Podcast – Unilateral Arbitration Clauses: Enforcement Issues and Drafting

In this short podcast, senior professional support lawyers Hannah Ambrose and Vanessa Naish look at some of the issues surrounding unilateral arbitration clauses. Unilateral arbitration clauses are dispute resolution agreements which provide for either litigation with an option for one party to elect to arbitrate disputes, or arbitration with an option for one party to elect to litigate disputes. This podcast discusses the benefits and risks of such clauses, enforceability issues, and key considerations for drafting.

For further information or to suggest topics for future podcasts, please contact Hannah Ambrose, Professional Support Lawyer, Vanessa Naish, Professional Support Lawyer, or your usual Herbert Smith Freehills contact.

You may also be interested in a our previous podcast “Arbitration in Multi-Party and Multi-Contract Scenarios – What You Need to Know”, which is available here.

Vanessa Naish
Vanessa Naish
Professional Support Lawyer
Email
+44 20 7466 2112
Hannah Ambrose
Hannah Ambrose
Professional Support Lawyer
Email
+44 20 7466 7585

 

 

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Filed under Arbitration clauses, Podcast, Podcasts

Hong Kong Court casts doubt on enforceability of ICC awards made in Mainland China

The Hong Kong Court of First Instance has declined to set aside a partial award for lack of jurisdiction where the arbitration clause provided for ICC arbitration “in China” and the ICC had determined that the seat was Hong Kong, citing concerns over enforceability of awards made in mainland China by non-Chinese arbitral institutions.  To read the full judgment of Z v A [2015] HKEC 289, please click here. Continue reading

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Filed under Arbitration clauses, Arbitration rules, Asia, Hong Kong & China

The Proliferation of “Soft Laws” in International Arbitration: Time to Draw the Line?

Paula Hodges QC, Partner and Head of the Global Arbitration Practice at Herbert Smith Freehills has published an article on the impact of the proliferation of rules, guidelines, codes and protocols relating to international arbitration in recent years. The article considers how this so-called “soft law” finds its way into the arbitration process, the status it has attained and the impact it has.  It also questions whether the regulation of counsel conduct in arbitration by way of rules and guidance is a step too far. To read the full article please click here

This article was first published in the Austrian Yearbook on International Arbitration 2015.

Paula Hodges QC
Paula Hodges QC
Partner, head of global arbitration practice
Email | Profile
+44 20 7466 2027

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Filed under Arbitration rules, Arbitrators

Herbert Smith Freehills hosts TTIP event in partnership with Chatham House

On Wednesday 4th March Herbert Smith Freehills hosted an event in partnership with Chatham House (the Royal Institute for International Affairs, London), seeking to explore the opposition to the TTIP and, in particular, the Investor State Dispute Settlement (ISDS) chapter within it. Chaired by HSF partner, Andrew Cannon, the panel represented a broad range of stakeholders from in-house counsel, government officials, academia and civil society, together with HSF partner, Christian Leathley. The panel explored why ISDS arouses such opposition, and whether and how it can be improved to strike a balance between investment protection and the right of governments to regulate. The panel also considered whether the TTIP and its ISDS provisions will be a blue print for future free trade agreements.

The proposed Transatlantic Trade and Investment Partnership (TTIP) free trade agreement between the EU and the US, two of the world’s largest economies, is intended to remove trade barriers, create wealth and promote investment. On 13 January, the European Commission published the results of its public consultation on the investment protection and investor-state dispute settlement (ISDS) chapter in TTIP. Of the 150,000 responses, 97 per cent were negative. Critics have stated that the ISDS proposals would allow corporates to undermine regulation by governments in fields such as environmental protection.

The event was very well attended with around 100 delegates from across a broad spectrum of sectors and backgrounds. Held under the Chatham House rule, the event opened with presentations by each of the five panellists, followed by questions from the floor. Of particular focus was whether the European Commission’s efforts to revise the substantive standards in the draft TTIP consultation text were merely “tinkering”, doing little to address the legitimacy crisis in ISDS. The panel went on to consider whether a broader shift in mind set towards investor protection was required which gave greater significance to states’ other international obligations such as Human Rights and the environment.

Andrew Cannon comments, “this event gave us a unique opportunity to draw together viewpoints from the two sides of this very current debate at the historic venue of Chatham House. The ISDS system continues to come under ever-closer scrutiny and we will continue to follow developments closely.”

A fuller report of the seminar will be posted shortly.

For further information on the TTIP please contact partners Andrew Cannon, Christian Leathley, Matthew Weiniger and Laurence Shore or your usual Herbert Smith Freehills contact.

Andrew Cannon
Andrew Cannon
Partner
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+33 1 53 57 65 52
Christian Leathley
Christian Leathley
Partner
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+44 20 7466 2532
Matthew Weiniger QC
Matthew Weiniger QC
Partner
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+44 20 7466 2364
Laurence Shore
Laurence Shore
Partner
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+1 917 542 7807

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Beijing court backs SHIAC and SCIA

Since our last blog post on the Ni Laibao case (see here), in which Shanghai No.2 Intermediate Court ruled that Shanghai International Arbitration Centre (SHIAC) has jurisdiction over an arbitration where the parties agreed to arbitrate before the CIETAC Shanghai Sub-commission, the Shenzhen Court of International Arbitration (SCIA) has posted on its website two decisions (made by Shenzhen Intermediate Court and Beijing No.2 Intermediate Court, respectively) that confirm the approach adopted by the court in Ni Laibao.

These two recent decisions both involve a jurisdictional challenge arising out of an arbitration clause in the same underlying contract, in which disputes were referred to CIETAC’s South China sub-commission. Adopting similar reasoning to that of the court in Ni Laibao, both the Beijing and Shenzhen courts have concluded that SCIA has jurisdiction over the arbitration.  Continue reading

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Paris Court of Appeal orders the retraction of an award made where one arbitrator lacked independence: the ongoing Tapie saga

In a remarkable judgment of 17 February 2015, rendered further to a rarely-seen application for revision of an arbitral award (which in this case lead to the retraction of the award), the Paris Court of Appeal overturned an arbitral award issued by a three-member tribunal in Paris in 2008 in favour of Bernard Tapie (Tapie), a French businessman and ex-politician, against the Consortium de Realisation (CDR), a French stated-owned company. The Court found that the award was tainted by fraud on the ground that there had been collusion between one of the arbitrators, Mr Pierre Estoup (Estoup) (a former president of the Versailles Court of Appeal), and Tapie and his counsel, Me Lantourne (Lantourne), with Estoup deliberately and systematically influencing the arbitral tribunal’s decision-making process in favour of the interests of the party that he intended to promote. Tapie and his group of companies had received € 403 million in damages under the award in question.

The dispute at the origin of the now-retracted award was highly publicised, because it involved one of France’s most famous businessmen of the 80’s, a French state-owned company, the French Government at the time of the arbitration (including the then Ministry of Finance, Ms Christine Lagarde, now Chairman of the IMF), and an arbitral tribunal composed of three renowned French legal personalities (alongside Estoup, sat Mr Jean-Denis Bredin, a well-known lawyer, and Mr Pierre Mazeaud, a law Professor and former President of the French Constitutional Council who acted as Chairman of the arbitral tribunal).

The judgment is a rare example of a successful motion for the revision of an award under French law. The French Court first classified the arbitration as domestic and then concluded that the facts disclosed in a related criminal investigation evidenced links between Estoup, Tapie and Lantourne which had been fraudulently concealed by Estoup – demonstrating a lack of independence, which had been confirmed by the arbitrator’s attitude during the arbitration proceedings. A handful of court judgments have been overturned in similar circumstances, which gives some indication as to what the legal consequences and next steps following the retraction of the arbitral award may be. However the precise legal consequences are still to be determined.

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Filed under Arbitration laws, Arbitrators, Awards, Europe, Independence

English court refuses to enforce New York Convention Award that was set aside at the seat of arbitration and that granted remedies that were not pleaded

In a judgment handed down on 19 February 2015 in the case of Malicorp Ltd v Government of the Arab Republic of Egypt and others, English Commercial Court judge Mr Justice Walker has refused to enforce a Cairo Regional Centre for International Commercial Arbitration award on two separate grounds: first, because the award was set aside by a decision of the Cairo Court of Appeal in 2012, and second, because the award granted remedies on a basis which was neither pleaded nor argued. Walker J also opted not to exercise his discretion under section 103 of the Arbitration Act 1996 to enforce the award in any event. In so doing, the English court has joined other national courts and an ICSID tribunal in dealing yet another blow to Malicorp’s efforts to recover from the Egyptian state.

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Filed under Arbitration Act 1996, Arbitration laws, Awards

Paris Court of Appeal enforces award under ICSID Additional Facility Rules between Gold Reserve and Venezuela

Abstract: In République Bolivarienne du Venezuela c/ Société Gold Reserve INC, Cour d’appel de Paris, Pôle 1 – Chambre 1, RG N° 14/21103, a judge sitting in the Paris Court of Appeal considered opposing applications regarding an award issued under the ICSID Additional Facility Rules, with one side seeking enforcement of the award and the other seeking a stay of enforcement.

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A judge sitting in the Paris Court of Appeal has granted Gold Reserve’s application for enforcement of an award issued under the International Centre for Settlement of Investment Disputes (ICSID) Additional Facility Rules. In doing so, the judge rejected Venezuela’s application for a stay of enforcement.

This decision is another example of the French courts adopting a robust approach to the enforcement of arbitral awards. While every case will turn on its facts, the decision is a clear indication that, in the absence of convincing evidence of serious prejudice to a party’s rights, a stay is unlikely to be granted – even if the sums involved are significant. (République Bolivarienne du Venezuela c/ Société Gold Reserve INC, Cour d’appel de Paris, Pôle 1 – Chambre 1, RG N° 14/21103.)

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Filed under Arbitration laws, Awards, Enforcement, Enforcement - Europe, Europe, Investment Arbitration

Astro and Lippo – the Hong Kong leg: important lessons and potential risks for award-debtors

First Media, part of the Lippo Group and the unsuccessful defendant in a Singapore-seated arbitration, has failed to resist enforcement in Hong Kong of Awards that the Singapore Court of Appeal had previously refused to enforce because they were made without jurisdiction (Astro Nusantara International B.V. v PT First Media TBK HCCT 45/2010). First Media lost on two grounds, each of which is explained in more detail below.

In brief – first, the 14 day period allowed for resisting enforcement had expired; First Media was fourteen months too late. The court did not extend the time limit. Second, even if the time limit had been extended, the Awards would be enforced notwithstanding the Tribunal’s lack of jurisdiction over the claimant companies, because of First Media’s breach of the good faith principle. Continue reading

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Filed under Awards, Challenges to awards, Hong Kong & China, New York Convention

Herbert Smith Freehills ranked as the 8th busiest arbitration practice in the world by Global Arbitration Review

We are delighted to announce that Herbert Smith Freehills’ International Arbitration practice has been ranked as the 8th busiest practices in the world according to the prestigious GAR 30 survey conducted by Global Arbitration Review (GAR).

GAR’s rankings of the world’s most active arbitration practices were revealed at the publication’s annual awards dinner in Washington on 25th February 2015.

GAR is one of the leading publications of the international arbitration community worldwide. Its annual awards as well as its law firm rankings – GAR 30 and GAR 100 – are the most closely watched in the field. The rankings are compiled from extensive information provided by law firms which includes the number of merits and jurisdictional hearings attended during the past two years; the number of settlements; the value of the firm’s portfolio of matters; the number of hours billed to arbitration; and the number of arbitral appointments each firm receives.

The rankings also take into account the reputation of the firm’s partners amongst the arbitral community in the peer-nominated Who’s Who of Commercial Arbitration. Herbert Smith Freehills is ranked 2nd globally with a total of 14 notable arbitration specialists.

Head of the firm’s Global Arbitration Practice, Paula Hodges Q.C., comments:

Our international arbitration practice continues to go from strength to strength and we are delighted that our global expertise in international arbitration has been recognised yet again in the GAR 30 rankings this year.”

For further information please contact Paula Hodges, Q.C., or your usual Herbert Smith Freehills contact.

Paula Hodges QC
Paula Hodges QC
Partner, head of global arbitration practice
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+44 20 7466 2027

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