In Buda Pipe Rehabilitation Engineering Co. Limited v CPC Construction Hong Kong Ltd [2019] HKCFI 503, the Hong Kong Court of First Instance dismissed Buda Pipe Rehabilitation Engineering Co. Limited (BPR)’s application for leave to appeal a 2018 arbitral award, clarifying the proper application of Schedule 2 of the Arbitration Ordinance (Cap. 609) (Schedule 2).
HONG KONG COURT REFUSES LEAVE TO APPEAL ARBITRAL AWARD
Filed under Arbitration laws, Asia, Awards, Challenges to awards, Hong Kong & China
Revised ICC note to parties and tribunals: will publication of awards become the new normal?
This post was originally published on the Kluwer Arbitration Blog, 7 March 2019.
ICC’s updated guidance to parties
On 20 December 2018 the International Court of Arbitration of the International Chamber of Commerce (ICC) published an updated Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (Note). The Note, which came into effect from 1 January 2019, introduces a number of significant updates to the ICC’s practical guidance on its Rules of Arbitration.)
Filed under Europe, Institutions, Procedures in arbitration
HONG KONG COURT FINDS ENFORCEMENT OF ARBITRAL AWARD TIME BARRED
In CL v SCG [2019] HKCFI 398, the Hong Kong Court of First Instance found that enforcement of a 2011 arbitral award by CL was time barred, clarifying when a cause of action for failure to honour an award accrues and the effect of the Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region (the “Mainland and Hong Kong Arrangement“) on time limits under the Hong Kong Limitation Ordinance.
US District Court in New York reviews AAA Appellate arbitral panel decision with the same deference as arbitral awards under the FAA
On February 14, 2019, in considering cross applications to vacate and confirm an arbitration award, the United States District Court, S.D. New York decided to grant the same deference to a decision made by an appellate arbitration panel as is given to an arbitral award under the Federal Arbitration Act (“FAA”) (Hamilton v. Navient Solutions, LLC., No. 18 Civ. 5432 (PAC) (S.D.N.Y. February 14, 2019).[1]
HONG KONG COURT FINDS THAT DEFENDANT WAIVED RIGHT TO CHALLENGE JURISDICTION
Israel Sorin Shohat, the Third Defendant in proceedings commenced by Mr Balram Chainrai, sought to challenge the jurisdiction of Hong Kong courts to hear a matter related to an Israeli arbitral award issued in 2013. The court held that, while the deadline for challenging jurisdiction had not passed, Shohat had ultimately taken steps which indicated that he had submitted to the jurisdiction of the Hong Kong courts and therefore waived his right to challenge.
Balram Chainrai v Kushnir Family (Holdings) Ltd [2019] HKCFI 234
Filed under Arbitration clauses, Asia, Hong Kong & China, Jurisdiction
Section 67 and 68 challenges to LCIA award dismissed
In the highly complex and contentious case of Filatona Trading Ltd and another v Navigator Equities Ltd and others [2019] EWHC 173 (Comm), the English High Court dismissed an attempted challenge to an LCIA award brought on the grounds of jurisdiction (s.67 Arbitration Act 1996) and serious irregularity (s.68 Arbitration Act 1996).
In particular, the Court held that an LCIA arbitral tribunal did not exceed the scope of its powers in ordering relief that was not available to an English court.
HONG KONG COURT GRANTS ANTI-SUIT INJUNCTION TO BIND THIRD PARTY TO ARBITRATION AGREEMENT
In Dickson Valora Group (Holdings) Co Ltd v Fan Ji Qian [2019] HKCFI 482, the Hong Kong Court of First Instance has granted an anti-suit injunction restraining mainland Chinese court proceedings commenced by Fan Ji Qian on the ground that the dispute should be referred to arbitration. Although Fan was not a signatory to the contract containing the arbitration clause, he had nevertheless sought to enforce a contractual right under that agreement, such that he was also bound by any conditions integral to the exercise of this right (including the agreement to arbitrate).
This decision shows that an arbitration agreement can, in certain circumstances, bind third parties. This is something which should be considered when drafting agreements which purport to confer a benefit on non-signatories, particularly if it is intended that third parties exercising rights under the contract should also be bound by the arbitration provisions.
Filed under Arbitration clauses, Asia, Hong Kong & China
The discontinuation of LIBOR and arbitration: issues of substance and procedure for parties and arbitrators
The global financial markets are currently preparing for the phasing out of the London Inter-bank Offered Rate (or LIBOR) and other Inter-bank Offered Rates (or IBORs). LIBOR is the most widely used benchmark interest rate globally, employed in an estimated US$350 trillion worth of financial contracts worldwide. LIBOR may also be used in commercial contracts – for example, in price adjustment mechanisms in share purchase agreements, price escalation clauses or as a reference rate for contractual interest on late payments. LIBOR may also be specified in arbitration clauses as a benchmark rate for interest on the award.
Many financial instruments affected by the discontinuation of LIBOR will include arbitration clauses. As discussed below, whilst the substantive disputes arising from the end of LIBOR will be the same whether they are resolved in a court or by an arbitral tribunal, there are some additional considerations particular to the arbitration process which are relevant in the context of LIBOR discontinuation disputes. Further, even when determining a dispute which does not arise from the end of LIBOR, arbitral tribunals may have to grapple with how to award interest where an arbitration clause uses LIBOR as a reference point. Read more in the E-bulletin here.
ICCA and IBA launch joint task force on data protection in international arbitration
The International Council for Commercial Arbitration (ICCA) and the International Bar Association (IBA) have launched a Joint Task Force on Data Protection in International Arbitration Proceedings.
Filed under Cybersecurity, News
