English Court refuses to grant an injunction against the enforcement of a s1782 US Evidence Order

In a decision dated 24 August 2018, the English Commercial Court (the “Court“) dismissed Dreymoor Fertilisers Overseas PTE Ltd’s (“Dreymoor“) application to continue an injunction preventing the enforcement of an order of a U.S. court granting discovery under section 1782 of the United States Code (the “Order“). The Order required one of Dreymoor’s employees to be deposed and produce evidence for use in various international proceedings by Eurochem Trading GMBH (“ECTG“) against Dreymoor. Dreymoor argued that enforcing the Order would constitute unconscionable conduct as it would interfere with its preparation for arbitration proceedings against ECTG.

The Court accepted that the enforcement of orders such as the Order could potentially be unfair, as they would effectively provide an opportunity to cross-examine the same witness twice. However, whether to injunct the enforcement of such an order required a careful case-by-case analysis. Based on various case-specific factors, the Court decided that it would not be unconscionable to allow ECTG to enforce the Order and dismissed Dreymoor’s application to continue the injunction.

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Filed under Arbitration proceedings, Confidentiality, Court intervention, Document production, Europe, Evidence, Procedures in arbitration, The Americas

Paula Hodges QC, Head of Herbert Smith Freehills’ Global Arbitration Practice, has been appointed President of the LCIA Court

Head of Herbert Smith Freehills’ Global Arbitration Practice, Paula Hodges QC has been appointed President of the London Court of International Arbitration (LCIA) Court, effective May 2019.

Paula has headed Herbert Smith Freehills’ global arbitration practice since 2008 and has over 25 years’ experience of advising on international disputes across many jurisdictions, including London, Paris, Geneva, Zurich, Stockholm, the US, Canada, Dubai, Africa, Asia, Russia and the CIS, with particular focus on the energy, telecommunications and technology sectors.  She has also appeared in arbitration-related litigation in the High Court, Court of Appeal and Supreme Court in London and sits regularly as an arbitrator. Her advocacy skills were recognised in 2014, when she was awarded the title of QC.

Headquartered in London, the LCIA is one of the world’s leading international institutions for commercial dispute resolution and, in particular, provides the administration of international arbitration around the globe.  Its Court is made up of leading practitioners in arbitration from the world’s major trading areas and is the final authority for the application of the LCIA rules.

Paula has been Vice President of the Court for several years and also a LCIA Board member for a decade.  Paula will continue to practise full-time at the firm whilst undertaking her new LCIA responsibilities.

Justin D’Agostino, Global Head of Dispute Resolution at Herbert Smith Freehills and Managing Partner for Asia, says: “Paula is an exceptionally talented lawyer and arbitrator and we are very proud of her achievement. This appointment is a testament not only to Paula’s legal excellence but demonstrates the high esteem in which she is regarded by the LCIA and wider arbitration community.”

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Filed under Europe, Institutions, News

Recent Developments in India-related International Arbitration

Herbert Smith Freehills has issued the latest edition of its Indian international arbitration e-bulletin.

In this issue we consider various court decisions, which cover issues such as the applicability of the Arbitration Amendment Act 2015, binding non-signatories to an award, enforcement of an award before the National Company Law Tribunal, and the continued pro-arbitration approach of the Indian courts. In other news, we consider the continued rise of institutional arbitration in India, a detailed analysis of the proposed amendments to the Arbitration Act, as well as India-related bilateral investment treaty news (and other developments).

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Filed under Arbitrability, Arbitration laws, Arbitration proceedings, Asia, Global Pound Conference, India, Institutions, Investment Arbitration, ISDS, News

Tribunal awards India first BIT case win, dismissing claims of French investor

An UNCITRAL arbitral tribunal has reportedly dismissed a US$36 million claim by a French investor, Louis Dreyfus Armateurs SAS (“LDA“), against India under the 1997 France-India bilateral investment treaty (“BIT“). The award is not public at this time, but press reports state that LDA has also been ordered to pay approximately US$7 million in respect of India’s substantial legal expenses.

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Filed under Arbitration proceedings, Asia, Awards, India, Investment Arbitration, ISDS, Jurisdiction

NEW JAPAN INTERNATIONAL DISPUTE RESOLUTION CENTER OPEN FOR BUSINESS IN OSAKA

The newly established Japan International Dispute Resolution Center (JIDRC) opened its first hearing venue on 1 May 2018. Located within Japan’s second largest metropolitan area, the JIDRC-Osaka is the product of cooperation between the public and private sectors and is reported to be the first facility in Japan to provide specialised international arbitration hearing services. It represents a welcome addition to the international dispute resolution landscape in Japan.

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Filed under ADR, Asia, News

HERBERT SMITH FREEHILLS – SMU ASIAN ARBITRATION LECTURE

Sir Christopher Greenwood: Investor-State Arbitration: Is there a Future?

This year marks the eighth edition of the Herbert Smith Freehills – SMU Asian Arbitration Lecture Series.

We are delighted that Sir Christopher Greenwood GBE, CMG, QC, will deliver the lecture on Thursday 18 October, on the topic of Investor-State Arbitration: Is There A Future? We are honoured to have Chief Justice Sundaresh Menon as Guest of Honour.

The Herbert Smith Freehills-SMU Asian Arbitration Lecture Series was established in 2010 through funding from Herbert Smith Freehills, and promotes collaborative forms of dispute resolution and access to justice. It also aims to promote Singapore as a leading centre for dispute resolution in Asia, particularly in arbitration and mediation. Each year, a distinguished arbitrator delivers the lecture, which is also published in a leading global arbitration journal.

Date:      Thursday, 18 October 2018

Time:      4:30pm – Registration

5:00pm – Lecture

Cocktail Reception to follow

Venue:   Singapore Management University

School of Law (SMU Hall 1.3, Level B1)

55 Armenian Street

Singapore 179943

Click here to register

The lecture will be a SILE accredited CPD activity.

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HONG KONG COURT “RELUCTANTLY” ISSUES TEMPORARY STAY OF ENFORCEMENT

In Baosteel Engineering & Technology Group Co. Ltd. v. China Zenith Chemical Group Ltd. [HCCT 7/2018], the Hong Kong Court of First Instance granted a temporary stay of enforcement of an arbitral award. In order to ensure that the award creditor’s interests were not prejudiced, the operation of the stay was made conditional on the award debtor paying security.

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Overcoming reluctance to arbitrate in the TMT sector

Drawing on two surveys on the use of arbitration in technology, media and telecoms disputes, Susan Field, a senior associate and solicitor advocate at Herbert Smith Freehills in London, considers whether parties in the TMT sector are moving away from their traditional reluctance to use international arbitration.

The technology media and telecoms (TMT) sector has grown by leaps and bounds in recent years. With rapid, sometimes cross-border, development and the increasing spend and dependency on technology, comes the unavoidable pain of disputes as deals go wrong, partnerships turn sour, or things do not go to plan. There are already a large number of TMT-related disputes globally, many involving significant sums. According to a survey of the TMT sector conducted by Queen Mary University of London in 2016 (International Dispute Resolution Survey – Pre-empting and Resolving Technology, Media and Telecoms Disputes), 23% of participants had experienced more than 20 TMT disputes over the past five years. More than a third said that they had been involved in at least one dispute valued in excess of US$100 million. The QMU survey also identified the types of TMT disputes most commonly encountered: these included IP, licensing, regulatory, supply chain and consumer disputes, though there was of course variation in the type of disputes encountered in the individual technology, media and telecoms industries.

More recently, in 2017, the Silicon Valley Arbitration and Mediation Centre (SVMAC) conducted its own survey identifying among other things the top perceived benefits of arbitration among technology companies.

While the surveys suggest there is a growing market for dispute resolution in the TMT sector, there remains a perception that parties are reluctant to use it. This article looks at whether there is any basis for this and how the arbitration community should respond.

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Filed under Europe, News, Publications and Guides

India’s lower house of Parliament approves further amendments to the Indian Arbitration Act

As previously reported here, a draft Bill to amend the Arbitration and Conciliation Act 1996 (the “Act“) was approved by the Indian Cabinet on 7 March 2018 (the “Bill“). The Bill was listed as a part of the agenda for the monsoon session of the Indian Parliament and was passed by the Lower House on 10 August 2018, without any amendments. The text of the Bill can be found here.

The Law Minister has described the Bill as “a momentous and important legislation” aimed at making India “a hub of domestic and international arbitration”. The key features of the Bill are:

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

Implied horizontal contract prompts stay of proceedings S9 AA 1996

In Mercato Sports v Everton[1], the English High Court found that two parties were bound by an implied horizontal contract containing an arbitration clause. Accordingly, it granted a stay of proceedings under section 9 of the Arbitration Act 1996 (‘S9 AA 1996’). In this case, a football agent (the Claimant)[2] sought payment for bringing a player to the attention of Everton (the Defendant) and by doing so, it enabled them to sign the player. While Claimant and Defendant had no direct contractual relationship, the Court established that both were bound by the Football Association’s Rules (‘FA Rules’), in particular by the arbitration agreement therein. While the Court emphasized that such arrangements would not always automatically lead to an implied horizontal contract, the parties’ dealings in this case did lead to an implied contractual relationship, governed by the FA Rules.

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Filed under Arbitration Act 1996, Arbitration clauses, Europe, Stays