English Commercial Court rejects challenge to “conditional” award

In the latest decision relating to the arbitration between U&M Mining Zambia Ltd (“U&M”) and Konkola Copper Mines plc (“KCM”), the Commercial Court in London rejected challenges to an award made under s67 and s68 of the Arbitration Act 1996 (the “Act”).

The award included an order for KCM to pay certain invoices unless KCM “showed cause, supported by evidence, within 14 days of the Award, why such an order should not be made”. Amongst other grounds, KCM relied on the fact that the award was “conditional” and therefore “legally defective” as a ground to challenge the award under s68. The Commercial Court disagreed, stating that an award can be final and conclusive in its terms where it provides for “specific relief […] which only bites at one point in the future”.

(U&M Mining Zambia Ltd v Konkola Copper Mines plc [2014] EWHC 2374 (Comm))

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Filed under Challenges to awards, Enforcement, Europe, New York Convention

The new LCIA rules

The London Court of International Arbitration (“LCIA”) Court has unveiled its new arbitration rules (the “2014 Rules”), which come into force on 1 October 2014 and are to apply to any arbitration commenced after that date.  

Overview of the changes

The LCIA has retained the distinctive character of the institution and rules, whilst modernising its provisions to meet user demand.

Like the revisions to the UNCITRAL Arbitration Rules (in 2010), ICC Arbitration Rules (in 2012) and HKIAC Administered Arbitration Rules (in 2013), the most substantial changes to the current LCIA Rules are those intended to make the LCIA arbitration process less costly and more efficient, for example including an emergency arbitrator provision, whilst other revisions are designed to improve the handling of complex multi-party disputes. A key innovation is an annex of general guidelines on the conduct of party representatives and a power for the arbitral tribunal to impose sanctions for breach of those guidelines. There have been some changes to terminology to modernise the rules (for example, the “chairman” of the arbitral tribunal is now called the “presiding arbitrator”).

Further details of the key changes are provided below. We will shortly hold a webinar discussing the implications of the changes to the LCIA Rules on drafting of arbitration clauses.

For further information, please contact Paula Hodges QC, Partner, Vanessa Naish, Professional Support Lawyer, Hannah Ambrose, Professional Support Lawyer, or your usual Herbert Smith Freehills contact.

Paula Hodges QC
Paula Hodges QC
Partner, head of global arbitration practice
Email | Profile
+44 20 7466 2027
Hannah Ambrose
Hannah Ambrose
Professional Support Lawyer
Email
+44 20 7466 7585
Vanessa Naish
Vanessa Naish
Professional Support Lawyer
Email
+44 20 7466 2112

 

 

 

 

 

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Filed under Arbitration rules, Europe, Institutions

Recent Developments in India-related international arbitration

Herbert Smith Freehills has issued the latest edition of its Indian international arbitration e-bulletin. This issue considers some significant decisions of the Indian courts, including two decisions on the arbitrability of fraud claims and a decision of the Supreme Court concerning the power of Indian courts to intervene in foreign-seated arbitrations.

The e-bulletin also reports on some interesting news stories on India-related arbitration claims, including the ongoing GMR-Maldives dispute and a decision on the termination of an arbitral tribunal’s mandate.

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Filed under Arbitration laws, Arbitrators, India, Investment Arbitration

Draft arbitration legislation laid before Parliament in Myanmar

As previously reported, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) entered into force with respect to Myanmar on Monday 15 July 2013. At the time, we noted that a necessary next step was the introduction of new domestic legislation to implement the Convention, in particular toprovide for the enforcement of foreign arbitral awards and arbitration agreements. Continue reading

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Filed under Arbitration laws, Asia, New York Convention, Public International Law, South East Asia

The Longlide case and its impact, or non-impact, on Sino-foreign arbitration clause drafting

For almost a decade, the validity of arbitration clauses that subject a Sino-foreign contract dispute to arbitration before a foreign arbitration institution, but with a seat in China,[1] has been controversial. Many practitioners and commentators believe, for a variety of reasons, that such clauses are invalid under Chinese law. A recently published decision of the Supreme People’s Court of China (“SPC”), however, casts doubt on this view. Continue reading

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Filed under Arbitration clauses, Arbitration rules, Asia, Hong Kong & China

ILO adopts new treaty on forced labour

On 11 June 2014, the International Labour Organisation (“ILO”) adopted a Protocol (“Protocol”) to the 1930 Forced Labour Convention No. 29 (“Convention”). The Protocol is intended to update the 84 year old Convention and to address gaps in its implementation.

The Protocol calls for governments to pursue a range of measures in order to prevent and eliminate forced labour, including by ensuring that the coverage and enforcement of legislation relevant to the prevention of forced labour applies to all workers and sectors of the economy and by strengthening labour inspection services.

The Protocol will enter into force one year after it has been ratified by at least two member States of the ILO.

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Filed under International Human Rights, Public International Law

Interim relief from Iran sanctions extended to November 2014

Herbert Smith Freehills has published its Sanctions Update e-bulletin on recent developments in the sanctions regime against Iran.

On 21 July 2014, it was announced that the six month suspension of EU and US sanctions against Iran as part of the Geneva Joint Plan of Action agreed in January 2014 would be extended until 24 November 2014 to allow negotiations between the P5+1 (China, France, Germany, Russia, the UK and the US) and Iran to continue.

Both the UK and US have made announcements relating to the extension and the EU has published Council Decision 2014/480/CFSP which extends the previous relaxations until 24 November.

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

Rod Fletcher
Rod Fletcher
Partner
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+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
Elizabeth Head
Elizabeth Head
Associate
Email
+44 20 7466 7555

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Filed under Europe, Middle East, Sanctions, The Americas

The Impounded Boeing 737 – The Saga Continues

Following on from their previous article in Young Arbitration Review (“YAR”), “The Impounded Boeing 737“, Herbert Smith Freehills associates Vanina Sucharitkul and Gregory Travaini have published a further article on Walter Bau AG v The Kingdom of Thailand entitled “The Impounded Boeing 737 – The Saga Continues” in the fourteenth edition of YAR.  Here, they examine Thailand’s continued efforts to resist enforcement of the arbitration award in multiple jurisdictions. To read the full article, please click here.

For further information, please contact Vanina Sucharitkul, Senior Associate, Gregory Travaini, Avocat, or your usual Herbert Smith Freehills contact.

Vanina Sucharitkul
Vanina Sucharitkul
Senior Associate
Email
+66 2 6573821
Gregory Travaini
Gregory Travaini
Avocat
Email
+33 1 53 57 65 37

This article was first published in Young Arbitration Review, July 2014, p.5 and is reproduced by kind permission of Young Arbitration Review.

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Filed under Arbitration laws, Asia, Awards, Enforcement, Investment Arbitration

Australian Court upholds primacy of the arbitral fact finding process

On 16 July 2014, the Full Federal Court of Australia handed down its reasons for dismissing TCL Air Conditioner (Zhongshan) Co Ltd’s (TCL) appeal[1] from the Court’s decision in in Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 2).[2] The decision clarifies the circumstances in which an arbitral award will be set aside or denied recognition or enforcement under the Model Law as a result of a failure to accord a party procedural fairness in connection with making the award.

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Filed under Australia, Challenges to awards, Enforcement, New York Convention

A further step towards transparency: UNCITRAL approves Draft Convention on Transparency in Treaty-Based Investor-State Arbitration

On 9th July 2014, at its 47th session, the United Nations Commission on International Trade Law (UNCITRAL) approved a Draft Convention on Transparency in Treaty-Based Investor-State Arbitration (the Convention). The main aim of the Convention is to extend the application of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (the Transparency Rules). As previously reported by us, the Transparency Rules were introduced to try and increase transparency in investor-state arbitrations by allowing for greater public access to documents and hearings and for interested parties to make submissions to the tribunal.

If adopted by the UN and embraced by states, the Convention has the potential to bring about a significant change to the resolution of investor-state disputes, impacting states and investors alike.

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Filed under Arbitration rules, Investment Arbitration