Delhi High Court confirms that two Indian parties can choose a foreign seat of arbitration and applies the alter ego doctrine to join non-parties to the arbitration agreement

In GMR Energy Limited v. Doosan Power Systems India Private Limited, the Delhi High Court confirmed that two Indian parties can contract to have a foreign seat of arbitration (in this case, Singapore), and also ruled that a non-party to the Arbitration Agreement could be made part of the arbitral proceedings on the grounds that it acted as an alter ego to the contracting party.

A brief summary of the case can be found below. Continue reading

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Filed under Asia, India, Jurisdiction, Third-Party Rights

New restrictions appear to limit clients’ choice of counsel in UAE seated arbitrations – but is it a storm in a teacup?

On 27 November 2017, Ministerial Resolution No. 972 of 2017 (the “2017 Regulations”) of the Executive Regulations to the Federal Legal Profession Law No. 23 of 1991 came into force, replacing the previous Regulations issued in 1997.

The effect of the 2017 Regulations is arguably that only UAE nationals registered on the Roll of Practicing Lawyers (“Local Counsel”) can represent clients in the UAE national courts and arbitration proceedings seated ‘onshore’ in the UAE. The 2017 Regulations do not, however, apply to Dubai International Financial Centre (“DIFC”) Court proceedings, arbitrations seated in the DIFC, Abu Dhabi Global Market (“ADGM”) Court proceedings or arbitrations seated in the ADGM.

Non-UAE national lawyers (“International Counsel”) have never been permitted to appear before the UAE national courts and so the impact of the 2017 Regulations on these proceedings is limited. But the 2017 Regulations could be of great significance to arbitrations. We explore below the implications of this potentially significant and unexpected legislation on UAE seated arbitration proceedings (“Onshore Arbitrations”). Continue reading

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Filed under Arbitration laws, DIFC, Middle East

Supreme People’s Court Monitor update on judicial review of arbitration

The latest buzz within the Chinese international commercial legal community on Belt & Road related legal developments appears not to have surmounted the Great Wall of the Chinese language. The buzz is that a comprehensive judicial interpretation relating to arbitration is on route to promulgation.

On 4 December the Supreme People’s Court (SPC) issued a news release that its judicial committee had approved a judicial interpretation on judicial review of arbitration in principle, entitled Provisions on Some Issues Related to the Trial of the Judicial Review of Arbitration (Judicial Review of Arbitration Interpretation) (最高人民法院关于审理仲裁司法审查案件若干问题的规定).  “Approval in principle”  (原则通过) is not mentioned by the SPC’s 2007 regulations on judicial interpretations but is one of the SPC’s long-established practices.  It means that the judicial committee has approved it, subject to some “minor” amendments. Minor amendments are more than typographical errors and relate to specific substantive matters.  However, the news release did not specify what those “minor” issues were or set a deadline for issuing the interpretation. In December of last year (2016), the SPC’s judicial committee also approved in principle the #4 Company Law interpretation, but that interpretation was not formally issued until August of this year. This observer surmises (without any basis in facts or rumors) that the interpretation will be promulgated before Chinese new year so it can be one of the 2017 accomplishments of the SPC’s #4 Civil Division (but then again, that may be overly optimistic.

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Filed under Asia, Hong Kong & China, News

HK Court reconciles jurisdiction and arbitration clauses to order s.20(1) stay

In Neo Intelligence Holdings Ltd v Giant Crown Industries Ltd HCA 1127/2017, the Hong Kong Court of First Instance held that an arbitration clause was not necessarily superseded by a clause in a supplemental agreement that conferred non-exclusive jurisdiction on the Hong Kong courts.

While the two clauses did not sit “wholly happily” together, it was at least possible that the parties intended the jurisdiction clause to govern post-award enforcement, or to indicate the lex arbitri. As a result, the court’s proceedings should be stayed and the question of jurisdiction referred to the arbitral tribunal. The applicant for a stay need only show that there is a prima facie, or plainly arguable, case that the parties are bound by an arbitration clause. Once that threshold is met, it is for the arbitral tribunal to determine its own jurisdiction.

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Filed under ADR, Arbitration clauses, Arbitration laws, Asia, Hong Kong & China

Facilitating the Belt and Road: CIETAC launches investment arbitration rules

On 1 October 2017, the International Investment Arbitration Rules of the China International Economic and Trade Arbitration Commission (CIETAC Investment Arbitration Rules or Rules) came into force.  This is the first set of investment arbitration rules ever promulgated by a Chinese arbitration institution; no Chinese institution has heard an investor-state dispute to date.  As China’s Belt and Road Initiative continues to gain momentum, disputes between investors and states along the Belt and Road region will, inevitably, arise. As the number of Belt and Road projects grows, so the number of disputes is bound to increase.  The CIETAC Investment Arbitration Rules are designed to offer an alternative institution and rules to resolve these disputes between investors and states.

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Filed under ADR, Arbitration rules, Asia, Hong Kong & China, Investment Arbitration, News

Has the pendulum swung back in favour of the DIFC courts? Two new decisions of the Judicial Tribunal

We recently reported on three decisions of the Judicial Tribunal (please click here) following our commentary on the Judicial Tribunal’s controversial first decision in Daman v Oger and the effect on the Banyan Tree jurisdiction (click here). We concluded that, notwithstanding the absence of detailed reasoning in individual decisions, it was possible to piece together the Judicial Tribunal’s approach from its decisions taken as a whole. The two new decisions shine further light on that approach. Continue reading

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Filed under Arbitration proceedings, DIFC, Jurisdiction, Middle East, Procedures in arbitration

English High Court removes arbitrator on the basis that he did not possess necessary qualifications

In Tonicstar Limited v Allianz Insurance and Sirius International Insurance Corporation [2017] EWHC 2753, the English High Court considered an application under Section 24 of the Arbitration Act 1996  (the Act) for the removal of an arbitrator on the basis that he did not satisfy the contractual stipulation as to relevant experience. This judgment is of particular interest given that questions of the removal of arbitrators do not often come before the courts (because they are, in institutional arbitration, typically decided by arbitral institutions so are not usually public). The Court decided to remove the arbitrator on the basis that he had experience of insurance and reinsurance law, rather than required experience in the business of insurance and reinsurance. This decision highlights the importance of the careful drafting of arbitration clauses which specify characteristics of an arbitrator.  It also serves as a reminder of the importance of precedent in the English judicial system.

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Filed under Arbitration Act 1996, Arbitration clauses, Arbitrators, Court intervention, Europe

The LCIA updates its guidance on the use of Tribunal Secretaries

The role of tribunal secretaries in arbitration is an important subject which generates a range of different views, often expressed in strong terms.  On 26 October 2017 the LCIA published its updated Notes for Arbitrators (the Notes). The update (contained within section 8 of the Notes) seeks to provide more detail and clarity on the LCIA’s approach to the role and use of tribunal secretaries. Of particular note is the LCIA’s strengthening of consent requirements, requiring the parties to specifically consent to the permissible tasks, remuneration and identity of a tribunal secretary.

In introducing the changes regarding tribunal secretaries, the LCIA has emphasised the two key themes of communication and consent.

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Filed under Arbitration proceedings, Arbitration rules, Europe, Institutions

ICC publishes note on early dismissal of manifestly unmeritorious claims or defences

On 30 October 2017, the International Chamber of Commerce (“ICC“) published guidance designed to provide greater clarity on the scope for “immediate dismissal of manifestly unmeritorious claims or defences” under Article 22 of the 2017 ICC Rules (the “Rules“). The updated practice note follows the introduction by several leading arbitral institutions of express ‘early dismissal’ provisions in their latest rules. The ICC did not follow this trend in March 2017, but confirms in its updated practice note that it considers that Tribunals’ general case management powers under Article 22 of the Rules already include such tools.

To read the practice note in full, please click here. Herbert Smith Freehills has produced a Step by Step Guide to Arbitration under the ICC Rules. To request a copy, please contact Arbitration.Info@hsf.com. Continue reading

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Filed under Arbitration proceedings, Arbitration rules, Europe, Institutions, News, Procedures in arbitration

ICC and KLRCA sign MoU to promote dispute resolution in Asia

On 1 November 2017, the Kuala Lumpur Regional Centre for Arbitration (KLRCA) and the International Court of Arbitration of the International Chamber of Commerce (ICC) signed a Memorandum of Understanding (MoU), agreeing to work together to promote dispute resolution in Asia.

The signing of the MoU will further enhance the relationship between the two institutions, on top of their previous collaborations such as the ICC-KLRCA International Arbitration Conference in 2016 and the 1st ICC-KLRCA Vis Pre Moot earlier this year. More collaboration on training and other joint programmes is anticipated as part of the two institutions’ efforts under the MoU to increase the profile of arbitration in the region and to promote and develop Malaysia as an arbitration-friendly seat for arbitration in Asia. The MOU also provides for KLRCA will to provide hearing space to ICC and its users.

There has been a steep increase in cases over recent years in Malaysia administered by the KLRCA. Additionally, the ICC recently announced the establishment of its case management office in Singapore. This MoU can is evidence of the two institutions’ plans to further expand their presence in the Asia region.

In another interesting development, KLRCA will be renamed the “Asian International Arbitration Centre” in 2018, to coincide with its 40th anniversary and as part of the KLRCA’s initiative to be the leading arbitration hub in Asia.

If you have questions or would like further information, please contact Peter Godwin (Managing Partner) of Herbert Smith Freehills’ Kuala Lumpur office or your usual Herbert Smith Freehills contact.

Peter Godwin
Peter Godwin
Managing Partner - Kuala Lumpur
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+60 327775104

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Filed under ADR, Asia, News