On 8 January 2018, the South China International Economic and Trade Arbitration Commission, also known as the Shenzhen Court of International Arbitration (SCIETAC/SCIA) and the Shenzhen Arbitration Commission (SAC) announced that they have merged to form one arbitration institution known as the “Shenzhen Court of International Arbitration (Shenzhen Arbitration Commission)” (SCIA-SAC). The merger took effect 25 December 2017.

It is the first time that two international arbitration centres have merged in China. The SCIA-SAC merger reflects the institutions’ joint ambition to become a leading international arbitration centre, and their common goal of facilitating Chinese outbound investment. Continue reading

Leave a Comment

Filed under ADR, Asia, Hong Kong & China

Hong Kong court considers nature and arbitrability of lawyer-client fee disputes

In a decision dated 10 January 2018, the Hong Kong Court of First Instance (Court) stayed its proceedings in favour of arbitration under an arbitration agreement between a firm of solicitors and its former clients. The Court held that there is nothing in Hong Kong law or public policy to indicate that a dispute between a solicitor’s firm and its client over fees is not arbitrable. Hong Kong law protects consumers from being forced into arbitration, but the law will consider the nature of the transaction to determine whether or not a claimant is truly acting as a consumer.

The decision relates to a dispute over fees between solicitors’ firm Henry Wai & Co (Firm) and its former clients, businessman Fung Hing Chiu Cyril (CF) and Grandom Asia Holding Limited (GA). When the dispute arose, CF was 78 years old and a highly experienced businessman, who was acting as director of GA. The Firm and GA had signed a retainer agreement (Retainer Agreement), which contained an arbitration clause (Arbitration Agreement). The Court was asked to decide whether the Arbitration Agreement was enforceable, and whether the Court’s proceedings should be stayed in favour of arbitration.

Grandom Asia Holding Ltd v. Henry Wai & Co (A Firm) [2018] HKCFI 31; HCMP 1700/2017 (10 January 2018)

Continue reading

Leave a Comment

Filed under Uncategorized

A Tale of Two BANIs: an update – Renewed BANI prevails against the original BANI in appeal against the decision of the Jakarta State Administrative Court

In August last year, we reported that a new Indonesian arbitral institution had been established in mid-2016 under the name of Renewed BANI or BANI Pembaharuan (“BANI-P“), notwithstanding the continued existence of the separate institution already known as BANI.  We reported that the two institutions were in dispute as to which of them could legitimately claim the right to refer to itself as BANI, and we explained that although this might at first appear to be of purely local interest, the confusion has real and serious implications for contracts that provide for arbitration under BANI rules (as many now do).

BANI-P brought the matter to the South Jakarta District Court.  In August 2017 BANI-P prevailed in obtaining an order declaring it to be the rightful institution to be referred to as BANI.  Meanwhile, however, the original BANI had succeeded in separate proceedings in the Jakarta State Administrative Court, obtaining a ruling nullifying the decision of the Ministry of Law and Human Rights to acknowledge and register BANI-P as an arbitral institution. BANI had also obtained a ruling from the Commercial Court confirming it as the rightful owner of the trademark name “BANI”.

Both BANI-P and BANI appealed against the decisions of the South Jakarta District Court and the Jakarta State Administrative Court. However, BANI-P has apparently elected not to appeal against the decision of the Commercial Court.

Recently, the State Administrative High Court issued a decision in favour of BANI-P and reversed the decision of the lower Administrative Court. However, the Administrative High Court made this ruling on a technical ground: it found that the administrative courts do not have jurisdiction on the matter which is effectively a civil dispute. The Administrative High Court observed that its conclusion is strengthened by the fact that there are already ongoing proceedings in the South Jakarta District Court and the Commercial Court dealing with the issue of which entity has the right to use the name of, and be recognised as, BANI.

This decision is a blow to BANI as it is now faced with two decisions that are not in its favour. Continue reading

Leave a Comment

Filed under Asia, Institutions, South East Asia

The English Court of Appeal substitutes one anti-suit injunction for another (more limited one)

The English Court of Appeal is the latest court to weigh in on this long-running dispute spanning multiple jurisdictions between Messrs Emmott and Wilson, relating to an agreement to establish a “quasi-partnership”. Following an appeal brought by Mr Emmott against the High Court’s decision (which we reported here), the question for the Court of Appeal was whether to uphold the anti-suit injunction granted by the High Court preventing Michael Wilson & Partners, Limited (“MWP”) from pursuing proceedings in the Australian courts in light of the London-seated arbitration agreement between them.

The Court of Appeal allowed the appeal in part, issuing a substitute injunction against MWP advancing only the claims which the court deemed to be vexatious and oppressive in undermining the arbitration agreement and process.  This judgment helpfully clarifies the circumstances in which the English Court will issue an anti-suit injunction in order to safeguard the integrity of an English-seated arbitral process, and confirms that the court will not permit arbitral proceedings or awards to be undermined by parties against whom adverse findings have been made. However, it also demonstrates that the question of whether proceedings fall within the scope of an arbitration agreement can be a complex and controversial one.

Continue reading

Leave a Comment

Filed under Arbitration proceedings, Australia, Awards, Court intervention, Europe

English court sets aside tribunal’s award on jurisdiction, finding that the LCIA Rules do not permit a party to bring claims under multiple contracts in a single arbitration

In its recent decision in the case of A v B [2017] EWHC 3417 (Comm) (available here), the English Commercial Court (the “Court“) set aside the tribunal’s award upholding its own jurisdiction, on the grounds that the LCIA Rules 2014 do not permit a party to commence a single arbitration in respect of disputes under multiple contracts.  As a result, the Claimant’s Request for Arbitration was invalid. The Court also held (contrary to the tribunal’s award) that the Respondent had not lost its right to object to the tribunal’s jurisdiction by failing to raise its jurisdictional challenge until shortly before filing its Statement of Defence.

This is a rare instance of the English court setting aside a tribunal’s award and a significant reminder to parties to transactions involving multiple related contracts to consider efficient resolution of disputes at the contract drafting stage. Continue reading

Leave a Comment

Filed under Arbitration clauses, Arbitration proceedings, Arbitration rules, Challenges to awards, Europe, Institutions

Hong Kong Courts grant anti-suit injunctions to restrain foreign proceedings in breach of an arbitration agreement

In Arjowiggins HKK2 Ltd v Shandong Chenming Paper Holdings Ltd [2018] HKCFI 93, the Hong Kong Court of First Instance has granted an anti-suit injunction in favour of a recipient of a Hong Kong arbitral award to restrain the continuation of the overseas proceedings by the losing party. The Court held that such proceedings were essentially commenced to re-litigate the same matters that had already been decided in a previous arbitration and ultimately to avoid honouring the arbitral award.

Continue reading

Leave a Comment

Filed under Arbitration clauses, Arbitration proceedings, Asia, Court intervention, Hong Kong & China

Further Indian jurisprudence on appointments of former employees as arbitrators

Since our previous report on the Delhi High Court refusing to uphold an arbitration clause that provided for the tribunal to be comprised of one party’s employees or retired employees, there have been several cases which have provided useful guidance in relation to the appointment of arbitrators under the new provisions in the Arbitration and Conciliation (Amendment) Act 2015, which came into force on 23 October 2015 and amended the Arbitration and Conciliation Act 1996 (“Amended Act“).  The Amended Act applies to arbitration agreements which pre-date the amendments.[1]

The recent jurisprudence on appointing former employees as arbitrators has dealt with a number of issues, but four key principles emerge:

  1. The provisions of the Amended Act dealing with independence of arbitrators do not prohibit the appointment of former employees.
  2. Nonetheless, it is still important for there to be no doubts in relation to the neutrality, impartiality and independence of the arbitral tribunal. Therefore, where a party has a contractual right to compose a list or panel from which the other parties are to select an arbitrator, a ‘broad based’ approach must be adopted.
  3. The Courts have adopted a narrow definition of what constitutes an employee, and therefore all government employees are not automatically ineligible to be appointed as an arbitrator where one of the parties is a government body.
  4. If an ineligible person (e.g. an employee) was nominated as an arbitrator in the arbitration agreement but is now ineligible as a consequence of the Act, that person cannot nominate another independent arbitrator, notwithstanding what the agreement might provide.

Continue reading

Leave a Comment

Filed under Arbitration clauses, Arbitration laws, Arbitrators, Asia, India

Event: Investing in Latin America: How best to protect your investments, Thursday 8 March 2018

Herbert Smith Freehills and the ICC warmly invite you to attend ‘Investing in Latin America: How best to protect your investments?

Date Thursday 8 March 2018
Time 18:00: Registration
18:30: Panel discussion followed by drinks and networking
Venue Exchange House, Primrose Street, London, EC2A 2EG
Please click here to view map
Price £120 non-members/ £85 members
Registration  Click here to register with the ICC directly. Registration cannot be made through Herbert Smith Freehills.
Please note there are a limited number of spaces.


In a post-Brexit world, Latin America is likely to present British investors with significant new opportunities for growth and expansion. Drawing on the extensive experience of leading UK based practitioners and arbitrators, this seminar will analyse recent trends and examine how parties can best protect their investments in the region.

Continue reading

Leave a Comment

Filed under Events, News, The Americas

Arbitration: its growth, practical uses and limitations in an employment law context

There is a growing appetite to resolve employment disputes by arbitration.  This is the finding of the UK Employment Lawyers Association (ELA) which published its Report on Arbitration and Employment Disputes in November 2017.  The Report, a product of over two years of research, conducted by ELA’s Arbitration and ADR Group (chaired by Peter Frost of HSF and Paul Goulding QC of Blackstone Chambers), concludes that arbitration clauses are increasingly found in partnership and LLP agreements, deferred remuneration scheme rules and contracts of employment.

The Report notes the development of the European Employment Lawyers Association (EELA) arbitration scheme, including EELA’s bespoke arbitration rules, a model arbitration clause and a submission agreement (prepared with the assistance of Hannah Ambrose of HSF) under which existing disputes can be resolved by arbitration. Interestingly, the Report encourages the adaptation of the EELA’s documentation to provide the materials for a truly bespoke dispute resolution process for UK employment contracts.

In addition, the ELA intends to bolster its training programme by including sessions focusing on arbitration and its applications. The goal is twofold. First, ELA seeks to provide practical education to those involved in drafting and negotiating employment contracts and those litigating employment disputes. Second, this initiative will help to develop a pool of specialised arbitrators, advocates and advisers.  Such efforts will ensure appropriate use of arbitration in the context of an area that is tightly regulated by statute in many jurisdictions. Continue reading

Leave a Comment

Filed under Arbitrability, Europe, Jurisdiction

Use of experts in international arbitration: LCIA releases note and practice guidance

Experts often play a pivotal part in the resolution of complex disputes. The London Court of International Arbitration (“LCIA“) recently released a note discussing the ways in which experts are involved in international arbitration. The Note serves as a useful reminder that each type of expert participation in the arbitral process presents opportunities for the effective resolution of a dispute. The Note also provides some guidance on how to get the most out of expert involvement. Whilst it is only a short foray into a broad subject matter, the Note is a further example of how international institutions are increasingly seeing their role as offering the parties more insight and practical guidance to encourage the development of an effective and efficient process.

The LCIA’s reflections on the role of experts

Given the variety of parties and subject matter involved in arbitrations, experts are used differently from case to case. The LCIA observes how the traditional role of independent experts, in which they are appointed by the parties, draft expert reports for the tribunal and subsequently testify at a hearing, is being supplemented by a number of different expert roles in order to aid arbitral decision-making and improve the quality of arbitral awards.

The note continues with a brief overview of some of the ways in which experts are being used in LCIA arbitration, together with an explanation of challenges that this can present. These additional expert roles include: advising behind the scenes to the client, legal team or another expert on record (referred to in the report by the colloquial terms “shadow” or “dirty” experts, although the report notes the invaluable role such experts can play); as a tribunal appointed expert; or as an expert tribunal member. While acknowledging that expert determination is an alternative contractual form of dispute resolution to arbitration, the note also touches on expert determination and some of the more complicated drafting points relating to the use of expert determination clauses and arbitration clauses.

The LCIA suggests that, “while each method presents opportunities and unique benefits, it is important to recognise their respective shortcomings“. The note therefore concludes with some ways in which the parties can optimise their use of experts. First, it is suggested that both counsel and arbitrators should develop their familiarity with issues upon which experts are frequently asked to opine, particularly quantum (which features in a vast majority of cases). Second, experts themselves should ensure that they are prepared to facilitate a discussion with the tribunal, as well as other experts involved in the proceedings.


Experts are an important part of the arbitral process – their evidence is integral in clarifying technical points which will enable the tribunal to deliver a well-reasoned final award. Parties and counsel in particular will get the best out of experts if they:

  • think carefully about whether expert evidence is really needed and whether the tribunal will be best served by party or tribunal appointed experts in all the circumstances of the case;
  • start the appointment process of a party appointed expert early to identify the right candidate;
  • agree a clear list of issues to be considered in expert evidence at an early stage;
  • tailor the approach taken with the expert depending on their previous experience or background and plan ahead for the workstream;
  • make sure the expert is properly and clearly instructed and their duty to assist the tribunal is explained and understood;
  • ensure the expert has all the relevant documents and information;
  • keep in regular communication and provide quick and meaningful responses to the queries which the expert raises throughout the arbitration;
  • act consistently with the expert’s role in the proceedings and avoid the appearance of a “hired gun” expert;
  • work with the expert to advise on whether the report produced can be understood by a non-expert or someone reading it in a second or third language (as appropriate);
  • consider whether agreeing to “hot-tubbing”, an expert “meet and confer” or an expert joint statement may aid the efficient resolution of the dispute; and
  • make good use of the opportunity to test the conclusions the counterparty’s expert has reached in his or report with the party-appointed expert.


For further information, contact Chris Parker, Partner, Hannah Ambrose, Professional Support Consultant, Vanessa Naish, Professional Support Consultant, or your usual Herbert Smith Freehills contact.

Chris Parker
Chris Parker
Email | Profile
+44 20 7466 2767
Hannah Ambrose
Hannah Ambrose
Professional Support Consultant
Email | Profile
+44 20 7466 7585
Vanessa Naish
Vanessa Naish
Professional Support Consultant
Email | Profile
+44 20 7466 2112

Leave a Comment

Filed under Europe, Institutions, News, Procedures in arbitration