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In a recent decision, the Supreme Court of New South Wales held that ongoing arbitral proceedings did not prevent a party from calling upon a guarantee in relation to the primary contract. The key takeaways are as follows: A party will not, prima facie, be precluded from calling upon a guarantee for the sole reason … Read more
A recent judgment of the Queensland Court of Appeal provides a further example of the pro-enforcement stance adopted by Australian courts in relation to arbitration agreements. Read more
The Supreme Court of New South Wales has recently confirmed that, in Australia, the relevant test for challenges to the independence or impartiality of arbitrators is the ‘real danger of bias’ test, rather than the lower threshold of the ‘reasonable apprehension of bias’ test applicable at common law. Read more
A recent decision of the Federal Court of Australia sheds light on how to effectively seek a subpoena from a court in support of arbitration proceedings. Takeaways The Court is not overly prescriptive in setting out the criteria for the grant of a subpoena, but this is not to be confused with the Court giving … Read more
James Allsop and Kathryn Sanger discuss the key issues arising out of their recent experience of contentious termination and expiry of distribution agreements, including utilising escalation steps in dispute resolution clauses, self-help remedies, interim-measures and brand protection. Watch Listen Herbert Smith Freehills Podcasts · Future of Consumer APAC: Managing and exiting distribution agreements About the … Read more
Welcome to the twelfth issue of Inside Arbitration We are delighted to share with you the latest, new look issue of this publication from Herbert Smith Freehills’ Global Arbitration Practice. Uncertainty has been the watchword of 2021 so far. As the Covid-19 pandemic continues to impact our work and personal lives many questions remain about … Read more
In an appellate judgment, the Full Court of the Federal Court of Australia has ruled that a foreign arbitral award is not enforceable because the arbitral tribunal was not constituted strictly in accordance with the parties’ arbitration agreement. Notably, the decision also considers the courts’ discretion to enforce an award even where a party establishes … Read more
Investment protection regimes are at a crossroads globally. Different governments, trading blocks and interest groups are pushing their policy agendas in diverging directions when it comes to bilateral and multilateral investment protection schemes. Australia is no exception to this debate. In this note we canvass some of the key developments in the investment treaty arbitration … Read more
In a recent post, we discussed Australia’s pro-enforcement approach to foreign arbitral awards. A recent case of the Victorian Court of Appeal (VCA) affirms this approach in relation to domestic awards. In Pinchus Feldman and Yosef Feldman v Corey Stephen Tayar [2021] VSCA 185, the VCA considered an appeal from a decision to order enforcement … Read more
