In an appellate judgment, the Full Court of the Federal Court of Australia has ruled that a foreign arbitral award is not enforceable because the arbitral tribunal was not constituted strictly in accordance with the parties’ arbitration agreement. Notably, the decision also considers the courts’ discretion to enforce an award even where a party establishes a ground for non-enforcement, an issue on which there was previously “no authoritative statement in Australia”.
The Full Court allowed an appeal from its first instance decision that enforced a foreign award pursuant to the International Arbitration Act 1974 (Cth).
Following the release of the ICC’s new 2021 Arbitration Rules in draft on 9 October 2020, Craig Tevendale (Partner and UK Head of International Arbitration), Thierry Tomasi (Partner) and Vanessa Naish (Professional Support Consultant) have recorded a podcast discussing the top 5 changes to be aware of in the new Rules, being:
- Amendments to the consolidation provision, and to the joinder provision to allow for joinder after the confirmation or appointment of a tribunal in certain limited circumstances;
- Provision for virtual hearings and a shift away from paper filings;
- Allowing for the Tribunal to limit changes to party representation where it causes conflicts of interest;
- A requirement that parties disclose certain third party funding agreements; and
- ICC Court discretion in “exceptional circumstances” to deviate from party agreement on the method of constitution of the arbitral tribunal and appoint the entire tribunal to avoid unequal treatment.
The podcast can be listened to via SoundCloud, Spotify and iTunes.
Once the 2021 Rules have been confirmed as “final”, Herbert Smith Freehills’ Global Arbitration Team will produce a updated Step by Step Guide to Arbitration under the ICC Rules and an interactive PDF table comparing the Rules of Key Arbitral Institutions and the UNCITRAL Rules. To receive an electronic copy of these documents in due course, please contact firstname.lastname@example.org and we will be in touch in December.
For more information, please contact Craig Tevendale, Partner, Thierry Tomasi, Partner, Vanessa Naish, Professional Support Consultant, or your usual Herbert Smith Freehills contact.
In its decision in Silver Dry Bulk Company Limited v Homer Hulbert Maritime Company Limited  EWHC 44 (Comm) the English Court has considered and clarified the principles which apply to an application under section 18 of the English Arbitration Act 1996 (the "Act"). Section 18 enables a party to apply to the court to exercise its powers to give directions as to the making of tribunal appointments or make the appointments itself. The decision confirms, amid conflicting case law, that the applying party must establish a "good arguable case" that a tribunal would have jurisdiction to hear the case, and emphasises that any jurisdictional arguments remain matters for the tribunal to decide in accordance with the principle of kompetenz-kompetenz. The case is also a good reminder of the purpose of section 18, which only applies where there has been a complete failure of the appointment procedure agreed between the parties, and cannot be used to declare or confirm the validity of a tribunal's constitution.