Herbert Smith Freehills is pleased to announce the promotion of Christopher HuntĀ and Elaine WongĀ to the partnership, with effect from 1 May 2015. Chris and Elaine are both arbitration specialists in our Tokyo office. Continue reading
The case of Philpott & Orton v Lycee Francais Charles De Gaulle School serves as a welcome reminder that the English court will strictly enforce agreements to arbitrate by ordering a mandatory stay of court proceedings, even in contexts where court procedures may traditionally apply. Where a party argues that a matter should be settled by the court, the court will consider both as a matter of substance whether this is a dispute that the parties have referred to arbitration, and also whether the dispute can be resolved through arbitration as a matter of practice.
We previously reported the publication of our new ADR in Asia Guide. As well as distilling the results of our client survey on mediation in Hong Kong, the Guide contains a summary of the main ADR processes and their use across Asia. This summaryĀ also contains our Dispute Resolution Wheel, which explains at a glance the characteristics of the various dispute resolution processes you may encounter. Click here to access the summary and our Dispute Resolution Wheel.
If you would like a copy of our Guide, please email email@example.com.
On March 30th and April 1st, Brazil signed, respectively, with Mozambique and Angola, two Investment Cooperation and Facilitation Agreements (ICFAās) ā despite a few small differences, the texts are substantially similar ā seeking to stimulate investments between it and those countries and to provide a safe environment for the investors of each party.
It is widely known that Brazil is not a supporter of the traditional international investment agreement (IIA) model. As clarified by the Brazilian Secretary of Foreign Trade at the International Investment Agreement Conference held by UNCTAD in October 2014, some provisions usually found in IIAs, like those related to indirect expropriation and investor-state dispute settlement, are said to be at odds with the Constitution and to restrict the regulatory autonomy of the Brazilian government. For those reasons, the few IIA signed by Brazil have never been approved by Congress and have therefore not come into force.
The Brazilian government, however, has developed an alternative model to encourage international investments, whilst, at the same time, respecting the host states’ right to regulate. In this context, the ICFAs recently signed intend to achieve a balance between Statesā and investorsā rights and duties, promoting investments through cooperation and dialogue between the States.
Latest video post in the “Observations on Arbitration” series: Fair and Equitable Treatment (Part 1)
In the first or two video posts in the āObservations on Arbitrationā series, Matthew Weiniger QC discusses the fair and equitable treatment standard in investment arbitration.
The video post can be downloaded to your computer for offline viewing here.
In China Property Development (Holdings) Ltd v Mandecly Ltd HCCT 53/2010, the Hong Kong Court of First Instance (the CFI) has set aside part of an arbitral Award, on the basis that the applicant had been denied an opportunity to present its case on certain issues (click here for the full judgment). The decision underlines the policy of the Hong Kong courts to set aside arbitral awards on due process grounds only where the conduct of the arbitral tribunal has been “serious” or “egregious” in nature (see our previous post on the leading case Pacific China Holdings Ltd v Grand Pacific Holdings Ltd here). It also provides a useful reminder for arbitral tribunals of some of the pitfalls to be avoided when setting out their reasoning in arbitral awards.Ā Continue reading
Hong Kong confirms pragmatic approach to enforcement, limited rights of appeal and signals views on “CIETAC split” clauses
In å»£ę±é·č¹é»åęéå ¬åø v Inspur Electronics (HK) Ltd (HKMP 434/2015), the Hong Kong Court of Appeal has confirmed a lower court’s order to enforce a Mainland award, reiterating Hong Kong’s “deliberate policy of restricting the rights of appeal” in respect of arbitration awards, and upholding the pragmatic approach to enforcement adopted by the first instance judge. It is the first Court of Appeal authority to confirm that the leave of the Court of First Instance is required to appeal against a decision to grant or refuse leave to enforce an award, under section 84(3) of the Arbitration Ordinance (Cap. 609). The judgment also suggests that Hong Kong will follow the approach of the PRC Supreme People’s Court to clauses that provided for arbitration by “CIETAC Shenzhen” or “CIETAC Shanghai” before the CIETAC split.Ā
Click here for the Court of Appeal judgment.
In this short podcast, Partner, Craig Tevendale and Professional support lawyer, Hannah Ambrose, look at multi-tier dispute resolution clauses involving arbitration. The podcast considers the benefits of these clauses (also known as escalation clauses), the approach taken by the courts in a number of different jurisdictions and key considerations for drafting.
For further information or to suggest topics for future podcasts, please contact Craig Tevendale, Partner, Hannah Ambrose, Professional Support Lawyer, or your usual Herbert Smith Freehills contact.
You may also be interested in our previous podcasts “Arbitration in Multi-Party and Multi-Contract Scenarios – What You Need to Know”, and “Unilateral Arbitration Clauses: Enforcement Issues and Drafting”. You may also be interested in Herbert Smith Freehills’ ADR Practical GuideĀ on the use of mediation with arbitration.
Hannah AmbroseProfessional Support Lawyer
+44 20 7466 7585
Head of India Arbitration Practice, Nick Peacock, comments on India’s draft Model BIT 2015 for CNBC TV18’s “The Firm”
As reported in our recent blog post here, India has recently released a draft Ā āModel Text for the Indian Bilateral Investment Treatyā (āModel BITā).Ā Head of the India Arbitration Practice, Nick Peacock was invited to comment on the Model BIT for CNBC TV18’s The Firm, India’s only television programme covering corporate law, M&A, financial regulation, tax and audit matters.
In the interview, Nick discusses a number of the provisions in the Model BIT, including the potentially broad scope of the exclusions which could impact the protection offered to investors, the removal of the “Most-Favoured Nation” provision found in India’s 2003 Model BIT and in many hundreds of bilateral investment treaties entered into across the globe, and the more limited national treatment provisions.Ā Nick also comments on the implications of the Model BIT for Indian investors seeking protection for their investments outside India.
The programme can be accessed here.
To discuss the implications of the Model BIT or investment protection more generally, please contact Nick Peacock, Partner, or your usual Herbert Smith Freehills contact.
States lose immunity by taking steps in proceedings in the English Courts to challenge an arbitral Tribunal’s jurisdiction
In an appeal in a case considering the interrelation between arbitration and state immunity, on an application by France and Spain (the States), the English Court of Appeal (the Court) refused to reverse the decision of the High Court which granted permission to enforce two arbitral awards (the Awards) against the States under s66 of the English Arbitration Act 1996 (the Act).
The States argued that they benefitted from immunity from the jurisdiction of the English courts under the State Immunity Act 1978 (the SIA). The Court found that in bringing an application challenging the jurisdiction of the tribunal under s67 and s72 of the Act, the States had taken steps in the proceedings other than for the sole purpose of preserving immunity. The States had been deemed to have submitted to the jurisdiction.
On a practical level, the decision demonstrates the need for states to consider carefully their strategy in responding to proceedings brought against them, if they do not wish to risk losing the general immunity granted by the SIA.
The case hasĀ been considered onĀ our Public International Law blog.Ā Please click here for the case summary and comment.