The English Commercial Court has set aside an award under section 67 of the Arbitration Act 1996 (the “English Act“), and declared that the tribunal was not properly constituted, in Shagang South -Asia (Hong Kong) Trading Co Ltd v Daewoo Logistics  EWHC 194 (Comm).
In his judgment dated 5 February 2015, Hamblen J found that the procedural law of the arbitration agreement (the curial law) was Hong Kong law, on the basis that the arbitration clause provided for arbitration “to be held in” Hong Kong and there was not clear wording or other contrary indicia sufficient to displace the prima facie conclusion that this carried with it an implied choice of Hong Kong law as the curial law.
This decision demonstrates that parties should ensure, if they wish to designate in their arbitration agreement a convenient geographical location for hearings to take place, that they are content for the procedural law applicable at that location to apply to their arbitration agreement. If they do not wish that location to be the seat of the arbitration (the lex arbitri), it will be necessary to make that clear in the drafting of the arbitration agreement.
Our Hong Kong dispute resolution team has published a new guide â€śADR in Asia: Spotlight on mediation in Hong Kongâ€ť following a survey ofÂ around 100 clients and contacts on their use of mediation as a dispute resolution tool in Hong Kong. Through direct interviews and voting via a bespoke iPad app, the teamÂ hasÂ gained valuable insights on how international corporates use mediation in Hong Kong.
The guide is of relevance to all organisations, particularly those facing disputes in Hong Kong.Â If you would like an electronic copy of the guide, please email firstname.lastname@example.org.Â To read more about theÂ client research and voting by delegates at our recent launch event, please seeÂ our Hong Kong dispute resolution e-bulletin.
Herbert Smith Freehills is pleased to announce that the firm has once again been ranked as the only firm in Band One for International Arbitration across the Asia Pacific region. The ranking was confirmed in the latest 2015 edition of Chambers Asia-Pacific, published on 11 February 2015, and is the 6th year running that Herbert Smith Freehills has been ranked as the sole firm in the top category.Â
This is also the first year that Herbert Smith Freehills has been ranked as the only firm in Band One for international arbitration in Hong Kong/China, having shared top tier status with other firms in previous years.Â Continue reading
On 30 January 2015, the PRC Supreme People’s Court (SPC) promulgated its Judicial Interpretation of the Civil Procedure Law (the Interpretation) which came into effect on 4 February 2015. The Interpretation aims to assist implementation of the current Civil Procedure Law, as last amended in 2012 (2012 CPL).
The full Chinese text of the Interpretation can be found at here.Â Â
The Interpretation contains 23 chapters and 552 articles in total. It is a substantive update of the SPC’s previous interpretation on Civil Procedure Law in 1992 and clarifies a number of issues in the 2012 CPL. With the promulgation of the Interpretation, it is hoped that the implementation of the 2012 CPL across the country can be more unified and consistent. Continue reading
The Singapore International Arbitration Centre (SIAC) has issued a Practice Note on the appointment of administrative secretaries. The brief practice note provides guidance on when a secretary may be appointed and the basis on which a secretary can be remunerated. The note does not cover the scope of a secretary’s duties in SIAC arbitrations, leaving this instead to be agreed between the parties. The issuance of the note is timely given the increased use of administrative secretaries in international arbitration. Continue reading
On 5 February 2015, Herbert Smith Freehillsâ€™ Perth office hosted a seminar that examined the potential for Perth to build on its reputation as a key player in the mining sector and become a hub for international energy and resources arbitration.
The seminar focused on the increasing prevalence of energy and resources disputes in Western Australia, the growing interest among the Australian business community in arbitration (in particular, international arbitration) as a method of dispute resolution and what needs to be achieved for Perth to compete with popular and well established international arbitration hubs like Singapore.
Chaired by Alastair Henderson (Herbert Smith Freehills, Managing Partner, South East Asia), the panel comprised His Honour the Chief Justice Wayne Martin AC QC of the Supreme Court of Western Australia, Rashda Rana SC (Barrister and Arbitrator, Singapore) and Elizabeth Macknay (Herbert Smith Freehills, Partner, Perth).Â Please see below for aÂ summary of the key themes emanating from the seminar.
In a decision handed down recently, the Supreme Court of India found that the Delhi High Court had overstepped its powers and wrongly set aside a domestic arbitration award. In the process, the Supreme Court has clarified the scope of the “public policy ground” to set aside awards under Section 34(b)(ii) of the Arbitration and Conciliation Act (Act).
The Supreme Court was critical of the Delhi High Court re-opening an arbitrator’s award on merits by reviewing evidence considered by the arbitrator and even considering evidence above and beyond that which the arbitrator had the opportunity to consider. The Supreme Court advocated giving due weight and recognition to a determination by an arbitration â€“ especially on issues of fact. The court recognized that an award could only be set aside on grounds of public policy in very limited circumstances, such as where an award was arbitrary, capricious or such that it would shock the conscience of the court.
The English Commercial Court has found that an arbitration clause in a consultancy agreement was superseded by a jurisdiction clause in a later settlement agreement. The court emphasised the “presumption in favour of one-stop adjudication“, and that, given the sequence in which the agreements were entered into, the parties intended that the jurisdiction clause would replace the earlier agreement to arbitrate. As a result, the court found that the arbitral tribunal correctly declined jurisdiction.
Today, 3 February 2015, the Democratic Republic of the Congo became a Contracting State to the New Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. In June 2013, the DRC passed legislation to facilitate its accession to the New York Convention. However, in order to finalize the accession, the DRC needed to deposit its instrument of accession with the Secretary-General of the UN, 90 days after which the New York Convention would enter into force. Continue reading
Following some uncertainty at the start of the new year about a possible new arbitration ordinance, the Indian government has now announced that it will table proposals for amendments to the Arbitration and Conciliation Act 1996 (the “Act“) to be considered in the next legislative session.Â The need for change in the arbitration landscape and legislation in India has been widely acknowledged, and the proposed amendments have been long awaited.
There have been several (unsuccessful) attempts by previous governments to amend the Act â€“ as discussed in our webinar on India Insights last July. The new Indian government has recognised the need for change and proposed several amendments to the Act, which it is hoped will be passed as a bill in the next legislative session.