In Tribunal des Conflits, 24 April 2017, C4075, the Tribunal des Conflits considered whether the administrative or ordinary courts had jurisdiction to hear an application to enforce an arbitral award made in respect of disputes arising under two public services contracts.
Tribunal des Conflits clears jurisdictional divergence between French Supreme Court and Conseil d’Ă‰tat regarding enforcement of awards rendered in connection with certain public law contracts
Ever since the introduction and then expansion of international sanctions on Russia (in particular by the US and the EU), arbitration practitioners have questioned whether this will prompt a change in the party selection of international arbitration in Russia-related commercial agreements. Specifically, whether historically popular arbitral venues outside Russia (London, Stockholm and others in Europe) will see a decline in favour of venues in Asia (e.g. Singapore, Hong Kong and others). Anecdotal evidence suggested that several Russian parties were indeed looking East (see our prior blog post here). Now however a survey conducted by the Russian Arbitration Association (“RAA”) suggests that despite the introduction of sanctions, the arbitration landscape has remained relatively stable with fewer changes than might have been anticipated.
The RAA Survey published earlier this year indicates that arbitration is still the preferred method of dispute resolution and that the historically prevalent venues of London and Stockholm remain for now the most preferred seats outside of Russia, with Geneva and Paris also remaining (slightly) preferred to Singapore and Hong Kong. The ICC, SCC and LCIA remain heavily favoured as overseas arbitral institutions, while English law remains the most common choice of parties alongside Russian law.
The survey nevertheless indicates that choices of Russian law and a Moscow seat of Arbitration are on the increase and that Asian arbitration seats (as well as Dubai and New York) are being considered and used by parties to Russia-related commercial contracts.
Is the recently signed Morocco-Nigeria BIT a step towards a more balanced form of intra-African investor protection?
On 3 December 2016, Morocco and Nigeria signed a new bilateral investment treaty (the "BIT"), with the overarching aim of strengthening "the bonds of friendship and cooperation" between the two States. The BIT (available here) is yet to be ratified and to enter into force.
The BIT takes an interesting and in some ways innovative approach to the balance of rights and obligations as between investors and the respective host States, placing emphasis on the promotion of sustainable development and expressly safe-guarding the State's discretion to take measures to meet policy objectives. As compared to traditional investment treaties, the BIT imposes additional obligations on investors and appears to seek to address, to a degree, the criticism that such investment treaties have been too heavily geared towards protecting investor interests.
We explore below some of the more unusual aspects of the BIT, and consider the innovative nature of the BIT by comparison to other intra and extra-African treaties concluded in recent years.
The European Court of Justice renders its opinion on the EU-Singapore free trade agreement: investment chapter is not within EU’s exclusive competence
On 16 May, 2017 the European Court of Justice (the Court) rendered its Opinion on the competence of the European Union to conclude the Free Trade Agreement (FTA) with Singapore. The Opinion recognises exclusive EU competence over most of the agreement and largely settles a long-standing dispute between the Commission and the Member States on the division of competences under the Lisbon Treaty.
Importantly, in the context of investor-state dispute resolution, the Court's Opinion is likely to render any agreement including protection for non-direct foreign investments or investor-state dispute settlement (ISDS) provisions a so-called "mixed agreement" which requires each of the Member States as well as the EU itself to become party, unless certain aspects commonly found in such agreements are removed or the Member States otherwise agree (discussed further below).
The Opinion will have a major impact on the negotiation of future EU trade agreements, whether pending or anticipated (including the potential FTA between the UK and the EU following Brexit).
Herbert Smith Freehills is delighted to announce the promotion of Dana Kim (Seoul) to Of Counsel and Martin Wallace (Hong Kong) to Senior Consultant.
Dana Kim specialises in international arbitration and corporate crime and intelligence and also leads the intellectual property practice in Seoul. A skilled advocate with 10 years of experience, Dana has worked on disputes across Asia, including in China, Hong Kong, Singapore, Australia and South Korea.
Martin Wallace is an experienced international arbitration specialist. He trained with Herbert Smith Freehills and practised in the firm's London office for two years before relocating to Hong Kong in 2010. He has played a critical role in the growth and success of the firm's market-leading Greater China arbitration practice, including acting for the successful parties in some of the most significant and high-profile arbitration-related court cases in Hong Kong in recent years.
Asia arbitration partner May Tai said, "Martin and Dana are first-rate lawyers who are a tremendous asset to our practice. Their promotions are richly deserved, and a testament to the deep bench of talent that Herbert Smith Freehills fields in the Asia-Pacific region and globally."
Following invitations to ICSID member States and the public to submit topics for potential review, ICSID has published a paper on the Rules Amendment Process. The paper lists sixteen topics which are to be canvassed in the next stage of the review. The topics include areas of arbitral practice which have been subject to much broader discussion – such as the disclosure of third party funding (a point picked up in the SIAC Investment Arbitration Rules which took effect earlier this year), and the possible introduction of a code of conduct for arbitrators. Also included for review are aspects of the procedure, such as consolidation, the annulment mechanism, the preliminary objections process and the possible publication of decisions and orders. Further, ICSID will consider security for costs and allocation of costs.
Each of the sixteen topics will be addressed by ICSID in background papers to be published in early 2018. The goal of the amendments is to (i) incorporate lessons learnt from case law; (ii) to make the process increasingly time and cost effective whilst maintaining due process and a balance between investors and States, and (iii) make the procedure less paper-intensive.
In the recent decision of Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd  SGCA 32, the Singapore Court of Appeal confirmed that the Singapore courts will enforce a dispute resolution clause which gives only one party the option to arbitrate. The court also clarified the requirements and threshold for a stay of proceedings to be granted under section 6 of the Singapore International Arbitration Act ("IAA")
In a resolution adopted on 21 February 2017, the Paris Bar Council (Conseil de l'Ordre) indicated its support for third-party funding. The resolution confirms that third-party funding is in the interests of both clients and counsel, particularly in the context of international arbitration. It is also not prohibited by French law.
We are delighted to share with you the inaugural issue of the new publication from the Herbert Smith Freehills Global Construction and Infrastructure Disputes Practice. Inside Construction and Infra showcases the expertise of our leading construction and infrastructure disputes lawyers, giving our clients the benefit of their experience drawn from cases taking place around the world. The publication offers fresh perspectives on this rapidly changing industry, identifying current market trends and providing personal insights from our practitioners across the globe. Click here to access issue #1 of Inside Construction and Infra.
The English Court has rejected an arbitrator challenge under s24 of the English Arbitration Act 1996 (the Act) on the basis of alleged "over-delegation" of their duties to their secretary. The Court's decision was based on a review of the Act, the LCIA Rules 1998, the various guidelines on the use of Tribunal Secretaries, academic commentary and previous English case law. In addition, the Court noted that it should be slow to depart from the conclusions of the LCIA Court on the same grounds of challenge.
This is a valuable judicial discussion of the practical use of tribunal secretaries and demonstrates that the Court will give robust consideration to whether the grounds of s24 are made out with regard to the use of a secretary.