AUSTRALIAN GOVERNMENT TO REVIEW ITS BILATERAL INVESTMENT TREATIES

The Australian Federal Government has announced it is reviewing the bilateral investment treaties (BITs) to which Australia is a party.

BITs are typically entered into to promote and protect investments made between the BIT partner States. To that end, Australia is party to 15 BITs with each of Argentina, China, Czech Republic, Egypt, Hungary, Laos, Lithuania, Pakistan, Papua New Guinea, Philippines, Poland, Romania, Sri Lanka, Turkey and Uruguay.

These BITs typically contain provisions requiring Australia (and its counterpart) to: treat foreign investors fairly and equitably; not expropriate the foreign investor’s investment without adequate compensation; provide protection and security to the foreign investor’s investment; honour written agreements between the host State and foreign investors; not treat the foreign investors from the partner State any less favourably than investors from the host State or a third party State; and allow free transfer of funds related to an investment in and out of the State.

Presently, the Department of Foreign Affairs and Trade (DFAT) is seeking submissions by 30 September 2020 on, among other things:

  • the utility of BITs to Australian investors operating overseas;
  • the impact of BITs on foreign investment;
  • concerns with the provisions on BITs presently in force;
  • provisions in BITs which should be renegotiated; and
  • whether the BITs should be terminated.

This community engagement follows on from continued public debate in Australia (which we have commented upon previously) regarding the “investor-state dispute settlement” (or “ISDS”) provisions commonly found in BITs.  Some critics have argued these ISDS provisions, which enable arbitration proceedings to be commenced by foreign investors against Australia, give rise to an unjustified risk of costly and time-consuming arbitration claims made by investors.

The submissions will inform the Government’s position on whether to continue, amend, renegotiate or terminate the BITs to which Australia is a party, or replace them with comprehensive free trade agreements (which may or may not include ISDS provisions). We will issue an update once the submissions are published on DFAT’s website.

For more information, please contact Brenda Horrigan, Head of International Arbitration (Australia), Leon Chung, Partner, Chad Catterwell, Partner, Imogen Kenny, Solicitor, or your usual Herbert Smith Freehills contact.

Brenda Horrigan
Brenda Horrigan
Head of International Arbitration (Australia)
+61 2 9225 5536
Leon Chung
Leon Chung
Partner
+61 2 9225 5716
Chad Catterwell
Chad Catterwell
Partner
+61 3 9288 1498
Imogen Kenny
Imogen Kenny
Solicitor
+61 3 9288 1657

ENFORCING AWARDS DOWN UNDER CONTINUES TO PAY OFF: FEDERAL COURT OF AUSTRALIA ENFORCES FOREIGN AWARD DESPITE PROCEDURAL IRREGULARITIES

Overview

The Australian Federal Court has granted an application to enforce a foreign arbitral award despite procedural irregularities in the arbitration proceedings.

The decision in Energy City Qatar Holding Company v Hub Street Equipment Pty Ltd (No 2) [2020] FCA 1116 (‘ECQ v Hub) builds upon Australian jurisprudence promoting ease of enforcement of foreign arbitral awards. Continue reading

The Kingdom of Tonga becomes 164th state to accede to the New York Convention

On 12 June 2020, Tonga acceded to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention“). With this, Tonga becomes the 164th state party to the Convention, following the recent accession of Palau in March this year. Under Article XII (2), the Convention will come into force for Tonga on 10 September 2020 and will be applicable to arbitral awards issued on or after that date.

Under Article I.3 of the New York Convention, contracting states are able to ratify or accede subject to certain reservations. The UNCITRAL website indicates that Tonga has acceded to the Convention subject to one common reservation, namely that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered commercial under the laws of the Kingdom of Tonga.

For more information please contact Andrew Cannon, Partner, Gitta Satryani, Partner, Brenda Horigan, Partner, Vanessa Naish, Professional Support Consultant, or your usual Herbert Smith Freehills contact.

Andrew Cannon
Andrew Cannon
Partner
+44 20 7466 2852
Gitta Satryani
Gitta Satryani
Partner
+65 68688067
Brenda Horrigan
Brenda Horrigan
Partner
+61 2 9225 5536
Vanessa Naish
Vanessa Naish
Professional Support Consultant
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A MATTER OF TRUST: AUSTRALIAN COURT ENFORCES INTERIM MEASURES TO SECURE THE AMOUNT IN DISPUTE

A recent judgment of the Supreme Court of Western Australia, Dalian Huarui Heavy Industry International Company Ltd v Clyde & Co Australia [2020] WASC 132 (available here), demonstrates that the use of interim measures to provide security for an amount in dispute can be a very powerful remedy when structured through the creation of a trust.

In a Singapore-seated arbitration between Dalian and Duro, the tribunal had ordered interim measures to secure (part of) the amount in dispute in the form of orders requiring an amount of money ($AUD27 million) to be placed in a solicitor’s controlled money trust account maintained by Duro’s solicitors, Clyde & Co. Duro subsequently entered voluntary administration, leaving Dalian with little recourse other than to pursue the trust money.

Justice Kenneth Martin of the Supreme Court of Western Australia found that Dalian was entitled to the trust money, thereby removing those funds from the resources available to the voluntary administrators.

Background

The interim measures were made in the course of a Singapore seated arbitration between Dalian (an export company) and Duro (a mining and construction company) regarding an iron ore mine project in Western Australia. An interim procedural order made by the tribunal granted Dalian’s application seeking security for part of its claims in the arbitration and ordered Duro to pay $AUD27 million (‘trust amount’) into its solicitor’s trust account. This order was implemented through the execution of a Trust Agreement, with Clyde & Co holding the money as trustee.

Dalian was subsequently successful in the arbitration, securing a monetary award of $AUD53 million against Duro. Dalian commenced proceedings in the Western Australian Supreme Court seeking an order to compel Clyde & Co as trustee to pay the trust amount to Dalian. Duro entered voluntary administration three days later.

Dalian sought the release of the funds on the basis that it held an absolute beneficial entitlement to the trust money, whereas the voluntary administrators of Duro instructed Clyde & Co to maintain the status quo. The trust amount was the only significant asset held by Duro and the voluntary administrators were concerned that if Duro could not trade out of administration and Dalian were paid the trust amount, it would be impossible to recover the funds which were likely to be remitted by Dalian to a parent company in the People’s Republic of China. The effect would be to frustrate recovery steps by future liquidators against Duro’s assets on behalf of creditors. Conversely, if Dalian was not entitled to recover the trust amount, it faced the prospect of relying solely on enforcing its monetary award as an unsecured creditor.

The key issue was whether the trust amount belonged to Dalian or Duro.

Decision

The power to order security over a disputed amount in an arbitration

Dalian’s key argument was that Clyde & Co had express contractual and fiduciary obligations to pay the trust money to Dalian. Dalian argued that the funds comprising the trust amount were no longer the ‘property’ of Duro (within the broad meaning of Australia’s Personal Property Securities Act 2009 (Cth) (‘PPSA’) and Corporations Act 2001 (Cth) (‘Corporations Act’)). Rather, Dalian argued that, upon the making of the monetary award in Dalian’s favour, full beneficial ownership of the funds held by Clyde & Co vested in Dalian.

Duro’s argument was that, in seeking to implement the interim measures, all the Trust Agreement had achieved was to provide a fund held on trust exclusively and always for Duro (not for Dalian). In effect, (on Duro’s argument) the Trust Agreement was simply a means by which Duro’s assets were ‘frozen’ pending the outcome of the arbitration.

In this context, the Court made instructive comments on the power of arbitral institutions in Singapore to make orders or give directions to any party for ‘securing the amount in dispute’ under s 12(1)(g) of the Singapore International Arbitration Act (‘SIAA’). It rejected Duro’s argument and noted that the tribunal specifically chose to adopt relief by way of ‘security’ instead of lesser relief, such as freezing or asset preservation orders, that were also available under s 12(1) subparagraphs (h) or (i) of the SIAA. The Court considered that the reference to ‘security’ in the tribunal’s orders was a specific reference to the legislative wording ‘securing the amount in dispute’ in s 12(1)(g) of the SIAA.

The Court observed that the power under s 12(1)(g) of the SIAA extends further than to order security for a party’s costs (a more limited power that is a feature of the rules of Court in many jurisdictions). The Court found that the power under s 12(1)(g) of the SIAA was capable of being exercised in such a way as to create equitable rights over an amount of money placed in a trust amount.

What was the nature of the interests held?

Determining who was entitled to the trust amount after its creation depended on how the trust arrangements were construed and the nature of the equitable interests held by Duro and Dalian.

The nature of Dalian’s interest in the trust amount was (initially) a contingent equitable interest which had matured (upon Dalian obtaining the monetary award in its favour) into an absolute and unqualified beneficial entitlement in equity to receive the trust amount. The Court distinguished the holding of ‘security’ over a dedicated fund of money from a creditor’s claim against assets the subject of a freezing injunction. Crucially, the creditors claim against the assets the subject of a freezing injunction is a bare in personam claim whereas the security provided by way of the interim measures created (initially) a proprietary security interested and (after the monetary award) a perfected proprietary right vested to Dalian.

Did the appointment of voluntary administrators change anything?

Duro had a residual equitable interest in the trust money pursuant to the interim measures orders (i.e. the money would have been returned to Duro had Dalian been unsuccessful in the arbitration). Those circumstances gave rise to complex arguments as to whether the trust moneys constituted ‘property’ of Duro and/or a ‘security interest’ for the purposes of the PPSA and the Corporations Act.

The Court concluded that the trust amount was indeed a ‘security interest’ for the purposes of the PPSA (as it was a transaction that in substance secured payment or performance of an obligation). Dalian had not registered that security interest under Australia’s personal property security register. As a result, Dalian’s unregistered security interest under the PPSA was exposed to the potential vitiating effects of s 267 of the PPSA which vests unperfected security interests in the grantor (i.e. Duro) upon the grantor entering administration or an insolvency.

Fortunately for Dalian, Martin J held that Dalian’s security had ‘perfected’ upon the issuance of the monetary award which occurred before Duro went into voluntary administration. This was because the monetary award, supported by an order from the tribunal directing Clyde & Co to ‘immediately’ release the trust amount, transformed Dalian’s contingent equitable interest into a fully vested equitable entitlement to the trust amount. The circumstances satisfied the extended concept of possession in s 21(2)(b) and s 24(2) of the PPSA because Clyde & Co held the trust money (and actually possessed it in an bank account) from that point on exclusively for the benefit of Dalian. Duro’s residual equitable interest had been extinguished. On that basis, the Court rejected other arguments by Duro that the funds were captured by s 440B of the Corporations Act which would prohibit a transfer of any property in which Duro had an interest following the commencement of the voluntary administration without the consent of the administrator or the leave of the Court.

Comment

The case highlights that, in a subsequent administration or insolvency, a freezing injunction does not confer any superior interest in favour of the party which obtained those orders above that of any other unsecured creditor, whereas a security may create proprietary rights that would more effectively place the Award-creditor ahead of other creditors.

Much credit needs to go to the Singapore seated arbitral tribunal (comprised of Sir Vivian Ramsay QC as a Chair, with Dr Michael Hwang SC and Dr Robert Gaitskell QC) for, in the first instance, crafting the interim measures in the form of a security interest rather than the more traditional freezing order and then, subsequently, making orders requiring the ‘immediate’ release of the trust money (perfecting the equitable transfer of the property to Dalian).

Dalian was ultimately fortunate that the monetary award (and order for the ‘immediate’ release of the trust money) occurred prior to Duro entering voluntary administration. Dalian had a security interest under the PPSA which remained unregistered. Dalian therefore faced the risk that it’s secured interest over the trust money would be relegated to no more than an unsecured claim (pursuant to 267 of the PPSA) upon Duro entering administration. It was only a fortunate sequence of timing which had the result that Dalian’s interest had transformed from a contingent equitable right in the form of a security interest into an equitably owned proprietary right before Duro entered administration.

The case therefore serves as a cautionary tale to parties who obtain interim measures of protection from an arbitral tribunal providing security over assets to which Australia’s PPSA applies that they should take steps to register their security interest to best preserve the protection they have obtained in the event of a voluntary administration or insolvency.

For further information, please contact Brenda Horrigan, Head of International Arbitration (Australia), Chad Catterwell, Partner, Harry Thompson, graduate, or your usual Herbert Smith Freehills contact.

Brenda Horrigan
Brenda Horrigan
+61 2 9225 5536

Chad Catterwell
Chad Catterwell
Partner
+61 3 9288 1498

Harry Thompson
Harry Thompson
Graduate
+61 2 9322 4951

 

 

DON’T COUNT YOUR CHICKENS: AUSTRALIAN COURT FINDS UNLIQUIDATED DAMAGES CLAIM OUTSIDE THE SCOPE OF A NARROWLY DRAFTED ARBITRATION AGREEMENT

In Inghams Enterprises Pty Limited v Hannigan [2020] NSWCA 82, the New South Wales Court of Appeal found that a claim for unliquidated damages for breach of contract could not be referred to arbitration because it was not within the scope of a narrowly drafted arbitration agreement. Relevantly, the scope of the arbitration agreement was confined to disputes concerning “any monetary amount payable and/or owed by either party to the other under this Agreement.”

The case is a further reminder to parties that they will almost always be best served by drafting the scope of the submission to arbitration broadly.

Background

Inghams entered into a ‘chicken growing contract’ with Mr Hannigan (Agreement), under which Inghams paid Mr Hannigan to receive batches of chicks, grow them into chickens, and return them. Clause 23 of the Agreement contained a multi-tiered dispute resolution clause requiring a dispute first to be mediated and then submitted to arbitration under clause 23.6 if:

  • the parties “fail to resolve the Dispute in accordance with Clause 23.4 within twenty eight (28) days of the appointment of the mediator”; and
  • the dispute “concerns any monetary amount payable and/or owed by either party to the other under this Agreement, including without limitation matters relating to determination, adjustment or renegotiation of the Fee” under certain sections of the contract.

Inghams purported to terminate the Agreement. Mr Hannigan was successful in seeking a court declaration that the purported termination was wrongful and Inghams resumed supplying batches of chicks to him. Mr Hannigan did not seek damages in the proceedings, but made express reservations of his right to do so.

Mr Hannigan then issued a dispute notice to Inghams seeking damages due to loss of profits for the failure to supply chicks to Mr Hannigan between the date of the purported termination and the date supply resumed. The parties unsuccessfully attempted to mediate and Mr Hannigan contended that clause 23.6 the Agreement entitled him to refer the dispute to arbitration. Inghams commenced proceedings in the New South Wales Supreme Court to restrain the arbitration, seeking declarations that:

  1. Mr Hannigan’s damages claim did not fall within clause 23 of the Agreement; and
  2. even if it did, Mr Hannigan had waived any entitlement to arbitrate the dispute under clause 23 because of his commencement of the wrongful termination proceedings.

The primary judge held that Mr Hannigan was entitled to refer his damages claim to arbitration under clause 23.6 of the Agreement. Inghams appealed, arguing the primary judge erred by:

  1. construing the contract such that the damages claim fell within clause 23.6 and could be referred to arbitration; and
  2. not finding that Mr Hannigan had waived his right to refer the dispute to arbitration.

Decision

Meagher and Gleeson JJA agreed with Inghams and allowed the appeal with costs, finding:

  • The claim for damages was not an amount that was “payable” or “owed” as a result of an express or implied term of the Agreement. The dispute was not one which affected or related to the negotiation, adjustment or determination of any amount “payable” or “owed” under such a term. Accordingly, the dispute did not concern a monetary amount payable under the Agreement.
  • There is an important distinction between monetary amounts which are payable or owed “under a contract” and remedies which arise by operation of law. Whereas liquidated damages are recoverable by a contractual right of recovery, unliquidated damages for breach of contract “are compensation assessed by the court in accordance with common law principles for loss occasioned by breach”.
  • As the dispute was not required to be referred to arbitration, the waiver issue did not arise. If the dispute had been required to be referred to arbitration, Mr Hannigan had not waived his right to do so.

Bell P dissented, holding:

  • The dispute resolution clause should be construed broadly, based on legal principles and textual indications in clause 23.6 which suggest the parties intended it be interpreted liberally, including the use of:
    • the indefinite pronoun “any” in the phrase “any monetary amount”;
    • the alternative formulation “payable and/or owed”;
    • the phrase “including without limitation”; and
    • the broader concept of “monetary amount” instead of “fees”.
  • Mr Hannigan had not waived his right to arbitration because the wrongful termination proceedings did not result in, or occur because of, Mr Hannigan unequivocally abandoning any right claim damages for breach of contract in arbitration at some future time.

Comment

The majority decision follows the recent High Court of Australia decision in Rinehart & Anor v Hancock Prospecting Pty Ltd & Ors [2019] HCA 13, which eschewed adopting the Fiona Trust principle as a principle of Australian law. In Rinehart, the High Court emphasised the importance of construing the words of an arbitration clause, like any clause in an agreement, in its context.

In this case, applying that approach, the narrow formulation found in the arbitration clause (“monetary amount payable and/or owed … under the Agreement”) led to the result that claims for unliquidated damages were outside the scope of the arbitration agreement.

Had the parties used a broader formulation, as is recommended by many arbitral institutions (such as “arising out of or in connection with” or a variant thereof), it is likely the outcome would have been different.

The case therefore serves as another reminder that parties should take care when drafting an arbitration agreement, and seek expert advice from practitioners with expertise in the field when deviating from the model clauses recommended by leading arbitral institutions.

For further information, please contact Brenda Horrigan, Head of International Arbitration (Australia), Chad Catterwell, Partner, Nicholas Brewer, solicitor, or your usual Herbert Smith Freehills contact.

Brenda Horrigan
Brenda Horrigan
+61 2 9225 5536

Chad Catterwell
Chad Catterwell
+61 3 9288 1498

Nicholas Brewer
Nicholas Brewer
+61 3 9288 1049

 

 

ENGLISH COURT UPHOLDS SCC AWARD DESPITE RESPONDENT’S ARGUMENT THAT ARBITRATION AGREEMENT WAS SIGNED BY DEFUNCT PREDECESSOR

In Carpatsky Petroleum Corp v PJSC Ukrnafta [2020] EWHC 769 (Comm), the Commercial Court has upheld the enforcement of a US$147 million Stockholm Chamber of Commerce (the “SCC”) award issued in 2010 in favour of Carpatsky Petroleum Corporation, incorporated in Delaware (“Carpatsky”), against PJSC Ukrnafta (“Ukrnafta”), Ukraine’s oil and gas producer (the “Award”). Enforcement was allowed despite an argument from Ukrnafta that the arbitration agreement was signed by Carpatsky’s predecessor, which had ceased to exist in 1996. Given that the parties had already fought this issue on the enforcement front in a number of jurisdictions, including Ukraine and Sweden (the seat of arbitration), the Court had to consider whether an issue estoppel arose as a result of the foreign courts’ findings, noting that there was a public interest in sustaining the finality of supervisory courts’ decisions on properly referred procedural issues arising from the arbitration.

Background

The parties and the Agreements

In 1995, Carpatsky Texas (“CT”) and Ukrnafta’s subsidiary SE Poltavanaftogaz (“PNG”) entered into a joint activity agreement to develop and exploit a gas field in Ukraine (the “JAA”). In June 1996, CT was merged into Carpatsky: CT ceased to exist, Carpatsky assuming CT’s rights and obligations. In October 1996, PNG and “Carpatsky Petroleum Corporation, registered in Texas” entered into a restated JAA, which contained an arbitration clause. In 1998, the parties executed an addendum to the restated JAA (the “JAA Addendum”, and together with the JAA and the restated JAA, the “Agreements”).The JAA Addendum (i) replaced PNG with Ukrnafta; and (ii) amended the arbitration clause such that it referred disputes to SCC arbitration. All the Agreements were signed by the President of “Carpatsky Petroleum Corporation” and stamped with CT’s seal.

Arbitration proceedings

In 2007, Carpatsky filed a request for arbitration with the SCC. Ukrnafta submitted an answer without a reservation as to jurisdiction. Following two rounds of submissions by each party, Ukrnafta served objections to the tribunal’s jurisdiction alleging that there was no valid arbitration agreement under Swedish law because the Agreements were made with CT, which had ceased to exist. The tribunal determined that it had jurisdiction, at the very least because the parties had entered into an arbitration agreement by engaging in the arbitration without raising an objection to jurisdiction. The arbitration proceeded on the merits, and the tribunal issued the Award in favour of Carpatsky.

Ukrainian proceedings

In early 2009, upon the application of the Ukrainian Deputy Public Prosecutor, the Kyiv Commercial Court held that the Agreements had not been executed as they were signed by CT, which had ceased to exist as at the date of the Agreements (the “Kyiv Court Decision”).

After the tribunal issued the Award, Carpatsky commenced enforcement proceedings in Ukraine. In 2013, the application was dismissed with reference to the Kyiv Court Decision on the ground that there was no written arbitration agreement (the “Kyiv Enforcement Decision”, and together with the Kyiv Court Decision, the “Kyiv Decisions”).

Swedish proceedings

In 2009, Ukrnafta brought proceedings before the Stockholm District Court arguing, with reference to Swedish law, that the tribunal lacked jurisdiction. The proceedings were stayed pending the arbitration. In 2011, the District Court rejected Ukrnafta’s argument, confirming that the tribunal had jurisdiction.

In addition, Ukrnafta sought to set aside the Award on the basis that the tribunal had exceeded its mandate and had made errors which affected the outcome of the arbitration (the “Swedish Challenge Proceedings”). In 2015, the Svea Court of Appeal rejected all Ukrnafta’s challenges to the Award (the “Swedish Challenge Proceedings Decision”).

US proceedings

In February 2009, Ukrnafta sued Carpatsky in the 190th District Court of Harris County, Texas asserting a number of causes of action, including negligent misrepresentation, fraud and misappropriation of trade secrets, and contending that all amendments to the JAA after the date of the merger were void ab initio. The case was removed to federal court, and the US District Court for the Southern District of Texas (“SDT”) stayed the litigation pending the arbitration proceedings. The stay was lifted following the termination of the Swedish Challenge Proceedings. In October 2017, the SDT granted Carpatsky’s motion to confirm the Award. Ukrnafta appealed.

In April 2020, several days after the Commercial Court in London upheld enforcement of the Award, the US Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) dismissed Ukrnafta’s challenges to the District Court’s order confirming the award. In its ruling, the Fifth Circuit found that under Delaware law, the President of “Carpatsky Petroleum Corporation” had authority to enter into the JAA Addendum on behalf of Carpatsky and the use of CT’s seal was irrelevant. The Fifth Circuit also noted that Ukrnafta waived its right to challenge the tribunal’s jurisdiction by submitting to arbitration proceedings, and, in any event, an arbitration agreement was created during the arbitration. The Fifth Circuit dismissed the due process violations pleaded by Ukrnafta, noting, in particular, that the merits hearing looked “like a full-blown federal trial”. Finally, the Fifth Circuit held that allowing the Kyiv Decisions to prevent enforcement would “gut international arbitration and interfere with the global commerce it promotes.”

English proceedings

Carpatsky successfully applied to the English court to enforce the Award. Ukrnafta sought to set aside the order granting permission to enforce before the Commercial Court. Ukrnafta argued that under Ukrainian law there was no valid arbitration agreement given that the JAA Addendum was executed on behalf of CT. Ukrnafta also contended there was a serious procedural irregularity in that the tribunal (i) dealt with an issue concerning a limitation of liability clause on a basis which had not been pleaded; and (ii) took a procedurally irregular approach to the agreed methodology for assessing damages, which resulted in a serious mathematical error.

Overview of the Commercial Court decision

There was a valid arbitration agreement

The Court held that Ukraine was estopped by conduct from arguing that Ukrainian law governed the arbitration agreement given that it had argued that Swedish law was applicable in the arbitration and Swedish proceedings. It concluded that under Swedish law there was a valid arbitration agreement in the JAA Addendum between Ukrnafta and Carpatsky, noting, in particular, that the parties intended both objectively and subjectively, to enter into the JAA Addendum with each other. It further noted that both (i) the conduct of the parties’ representatives in the arbitration under the SCC Rules and (ii) the parties’ participation in the arbitration and exchange of pleadings gave rise to an arbitration agreement even if there had not been one before.

No issue estoppel on the validity of the arbitration agreement

The Court reminded the parties that an issue estoppel can arise from foreign court decisions in relation to enforcement, referring to Diag Human SE v Czech Republic (discussed in one of our previous blog posts). However, given that the Ukrainian courts did not address the existence of an arbitration agreement as a matter of Swedish law, an issue estoppel did not arise. The Court noted that to the extent its determinations related to the validity of the JAA Addendum under Ukrainian law it would be unjust to recognise an issue estoppel as precluding Carpatsky from successfully contending that the JAA Addendum was valid.

Issue estoppel on limitation of liability and on damages methodology

The Court held that there was a public interest in sustaining the finality of decisions of the supervisory courts (the Swedish courts in this instance) on properly referred procedural issues arising from the arbitration. It also noted that, in assessing whether there was an issue estoppel arising from a decision of the supervisory courts in respect of an arbitration-related procedural issue, English courts should not adopt an overly-narrow approach to whether the same issue has been decided by the supervisory court. The Court considered the arguments raised by Ukrnafta in the Swedish proceedings, concluding that Ukrnafta’s procedural irregularity complaints were either substantially the same (in the case of the limitation of liability point) or the same (in the case of the damages methodology) to those pursued before the Court. These arguments had been considered (and rejected) in the Swedish Challenge Proceedings Decision, which gave rise to an issue estoppel.

Comment

The Commercial Court’s decision in this case is another clear example of the English courts’ pro-enforcement stance. The judgment is also an important reminder to commercial parties that their participation in the arbitration proceedings may in itself be capable of constituting an agreement to arbitrate, even if the arbitration agreement in the relevant contract is in some way defective. In addition, the decision reiterates that the principle of issue estoppel may affect the parties’ ability either to enforce an award or resist enforcement in the English courts where there have already been attempts to enforce or challenge the award in foreign courts, especially before the courts of the seat of arbitration.

For more information, please contact Brenda Horrigan, Partner, Chiara Cilento, Associate, Olga Dementyeva, Associate, or your usual Herbert Smith Freehills contact.

Brenda Horrigan
Brenda Horrigan
Partner
+61 2 9225 5536

Chiara Cilento
Chiara Cilento
Associate
+1 917 542 7842

Olga Dementyeva
Olga Dementyeva
Associate
+44 20 7466 7644
 

INSIDE ARBITRATION ISSUE #9: PERSPECTIVES ON CROSS-BORDER DISPUTES

Welcome to the ninth issue of Inside Arbitration

We are delighted to share with you the latest issue of the publication from the Herbert Smith Freehills Global Arbitration Practice. With a new decade afoot, the articles in this issue focus on trend spotting and change.

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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.

In this issue you can find:

  • Kathryn Sanger and Marco de Sousa looking at the statistics of the main arbitral institutions, highlighting interesting similarities and differences and offering some predictions for the future.
  • Jonathan Ripley-Evans interviewing Professor David Butler, Emeritus Professor of Law at Stellenbosch University and lead advisor to the South African Government on the International Arbitration Act in South Africa who provides insights into the future of arbitration in South Africa.
  • Nick Peacock, Vanessa Naish and Jerome Temme looking at common drafting issues in arbitration and whether arbitration agreements work in unilateral documents.
  • Natasha Blycha, Brenda Horrigan and Guillermo García-Perrote providing an update on what smart legal contracting may mean for businesses and dispute resolution in the future.
  • Charlie Morgan looking at technology as a disruptor for arbitration and considering how data analytics may change the way we approach all stages of the arbitral process.
  • Chinnawat Thongpakdee and Warathorn Wongsawangsiri offering their insights into the Thai arbitration market and how Bangkok is developing as an arbitral seat.
  • Nick Peacock sharing his views on arbitration trends in the banking and finance and technology sectors, including some insights on cybersecurity issues in arbitration.
  • Nick Peacock and Olga Dementyeva looking at investment treaty claims that have arisen from the dispute over Crimea and what the future may hold for investors.
  • An infographic sharing some statistics about our Global Arbitration Practice and our case load from 2017-2019.
  • Our regular “Watch this space” piece highlighting some key developments in global arbitration.

Previous issues can be viewed on our website by clicking on this link here. To obtain hard copies, please contact Arbitration.Info@hsf.com.

We hope that you enjoy reading issue #9 of Inside Arbitration and would welcome your feedback.

 

 

NEW INSTITUTIONAL APPOINTMENTS FOR HSF ARBITRATION PRACTITIONERS

Head of Herbert Smith Freehills’ Global Arbitration Practice, Paula Hodges QC, has officially begun her Presidency of the LCIA Court. Lauded by the legal directories as “brilliant” and the “most complete arbitration practitioner in London”, Paula has over 25 years’ experience advising clients in international disputes, particularly in the energy, telecommunications and technology sectors. Paula has been Vice President of the Court for several years and also a LCIA Board member for a decade.  Paula has taken over the role from outgoing President Judith Gill QC in May 2019 and will continue in practice at Herbert Smith Freehills whilst undertaking her new LCIA responsibilities.

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