In its recent decision in the case of A v B  EWHC 3417 (Comm) (available here), the English Commercial Court (the “Court“) set aside the tribunal’s award upholding its own jurisdiction, on the grounds that the LCIA Rules 2014 do not permit a party to commence a single arbitration in respect of disputes under multiple contracts. As a result, the Claimant’s Request for Arbitration was invalid. The Court also held (contrary to the tribunal’s award) that the Respondent had not lost its right to object to the tribunal’s jurisdiction by failing to raise its jurisdictional challenge until shortly before filing its Statement of Defence.
This is a rare instance of the English court setting aside a tribunal’s award and a significant reminder to parties to transactions involving multiple related contracts to consider efficient resolution of disputes at the contract drafting stage. Continue reading
On 19 December 2017, the Singapore International Arbitration Centre (SIAC) released a proposal on cross-institution cooperation and consolidation of arbitral proceedings conducted under different arbitral rules (the SIAC Proposal).
SIAC has invited comments on its Proposal by 31 January 2018. The memorandum enclosing the SIAC Proposal can be accessed here.
The London Court of International Arbitration (“LCIA”) Court has unveiled its new arbitration rules (the “2014 Rules”), which come into force on 1 October 2014 and are to apply to any arbitration commenced after that date.
Overview of the changes
The LCIA has retained the distinctive character of the institution and rules, whilst modernising its provisions to meet user demand.
Like the revisions to the UNCITRAL Arbitration Rules (in 2010), ICC Arbitration Rules (in 2012) and HKIAC Administered Arbitration Rules (in 2013), the most substantial changes to the current LCIA Rules are those intended to make the LCIA arbitration process less costly and more efficient, for example including an emergency arbitrator provision, whilst other revisions are designed to improve the handling of complex multi-party disputes. A key innovation is an annex of general guidelines on the conduct of party representatives and a power for the arbitral tribunal to impose sanctions for breach of those guidelines. There have been some changes to terminology to modernise the rules (for example, the “chairman” of the arbitral tribunal is now called the “presiding arbitrator”).
Further details of the key changes are provided below. We will shortly hold a webinar discussing the implications of the changes to the LCIA Rules on drafting of arbitration clauses.
For further information, please contact Paula Hodges QC, Partner, Vanessa Naish, Professional Support Lawyer, Hannah Ambrose, Professional Support Lawyer, or your usual Herbert Smith Freehills contact.
In the growing world of new technology, intellectual property (IP) rights are a businesses’ most precious asset. The expansion into emerging markets can offer a multitude of opportunities for a business to market its IP, but this inevitably comes with the threat of infringement of those IP rights and illegal exploitation by others.
HSF is seeing a growth in international arbitration in the sector as companies are continually seeking stronger ways in which to protect and enforce their IP rights on a global scale. Arbitration is increasingly a preferred forum for resolving IP disputes, not only because it offers a private and confidential forum in which to have the dispute heard by an experienced and specialised tribunal, but also because international arbitration offers the best available mechanism for enforcement of decisions across jurisdictions, and reduces the risk of parallel litigation which often comes hand-in-hand with IP disputes.
Given the nature of IP rights, their enforcement and protection requires careful planning. It is recommended that, from the outset, parties consider carefully the arbitration forum in which they might want their disputes resolved and the rules that will govern that process. Although numerous institutional arbitration rules may be used in such disputes, specialist rules like the Arbitration Rules of the World Intellectual Property Organisation (WIPO)¹ provide a forum tailor-made for IP disputes.
The WIPO Center has updated its Mediation Arbitration and Expedited Arbitration Rules, with the new rules taking effect on 1 June 2014. The key changes, including new provisions on joinder, consolidation and the availability of interim relief from an emergency arbitrator, are set out below. Further to the changes, the Center’s Arbitration Rules provide a modern framework for the resolution of IP disputes.
The International Centre for Dispute Resolution (the ICDR), the international division of the American Arbitration Association has released a new version of its Mediation Rules and its Arbitration Rules (the Rules), effective 1 May 2014.
Many of the changes concern issues which have been the focus of many of the recent institutional rule changes – reducing the time and costs involved in resolving a dispute pursuant to the Rules, dealing with multi-party and multi-contract issues, and providing for emergency measures of protection before constitution of the tribunal. However, the revised Rules also contain some novel aspects. In particular:
- The adoption of the “international” approach to document production in arbitration into the Rules themselves and confirmation that depositions, interrogatories and other US “discovery” procedures are “generally not appropriate” in an ICDR arbitration (Article 21);
- Provision for joinder and the appointment of a “consolidation arbitrator” to determine whether multiple arbitrations should be consolidated;
- An express description of the ICDR list procedure at Article 12(6) for the appointment of arbitrators (barring party agreement to an alternative method); and
- Express inclusion of a default position on the question of privilege in international arbitration, adopting a highest standard of protection test (Article 22).