Australia gets in line: recent amendments to the International Arbitration Act

In October 2015, important amendments were made to the Australian International Arbitration Act 1974 (Cth) (IAA).  The amendments affect provisions in the IAA relating to the enforcement of foreign arbitral awards and the confidentiality of arbitral proceedings. The changes bring the Commonwealth arbitration law further into line with both international arbitration norms and conventions, as well as domestic arbitration laws.

On 13 October 2015, the Civil Law and Justice (Omnibus Amendments) Act 2015 (Cth) (Act) came into force. As its name suggests, this omnibus Act effects a series of changes to Australian civil justice legislation. Importantly, the Act amends parts of the IAA relating to the enforcement of foreign arbitral awards and the confidentiality of arbitral proceedings.

While, on face value, the amendments appear relatively minor, they are a significant reform to Australian international arbitration law. They are a product of the continuing shift towards making Australia a more ‘pro-arbitration’ jurisdiction. The amendments make the IAA more consistent with the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), the UNCITRAL Model Law and international arbitration norms. Further, they ensure consistency with the existing state domestic arbitration laws.

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LCIA releases costs and duration data – the first of more to come?

Yesterday, 3 November 2015, the London Court of International Arbitration ("LCIA") released costs and duration data regarding actual cases administered by the LCIA under the LCIA Rules. It is thought that this is the first time an arbitral institution has released such information. This move is no doubt part of a growing trend of, and indeed demand for, increased transparency in international arbitration. It remains to be seen how other arbitral institutions – and even perhaps some less transparent domestic commercial courts competing for big ticket commercial disputes –  will react and whether they will follow suit.

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Herbert Smith Freehills boost arbitration practice with openings in South Africa and Dusseldorf

Herbert Smith Freehills is pleased to announce that it will be adding to its global practice with the opening of offices in Johannesburg and Dusseldorf and the hire of three new partners, including two experienced arbitration practitioners.  The global footprint of the arbitration practice is already unrivalled, with arbitration specialists in 16 offices across the world. The new officess – and associated partner hires – will enhance this position by offering specialist arbitration advice on the ground in South Africa and further arbitration capability in Germany. 

Brigette Baillie and Peter Leon, leaders within their respective fields domestically and internationally, join the Johannesburg office from South African firm Webber Wentzel where Brigette was head of the Energy & Infrastructure Sector Group, and Peter head of Mining Regulation.  Brigette has exceptional experience in non-recourse and limited-recourse financing, project structuring and corporate and equity finance and she is named as a leading lawyer in South Africa by Chambers Global.  Peter's areas of expertise include mineral and petroleum regulation in developing countries, black economic empowerment and indigenisation law, international investment law, prevention and crisis management as well as financial services regulation.  Peter's experience also includes acting as co-counsel to the claimants in an ICSID claim against South Africa and sitting as an arbitrator.  Peter will become global co-chair of the firm's Africa practice, alongside Stéphane Brabant.  

Thomas Weimann will head the Dusseldorf office when it opens early next year and will work out of the Frankfurt office in the meantime.  Thomas has a leading arbitration practice involving M&A, construction and engineering disputes, having acted as counsel and arbitrator in proceedings under a number of different institutional rules, including the ICC, DIS and CIETAC.

Head of the Global Arbitration Practice Paula Hodges QC comments:

"I'm delighted to welcome our new partners to the firm. All three come with stellar experience in their respective fields.  Peter and Thomas will strengthen our arbitration team considerably. Thomas will enhance our pan-European arbitration practice as a whole as well as adding to our arbitration capability in Germany.  Peter's experience of advising mining and energy clients, as well as his in-depth knowledge of the African market, will also be invaluable to our arbitration practice.  We look forward to working with Peter, Thomas, and Brigette".

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Singapore Court of Appeal provides guidance on applications to stay proceedings in favour of arbitration and scope of arbitrability

In Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals [2015] SGCA 57, a distinguished panel of the Singapore Court of Appeal considered an application to stay court proceedings in favour of arbitration under section 6 of the Singapore International Arbitration Act ("IAA"). They confirmed the appropriate standard of review to be adopted in respect of the existence and scope of the arbitration agreement as a prima facie standard.  The Court of Appeal also provided guidance on determining whether the subject matter of a claim is arbitrable or not, holding that minority shareholder claims under s.216 of the Companies Act (Cap 50, 2006) are arbitrable.  Finally, the Court of Appeal demonstrated flexibility in exercising its case management powers to regulate the conduct of court proceedings involving multiple parties, not all of whom are party to the arbitration agreement.

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Filed under Arbitrability, Asia, Jurisdiction, South East Asia, Stays

Article on Proposed Guidelines for the Disclosure of Third-Party Funding Arrangements in International Arbitration

Herbert Smith Freehills Visiting Attorney Elizabeth Chan has published an article titled "Proposed Guidelines for the Disclosure of Third-Party Funding Arrangements in International Arbitration" in the American Review of International Arbitration. This article proposes a set of guidelines for the disclosure of third-party funding arrangements in international arbitration, covering the circumstances when an arbitral tribunal should order disclosure of a third-party funding arrangement and the scope of that disclosure.

To read the full article please click here.

This article is published in Volume 26, No. 2 of the American Review of International Arbitration 2015.

For further information, please contact Elizabeth Chan, Visiting Attorney or your usual Herbert Smith Freehills contact.

Elizabeth Chan
Elizabeth Chan
Visiting Attorney
+1 917 542 7831


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The Young International Arbitration Practitioners of New York has launched!

In September 2015, young arbitration specialists based in New York City gathered for the inaugural meeting of the Young International Arbitration Practitioners of New York (YIAP-NY). Initiated by Herbert Smith Freehills New York LLP, YIAP-NY's current membership has 48 members, representing a diverse cross-section of New York's international arbitration community. Among YIAP-NY's membership are practitioners from 18 law firms, as well as arbitration specialists from arbitral institutions and scholars.

Liang-Ying Tan, co-Chair of YIAP-NY (along with Jessica Cameron), says, "YIAP-NY is a discussion group for international arbitration specialists under the age of 40 who are based in New York City. We host monthly meetings to give young practitioners the chance to get to know each other, as well as to learn about current issues in arbitration and share knowledge. This group will also give younger practitioners the opportunity to speak on particular topics of interest—in fact, the presenters at the first two events are both YIAP-NY members."

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This year's Herbert Smith Freehills-SMU Asian Arbitration Lecture will be delivered by Professor Gabrielle Kaufmann-Kohler, followed by commentary from Alastair Henderson, Managing Partner of Herbert Smith Freehills Singapore and Head of International Arbitration Southeast Asia.

Tuesday, 24 November 2015

4:30pm: Registration & pre-event drinks

5:00pm to 6:30pm: Lecture followed by cocktail reception

Singapore Management University Administration Building
Level 5, Mochtar Riady Auditorium
81 Victoria Street, Singapore, 188065

Click here to register.

The lecture will be a SILE accredited CPD activity (1.5 points).

The Herbert Smith Freehills-SMU Asian Arbitration Lecture Series was established in 2010 and was made possible by a term fund contribution by Herbert Smith Freehills LLP, Singapore.

The objective of the Lecture Series is to promote collaborative forms of dispute resolution and access to justice, and in so doing to promote Singapore as the centre for dispute resolution in Asia, particularly in arbitration and mediation. Each year, a distinguished arbitrator is invited to present this lecture, which in turn will be published in a leading regional arbitration journal.



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Launch of landmark global conference series on the future of dispute resolution

Herbert Smith Freehills is pleased to announce the launch of The Global Pound Conference (GPC) Series 2016-17.

The aim of this ambitious worldwide conference series is to build a global conversation about the current landscape of civil and commercial dispute resolution and how dispute resolution tools and institutions should respond to the needs of 21st century business.  In particular, it aims to gather standardised and actionable data on what users of dispute resolution mechanisms need and want and whether those needs are being met.

Over 25 countries worldwide have already committed to holding a GPC event, with more being added. The launch will take place at a two-day conference in Singapore on 17-18 March 2016 and the last event is scheduled to be held in London in July 2017.  Other cities will include Hong Kong, Paris, Dubai, Madrid, Sydney, New York and Frankfurt/Berlin.

The Series, which is being led by the International Mediation Institute (IMI), is being sponsored by Herbert Smith Freehills as well as other global partners: Shell,  AkzoNobel, the Beijing Arbitration Commission (BAC),  JAMS, and the International Centre for Dispute Resolution (ICDR).

Pivotal to Herbert Smith Freehills' pre-eminent disputes practice is a deep understanding of the importance of working with our clients to assess how they can best make use of the various dispute resolution mechanisms available to them.  We have therefore long been at the forefront of efforts to explore what corporates and other organisations actually need from dispute resolution processs and how the existing mechanisms can be improved to meet those needs.  In particular, our award-winning alternative dispute resolution (ADR) practice has undertaken extensive client research studies into how corporates develop strategies for using ADR and we were the lead sponsors of the pilot event for the GPC series, held in London last year. 

We are therefore proud to be the Global Platinum Sponsor of the GPC series.   Alexander Oddy, Partner and member of the GPC Central Organising Group said:

 "The GPC Series is a really exciting and unique opportunity for all stakeholders in the dispute resolution community to shape the way we do things in the 21st Century. It is a chance to understand what corporates and other organisations really need, to share ideas and learning and develop new processes that are fit for purpose.

"What we have today is a relatively developed set of dispute resolution processes but we need to understand how we can use those more effectively in combination and in culturally sensitive ways in the future."

Why the 'Pound Conference' Series?

The original Pound Conference, held in the USA in 1976 (and named in honour of Roscoe Pound, the reforming Dean of Harvard Law School in the 1920s and 30s), was the event widely credited as the stimulus for the development of the range of ADR processes used today. The new Global Pound Conference series is intended to be as ground-breaking and important for corporate dispute resolution as the 1976 conference was.  

Who will attend the GPC events?

Major stakeholders in dispute resolution will attend the GPC Series including businesses, lawyers, chambers of commerce, academics, judges, arbitrators, mediators, policy makers, government officials and others. They will collaborate at each of the conferences around the world to discuss how existing tools and techniques available in dispute resolution are working in practice. They will also stimulate new ideas and generate actionable data on the dispute resolution needs of corporates and other organisations, both domestically and internationally.

How will the GPC gather data? 

The events worldwide will share a common technology platform to enable all participants to vote on standardised core questions about the current and future dispute resolution landscape. The results of the voting for each question will be available immediately to delegates at each event, for analysis and discussion.

What will be the output of the GPC? 

The GPC Series will culminate in a report at the end of 2017, interpreting the data gathered globally to help shape how dispute resolution will be conducted for years to come. The resulting data from all of the events will be publicly available to anyone wishing to research stakeholder views on dispute resolution.  The data collected at individual conferences will be published following each event and we will be providing periodic updates on this blog throughout the 18 month period.

How can I get involved in the GPC?

The GPC gives all those interested in civil and commercial dispute resolution a say in how dispute resolution should evolve. We invite you to participate in this exciting project by attending a GPC event near you over the next 18 months.   The dedicated website contains full information about the GPC, the planned events and how to get involved.

Click here​ to watch a brief video explaining the benefits of attend​ing the GPC Series.

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Filed under ADR, Africa, Asia, Australia, EU, Europe, Global Pound Conference, Hong Kong & China, Middle East, News, Regions, South East Asia, The Americas

Hong Kong Law Reform Commission releases consultation paper on Third Party Funding in arbitration

The Hong Kong Law Reform Commission has today published a Consultation Paper recommending that third party funding should be permitted for arbitrations in Hong Kong. The Paper invites public comment on the recommendation, and how third party funding should be adopted in Hong Kong. A link to the paper can be found here.

The Consultation Paper is a comprehensive study of the third party funding industry, examining current third party funding methods in other jurisdictions, as well as the potential benefits and drawbacks of permitting third party funding for arbitration in Hong Kong. The Consultation Paper also reviews the current law relating to third party funding in Hong Kong, as well as the law and regulation for third party funding in several other jurisdiction (including England & Wales, Australia, USA, Mainland China, and Singapore).

Justin D'Agostino, the Global Head of Herbert Smith Freehills' Dispute Resolution practice and the firm's Regional Managing Partner for Asia and Australia, is a member of the Law Reform Commission Sub-Committee which drafted the Consultation Paper. The Sub-Committee includes key members of Hong Kong's arbitration community, including Kim Rooney, a barrister at Gilt Chambers (Chair of the Sub-Committee), Teresa Cheng SC, Chairwoman of HKIAC, Robert Pang SC, Jason Karas and Victor Dawes SC.

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ICSID Publishes Annual Report for FY 2015 and Latest Caseload Statistics

The International Centre for the Settlement of Investment Disputes ("ICSID") has recently published its Annual Report for FY 2015, which compliments its most recent Caseload Statistics Report concerning cases registered or administered by ICSID.

The Annual Report and Caseload Statistics Report provide an interesting overview of the sectors and States involved in ICSID arbitrations, as well as providing an indication of the popularity of the ICSID Convention and Additional Facility Rules as a dispute resolution mechanism for investment claims.  Whilst they do not enable analysis of all investor-state claims (as claims may also be brought under different arbitral regimes or, less frequently, state courts), the ICSID Reports cover provide a sizeable proportion of such claims (ICSID has handled 65% of all known cases).  The Reports thus provide significant indicators of the nature, parties and outcomes in investor-state disputes.

The Annual Report is available here and the Caseload Statistics Report is available here.

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