INSIDE ARBITRATION PODCASTS: PACCAR, ITS POTENTIAL REVERSAL, AND IMPACT ON INTERNATIONAL ARBITRATION?

In the second episode of our Inside Arbitration Podcast, we cover the latest news that the UK government plans to reverse the ruling in Paccar v Road Haulage Association. We first provide a recap of the Supreme Court judgment in Paccar and the implications of that decision, and then look at how the relevant legislative regime for alternative fee arrangements and third party funding interacts with international arbitration.

This podcast is hosted by Vanessa Naish, Professional Support Consultant and Liz Kantor, Professional Support Lawyer, and in this episode they are joined by Maura McIntosh, who is also a Professional Support Consultant in the Herbert Smith Freehills litigation team.

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Cross-Post: ISDS policy trend round up for 2023

What are the trends in investor state dispute resolution at a macro level that have developed over 2023? We have put together a round-up which has been posted in full on the PIL Notes blog here.

For further information, please contact Andrew Cannon, Partner, Christian Leathley, Partner, Hannah Ambrose, Partner, Vanessa Naish, Professional Support Consultant,  Liz Kantor, Professional Support Lawyer, or your usual Herbert Smith Freehills contact.

Andrew Cannon
Andrew Cannon
Partner
+44 20 7466 2852
Christian Leathley
Christian Leathley
Partner
+44 2074663002
Hannah Ambrose
Hannah Ambrose
Partner
+44 20 7466 7585
Vanessa Naish
Vanessa Naish
Professional Support Consultant
+44 20 7466 2112
Elizabeth Kantor
Elizabeth Kantor
Professional Support Lawyer
+44 20 7466 2406

 

IF YOU DON’T ASK, YOU DON’T GET: ENGLISH COURT SETS ASIDE AWARD OF INTEREST ON ARBITRATION AND LEGAL COSTS WHEN NOT CLAIMED, BUT REJECTS FURTHER CHALLENGES TO AWARD

In the recent case of Palmat NV v Bluequest Resources AG [2023] EWHC 2940 (Comm), the English Commercial Court set aside part of an award rendered in an LCIA arbitration under s68 Arbitration Act 1996 (the 1996 Act) that awarded interest to Bluequest Resources AG (Bluequest) on its arbitration and legal costs, despite Bluequest not having claimed interest on these sums. The Court declined, however, to uphold other challenges made by the award debtor, Palmat NV (Palmat), under s68, alongside Palmat’s challenges to the tribunal’s jurisdiction under s67 of the 1996 Act.

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TERRAFORM NOT ON TERRA FIRMA – SINGAPORE COURT REFUSES TO STAY CRYPTO CLAIMS IN FAVOUR OF ARBITRATION

Singapore’s High Court has declined to stay a cryptocurrency case in favour of SIAC arbitration.

The representative action was brought by users of a Singapore-based cryptocurrency platform, Terraform, following a dramatic decline in value of their tokens. The defendants applied to stay the claims in favour of arbitration. The Court held that, whilst there was prima facie evidence of an arbitration agreement in the parties’ web-based contract, the defendants had taken steps in the litigation which amounted to a waiver of their jurisdictional objection.

The judgment is an important reminder of the need to design website architecture carefully in order to ensure that online terms, including arbitration clauses, are sufficiently brought to the attention of users. The judgment also emphasises the need for careful litigation strategy when seeking a stay of proceedings.

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English Commercial Court rejects consumer’s public policy challenge to arbitration award due to insufficiently “close connection” of the contract to UK

In Eternity Sky Investments Ltd v Mrs Xiaomin Zhang [2023] EWHC 1964 (Comm), the English Commercial Court has rejected a challenge to an arbitration award on the grounds of public policy. Although the applicant argued that the terms of the underlying contract were unfair for the purposes of English consumer legislation, the court held that there was no “close connection” with the UK and therefore that the legislation did not apply. Continue reading

Third party funding for English-seated arbitration: do the English DBA regulations apply?

The English Supreme Court has confirmed in Paccar Inc v Road Haulage Association Ltd [2023] UKSC 28 that litigation funding arrangements based on a share of recovery are damages-based arrangements (DBA) for the purposes of s.58AA of the Courts and Legal Services Act 1990. The court held that such agreements fall within the scope of the provision because litigation funders provide “claims management services” as defined for these purposes. Such litigation funding arrangements must therefore comply with the statutory requirements for DBAs. The decision only affects third party funders, as it was always clear that DBAs issued by law firms were within the scope of the legislation.

More details about the decision can be found on our litigation blog post here.

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Invalid service of Request for Arbitration not a failure of appointment procedure, says English court

In Global Aerospares Limited v Airest AS [2023] EWHC 1430 (Comm), the English Commercial Court dismissed a claim for directions under s18 of the Arbitration Act 1996 (Act). Failing to serve a Request for Arbitration under s14(4) of the Act, with the consequence that the process for the appointment of an arbitrator had not validly begun, was not considered a failure of procedure for the appointment of an arbitrator. Accordingly, s18 of the Act was not engaged and the claim was dismissed.

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ENGLISH HIGH COURT REJECTS RENEWED ORAL APPLICATION FOR PERMISSION TO APPEAL AN ARBITRAL AWARD ON A POINT OF LAW

In Osler v Osler and Others, [2023] EWHC 1270 (Ch), the Chancery Division of the English High Court has ruled that the Court cannot allow a renewed oral application for permission to appeal an arbitral award under section 69 of the Arbitration Act 1996 (the “Act“) where permission was refused on paper, even where the Judge’s order (Order) purported to confer a right to apply to set aside or vary it.

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Diversity in arbitration – the Equal Representation for Expert Witnesses pledge issues Report highlighting the challenges of moving the dial on female appointments

Promoting gender diversity has become a key focus for the international arbitration community and beyond. Within the arbitration community, the launch of the Equal Representation in Arbitration (ERA) pledge in 2015 placed the focus on ensuring the fair representation of women as arbitrators. The ERA pledge seeks to increase, on an equal opportunity basis, the number of women appointed as arbitrators in order to achieve a fair representation as soon practically possible, with the ultimate goal of full parity.

The Equal Representation for Expert Witnesses (ERE) pledge was launched in May 2022 to drive a similar commitment to improve the visibility and representation of women as expert witnesses across the wider dispute resolution community, not just in arbitration. The goals of the ERE pledge are to:

  • increase, on an equal opportunity basis, the number of women appearing as experts, in order to achieve proportional representation and eventually full parity;
  • support the hiring, mentoring, and promotion of female experts;
  • create a coalition of supporters and advocates in the world of dispute resolution;
  • encourage women to aspire to be expert witnesses in their chosen professions; and
  • widen the pool of expert witnesses available and help to enhance the reputation of expert witnesses.

This month, the Equal Representation for Expert Witnesses has published a report setting out the results of their survey looking at the critical challenges in increasing female expert witness representation and the potential solutions to drive change.

Key findings of the Survey

Over 620 lawyers and experts (male and female) responded to the survey from across 32 different countries.

The report makes challenging reading in terms of diversity. The survey highlights that, in 2022, women were appointed as the sole expert witness in just 10% of disputes worldwide. It also indicates that 64% of the lawyers responding to the survey had not seen a single female expert witness in action in 2022.

The report seeks to explain these findings by inviting survey respondents to identify why fewer women were being appointed as expert witnesses than men. The responses show a complex and connected sets of reasons, with the top four being:

  • Lawyers’ preference to use experts they know or have used previously;
  • A lack of women reaching sufficiently senior levels in their own professions;
  • A lack of experience for female experts in an expert witness role; and
  • Lack of encouragement or promotion by their own colleagues.

The survey seeks to explore these reasons in more detail, recognising that a time lag will be playing its part in the results due to the preference for experienced experts and opportunities to testify having been historically skewed towards men. However, it offers a more positive outlook for the future, revealing a pipeline of aspiring expert witnesses under the age of 40 of both genders who are eager to be given opportunities as expert witnesses. The survey concludes by identifying a number of possible actions that can be taken across the dispute resolution community to increase the number of female expert witnesses most effectively, including the adoption of gender diverse expert witness shortlists, giving opportunities to women to co-testify with their male colleagues and hosting “meet the expert” events to showcase female talent to potential users.

Herbert Smith Freehills is a proud signatory of both the ERA and ERE pledges. Justin D’Agostino, CEO of HSF, is currently Co-Chair of the ERA Pledge, while senior associate, Louise Barber, and associate, Caitlin Eaton, are members of the Young Practitioners Subcommittee.

To find out more about the actions that you can take as a practitioner or a client to drive greater diversity, read our article in Issue 13 of our publication, Inside Arbitration.

For more information please contact Paula Hodges KC, Partner, head of global arbitration practice, Louise Barber, Senior Associate, Vanessa Naish, Arbitration Practice Manager and Professional Support Consultant, Elizabeth Kantor, Professional Support Lawyer.

Paula Hodges KC
Paula Hodges KC
Partner, head of global arbitration practice
+44 20 7466 2027
Louise Barber
Louise Barber
Senior Associate
+44 20 7466 2140
Vanessa Naish
Vanessa Naish
Arbitration Practice Manager and Professional Support Consultant
+44 20 7466 2112
Elizabeth Kantor
Elizabeth Kantor
Professional Support Lawyer
+44 20 7466 2406