As noted in our earlier post, Hong Kong published its long-awaited Code of Practice for Third Party Funding of Arbitration on 7 December 2018.
Publication of the Code has removed the final hurdle to third party funding of Hong Kong arbitrations. The law that allows such funding will come into effect on 1 February 2019, via sections 98K â€“ 98O of the Arbitration Ordinance (Cap. 609). These sections abolish the criminal and tortious offences of champerty and maintenance in relation to third party funding of arbitration, as well as arbitration-related court and mediation proceedings. For more detail on the law, click here.
The Code was published by Hong Kong’s Secretary for Justice, Teresa Cheng SC, in her capacity as the “authorized body” under Part 10A Arbitration Ordinance. Compliance with the Code will be overseen by an “advisory body”, consisting of three senior Hong Kong lawyers, whose powers derive from s.98X Arbitration Ordinance.
The English High Court has upheld a challenge to an arbitration award on the grounds of serious irregularity, in Fleetwood Wanderers Ltd (t/a Fleetwood Town Football Club) v AFC Fylde Ltd  EWHC 3318 (Comm). The Court held that the sole arbitrator’s conduct in making independent investigations after the substantive hearing, without notifying the parties and without giving them an opportunity to respond, breached the tribunal’s general duty under s33 of the UK Arbitration Act 1996 (the “Act“), and amounted to a serious irregularity under s68 of Act. The award was remitted back to the arbitrator for reconsideration.
Hong Kong has published its long-awaited Code of Practice for third party funders, and announced that amendments to the Arbitration Ordinance which permit funding of Hong Kong arbitrations will come fully into force on 1 February 2019. Similar amendments to the Mediation Ordinance (Cap. 620) have been deferred for further consultation.
On 1 July 2018, the Supreme People’s Court of China (SPC) promulgated Provisions on Several Issues Regarding the Establishment of International Commercial Courts (Fa Shi 2018 â€“ No.11). We reported this major development here. The SPC has now released further rules canvasing out the operation of the China International Commercial Courts (CICC).
The European Federation for Investment Law and Arbitration (EFILA) will be holding its fourth Annual Conference, on 31 January 2019, at Herbert Smith Freehills’ offices in London. The conference will focus on four topics:
- the EU’s external investment policy;
- the EU’s investment policy towards Asia;
- constructing a multilateral investment court: the path ahead; and
- the EU’s Energy investment policy.
In N v W  HKCFI 2405, the Hong Kong Court of First Instance refused to remit or set aside an award on the basis that an arbitrator had misconducted proceedings, demonstrating its reluctance to entertain such claims absent direct and well-established evidence. The court further noted that the plaintiff could not use a set-aside application as a substitute for appeal.
A decision by the federal government of the UAE to remove arbitrators from the scope of application of Article 257 of the UAE Penal Code has been welcomed by the arbitral community in the UAE and beyond. Federal Decree No. 24 of 2018 came into force on 8 October 2018.
Dubai, seen as an arbitration-friendly jurisdiction, saw a threat to its image when Article 257 was amended in 2016 to include arbitrators in the category of individuals against whom criminal sanctions could be imposed if they failed to maintain integrity and impartiality in the discharge of their duties.
In Castlemil Infant (HK) Supplies Co Ltd v Care N Love Development Ltd  HKDC 1419, the Hong Kong District Court granted a mandatory injunction, having found that the plaintiff’s underlying tort claims did not fall within the scope of the parties’ arbitration agreement. Continue reading
London-based Construction & Infrastructure Disputes partners James Doe and David Nitek have authored the chapter on ‘Construction Arbitration and Turnkey Projects’ in the second edition of Global Arbitration Reviewâ€™s Guide to Construction Arbitration.
Launched last year, The Guide to Construction Arbitration is an in-depth review of construction disputes internationally â€“ from preparing contracts and guarantees, to setting up dispute boards, organising arbitration proceedings, analysing documents and evidence, and navigating within particular industries and regions.
At the 7th Asia Pacific ADR Conference in Seoul earlier this month, the Korean Commercial Arbitration Board (KCAB) unveiled its Draft Seoul Protocol on Video Conferencing in International Arbitration. The Draft Protocol is intended to serve as a guide for best practices for planning, testing and performing video conferencing for international arbitrations.