Herbert Smith Freehills has issued the latest edition of its Indian international arbitration e-bulletin.
In this issue we consider various court decisions, which cover issues such as the applicability of the Arbitration Amendment Act 2015, binding non-signatories to an award, enforcement of an award before the National Company Law Tribunal, and the continued pro-arbitration approach of the Indian courts. In other news, we consider the continued rise of institutional arbitration in India, a detailed analysis of the proposed amendments to the Arbitration Act, as well as India-related bilateral investment treaty news (and other developments).
An UNCITRAL arbitral tribunal has reportedly dismissed a US$36 million claim by a French investor, Louis Dreyfus Armateurs SAS (“LDA“), against India under the 1997 France-India bilateral investment treaty (“BIT“). The award is not public at this time, but press reports state that LDA has also been ordered to pay approximately US$7 million in respect of India’s substantial legal expenses.
The newly established Japan International Dispute Resolution Center (JIDRC) opened its first hearing venue on 1 May 2018. Located within Japan’s second largest metropolitan area, the JIDRC-Osaka is the product of cooperation between the public and private sectors and is reported to be the first facility in Japan to provide specialised international arbitration hearing services. It represents a welcome addition to the international dispute resolution landscape in Japan.
Filed under ADR, Asia, News
Sir Christopher Greenwood: Investor-State Arbitration: Is there a Future?
This year marks the eighth edition of the Herbert Smith Freehills – SMU Asian Arbitration Lecture Series.
We are delighted that Sir Christopher Greenwood GBE, CMG, QC, will deliver the lecture on Thursday 18 October, on the topic ofÂ Investor-State Arbitration: Is There A Future? We are honoured to have Chief Justice Sundaresh Menon as Guest of Honour.
The Herbert Smith Freehills-SMU Asian Arbitration Lecture Series was established in 2010 through funding from Herbert Smith Freehills, and promotes collaborative forms of dispute resolution and access to justice. It also aims to promote Singapore as a leading centre for dispute resolution in Asia, particularly in arbitration and mediation. Each year, a distinguished arbitrator delivers the lecture, which is also published in a leading global arbitration journal.
Date:Â Â Â Thursday, 18 October 2018
Time:Â Â Â 4:30pm â€“ Registration
5:00pm â€“ Lecture
Cocktail Reception to follow
Venue:Â Â Singapore Management University
School of Law (SMU Hall 1.3, Level B1)
55 Armenian Street
Click here to register
The lecture will be a SILE accredited CPD activity.
In Baosteel Engineering & Technology Group Co. Ltd. v. China Zenith Chemical Group Ltd. [HCCT 7/2018], the Hong Kong Court of First Instance granted a temporary stay of enforcement of an arbitral award. In order to ensure that the award creditor’s interests were not prejudiced, the operation of the stay was made conditionalÂ on the award debtor paying security.
Drawing on two surveys on the use of arbitration in technology, media and telecoms disputes, Susan Field, a senior associate and solicitor advocate at Herbert Smith Freehills in London, considers whether parties in the TMT sector are moving away from their traditional reluctance to use international arbitration.
The technology media and telecoms (TMT) sector has grown by leaps and bounds in recent years. With rapid, sometimes cross-border, development and the increasing spend and dependency on technology, comes the unavoidable pain of disputes as deals go wrong, partnerships turn sour, or things do not go to plan. There are already a large number of TMT-related disputes globally, many involving significant sums. According to a survey of the TMT sector conducted by Queen Mary University of London in 2016 (International Dispute Resolution Survey â€“ Pre-empting and Resolving Technology, Media and Telecoms Disputes), 23% of participants had experienced more than 20 TMT disputes over the past five years. More than a third said that they had been involved in at least one dispute valued in excess of US$100 million. The QMU survey also identified the types of TMT disputes most commonly encountered: these included IP, licensing, regulatory, supply chain and consumer disputes, though there was of course variation in the type of disputes encountered in the individual technology, media and telecoms industries.
More recently, in 2017, the Silicon Valley Arbitration and Mediation Centre (SVMAC) conducted its own survey identifying among other things the top perceived benefits of arbitration among technology companies.
While the surveys suggest there is a growing market for dispute resolution in the TMT sector, there remains a perception that parties are reluctant to use it. This article looks at whether there is any basis for this and how the arbitration community should respond.
As previously reported here, a draft Bill to amend the Arbitration and Conciliation Act 1996 (the “Act“) was approved by the Indian Cabinet on 7 March 2018 (the “Bill“). The Bill was listed as a part of the agenda for the monsoon session of the Indian Parliament and was passed by the Lower House on 10 August 2018, without any amendments. The text of the Bill can be found here.
The Law Minister has described the Bill as “a momentous and important legislation” aimed at making India “a hub of domestic and international arbitration”. The key features of the Bill are:
In Mercato Sports v Everton, the English High Court found that two parties were bound by an implied horizontal contract containing an arbitration clause. Accordingly, it granted a stay of proceedings under section 9 of the Arbitration Act 1996 (‘S9 AA 1996’). In this case, a football agent (the Claimant) sought payment for bringing a player to the attention of Everton (the Defendant) and by doing so, it enabled them to sign the player. While Claimant and Defendant had no direct contractual relationship, the Court established that both were bound by the Football Association’s Rules (‘FA Rules’), in particular by the arbitration agreement therein. While the Court emphasized that such arrangements would not always automatically lead to an implied horizontal contract, the parties’ dealings in this case did lead to an implied contractual relationship, governed by the FA Rules.
The English Court (the “Court“) has dismissed an application by Ukraine to set aside a court order permitting Russian investor, PAO Tatneft, to enforce an arbitral award against Ukraine.Â Ukraine argued that it was immune from the Court’s jurisdiction by virtue of the State Immunity Act 1978. The Court found that Ukraine had not waived its right to rely on state immunity arguments, despite not having raising them in the arbitration. However, it found that Ukraine had agreed to submit the disputes in question to arbitration under the Russia-Ukraine Bilateral Investment Treaty (the “BIT“) and was therefore not immune from proceedings in connection with the arbitration by virtue of s9(1) of the State Immunity Act 1978 (“SIA“).
On July 3, 2018, Uruguay passed its International Commercial Arbitration Act after its upper house, the Chamber of Senators, signed off the draft in May. A day later, it was Argentina’s turn. These enactments mark the final step of a long awaited reform of the Argentinean and Uruguayan arbitration legislations, and finally place them on an equal footing with neighbouring states.