In Oldham v. QBE Insurance (Europe) Ltd  EWHC 3045 (Comm), the Commercial Court held that the arbitrator’s decisions on costs could be challenged on grounds of serious irregularity under Section 68 of the Arbitration Act of 1996 (the Act) on the basis that the applicant had been denied the opportunity to make submissions. This decision is a rare instance of the English Courts intervening in the conduct of an arbitration in order to protect the integrity of the process, and ensure equal treatment of parties to the arbitration. Continue reading
English Commercial Court upholds s68 serious irregularity challenges to an arbitral award holding that the arbitrator should have ensured that costs are pleaded by all parties
Delhi High Court confirms that two Indian parties can choose a foreign seat of arbitration and applies the alter ego doctrine to join non-parties to the arbitration agreement
In GMR Energy Limited v. Doosan Power Systems India Private Limited, the Delhi High Court confirmed that two Indian parties can contract to have a foreign seat of arbitration (in this case, Singapore), and also ruled that a non-party to the Arbitration Agreement could be made part of the arbitral proceedings on the grounds that it acted as an alter ego to the contracting party.
A brief summary of the case can be found below. Continue reading
New restrictions appear to limit clients’ choice of counsel in UAE seated arbitrations – but is it a storm in a teacup?
On 27 November 2017, Ministerial Resolution No. 972 of 2017 (the “2017 Regulations”) of the Executive Regulations to the Federal Legal Profession Law No. 23 of 1991 came into force, replacing the previous Regulations issued in 1997.
The effect of the 2017 Regulations is arguably that only UAE nationals registered on the Roll of Practicing Lawyers (“Local Counsel”) can represent clients in the UAE national courts and arbitration proceedings seated ‘onshore’ in the UAE. The 2017 Regulations do not, however, apply to Dubai International Financial Centre (“DIFC”) Court proceedings, arbitrations seated in the DIFC, Abu Dhabi Global Market (“ADGM”) Court proceedings or arbitrations seated in the ADGM.
Non-UAE national lawyers (“International Counsel”) have never been permitted to appear before the UAE national courts and so the impact of the 2017 Regulations on these proceedings is limited. But the 2017 Regulations could be of great significance to arbitrations. We explore below the implications of this potentially significant and unexpected legislation on UAE seated arbitration proceedings (“Onshore Arbitrations”). Continue reading
The latest buzz within the Chinese international commercial legal community on Belt & Road related legal developments appears not to have surmounted the Great Wall of the Chinese language. The buzz is that a comprehensive judicial interpretation relating to arbitration is on route to promulgation.
On 4 December the Supreme Peopleās Court (SPC) issued a news release that its judicial committee had approved a judicial interpretation on judicial review of arbitration in principle, entitled Provisions on Some Issues Related to the Trial of the Judicial Review of Arbitration (Judicial Review of Arbitration Interpretation) (ęé«äŗŗę°ę³é¢å ³äŗå®”ēä»²č£åøę³å®”ę„ę”ä»¶č„å¹²é®é¢ēč§å®).Ā āApproval in principleāĀ (ååéčæ) is not mentioned by the SPCās 2007 regulations on judicial interpretations but is one of the SPCās long-established practices.Ā It means that the judicial committee has approved it, subject to some āminorā amendments. Minor amendments are more than typographical errors and relate to specific substantive matters.Ā However, the news release did not specify what those āminorā issues were or set a deadline for issuing the interpretation. In December of last year (2016), the SPCās judicial committee also approved in principle the #4 Company Law interpretation, but that interpretation was not formally issued until August of this year. This observer surmises (without any basis in facts or rumors) that the interpretation will be promulgated before Chinese new year so it can be one of the 2017 accomplishments of the SPCās #4 Civil Division (but then again, that may be overly optimistic.
In Neo Intelligence Holdings Ltd v Giant Crown Industries Ltd HCA 1127/2017, the Hong Kong Court of First Instance held that an arbitration clause was not necessarily superseded by a clause in a supplemental agreement that conferred non-exclusive jurisdiction on the Hong Kong courts.
While the two clauses did not sit “wholly happily” together, it was at least possible that the parties intended the jurisdiction clause to govern post-award enforcement, or to indicate the lex arbitri. As a result, the court’s proceedings should be stayed and the question of jurisdiction referred to the arbitral tribunal. The applicant for a stay need only show that there is a prima facie, or plainly arguable, case that the parties are bound by an arbitration clause. Once that threshold is met, it is for the arbitral tribunal to determine its own jurisdiction.
On 1 October 2017, the International Investment Arbitration Rules of the China International Economic and Trade Arbitration Commission (CIETAC Investment Arbitration Rules or Rules) came into force. Ā This is the first set of investment arbitration rules ever promulgated by a Chinese arbitration institution; no Chinese institution has heard an investor-state dispute to date. Ā As China’s Belt and Road Initiative continues to gain momentum, disputes between investors and states along the Belt and Road region will, inevitably, arise. As the number of Belt and Road projects grows, so the number of disputes is bound to increase.Ā The CIETAC Investment Arbitration Rules are designed to offer an alternative institution and rules to resolve these disputes between investors and states.
Has the pendulum swung back in favour of the DIFC courts? Two new decisions of the Judicial Tribunal
We recently reported on three decisions of the Judicial Tribunal (please click here) following our commentary on the Judicial Tribunal’s controversial first decision in Daman v Oger and the effect on the Banyan Tree jurisdiction (click here). We concluded that, notwithstanding the absence of detailed reasoning in individual decisions, it was possible to piece together the Judicial Tribunal’s approach from its decisions taken as a whole. The two new decisions shine further light on that approach. Continue reading
In Tonicstar Limited v Allianz Insurance and Sirius International Insurance Corporation  EWHC 2753, the English High Court considered an application under Section 24 of the Arbitration Act 1996 Ā (the Act) for the removal of an arbitrator on the basis that he did not satisfy the contractual stipulation as to relevant experience. This judgment is of particular interest given that questions of the removal of arbitrators do not often come before the courts (because they are, in institutional arbitration, typically decided by arbitral institutions so are not usually public). The Court decided to remove the arbitrator on the basis that he had experience of insurance and reinsurance law, rather than required experience in the business of insurance and reinsurance. This decision highlights the importance of the careful drafting of arbitration clauses which specify characteristics of an arbitrator.Ā It also serves as a reminder of the importance of precedent in the English judicial system.
On 30 October 2017, the International Chamber of Commerce (“ICC“) published guidance designed to provide greater clarity on the scope for “immediate dismissal of manifestly unmeritorious claims or defences” under Article 22 of the 2017 ICC Rules (the “Rules“). The updated practice note follows the introduction by several leading arbitral institutions of express ‘early dismissal’ provisions in their latest rules. The ICC did not follow this trend in March 2017, but confirms in its updated practice note that it considers that Tribunals’ general case management powers under Article 22 of the Rules already include such tools.
To read the practice note in full, please click here. Herbert Smith Freehills has produced a Step by Step Guide to Arbitration under the ICC Rules. To request a copy, please contact Arbitration.Info@hsf.com. Continue reading