MALAYSIAN COURT OF APPEAL CONSIDERS INJUNCTIONS TO RESTRAIN THE CALLING OF PERFORMANCE BONDS IN SUPPORT OF ARBITRATION

In the first half of 2019, Malaysia’s Court of Appeal considered no less than four appeals relating to applications to restrain the calling of performance bonds in the construction sector. These applications were made in support of arbitration under Section 11(1)(f) and (h) of the Malaysian Arbitration Act 2005 (“Act”) (prior to its amendments in 2018), which reads:

“11 Arbitration agreement and interim measures by High Court
(1) A party may, before or during arbitral proceedings, apply to a High Court for any interim measure and the High Court may make the following orders for:

(f) the preservation, interim custody or sale of any property which is the subject-matter of the dispute;

(h) an interim injunction or any other interim measures”

We briefly consider the four decisions of the Court of Appeal where the injunction sought to restrain the call on a performance bond was based on unconscionability,[1] and the practical considerations arising from the Malaysian courts’ treatment of such applications.

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ENGLISH HIGH COURT GRANTS INJUNCTION TO BLOCK JORDANIAN PROCEEDINGS SEEKING TO INVALIDATE AN ARBITRATION AGREEMENT

On 1 March 2019 the English court granted the claimant, ACT, a permanent anti-suit injunction against proceedings issued in  Jordan (the Jordanian Proceedings) by the defendant, Soletanche (in Aqaba Container Terminal (PVT) Co v Soletanche Bachy France SAS). The Court found that the subject matter of the Jordanian proceedings fell within the scope of an arbitration clause agreed between ACT and Soletanche. Soletanche had relied in the validity of that arbitration clause in earlier ICC proceedings to claim damages from ACT (albeit unsuccessfully). It was therefore just in all the circumstances to issue an anti-suit injunction to prevent breach by Soletanche of the agreement to arbitrate and to halt its efforts to invalidate that agreement through the Jordanian Proceedings.

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GAR Guide to Construction Arbitration now available to download, including chapter on “Construction Arbitration and Turnkey Projects” by HSF’s James Doe and David Nitek

London-based Construction & Infrastructure Disputes partners James Doe and David Nitek have authored the chapter on ‘Construction Arbitration and Turnkey Projects’ in the second edition of Global Arbitration Review’s Guide to Construction Arbitration.

Launched last year, The Guide to Construction Arbitration is an in-depth review of construction disputes internationally – from preparing contracts and guarantees, to setting up dispute boards, organising arbitration proceedings, analysing documents and evidence, and navigating within particular industries and regions.

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GAR Guide to Construction Arbitration now available to download, including chapter on “Construction Arbitration and Turnkey Projects” by HSF’s James Doe, David Nitek and Michael Mendelblat

London-based Construction & Infrastructure Disputes partners James Doe and David Nitek, along with Professional Support Lawyer Michael Mendelblat, have authored a chapter in the first edition of Global Arbitration Review’s Guide to Construction Arbitration.

The new guide takes the reader through the essential details of preparing, mitigating and managing construction disputes internationally. From preparing contracts and guarantees, to setting up dispute boards, organising proceedings in arbitrations, analysing documents and evidence and navigating within particular industries and regions.
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New HSF Global Construction & Infrastructure Disputes publication is launched

We are delighted to share with you the inaugural issue of the new publication from the Herbert Smith Freehills Global Construction and Infrastructure Disputes Practice. Inside Construction and Infra showcases the expertise of our leading construction and infrastructure disputes lawyers, giving our clients the benefit of their experience drawn from cases taking place around the world. The publication offers fresh perspectives on this rapidly changing industry, identifying current market trends and providing personal insights from our practitioners across the globe. Click here to access issue #1 of Inside Construction and Infra.

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Multi-tiered dispute resolution clauses in construction contracts: watch out for potential pitfalls

In this article, Elizabeth Kantor and Philip Parrott consider the reasons why parties may wish to include multi-tiered dispute resolution clauses in their construction contracts and warn of common pitfalls which can cause the unwary party to become embroiled in time-consuming and costly procedural battles.

This article was first published in Construction Law on 9 August 2016.

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Inside Arbitration: Issue #2 of the publication from Herbert Smith Freehills’ Global Arbitration Practice

We are delighted to share with you the latest issue of the publication from Herbert Smith Freehills' Global Arbitration Practice, Inside Arbitration.

Inside arbitration #2

 

In addition to sharing knowledge and insights 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:

  • Sarah Grimmer, the new Secretary General for the Hong Kong International Arbitration Centre shares her insights on, and ambitions for, HKIAC.
  • Nick Peacock and Dr Mathias Wittinghofer consider whether arbitration is a suitable tool for resolution of derivative disputes, as well as the future of the ISDA arbitration guide.
  • Jessica Fei, Chinese national and NY lawyer, talks about the unique blend of cultures and legal qualifications that shape her perspective as a practitioner.
  • Mark Lloyd-Williams, Hamish Macpherson, Craig Shepherd, Emma Kratochvilova and Thomas Weimann give a global perspective on arbitrating construction and infrastructure disputes.
  • Dominic Roughton and Andrew Cannon consider the impact of territory and maritime boundary disputes on commercial investments and the role of private actors and states in their resolution.
  • Peter Leon and Ben Winks give their view from Johannesburg on the future of arbitration in South Africa.
  • Vanessa Naish and Hannah Ambrose take a practical look at the effect of Brexit on dispute resolution choices, both now and in the future.
  • Andrew Cannon talks about his experience working at the Foreign and Commonwealth Office and how it has shaped his public international law practice.


The full digital edition can be downloaded in PDF by clicking on this link.

We hope that you enjoy reading Issue #2 of Inside Arbitration. We would welcome your feedback.