HSF’S PAULA HODGES QC AND CHARLIE MORGAN TO PARTICIPATE IN “GAR LIVE: ENERGY DISPUTES” CONFERENCE

The annual GAR Live: Energy Disputes conference is taking place in London this year, where experts from across the country and throughout Europe will join together for a hybrid event. The energy industry is currently in the midst of a pivotal shift with a growing demand for renewable sources. This conference interrogates increasing market volatility within the oil industry and examines the challenges that arise from ageing assets and the decommissioning of projects. Our panel of experts will discuss disputes resulting from the increasing concern surrounding climate change and energy transition across the energy sector.

The event will be co-chaired by Global Head of Arbitration, Paula Hodges QC.

London-based Senior Associate Charlie Morgan will be taking part in the Oxford Union-style Debate.

In-house counsel and government representatives can attend the conference free of charge. For more information and to register attendance, please click here.

Paula Hodges QC
Paula Hodges QC
+44 20 7466 2027
Charlie Morgan
Charlie Morgan
Senior Associate
+44 20 7466 2733

 

INSIDE ARBITRATION ISSUE #12: PERSPECTIVES ON CROSS-BORDER DISPUTES

Welcome to the twelfth issue of Inside Arbitration

We are delighted to share with you the latest, new look issue of this publication from Herbert Smith Freehills’ Global Arbitration Practice.

Uncertainty has been the watchword of 2021 so far. As the Covid-19 pandemic continues to impact our work and personal lives many questions remain about the virus and our global response to it. However, since the light at the end of the tunnel does appear to be shining more brightly, we have grasped the opportunity to look forward positively in this edition of Inside Arbitration.

Incorporating videos and soundbites from our practitioners around the network, in this edition:

  • Paula Hodges QC, Andrew Cannon, Simon Chapman QC and Vanessa Naish explore whether it is possible to predict how the post-pandemic disputes landscape may look and how arbitration practice may be impacted longer term.
  • The pandemic is not the only significant force for change and development facing the world at present. Antony Crockett, Patricia Nacimiento and Dr. Alessandro Covi look at what “ESG” means for businesses, how ESG issues are being introduced into commercial contracts, and the potential impact of these trends on international arbitration.
  • Continuing the theme of change, Craig Tevendale, Chris Parker and Charlie Morgan focus on energy transition, looking at the challenges on the horizon and the potential legal disputes that may arise from the proliferation of new infrastructure projects.
  • Change has also been felt within the Herbert Smith Freehills’ arbitration practice. Our three new talented arbitration Partners Dana Kim (in Seoul), Antony Crockett (in Hong Kong) and Ivan Teselkin (in Moscow) feature in Spotlight articles introducing their differing areas of practice and sharing their views on the outlook for arbitration in their regions.
  • The recognition of the talent of our practitioners and the growth of our global practice is exciting, but so too are successes in our cases, particularly those that can be reported publicly! Simon Chapman QC and Charlotte Benton discuss a recent success in a landmark case in Hong Kong, which has confirmed that failure to comply with escalation requirements will not affect an arbitration tribunal’s jurisdiction over the dispute.
  • Looking at wider developments across the globe, Andrew Cannon and Nihal Joseph explore the significance of an important new judgment from the Supreme Court of India which decided that two Indian parties may validly agree to resolve their disputes in arbitration seated outside India.
  • Chad Catterwell and Guillermo Garcia-Perrote look at the rise of Arbitration in Australia, and how the release of the ACICA Arbitration Rules 2021 have further strengthened ACICA’s status as the pre-eminent arbitral institution in Australia.
  • In our sector-focused piece Hew Kian Heong, James Doe and Noe Minamikata take a look at the current hot topics in construction arbitration: the impact of recent materials shortages, a possible rise in construction insolvencies and the continuing effects of the Covid-19 pandemic on construction projects.
  • Our “watch this space” feature covers the latest issues and developments in international arbitration.

Previous issues can also be viewed on our website.

We hope that you enjoy reading issue #12 of Inside Arbitration and would welcome any feedback you may have.

ARBITRATION OF DIGITAL DISPUTES IN SMART CONTRACTS AND THE RELEASE OF THE DIGITAL DISPUTE RESOLUTION RULES FROM THE UK JURISDICTION TASKFORCE

On 22 April 2021 the UK Jurisdiction Taskforce (UKJT), a government-backed initiative chaired by Sir Geoffrey Vos, Master of the Rolls, and led by LawTech UK, published the Digital Dispute Resolution Rules (the Digital DR Rules). The aim of the Digital DR Rules is to enable the rapid resolution of blockchain and crypto legal disputes, offering users a procedural framework and a choice of either arbitration or expert determination.

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COEXISTING WITH COVID-19 [2]: A CATALYST FOR PROGRESS IN INTERNATIONAL ARBITRATION?

This blog post was originally published on 16 July 2020. This version of the post has been amended to include an updated table of the individual steps taken by different arbitral institutions and organisations as at 02 October 2020 in response to the evolving situation. 

As the Covid-19 pandemic continues, infection rates in many countries are starting to fall, and businesses and governments alike are seeking to establish a “new normal” recognising that the virus will be present in society for some time yet. Other countries still face climbing numbers and a peak yet to come. For all, the prospect of multiple waves of high infection rates throughout the year and beyond remains. As such, we will continue to see an ever shifting patchwork of lockdowns and other government responses internationally.

In our earlier series of blog posts, we highlighted the individual steps taken by different arbitral institutions, organisations and the wider community as an initial crisis response to the pandemic. We produced a table setting out those steps and will continue to monitor and update this information going forward. An updated table, accurate to 02 October 2020, can be found here.

In this blog post, we turn to the future and look at how the arbitration community continues to respond to the challenges of operating internationally, as different countries prepare in different ways to live with the Covid-19 virus in the medium term at least.

A steep learning curve: the initial response

The initial wave of the pandemic created an unprecedented need for arbitral institutions and organisations to adapt at very short notice to new and different ways of working, and offer solutions to parties and practitioners that would enable disputes to continue to be resolved at a time of quarantine, enforced social distancing and fast-changing government guidance from across the globe. What became clear was that there was no “one size fits all” approach to be taken by those institutions or organisations. Some institutions (such as the SCC) already functioned largely online with online filing systems. For other organisations (such as the LMAA) the majority of their cases were resolved “on the papers” rather than in face-to-face hearings. Other institutions (such as the ICC or LCIA) needed to introduce changes in their processes, enabling cases to be filed virtually while their secretariats worked remotely and for parties and tribunals to communicate online.

As the truly global nature of the pandemic unfolded, one of the first questions faced by parties, arbitrators and practitioners was whether merits hearings ought to be held virtually or postponed. While electronic communication and the use of other online tools in an arbitration is nothing new, most arbitrations, until now, involved a face-to-face substantive hearing on the merits. For many, a shift to a fully virtual merits hearing was, at least initially, viewed as a step too far. We saw many arbitration hearings in March and early April being postponed to later in the year. However, with the realisation that this “new normal” might be with us on a global scale for some time came a change in attitude towards virtual hearings.

The institutional joint statement in April 2020 mirrored the approach of many national courts in encouraging parties to continue with the resolution of disputes, and many arbitral institutions began encouraging arbitrators to adopt virtual hearings wherever possible. As a consequence, many parties with upcoming merits hearings found their arbitrators inclined towards that option.

Where a decision has been taken to hold a hearing virtually, the arbitrators, practitioners and clients involved have been on a steep learning curve. Just as we have all become used to operating through Skype, Teams and Zoom in the workplace, we have adapted to using that same virtual technology (and others) to hold hearings.

There has been a very positive response from a number of practitioners who have participated in virtual hearings, with many surprised at how well they have worked. We have seen the development of guidelines, protocols and procedural orders to govern the efficient and effective running of virtual hearings and to ensure that the hearing remains fair to all.

We have also seen other new ideas and initiatives come from within the community during this challenging time. New websites and initiatives have been launched to help keep practitioners up to date with Covid-19 developments or to facilitate the use of online platforms to enable cases to truly operate virtually.

Responding to an ever-shifting international picture: the need for flexibility

So what does the “new normal” mean going forward?

Commercial arbitration has grown in popularity over the past decades as parties recognise the benefits it brings in cross-border transactions by offering a neutral forum and an adaptable, international, procedure. But the international nature of the parties, practitioners, institutions and arbitrators also means that arbitration must be able to adapt and flex to fit the unique requirements of those international participants, both in terms of their transactions and disputes, but also to the specific implications of the pandemic for each country in which those participants reside.

Clearly, if circumstances require it, all those involved in the process should be able to revert back to “lockdown” ways of working. And if circumstances require it, all the learning of the past months will be able to be put into use in continuing to hold wholly virtual substantive hearings. But what seems more likely is that we will see more flexible and adaptable approaches to respond quickly to the immediate, and often changing, circumstances.

“Hybrid” or “semi-virtual” hearings are likely to be the answer to that need for flexibility. A mixture of virtual and physical attendance will help to mitigate the effects of travel restrictions and local or national lockdowns. They will also enable those involved in hearings (such as the parties and their counsel, the Tribunal and any witnesses or translators that might be involved) to participate to the fullest extent possible. Some participants may meet in a single or in multiple locations, with appropriate social distancing, while others attend virtually. These hybrid hearings can be set up to change format at short notice, enabling those involved to plan for a myriad of different scenarios but ensure that the final hearing remains fair, offering each party the opportunity to put their case.

Impact on the future: a catalyst for change in the post-Covid world?

Many sectors of the economy have proven themselves to be extremely adaptable in the face of the pandemic, and arbitration is no different in that regard. At this stage, however, it is difficult to gauge the longer term impact of Covid-19 on the process and procedure of arbitration globally, particularly if a future vaccine were to reduce or remove the need for social distancing.

However, the longer arbitral participants are required to work in a different way, the more those new ways of working will be seen as the norm. The more positive experiences participants have of virtual or hybrid hearings, the more likely it is that these will remain at least options for future merits hearings. When faced with participants from across the globe, parties may become less comfortable with the expense of holding a face-to-face hearing if they are reassured in the effectiveness of a virtual or hybrid option. Indeed, the dramatic reduction in the carbon footprint of these virtual and hybrid hearings may lead to an environmental “silver-lining” to the pandemic in terms of changes in business practice for many, including in international arbitration.

Most importantly, we have seen innovation and blue sky thinking at its best in the last few months. And that shift in mind-set towards different ways of delivering the product of arbitration effectively and efficiently has been exciting to see and experience. That ability to adapt and change to challenging circumstances is likely to continue, and we will see the longer term impact of that innovation for many years to come.

For more information, please contact Craig Tevendale, Partner, Vanessa Naish, Professional Support Consultant, Charlie Morgan, Senior Associate, or your usual Herbert Smith Freehills Contact.

Craig Tevendale
Craig Tevendale
Partner
+44 20 7466 2445

Vanessa Naish
Vanessa Naish
Professional Support Consultant
+44 20 7466 2112

Charlie Morgan
Charlie Morgan
Senior Associate
+44 20 7466 3868

NAVIGATING THE LOW OIL PRICE ENVIRONMENT PODCAST: ALLOCATING CONTRACTUAL RISK AND REWARD WITH HOST STATES

Oil prices have recently reached historic lows and oil companies are faced with a number of potential legal issues as the prices impact their trading and operational agreements. In this podcast series, our energy disputes lawyers consider some of the key issues triggered by the current low oil price environment, looking in detail at a variety of topics around:

  • Host states: allocating value in challenging times
  • Joint Venture arrangements
  • Operational challenges and other contracts

Low commodity prices cause hardship for governments in resource rich countries, as well as the businesses commercialising those resources. In tough times, governments may be prompted to extract a greater share of value from projects to try to balance against a loss of revenue. In the first episode, Craig Tevendale, Chris Parker and Charlie Morgan discuss the key contractual mechanisms for allocating risk and reward with States, and how best these challenges can be addressed.

The episode can be found at the link here.

For more information, please contact Craig Tevendale, Partner, Chris Parker, Partner, Charlie Morgan, Senior Associate, or your usual Herbert Smith Freehills contact.

Craig Tevendale
Craig Tevendale
Partner
+44 20 7466 2445

Chris Parker
Chris Parker
Partner
+44 20 7466 2767

Charlie Morgan
Charlie Morgan
Senior Associate
+44 20 7466 2733

COEXISTING WITH COVID-19: A CATALYST FOR PROGRESS IN INTERNATIONAL ARBITRATION?

As the Covid-19 pandemic continues, infection rates in many countries are starting to fall, and businesses and governments alike are seeking to establish a “new normal” recognising that the virus will be present in society for some time yet. Other countries still face climbing numbers and a peak yet to come. For all, the prospect of multiple waves of high infection rates throughout the year and beyond remains. As such, we will continue to see an ever shifting patchwork of lockdowns and other government responses internationally.

In our earlier series of blog posts, we highlighted the individual steps taken by different arbitral institutions, organisations and the wider community as an initial crisis response to the pandemic. We produced a table setting out those steps and will continue to monitor and update this information going forward. An updated table, accurate to 16 July 2020, can be found here.

In this blog post, we turn to the future and look at how the arbitration community continues to respond to the challenges of operating internationally, as different countries prepare in different ways to live with the Covid-19 virus in the medium term at least.

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UPDATE [8]: “NECESSITY IS THE MOTHER OF INVENTION”: COVID-19 DRAMATICALLY ACCELERATES DIGITALISATION OF ARBITRATION PROCESSES

This eighth (and final) update to a blog post initially dated 7 April 2020 takes into account developments between 25 June – 9 July 2020. These include various institutional changes (set out in the table attached to the blog), as well as perspectives on the development of “hybrid hearings” as some venues start to reopen in light of changing conditions and the easing of government restrictions. This updated blog post also includes the news of the launching of the “Protocol for Online Case Management in International Arbitration” for public consultation (produced by a working group led by Herbert Smith Freehills LLP) and VIAC’s recently announced Vienna Protocol – “A Practical Checklist for Remote Hearings”.

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LAUNCH OF PROTOCOL ON ONLINE CASE MANAGEMENT IN INTERNATIONAL ARBITRATION, BY A CROSS-FIRM WORKING GROUP ESTABLISHED AND CHAIRED BY HSF

In recent years, international arbitration has been changing to keep pace with new technologies and the trend towards digital. This trend is further accelerating in the wake of COVID-19, and a crucial aspect of the transition to a fully online process in international arbitration lies in the use of robust and secure online case management platforms (“Platforms”).

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UPDATE [7]: “NECESSITY IS THE MOTHER OF INVENTION”: COVID-19 DRAMATICALLY ACCELERATES DIGITALISATION OF ARBITRATION PROCESSES

This seventh update to a blog post initially dated 7 April 2020 has been updated to take into account developments between 12 June – 25 June 2020. These include various institutional changes (set out in the table attached to the blog) as some venues start to reopen in light of changing conditions and the easing of government restrictions, as well as details of the collaboration between the Chartered Institute of Arbitrators (CIArb) and the Centre for Effective Dispute Resolution (CEDR) to offer a low cost online service to businesses affected by COVID-19.

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UPDATE [6]: “NECESSITY IS THE MOTHER OF INVENTION”: COVID-19 DRAMATICALLY ACCELERATES DIGITALISATION OF ARBITRATION PROCESSES

This sixth update to a blog post initially dated 7 April 2020 has been updated to take into account developments between 28 May – 11 June 2020. These include various institutional changes (set out in the table attached to the blog) as some venues start to reopen in light of changing conditions and the easing of government restrictions, as well as details on the newly announced “Virtual Arbitration Forum”.

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