HONG KONG COURT REFUSES LEAVE TO APPEAL RARE SUCCESSFUL CHALLENGE TO AWARD

5 May, 2023

The Hong Kong Court of First Instance has rejected an attempt by an award creditor to appeal against a rare successful challenge to an arbitral award.

In CIC v Wu and Ors [2023] HKCFI 700, Mimmie Chan J had refused to enforce the award because the “grossly unfair and unjust” procedure adopted by the tribunal amounted to an egregious denial of due process (see our previous blog post for further details).  The decision arose from unusual facts and illustrated the readiness of the Hong Kong courts to intervene to prevent injustice in truly exceptional cases.

The Court has now refused leave to appeal that ruling on the ground that an appeal would have no reasonable prospects of success (CIC v Wu and Ors [2023] HKCFI 1055).

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HONG KONG COURT REFUSES TO ENFORCE AWARD DUE TO “GROSSLY UNFAIR AND UNJUST” PROCEDURE

22 March, 2023

The Hong Kong Court of First Instance has refused to enforce an arbitral award because the procedure adopted by the tribunal was so “seriously flawed” and “egregious” that due process was denied (CIC v Wu and Ors [2023] HKCFI 700).

The unusual facts of this case underline the high threshold to successfully challenge arbitral awards on due process grounds in Hong Kong, whilst illustrating the willingness of the courts to intervene to prevent injustice in exceptional cases.

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ENGLISH HIGH COURT FINDS THAT ASSIGNMENT OF ARBITRATION CLAUSE BY OPERATION OF LAW PROHIBITED BY ANTI-ASSIGNMENT CLAUSE

6 March, 2023

The English High Court has concluded that an anti-assignment clause can prevent the assignment of an arbitration clause to an insurer pursuing subrogation rights by operation of law.

The decision in Dassault Aviation SA v Mitsui Sumitomo Insurance Co Ltd [2022] EWHC 3287 (Comm) concluded that the relevant test for whether an assignment is in breach of an anti-assignment clause depends on whether the purported assignment by law is the result of voluntary decisions of the assigning party.

In this case, the assignor acted voluntarily in bringing about the assignment by operation of law, resulting in a breach of the anti-assignment clause. Consequently, the insurer could not establish jurisdiction for the arbitral tribunal to hear the subrogated claim.

While the judgment was specific to the construction of the clause in the case, it has significant ramifications for arbitration practitioners and the insurance industry. We note that permission to appeal has been granted. Continue reading →

NAVIGATING UK SANCTIONS AGAINST RUSSIAN PERSONS IN INTERNATIONAL ARBITRATION

31 January, 2023

This blog was first published by Kluwer Arbitration and can be found here.

Russia’s invasion of Ukraine has created an environment ripe for controversy and disputes, some of which may be resolved in arbitration. While UK sanctions imposed as a result of Russia’s invasion of Ukraine do not generally restrict arbitration proceedings, they may pose obstacles to the appointment of arbitrators and counsel as well as the administration of disputes by arbitral institutions, resulting in delays in dispute resolution. The overall effect of the UK sanctions regime may also mean that the successful party will encounter issues with enforcement in the UK. In this blog post we discuss how to navigate and mitigate these issues. Continue reading →

GIVE MANDATORY MEDIATION A CHANCE: INSIGHTS FROM THE LCAM-HSF SURVEY ON COMPULSORY MEDIATION

30 January, 2023

Study shows support by members of the dispute resolution community for some degree of mandatory mediation in both litigation and arbitration proceedings.

Please use this link to access the recording of a live webinar in which Craig Tevendale, Chris Parker KC, Gill Mansfield and Jonathan Wood discuss the survey’s outcomes. 

Herbert Smith Freehills partnered with the London Chamber of Arbitration and Mediation (LCAM) to conduct a survey of perspectives on compulsory mediation in arbitration and mediation (the Survey). The results are in and we are pleased to share the insights they provide. Continue reading →