In Neo Intelligence Holdings Ltd v Giant Crown Industries Ltd HCA 1127/2017, the Hong Kong Court of First Instance held that an arbitration clause was not necessarily superseded by a clause in a supplemental agreement that conferred non-exclusive jurisdiction on the Hong Kong courts.
While the two clauses did not sit “wholly happily” together, it was at least possible that the parties intended the jurisdiction clause to govern post-award enforcement, or to indicate the lex arbitri. As a result, the court’s proceedings should be stayed and the question of jurisdiction referred to the arbitral tribunal. The applicant for a stay need only show that there is a prima facie, or plainly arguable, case that the parties are bound by an arbitration clause. Once that threshold is met, it is for the arbitral tribunal to determine its own jurisdiction.
On 1 October 2017, the International Investment Arbitration Rules of the China International Economic and Trade Arbitration Commission (CIETAC Investment Arbitration Rules or Rules) came into force. ¬†This is the first set of investment arbitration rules ever promulgated by a Chinese arbitration institution; no Chinese institution has heard an investor-state dispute to date. ¬†As China’s Belt and Road Initiative continues to gain momentum, disputes between investors and states along the Belt and Road region will, inevitably, arise. As the number of Belt and Road projects grows, so the number of disputes is bound to increase.¬† The CIETAC Investment Arbitration Rules are designed to offer an alternative institution and rules to resolve these disputes between investors and states.
We recently reported on three decisions of the Judicial Tribunal (please click here) following our commentary on the Judicial Tribunal’s controversial first decision in Daman v Oger and the effect on the Banyan Tree jurisdiction (click here). We concluded that, notwithstanding the absence of detailed reasoning in individual decisions, it was possible to piece together the Judicial Tribunal’s approach from its decisions taken as a whole. The two new decisions shine further light on that approach. Continue reading
In Tonicstar Limited v Allianz Insurance and Sirius International Insurance Corporation  EWHC 2753, the English High Court considered an application under Section 24 of the Arbitration Act 1996 ¬†(the Act) for the removal of an arbitrator on the basis that he did not satisfy the contractual stipulation as to relevant experience. This judgment is of particular interest given that questions of the removal of arbitrators do not often come before the courts (because they are, in institutional arbitration, typically decided by arbitral institutions so are not usually public). The Court decided to remove the arbitrator on the basis that he had experience of insurance and reinsurance law, rather than required experience in the business of insurance and reinsurance. This decision highlights the importance of the careful drafting of arbitration clauses which specify characteristics of an arbitrator.¬† It also serves as a reminder of the importance of precedent in the English judicial system.
On 30 October 2017, the International Chamber of Commerce (“ICC“) published guidance designed to provide greater clarity on the scope for “immediate dismissal of manifestly unmeritorious claims or defences” under Article 22 of the 2017 ICC Rules (the “Rules“). The updated practice note follows the introduction by several leading arbitral institutions of express ‘early dismissal’ provisions in their latest rules. The ICC did not follow this trend in March 2017, but confirms in its updated practice note that it considers that Tribunals’ general case management powers under Article 22 of the Rules already include such tools.
To read the practice note in full, please click here. Herbert Smith Freehills has produced a Step by Step Guide to Arbitration under the ICC Rules. To request a copy, please contact Arbitration.Info@hsf.com. Continue reading
On 1 November 2017, the Kuala Lumpur Regional Centre for Arbitration (KLRCA) and the International Court of Arbitration of the International Chamber of Commerce (ICC) signed a Memorandum of Understanding (MoU), agreeing to work together to promote dispute resolution in Asia.
The signing of the MoU will further enhance the relationship between the two institutions, on top of their previous collaborations such as the ICC-KLRCA International Arbitration Conference in 2016 and the 1st ICC-KLRCA Vis Pre Moot earlier this year. More collaboration on training and other joint programmes is anticipated as part of the two institutions’ efforts under the MoU to increase the profile of arbitration in the region and to promote and develop Malaysia as an arbitration-friendly seat for arbitration in Asia. The MOU also provides for KLRCA will to provide hearing space to ICC and its users.
There has been a steep increase in cases over recent years in Malaysia administered by the KLRCA. Additionally, the ICC recently announced the establishment of its case management office in Singapore. This MoU can is evidence of the two institutions’ plans to further expand their presence in the Asia region.
In another interesting development, KLRCA will be renamed the “Asian International Arbitration Centre” in 2018, to coincide with its 40th anniversary and as part of the KLRCA’s initiative to be the leading arbitration hub in Asia.
If you have questions or would like further information, please contact Peter Godwin (Managing Partner) of Herbert Smith Freehills’ Kuala Lumpur office or your usual Herbert Smith Freehills contact.
Peter GodwinManaging Partner - Kuala LumpurEmail
Filed under ADR, Asia, News
The last two years have seen considerable development of Russian arbitration law and practice, with changes to Russian arbitration law intended to enhance Russia’s market reputation as an arbitration-friendly jurisdiction.¬† In a further development, it was recently announced that the Singapore International Arbitration Centre (SIAC) and the Institute of Modern Arbitration (IMA) of the Russian Federation have entered into a Memorandum of Understanding intended to support and promote the development of international arbitration in Singapore and Russia. Continue reading
In Heartronics Corporation v EPI Life Pte Ltd and Others  SGHCR 17, the Singapore High Court considered applications to stay proceedings pursuant to arb-med-arb clauses in the relevant agreements. The defendant had argued that even if attempts at mediation had failed, the arbitration agreement nevertheless remained separate and enforceable.¬† This decision ‚Äď which rejected the stay application after finding a repudiatory breach of an integrated med-arb procedure ‚Äď highlights the unitary nature of certain multi-tiered dispute resolution clauses, and provides helpful guidance on the circumstances in which an arbitration agreement may be rendered inoperative or incapable of being performed.
In a dispute between an English company and a Russian company, the English High Court (the Court) refused to set aside an order enforcing a Russian arbitration award on the grounds that the English company had not been given notice of the arbitration or the appointment of arbitrators. The English company claimed that a series of letters in Russian, informing it of the arbitration proceedings, did not constitute proper notice as they were not provided with an English translation. However, as the headings of the letters were in English and contained the English word “arbitration”, and related to a contract in which the company had agreed to Russian language arbitration, the Court held that the English company ought to have known that the documents related to arbitration, and that the letters therefore constituted a valid notice. ¬†The Court’s comments suggest that there are a number of practical steps that a party can take when beginning an arbitration against a counter-party which does business in a language different from that of the notice.¬† These are discussed further below.
Oao v Magneco Metrel UK Ltd¬† EWHC 2208 (Comm)