The new arbitration rules of the German Institution of Arbitration (Deutsche Institution fĆ¼r Schiedsgerichtsbarkeit – āDISā) will enter into force on 1Ā MarchĀ 2018 (āDISĀ RulesĀ 2018ā).
It is the first revision of the DIS Rules since the current version was adopted in 1998 (āDIS Rules 1998ā). The revision process involved nearly 300 persons sitting in three different commissions, but took only 18 months. The DISĀ RulesĀ 2018 were drafted concurrently in English and German. The result: The DIS maintained and enhanced those civil law elements which were already decisive for the success of the DIS RulesĀ 1998. But it also adopted new rules to reflect the changes and developments of international arbitration practice of the last two decades.
One of the most prominent features ā as under the DIS RulesĀ 1998 ā of the DIS RulesĀ 2018 is the promotion of early settlements (I.). Further, a newly founded body, the āArbitration Councilā will enhance the transparency and the integrity of the arbitration process (II.). Next, several new rules have been adopted in order to increase the already high efficiency, quality and expeditious character of DIS arbitration proceedings (III.). Lastly, along with the amendments of several institutional rules, the DIS RulesĀ 2018 contain several new rules for multi-party and multi-contract arbitrations (IV.).
We are delighted to share with you the latest issue of the publication from the Herbert Smith Freehills Global Arbitration Practice, Inside Arbitration.
In addition to sharing knowledge and insights about the markets and industries in which our clients operate, the publication offers personal perspectives of our international arbitration partners from across the globe.
Filed under Arbitration laws, Arbitration proceedings, Asia, DIFC, Europe, Hong Kong & China, Interim relief, Investment Arbitration, ISDS, Middle East, Procedures in arbitration, Public International Law, Publications and Guides, South East Asia
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
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)  HKCFI 31; HCMP 1700/2017 (10 January 2018)
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.Ā 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.Ā In August 2017 BANI-P prevailed in obtaining an order declaring it to be the rightful institution to be referred to as BANI.Ā 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
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 reportedĀ here),Ā 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. Ā 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.
In its recent decision in the case of A v B  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. Ā 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
In Arjowiggins HKK2 Ltd v Shandong Chenming Paper Holdings Ltd  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.
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“).Ā The Amended Act applies to arbitration agreements which pre-date the amendments.
The recent jurisprudence on appointing former employees as arbitrators has dealt with a number of issues, but four key principles emerge:
- The provisions of the Amended Act dealing with independence of arbitrators do not prohibit the appointment of former employees.
- 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.
- 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.
- 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.
Herbert Smith Freehills and the ICC warmly invite you to attend āInvesting in Latin America: How best to protect your investments?‘
||Thursday 8 March 2018
18:30: Panel discussion followed by drinks and networking
||Exchange House, Primrose Street, London, EC2A 2EG
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||Ā£120 non-members/ Ā£85 members
||Click hereĀ toĀ 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.