This week has seen two major developments in Singapore arbitration. First, Singapore's Ministry of Law has published draft legislation to legalise and regulate third party funding for arbitration (and arbitration-related litigation and mediation) in Singapore. Second, the Singapore International Arbitration Centre (SIAC) confirmed the release of the sixth edition of its Rules: the SIAC Rules 2016, to come into effect on 1 August 2016.
Below we explain briefly the effect of the proposed legislation and the SIAC Rules 2016. More in-depth analysis will follow.
In a further development in the case of Union Marine Classification Services LLC v The Government of the Union of Comoros covered on our blog here, the Court of Appeal ("Court") has refused to grant permission to appeal. The claim was originally made under s67 of the English Arbitration Act 1996 (which relates to lack of jurisdiction) in respect of an additional award made under s57(3) of the Act (which allows a tribunal to make an additional award in respect of a claim which was presented to the tribunal but not dealt with in an earlier award). The claim was dismissed on the basis that it should have been brought under s68 of the Act (relating to serious irregularity), rather than s67. The judge had also refused to extend the time limit to allow the claimant to make an application under s68, noting that the claim would have failed on the merits in any event and refused permission to appeal. The applicant sought permission to appeal from the Court on the basis that the judge was wrong in both his conclusion that the claim fell outside s67 and his refusal to allow an extension of time.
The Court focussed its analysis on the practical point on whether an appeal would have had any real prospect of success, finding in no uncertain terms, that it would not and that granting permission to appeal "would simply cause the parties to incur further costs to no good purpose".
In Sea Powerful II Special Maritime Enterprises (ENE) v Bank of China Limited , the Hong Kong Court of Appeal (CA) has highlighted the need for parties to act promptly when applying for an injunction to restrain foreign court proceedings in favour of arbitration. "Deliberate, inordinate and culpable" delay in seeking the injunction, coupled with considerations of comity, had entitled the Court of First Instance (CFI) to refuse the injunction, even where there was a valid arbitration clause.
In particular, the CA condemned the plaintiff for deliberately delaying its anti-suit application until the relevant limitation period had expired, in order to deprive the other party of its contractual right to arbitrate.
Wednesday 6 July 2016, 12.45 – 1.45pm BST
States are increasingly involved in disputes arising from commercial transactions and arbitrations with investors under various bilateral and multilateral investment treaties. Resolving a dispute with a state is only the first step – more significant is the ability to enforce the award.
In this webinar, our speakers will draw on recent examples to discuss:
This post follows the post originally published on 19 January 2016 (here).
In November 2015, the Cour Commune de Justice et d'Arbitrage (CCJA) ruled that an award in an arbitration between French company Getma International ("Getma") and the Guinean State should be set aside on the grounds that the arbitrators had entered into a separate fee agreement with the parties to the arbitration, in breach of the CCJA Rules. The arbitrators responded to the annulment decision by taking the unusual step of publishing an open letter to the arbitration community, heavily criticising the CCJA's decision.
Unsurprisingly, the CCJA's annulment decision, as well as the arbitrators' open letter, has since attracted much attention from the arbitral community. It has sparked a lively debate regarding the interaction between tribunals and institutions, and the extent to which institutions should give effect to party agreements.
Enforcement proceedings in the US courts which had been stayed pending the CCJA annulment proceedings, were restarted shortly after the CCJA made its ruling. In the latest instalment of the Getma v Guinea saga, on 9 June 2016, the United States District Court recognized the CCJA annulment and held that it would not confirm and enforce the Getma award.
In a recent decision, the English High Court determined that it would be wrong in principle for the court to determine whether parties to a disputed contract had entered into a binding arbitration agreement in circumstances where one party intended to commence arbitration proceedings on the basis of the disputed arbitration agreement: HC Trading Malta Ltd v Tradeland Commodities S.L.  EWHC 1279 (Comm) (click here for the full judgment).
The decision highlights the respect afforded to the arbitral process under the Arbitration Act 1996 ("the Act") and affirms that it is only in circumstances where the court is required to "fill a gap", such as with anti-suit injunctions preventing a party from commencing or continuing proceedings in another forum, that it will rule on the jurisdiction of an arbitral tribunal.
In this article, Nicholas Peacock, Dominic Kennelly and Anees Naim consider three recent developments which suggest that summary and expedited procedures are becoming more available in arbitrations. Will this make arbitration increasingly suitable for banks and financial institutions?
This article was first published on www.cdr-news.com on 19 May 2016.
In Wing Bo Building Construction Co Ltd v Discreet Ltd (HCMP 775/2016), the Hong Kong Court of Appeal ("CA") has declined an application for leave to appeal a decision by the Court of First Instance ("CFI") to stay the action in favour of arbitration. Click here for the full judgment.
The Korean Commercial Arbitration Board (KCAB) has released updated International Arbitration Rules (2016 Rules), which will apply to all KCAB-administered international arbitrations commenced on or after 1 June 2016, unless the parties agree otherwise. The previous version of the KCAB International Arbitration Rules was introduced on 1 September 2011 (2011 Rules).
The changes in the 2016 Rules are intended to increase the efficiency of the arbitral process, improve the process for constitution of a tribunal (particularly in relation to the impartiality and independence of arbitrators), and adopt innovations similar to those introduced in the rules of major international arbitration institutions in recent years.
In its most recent Dispute Resolution Bulletin, the Court of Arbitration of the International Chamber of Commerce (ICC) observed that the “number of Australian parties [involved in ICC arbitrations] rose steeply to a level previously unseen.”
The ICC reported 30 Australian parties involved in ICC arbitrations filed in 2015, 16 as claimant and 14 as respondent. Those figures put the number of Australian parties involved in ICC arbitrations on par with the number of Singaporean parties, marginally ahead of the number of parties from Hong Kong and marginally behind the number of parties from South Korea.
The ICC reported that two-thirds of Australian parties involved in ICC arbitrations filed in 2015 were involved in international arbitrations whereas one third were involved in domestic disputes. There were 5 ICC arbitrations seated in Australia filed in 2015.
The ICC also observed that “for the first time Australian arbitrators ranked among the ten most frequent nationalities” in terms of arbitrator appointments.
The latest ICC statistics are consistent with anecdotal evidence that the Australian legal and business communities are embracing arbitration as their preferred method for resolving cross-border disputes.
Other evidence that international arbitration is on the rise in Australia, include:
Refinements passed in September last year to Australia’s International Arbitration Act – see our briefing here;
The adoption of new Rules by the Australian Centre for International Commercial Arbitration (ACICA) – see our blog post here; and
A series of “pro-arbitration” decisions by local Courts in Australia – see our blog posts here, here and here.
Filed under Australia, News