Third party intervention in investment arbitration: Tribunal admits NGO submissions in Gabriel Resources’ claim against Romania concerning mining project

The Tribunal in Gabriel Resources v Romania recently issued an order (the Order) in response to an application (the Application) made by three Romanian NGOs, as non-disputing parties, for participation and an amicus submission (the Submission) in an ICSID arbitration under the Canada-Romania BIT (the BIT). Gabriel Resources’ allegations of breach of the BIT arise in relation to a proposed open pit mining development in Roşia Montană, Romania (the Project) which was not implemented.

The Tribunal granted the Application in part, admitting only certain sections of the Submission to the extent that they referred to factual issues within the specific knowledge of the Applicants and in relation to the interests which the Applicants claim to be protected.  However, the Tribunal denied admission to arguments on the law, as well as references to or reliance on testimonies which could not be tested by cross-examination. The Tribunal also rejected the NGOs’ request to attend and participate in the oral hearing.

The Tribunal’s analysis of the conditions relevant to an application by non-disputing parties – and its approach of considering each section of the Submission in relation to those conditions (rather than the Submission as a whole) – provides a significant contribution to jurisprudence in this area. The application in Gabriel Resources is also consistent with a general increase in such third party interventions, particularly in disputes which touch on issues of public interest, such as environmental protection, public health measures, labour standards, cultural rights and/or human rights.  Such a trend is likely to continue with civil society becoming more active in this context.

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No U-Turns Ahead: Singapore Court of Appeal holds that commencement of court proceedings may lose you the right to later rely on arbitration agreements

In the recent landmark decision of Marty Ltd v Hualon Corp (Malaysia) Sdn Bhd [2018] SGCA 63, the Singapore Court of Appeal held that the commencement of court proceedings notwithstanding the existence of a binding arbitration agreement and without any explanation or qualification is in and of itself sufficient to constitute a prima facie repudiation of the arbitration agreement. Counterparties who have accepted the court’s jurisdiction would correspondingly be deemed to have accepted the repudiatory breach, and will also no longer be entitled to insist on adherence with the arbitration agreement.

The Singapore Court of Appeal’s decision is noteworthy as it departs from longstanding authority that the mere commencement of litigation proceedings would not constitute repudiation of the arbitration agreement. The Court also provides important guidance to parties to Singapore seated arbitrations on whether (and when) it is appropriate to commence litigation in circumstances where an arbitration agreement exists, and how to react if a counterparty does so.  We analyse the decision below.

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Prague Rules on efficiency in arbitration now launched

The new Rules on the Efficient Conduct of Proceedings in International Arbitration (Prague Rules) launched last month in the Czech Republic and aim to provide a more efficient framework for arbitral procedure which can be used to streamline a dispute, reducing delay and costs. Their approach is closer to civil law than common law traditions, with the tribunal pro-actively managing the dispute from the start.

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ICC STRIVES FOR GREATER TRANSPARENCY AND EFFICIENCY IN UPDATED PRACTICE NOTE TO PARTIES AND ARBITRAL TRIBUNALS ON THE CONDUCT OF ARBITRATION UNDER THE ICC RULES

On 20 December 2018, the International Court of Arbitration of the International Chamber of Commerce (ICC) published updated guidance on the conduct of arbitration under its arbitration rules. The Note to Parties and Arbitral Tribunals on the Conduct of Arbitration under the ICC Rules of Arbitration (Note) entered into force on 1 January 2019, and represents a continuation of the ICC’s efforts to increase transparency and efficiency, and widen its range of services to users.  We consider six of the most significant updates to the Note below.

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JCAA Announces New Sets of Rules

Overview

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.”  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.  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.

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New HKIAC Rules enter into force on 1 November 2018

The Hong Kong International Arbitration Centre (HKIAC) Council has approved updated Administered Arbitration Rules (2018 Rules). The 2018 Rules are the product of a detailed review, by a committee including Herbert Smith Freehills’ Professional Support Consultant Briana Young, and a robust public consultation process. The 2018 Rules are accompanied by a Practice Note on Appointment of Arbitrators and will enter into force on 1 November 2018.

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Inside Arbitration: Issue #6 of the publication from Herbert Smith Freehills’ Global Arbitration Practice

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 insight about the markets and industries in which our clients operate, the publication offers personal perspectives of our international arbitration partners from across the globe.

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LCIA-MIAC Joint Venture Agreement Terminated

The London Court of International Arbitration (the LCIA) and the Government of Mauritius have announced the termination of their joint venture which established the LCIA-MIAC Arbitration Centre. LCIA-MIAC was created in 2011 as a focal point for international arbitration in Africa. In terminating the joint venture both the LCIA and the Government of Mauritius have nonetheless restated their commitment to international arbitration both in and in relation to Africa.

The termination will take effect from 27 July 2018. Parties to contracts should not include provisions for LCIA-MIAC arbitration in their arbitration agreements after this date.

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HONG KONG COURT OF APPEAL: COMMON LAW ACTIONS AVAILABLE TO ENFORCE ARBITRAL AWARDS

Two key developments emerge from the long-running proceedings in Xiamen Xinjingdi Group Co Ltd v Eton Properties Ltd [2016] 2 HKLRD 1106 and Xiamen Xinjingdi Group Co Ltd v Eton Properties [2018] HKCFI 910. The Hong Kong Court of Appeal (CA) has held that, when parties enter into an arbitration agreement, they make an implied promise that they will honour the terms of any subsequent arbitral award. If one party fails to honour the award, this may give rise to a separate cause of action at common law, for which the Hong Kong courts have jurisdiction to grant a full range of remedies, including damages. These proceedings also confirm that the Hong Kong Court of First Instance (CFI) has statutory powers to stay proceedings before it, pending the determination of an application for leave to appeal to the higher courts. Continue reading