The International Swaps and Derivatives Association (ISDA) has revised its Guide to Arbitration (the Guide).Â First published in 2013, after considerable stakeholder consultation, the Guide includes an explanatory memorandum which provides an overview of arbitration for parties to derivatives transactions, and includes a broad choice of model arbitration clauses (and guidance notes) for use with both the ISDA 1992 Master Agreement and the ISDA 2002 Master Agreement. Â The model clauses can be included in new Master Agreements or can be included when amending an ISDA Master Agreement.
The new version of the Guide is best described as an enhancement, rather than a wholesale revision.Â It reflects developments in the field of arbitration since the Guide was first launched in 2013, such as the increasing availability of emergency arbitration, and the possibility of early dismissal of claims and defences. Â The Guide also now features model arbitration clauses for various additional institutions, including the German Arbitration Institute (DIS) Rules clause to which Herbert Smith Freehills contributed (see here for further information).
As discussed below, arbitration offers a number of procedural features which may be attractive to parties to derivative transactions.Â Further, there are certain considerations relevant in derivatives disputes in particular which the parties may wish to bear in mind when including an arbitration clause in their contractual documents.
As the International Chamber of Commerce (ICC) confirmed in a report on Financial Institutions and International Arbitration, arbitration has been steadily growing as a chosen method of dispute resolution in derivatives contracts, particularly as the participants entering the market of traded derivatives become more diverse (see here for further information). Â ISDAâ€™s continued support for arbitration is likely to encourage parties in the derivatives market to consider arbitration for their transactions and to facilitate the inclusion of workable arbitration clauses in ISDA Master Agreements and related contracts.
The Japan Commercial Arbitration Association (JCAA) has issued an announcement that it is (i) amending its two current sets of arbitration rules and (ii) introducing a revolutionary set of rules designed to provide efficient and cheap civil-law style arbitration.
In its introduction to an initial call for public comments on the drafts, the JCAA made the frank admission that it: “has yet to play a significant role in the resolution of international disputes.”Â The clear motivation for these new rules is to change this by offering a unique arbitration model that is attractive to a wide range of businesses.Â Accordingly, the new sets of rules (the key features of which are explored below) seem to create a three tiered-system:
The new sets of rules will come into force on 1 January 2019.
The English High Court’s decision in Asset Management Corporation Of Nigeria v Qatar National Bank  EWHC 2218 (Comm), handed down in July 2018 but only recently published, concerned the court’s dismissal on the papers of an application under section 68 of the Arbitration Act 1996 on the basis that the application had no reasonable prospect of success (available here: https://www.bailii.org/ew/cases/EWHC/Comm/2018/2218.html).
The decision serves as an example of the court employing the summary procedure to dismiss a section 68 application on the papers, but the drawn out process highlights the practical difficulties in quickly disposing of meritless applications.
As noted in our earlier post, Hong Kong published its long-awaited Code of Practice for Third Party Funding of Arbitration on 7 December 2018.
Publication of the Code has removed the final hurdle to third party funding of Hong Kong arbitrations. The law that allows such funding will come into effect on 1 February 2019, via sections 98K â€“ 98O of the Arbitration Ordinance (Cap. 609). These sections abolish the criminal and tortious offences of champerty and maintenance in relation to third party funding of arbitration, as well as arbitration-related court and mediation proceedings. For more detail on the law, click here.
The Code was published by Hong Kong’s Secretary for Justice, Teresa Cheng SC, in her capacity as the “authorized body” under Part 10A Arbitration Ordinance. Compliance with the Code will be overseen by an “advisory body”, consisting of three senior Hong Kong lawyers, whose powers derive from s.98X Arbitration Ordinance.
The English High Court has upheld a challenge to an arbitration award on the grounds of serious irregularity, in Fleetwood Wanderers Ltd (t/a Fleetwood Town Football Club) v AFC Fylde Ltd  EWHC 3318 (Comm). The Court held that the sole arbitrator’s conduct in making independent investigations after the substantive hearing, without notifying the parties and without giving them an opportunity to respond, breached the tribunal’s general duty under s33 of the UK Arbitration Act 1996 (the “Act“), and amounted to a serious irregularity under s68 of Act. The award was remitted back to the arbitrator for reconsideration.
Hong Kong has published its long-awaited Code of Practice for third party funders, and announced that amendments to the Arbitration Ordinance which permit funding of Hong Kong arbitrations will come fully into force on 1 February 2019. Similar amendments to the Mediation Ordinance (Cap. 620) have been deferred for further consultation.
On 1 July 2018, the Supreme People’s Court of China (SPC) promulgated Provisions on Several Issues Regarding the Establishment of International Commercial Courts (Fa Shi 2018 â€“ No.11). We reported this major development here. The SPC has now released further rules canvasing out the operation of the China International Commercial Courts (CICC).
The European Federation for Investment Law and Arbitration (EFILA) will be holding its fourth Annual Conference, on 31 January 2019, at Herbert Smith Freehills’ offices in London. The conference will focus on four topics:
- the EU’s external investment policy;
- the EU’s investment policy towards Asia;
- constructing a multilateral investment court: the path ahead; and
- the EU’s Energy investment policy.
In N v W  HKCFI 2405, the Hong Kong Court of First Instance refused to remit or set aside an award on the basis that an arbitrator had misconducted proceedings, demonstrating its reluctance to entertain such claims absent direct and well-established evidence. The court further noted that the plaintiff could not use a set-aside application as a substitute for appeal.
A decision by the federal government of the UAE to remove arbitrators from the scope of application of Article 257 of the UAE Penal Code has been welcomed by the arbitral community in the UAE and beyond. Federal Decree No. 24 of 2018 came into force on 8 October 2018.
Dubai, seen as an arbitration-friendly jurisdiction, saw a threat to its image when Article 257 was amended in 2016 to include arbitrators in the category of individuals against whom criminal sanctions could be imposed if they failed to maintain integrity and impartiality in the discharge of their duties.