On its face, the thrust of the UK Government’s Future Partnership Paper on Enforcement and Dispute Resolution (the Paper), published on 23 August, is to rule out the jurisdiction of the Court of Justice of the European Union (CJEU) to determine the enforcement of rights and obligations by individuals and businesses derived under the Withdrawal Agreement (and any future relationship agreement) and disputes between the EU and the UK. ¬†Since the Paper was published, the Prime Minister has again reiterated the Government’s position that “the UK will be able to make its own laws – Parliament will make our laws – it is British judges that will interpret those laws, and it will be the British Supreme Court that will be the ultimate arbiter of those laws.”
However, as discussed below, whilst perhaps consistent with the stage of negotiations, the Paper is drafted to leave considerable room for manoeuvre, and it leaves many questions unanswered regarding enforcement of rights and obligations under the Withdrawal Agreement and any future relationship agreements and dispute resolution between the UK and the EU after Brexit.
The Paper follows the publication on 22 August of the UK Government’s Future Partnership Paper on Providing a Cross-border Civil Judicial Cooperation Framework, considered in our blog post here, which presented the UK’s position on the extent to which current EU rules on choice of law, jurisdiction and enforcement of judgments should continue to apply as between the UK and the EU Member States post-Brexit.¬†¬† Continue reading
The respondents in an international commercial arbitration were successful in the Federal Court in Australia in setting aside parts of two partial awards and removing the sole arbitrator pursuant to Articles 12, 18 and 34 of the UNCITRAL Model Law. These articles are incorporated into Australian law by the International Arbitration Act 1974 (Cth).
The Court found that the arbitrator had conducted himself in such a manner that the applicants could no longer have confidence in him. This was mainly because the arbitrator had decided various substantive questions in a final manner without giving some of the parties an opportunity to be heard on those questions.
The Court observed that procedural difficulties were encountered due to the hiving off and determination of incomplete separate questions where issues between the parties had not been properly crystallised.
Hui v Esposito Holdings Pty Ltd  FCA 648 and Hui v Esposito Holdings Pty Ltd (No 2)  FCA 728 demonstrate the circumstances in which the Court may review the actions of an arbitrator and may be prepared to terminate an arbitrator’s mandate and set aside awards.
The Shanghai No.1 Intermediate Court (the Shanghai Court) recently refused to enforce a SIAC award under Article V(1)(d) of the New York Convention, which provides that the award may be refused if “[T]he composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties‚Ä¶”¬† The SIAC award was made under the expedited procedure of the 2013 SIAC Rules (5th Edition).
On 21 July 2017, the Beijing No. 4 Intermediate People’s Court enforced a Hong Kong award in favour of Stonewall Resources Limited (Stonewall), an Australian listed gold mining company.¬† The HKIAC award is related to breach by Shandong Qixing Iron Tower Co., Ltd. (Qixing) of a share sale agreement governed by Australian law whereby Qixing had undertaken to purchase South African mining assets from Stonewall.¬† Notably, the disputed award was enforced in Beijing less than a year after being issued by the Hong Kong tribunal; and Stonewall is reported to have benefitted from third party funding, as a result of which its costs were reimbursed in return for 45% of the award.
Herbert Smith Freehills has published a new edition of its well-regarded Guide on dispute resolution and governing law clauses in India-related commercial contracts. The Guide is intended to assist in-house counsel who handle India-related commercial contracts on behalf of non-Indian companies and who need to have a practical understanding of the nuances of drafting dispute resolution and governing law clauses in the Indian context. Continue reading
Taiwan’s Chinese Arbitration Association (“CAA“) has adopted new arbitration rules for arbitrations seated outside Taiwan. The Chinese Arbitration Association Rules, International (known as the “CAAI Rules“) came into effect on 1 July 2017 and are intended to apply to arbitrations seated outside of Taiwan. The 2001 CAA Rules will continue to apply for arbitrations seated in Taiwan.
The enactment of these Rules, coupled with the CAA’s plans to open an office in Hong Kong as part of the Hong Kong government-sponsored legal hub at the former Central Government Offices in Central, form part of the CAA’s greater ambitions to expand its offerings to arbitrations seated in jurisdictions outside Taiwan. ¬†The CAA is hoping that these measures will allow the institution to attract more cases arising out of China’s “One Belt, One Road” plan.
The Singapore International Arbitration Centre (SIAC) has opened its second representative office in India in the International Financial Services Centre (GIFT IFSC) in GIFT, Gujarat, to assist in the promotion of international commercial arbitration
Pursuant to Prime Minister Modi’s push to grow India as an international arbitration hub and the push for institutional arbitration in India (see here and here), the opening of the SIAC’s second representative office is a welcome development in the Indian arbitration landscape.
The United States will lobby for changes to the investor-state dispute settlement (“ISDS”) provisions of the North American Free Trade Agreement (“NAFTA”) in the upcoming discussions to renegotiate the regional treaty.
ISDS reform is one of several “negotiating objectives” announced last month by the Office of the United States Trade Representative (the “USTR”), the federal agency with responsibility for US trade negotiations.¬† The disclosure was made public in accordance with a 2015 statute that requires the USTR to release objectives at least 30 days before the start of formal trade negotiations.¬† The NAFTA talks are set to begin in Washington D.C. on August 16.
On the agenda are modest proposals for increased transparency in the NAFTA ISDS process, such as the introduction of mandatory public access to NAFTA arbitration hearings, and submissions, and awards.¬† Those amendments would be broadly in line with the recent trend toward greater public transparency throughout the investment treaty space.¬† A more striking departure from current practice is suggested by the proposed introduction of a “right” of “non-governmental entities . . . to request making written submissions to a panel.”¬† Continue reading
As previously reported here and here, the Mumbai Centre for International Arbitration (MCIA) was launched in October 2016, to promote institutional arbitration in India. The MCIA has been established as a joint initiative between the government of Maharashtra in India and the domestic and international business and legal communities.
In a first, of hopefully many pro-arbitration moves, we understand that the Supreme Court of India has invoked section 11 of the amended Indian Arbitration and Conciliation Act, 2015 (the Amended Act) and instructed the MCIA to appoint an arbitrator in an international dispute between Sun Pharmaceutical Industries Ltd (Indian company) and Falma Organics Limited (Nigerian company). This decision marks the first time that an Indian court has invoked section 11 of the Amended Act to designate an institution to assist with the appointment of an arbitrator.
On 6 July 2017 the EU and Japan announced an agreement in principle on their Economic Partnership Agreement (“EPA“).¬† The scale of this agreement is eye-popping: once in effect the EPA will cover nearly 40 percent of all goods exports, 10 percent of the Earth’s population, and about 30 percent of global GDP.¬† The breadth of goods covered by the EPA will be similarly substantial and includes agricultural and food products, the forestry sector, industrial products, the automotive sector, electronics, and services.¬† While some tariffs, such as those on wine, will disappear from the moment the EPA enters into force, other tariffs ‚Äď including those on imports of Japanese automobiles to Europe and imports of European chocolates to Japan ‚Äď will disappear over a number of years.¬† The net effect will be to remove tariffs from 99 per cent of all goods traded between the EU and Japan with one study suggesting consequent increases in EU exports to Japan of 34% and Japanese exports to the EU of 29%.¬† Continue reading