Publication of New IBA Guidelines on Conflict of Interests in International Arbitration – the key changes

On 23 October 2014, the IBA Council passed a resolution adopting the anticipated revision to its “IBA Guidelines on Conflicts of Interests in International Arbitration” (2014 Guidelines), which have been widely used and referred to by practitioners and arbitrators in the decade since their adoption in 2004 (Original Guidelines). A copy of the 2014 Guidelines can be found by clicking here.

The 2014 Guidelines, published on 28 November, do not mark a substantial departure from the Original Guidelines, and instead make refined changes to reflect and inform current debates on issues in modern arbitral practice, and “the increased complexity in the analysis of disclosure and conflict of interest issues“. In clarifying the standards expected of arbitrators and parties, it is the aim of the 2014 Guidelines “that arbitration proceedings are not hindered by ill-founded challenges against arbitrators” or that “the legitimacy of the process [is] not affected by uncertainty and lack of uniformity“.

The 2014 Guidelines were drafted by the IBA Conflicts of Interest Subcommittee (IBA Subcommittee), which was made up of 27 leading arbitrators and arbitration practitioners, including Global Head of Herbert Smith Freehills International Arbitration Practice, Paula Hodges QC. The IBA Subcommittee consulted 150 arbitral practitioners by an online survey, as well as 19 arbitral institutions, and sought to reflect “diverse legal cultures and a range of perspectives, including counsel, arbitrators and arbitration users“.

Paula Hodges QC, Global Head of Herbert Smith Freehills’ International Arbitration Practice, says of the 2014 Guidelines that: “we hope that these new Guidelines will prove useful in providing more clarity and a level playing field to parties and arbitrators, striking the right balance between impartiality and due process on the one hand and unmeritorious challenges on the other”.

Christian Leathley, International Arbitration Partner in Herbert Smith Freehills’ London office, who is a member of the IBA Arbitration Committee, comments:  “this is the product of a lot of work and in-depth consideration of the issues facing the sub-committee.  It also drew on the practical experience of many arbitrators which helps ensure this is an instructive guide for all arbitration practitioners”.

Some of the key revisions are summarised as follows:

Continue reading

Leave a Comment

Filed under Arbitration rules, Arbitrators

Castel seeking to enforce arbitral award in China

Following the Full Federal Court of Australia’s refusal to set aside an arbitral award in favour of Castel in July this year, Castel has sought to enforce the award against TCL in China.

Castel’s enforcement proceedings have not resulted in a payment to date, with TCL seeking to have the enforcement of the award ‘reviewed pursuant to Chinese judicial procedure.’

The matter reveals the potential issues companies face in enforcing arbitral awards, even in countries that are signatories to the New York Convention. Continue reading

Leave a Comment

Filed under Asia, Australia, Enforcement, Hong Kong & China

International Arbitration Internship (Hong Kong): Applications now open

Herbert Smith Freehills is now accepting applications for short-term internships with the firm’s international arbitration group in Hong Kong. Two paid internship positions are open for three months each (not extendable), the first starting in May 2015 and the second starting in August 2015.

Interns will work alongside our Greater China international arbitration team and will have a varied workload, including assisting with current arbitrations and other client work; arbitration-related research; writing papers and journal articles; producing arbitration-related internal know-how and similar projects.

For more details please refer to our Linkedln or the HSF Careers page.

Application must be submitted online via the HSF Careers page on or before 31 December 2014.

Leave a Comment

Filed under Asia, Hong Kong & China, News

Australia and China conclude free trade agreement

On 17 November 2014, Chinese President Xi Jinping and Australian Prime Minister Tony Abbott announced that Australia and China had concluded a free trade agreement that has been under negotiation since April 2005.

The agreement will now be prepared in both English and Chinese for signature by the parties, after which the agreement will go through domestic ratification processes in both Australia and China. Continue reading

Leave a Comment

Filed under Asia, Australia, Hong Kong & China, News

New Arbitration Rules in the Supreme Court of Victoria, Australia

The Supreme Court (Chapter II Arbitration Amendment) Rules 2014 came into operation in the Supreme Court of Victoria, Australia, on 1 December 2014.

These Rules provide comprehensive rules for the making of applications to the Court in both international commercial arbitration and domestic arbitration matters.   The rules cover both interlocutory applications and enforcement issues.  They provide clear guidance for practitioners on applications such as stay of proceedings in support of arbitration, enforcement, referrals to arbitration, issue of subpoenas and appeals.  The Rules include a set of forms for use in the Court.

 

Leave a Comment

Filed under Arbitration rules, Australia, News

The Perth Centre for Energy & Resources Arbitration (PCERA) – a new arbitration centre in Perth, Western Australia

On 11 November 2014, the Perth Centre for Energy & Resources Arbitration (PCERA) was formally launched.

PCERA is a newly established arbitration centre, located in Perth, Western Australia. Its stated aim is to ‘act as an efficient, neutral and transparent arbitral centre of the highest standard’, facilitating resolution of disputes in the energy and resources industries in Western Australia.

Continue reading

Leave a Comment

Filed under Australia, Institutions

English Court finds no jurisdiction to grant freezing orders against non-party foreign subsidiaries of the award debtor in English-seated arbitration

The Commercial Court has held that it has no jurisdiction to make a freezing order to aid the enforcement of a London-seated arbitration award against subsidiaries of the award debtor who have no presence or assets within the jurisdiction, who were not party to the arbitration agreement or the arbitration proceedings and against whom no substantive claim is asserted (decision of 11 November 2014, Cruz City 1 Mauritius Holdings v. Unitech Limited et al. [2014] E.W.H.C. 3704 (Comm.)).

This is a significant decision as it shows the limits of how far the English court is willing to go in order to assist in the enforcement of an arbitral award. Parties seeking enforcement of an arbitral award in England and Wales against a counterparty with foreign subsidiaries who are not a party to the arbitration will most likely be unable to obtain a freezing order against those subsidiaries to aid enforcement.

Continue reading

Leave a Comment

Filed under Awards, Enforcement, Europe

Going global: CIETAC introduces new Arbitration Rules 2015

The China International Economic and Trade Arbitration Commission (CIETAC) has recently published its revised Arbitration Rules, which come into force on 1 January 2015. The 2015 Rules are available on CIETAC’s website.

According to the Secretary General of CIETAC, the changes are designed to improve the efficiency of CIETAC arbitral proceedings and bring the CIETAC Rules further into line with international best practice. The new rules also aim to address the confusion and ambiguity that followed the so-called “CIETAC split” in the wake of the 2012 Rules update, when CIETAC’s former Shanghai and Shenzhen sub-commissions broke away from the Beijing commission and declared their independence as separate arbitral commissions.

Continue reading

Leave a Comment

Filed under Arbitration rules, Asia, Hong Kong & China

Paris Court of Appeal considers scope of arbitrator’s obligation to disclose any potential conflicts of interest

 The Paris Court of Appeal has overturned a judgment granting exequatur (order for enforcement) of an arbitral award as a result of the sole arbitrator’s failure to disclose a potential conflict of interest. At the time of his appointment in September 2009, the arbitrator had disclosed that “a partner in my firm’s Toronto office has represented” the sole shareholder of one of the parties to the arbitration “over a number of years“. However, in December 2010, the firm published a report that it had advised that same shareholder on a recently concluded transaction.

The case is a reminder of the burden on arbitrators to provide a full disclosure of any potential conflicts, and to update such disclosure should new conflicts arise during the course of an arbitration. (S.A. Auto Guadeloupe Investissements (AGI) c/ Columbus Acquisitions Inc, Cour d’appel de Paris, Pôle 1 – Chambre 1, n° 13/13459 (14 October 2014).)

Continue reading

Leave a Comment

Filed under Arbitrators, Enforcement, Enforcement - Europe, Europe, Uncategorized

CMAC opens its Hong Kong Arbitration Centre

The China Maritime Arbitration Commission (CMAC) inaugurated its Hong Kong Arbitration Centre on 19 November 2014, its first centre outside Mainland China. The inauguration ceremony was coupled with an international maritime arbitration seminar, to discuss latest trends in maritime arbitration and to promote the use of maritime legal and dispute resolution services in Hong Kong. The seminar was organised by the Department of Justice of Hong Kong SAR, CMAC, HKIAC and the Hong Kong Trade Development Council. Both the seminar and the inauguration ceremony formed part of the 2014 Asian Logistics and Maritime Conference in Hong Kong.

In addition, the new arbitration rules of CMAC will take effect on 1 January 2015. Earlier this year, CMAC appointed its new panel of arbitrators, consisting of a total of 279 arbitrators, of whom 24 are from Hong Kong, Macau or Taiwan and 39 from overseas.

Leave a Comment

Filed under Asia, Hong Kong & China