HONG KONG COURT FINDS ENFORCEMENT OF ARBITRAL AWARD TIME BARRED

In CL v SCG [2019] HKCFI 398, the Hong Kong Court of First Instance found that enforcement of a 2011 arbitral award by CL was time barred, clarifying when a cause of action for failure to honour an award accrues and the effect of the Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region (the “Mainland and Hong Kong Arrangement“) on time limits under the Hong Kong Limitation Ordinance.

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Hong Kong Court of Appeal ends 12-year Xiamen v Eton Properties saga

As discussed in this post, Xiamen Xingjingdi Group Co Ltd (XJ) and various co-defendants affiliated with Eton Properties Ltd (together, EP) have been involved in a long-running dispute in multiple fora, including a PRC-seated CIETAC arbitration and several Hong Kong court proceedings. The case appears now to have come to an end, with the Court of Appeal (Court) confirming its position on common law actions to enforce arbitral awards and rejecting both parties’ applications for leave to appeal the Court’s 15 April 2016 judgment.

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Indian Supreme Court rules that Indian courts have jurisdiction to hear an application to set aside an award issued in Malaysia

In its recent decision in Union of India v Hardy Exploration and Production (available here), the Supreme Court of India found that a contractual clause stipulating Kuala Lumpur as the ‘venue’ of arbitration did not amount to a choice of juridical seat. While the Indian courts’ jurisdiction to hear set-aside applications will be excluded if the seat of the arbitration is outside India, the Supreme Court found that in this case there was no chosen seat (and the tribunal had not determined a seat), notwithstanding the choice of Kuala Lumpur as the venue for the arbitral proceedings, and the fact that the award was signed in Kuala Lumpur. Since this was a case where the arbitration agreement pre-dated 6 September 2012 (the date of the key Supreme Court ruling in BALCO), it appears that the Court did not find it necessary to positively determine that the seat was in India; the fact that an overseas seat had not been established appears to have been sufficient for the Indian courts to have jurisdiction to hear the application.

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HONG KONG COURT REFUSES SET ASIDE, REJECTS PUBLIC POLICY CHALLENGE

In Paloma Co. Ltd. v. Capxon Electronic Industrial Co. Ltd [[2018] HKCFI 1147], the Hong Kong Court of First Instance rejected a public policy challenge to a New York Convention Award rendered by a tribunal in Japan. The Respondent applied to set aside leave to enforce the Award, alleging that the tribunal’s conduct was biased, and violated basic concepts of morality, justice and public policy.

Deputy Judge Keith Yeung found that there was no evidence of bias on the part of the tribunal, nor any error or matter which would warrant setting aside the award. Yeung DJ relied on Hebei Import & Export Corp. v Polytek Engineering Co. Ltd. [(1999) 2 HKCFAR 111] to reiterate that, in order to refuse enforcement of an award under the New York Convention, the award must be so fundamentally offensive to the jurisdiction’s notions of morality and justice that this could not reasonably be overlooked. In the absence of such conflict, the Court would not look into the merits, nor review any alleged errors or reasoning of the tribunal.

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Recent Developments in India-related International Arbitration

Herbert Smith Freehills has issued the latest edition of its Indian international arbitration e-bulletin.

In this issue we consider various court decisions, which cover issues such as the applicability of the Arbitration Amendment Act 2015, binding non-signatories to an award, enforcement of an award before the National Company Law Tribunal, and the continued pro-arbitration approach of the Indian courts. In other news, we consider the continued rise of institutional arbitration in India, a detailed analysis of the proposed amendments to the Arbitration Act, as well as India-related bilateral investment treaty news (and other developments).

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English Court rejects Ukraine’s attempt to set aside enforcement order on grounds of state immunity

The English Court (the “Court“) has dismissed an application by Ukraine to set aside a court order permitting Russian investor, PAO Tatneft, to enforce an arbitral award against Ukraine.  Ukraine argued that it was immune from the Court’s jurisdiction by virtue of the State Immunity Act 1978. The Court found that Ukraine had not waived its right to rely on state immunity arguments, despite not having raising them in the arbitration. However, it found that Ukraine had agreed to submit the disputes in question to arbitration under the Russia-Ukraine Bilateral Investment Treaty (the “BIT“) and was therefore not immune from proceedings in connection with the arbitration by virtue of s9(1) of the State Immunity Act 1978 (“SIA“).

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Delhi High Court agrees to enforce CIETAC arbitral award against Indian company despite CIETAC split

In its decision of 4 July 2018, the Delhi High Court (“Court“) has agreed to enforce a China International Economic and Trade Arbitration Commission (CIETAC) award against an Indian company, despite the award debtor’s arguments that the dispute should have been referred to and administrated by the now independent Shanghai International Arbitration Centre (SHIAC), which until mid-2012 was the Shanghai Sub-Commission of CIETAC (“Shanghai Sub-Commission“). The Court’s decision is interesting not only in discussing the 2012 split of CIETAC, but also because it may provide some guidance on how Indian courts may, in future, deal with structural changes to other arbitral institutions, such as the very recent termination of the joint venture between LCIA and Mauritius (the LCIA-MIAC Arbitration Centre), or the Shenzhen Court of International Arbitration (SCIETAC/SCIA) and the Shenzhen Arbitration Commission (SAC) merger at the beginning of 2018. Last but not least, this decision reinforces a pro-enforcement approach of Indian courts in relation to foreign arbitral awards.

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Join us in Singapore to celebrate 60 years of the NY Convention

Enforcement of arbitration awards in SE Asia

This year marks the 60th anniversary of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, commonly referred to as the “New York Convention”.  As one of the most successful international treaties of the 20th century, and a primary tool in the promotion of arbitration worldwide, the Convention established a regime to facilitate international enforcement of arbitration awards in 159 countries.

This event will discuss the impact of the Convention in Southeast Asia, and whether its objectives have been successful in practice.  Following a keynote address by Justice Anselmo Reyes of the Singapore International Commercial Court, a series of presentations and panels will discuss the history of the Convention; how it shapes the day-to-day conduct of international arbitration; practical experience of enforcement in ASEAN states (with data from a new survey); and future prospects for similar regimes that aim to support international litigation and mediated settlements.

This event is jointly hosted by Singapore Management University (a premier university, internationally recognised for world-class research in the field of international arbitration); Singapore International Dispute Resolution Academy (a non-profit organization supported by the Ministry of Law, and Asia’s global thought leader for learning and research in negotiation and dispute resolution); and Herbert Smith Freehills (one of the world’s leading law firms, with a global reputation for international arbitration).

The event will be a SILE accredited CPD activity.

For more information on the programme and speakers, please click here.
Date:     Tuesday, 12 June 2018
Time:     Registration: 4:30pm
Event: 5:00pm to 7:30pm, followed by a cocktail reception
Venue:
NTUC Centre,
1 Marina Boulevard
Level 7, Stephen Riady Auditorium @ NTUC
Singapore 018989

Please click here to view map
RSVP: To respond to this e-invitation, click here

Please RSVP by Tuesday, 29 May 2018 to secure your seat. Spaces are limited and will be offered on a first come, first served basis.