing framework of investment treaties is in need of reform. Some have alleged, among other criticisms, that existing treaties limit the policy freedom of states to regulate in the interests of public health and environmental protection. In this context, on 16 October 2014 in Geneva, the United Nations Conference on Trade and Development (UNCTAD) convened a conference on the future of international investment agreements (IIAs), including in particular bilateral and multilateral investment treaties, and investor-state dispute settlement (ISDS).

UNCTAD has been working for several years to identify concrete mechanisms and proposals for reform of the system. We previously covered this initiative here. In July of this year UNCTAD also published an Issues Note that identified four potential paths of action and a recommended way forward for the reform of the existing IIA regime. The October conference built upon UNCTAD’s work, and followed the release of UNCTAD’s comprehensive 2014 World Investment Report.

Continue reading

Leave a Comment

Filed under Investment Arbitration

Repaving the Southeast Asian Silk Road: EU-Singapore Free Trade Agreement negotiations concluded

In the wake of the recent agreement of the EU-Canada Comprehensive Economic and Trade Agreement (EU-Canada CETA) and after just over a year of negotiations, the EU and Singapore have released their free trade Agreement (EUSFTA) to the public.  (See our recent blog post on CETA here). According to a statement released by the European Commission, the EUSFTA aims to ensure a high level of investment protection, whilst preserving the EU and Singapore’s right to regulate.  It will replace the 12 existing Bilateral Investment Agreements (BITs) between Singapore and European Member States.  The text of the EUSFTA can be found here.

Whilst the conclusion of this agreement is highly significant, the reference to the European Court of Justice to which it has given rise could perhaps be even more so.  Please see our recent blog post here, explaining the European Commission’s request for an ECJ Opinion on the EU’s competence to enter into EUSFTA.

Continue reading

Leave a Comment

Filed under EU Law, Europe, South East Asia