INSIDE ARBITRATION ISSUE #12: PERSPECTIVES ON CROSS-BORDER DISPUTES

Welcome to the twelfth issue of Inside Arbitration

We are delighted to share with you the latest, new look issue of this publication from Herbert Smith Freehills’ Global Arbitration Practice.

Uncertainty has been the watchword of 2021 so far. As the Covid-19 pandemic continues to impact our work and personal lives many questions remain about the virus and our global response to it. However, since the light at the end of the tunnel does appear to be shining more brightly, we have grasped the opportunity to look forward positively in this edition of Inside Arbitration.

Incorporating videos and soundbites from our practitioners around the network, in this edition:

  • Paula Hodges QC, Andrew Cannon, Simon Chapman QC and Vanessa Naish explore whether it is possible to predict how the post-pandemic disputes landscape may look and how arbitration practice may be impacted longer term.
  • The pandemic is not the only significant force for change and development facing the world at present. Antony Crockett, Patricia Nacimiento and Dr. Alessandro Covi look at what “ESG” means for businesses, how ESG issues are being introduced into commercial contracts, and the potential impact of these trends on international arbitration.
  • Continuing the theme of change, Craig Tevendale, Chris Parker and Charlie Morgan focus on energy transition, looking at the challenges on the horizon and the potential legal disputes that may arise from the proliferation of new infrastructure projects.
  • Change has also been felt within the Herbert Smith Freehills’ arbitration practice. Our three new talented arbitration Partners Dana Kim (in Seoul), Antony Crockett (in Hong Kong) and Ivan Teselkin (in Moscow) feature in Spotlight articles introducing their differing areas of practice and sharing their views on the outlook for arbitration in their regions.
  • The recognition of the talent of our practitioners and the growth of our global practice is exciting, but so too are successes in our cases, particularly those that can be reported publicly! Simon Chapman QC and Charlotte Benton discuss a recent success in a landmark case in Hong Kong, which has confirmed that failure to comply with escalation requirements will not affect an arbitration tribunal’s jurisdiction over the dispute.
  • Looking at wider developments across the globe, Andrew Cannon and Nihal Joseph explore the significance of an important new judgment from the Supreme Court of India which decided that two Indian parties may validly agree to resolve their disputes in arbitration seated outside India.
  • Chad Catterwell and Guillermo Garcia-Perrote look at the rise of Arbitration in Australia, and how the release of the ACICA Arbitration Rules 2021 have further strengthened ACICA’s status as the pre-eminent arbitral institution in Australia.
  • In our sector-focused piece Hew Kian Heong, James Doe and Noe Minamikata take a look at the current hot topics in construction arbitration: the impact of recent materials shortages, a possible rise in construction insolvencies and the continuing effects of the Covid-19 pandemic on construction projects.
  • Our “watch this space” feature covers the latest issues and developments in international arbitration.

Previous issues can also be viewed on our website.

We hope that you enjoy reading issue #12 of Inside Arbitration and would welcome any feedback you may have.

State of play of investment treaty arbitration in Australia

Investment protection regimes are at a crossroads globally. Different governments, trading blocks and interest groups are pushing their policy agendas in diverging directions when it comes to bilateral and multilateral investment protection schemes. Australia is no exception to this debate.

In this note we canvass some of the key developments in the investment treaty arbitration space in Australia, including:

  • Australia’s review of its Bilateral Investment Treaties;
  • the upcoming Australia-EU and Australia-UK Free Trade Agreements; and
  • recent legislative measures and political discussion in relation to foreign investments in infrastructure assets in Australia.

Review of Australia’s Bilateral Investment Treaties

Following the Federal Government’s announcement that it was reviewing the BITs to which Australia is party (which we have commented upon previously), the Department of Foreign Affairs and Trade (DFAT) sought submissions to inform the Federal Government’s position on whether to continue, amend, renegotiate or terminate the BITs to which Australia is a party, or replace them with comprehensive free trade agreements (FTAs).

DFAT has recently published 27 submissions it received. The submitters came from a broad range of backgrounds and included industry bodies, business councils, associations, universities, law societies, law firms, law academics and economists.

The key take away is that the majority of submitters considered that Australian BITs should maintain their investor-state dispute settlement (ISDS) provisions, but that the BITs should be modernised and ‘tweaks’ should be made. Australia is considered a thought leader in the investment protection space in the Asia-Pacific region and how Australia chooses to respond to those questioning the continuing utility of ISDS provisions under its BITs will be closely watched.

Although a range of issues were raised and potential tweaks proposed, some particular points of interest include:

A. Clarifying the scope of investment protections

There was widespread support for improving or modernising Australia’s BITs, in particular:

  • The fair and equitable treatment (FET) obligations in Australia’s BITs were described as unrestricted. A number of submitters recommended that the FET obligations be refined to address the scope or standard of conduct that will violate the FET standard.
  • Some Most Favoured Nation (MFN) provisions in Australia’s BITs were described as potentially allowing investors to benefit from the most generous protections found in any of Australia’s BITs, without limitation. Certain submitters recommended that the operation of MFN clauses needed to be limited after considering Australia’s policy objectives.
  • Australia’s BITs do not provide guidance on determining when indirect expropriation has occurred. Certain commentators considered it would be useful to identify factors for determining whether indirect expropriation had occurred.

B. Tightening fork-in-the-road provisions

Some of Australia’s BITs were reported to contain ‘uncertain’ fork-in-the road provisions. Fork-in-the-road provisions typically bind an investor to its chosen dispute resolution process (usually domestic courts or arbitration), so they cannot seek to pursue their claim in both forums. It was suggested that these provisions be reinforced to ensure that an investor could only use one forum.

C. Responsibility for State Government actions

An issue identified with Australia’s BITs was the silence on whether BITs bind the Federal Government for State Government actions, and whether the substantive obligations in BITs apply to State Government actions. One potential avenue for dealing with State Government compliance risk identified in the submissions was to exclude liability for State Government acts.

D. Transition to renewable energy

Concerns, whether rightly or wrongly held, were raised regarding the potential ‘chilling’ impact some claim ISDS provisions may have on Australia’s sovereign right to regulate, in particular in relation to human rights, labour rights, equality and the environment. A concern that gained some attention was the potential for an investor claim to be brought against Australia based on Australia’s measures to protect the environment, such as meeting the objectives set out in the Paris Agreement (see our overview here), namely the transition to renewable energy.

We will issue an update once DFAT publishes its findings from the BITs review.

Upcoming Australia-EU Free Trade Agreement

Australia is seeking an ambitious and comprehensive FTA with the European Union (EU) which from time to time has been Australia’s largest source of foreign investment. As a bloc the EU is Australia’s second largest trading partner, third largest export destination, and second largest service market.

Australia’s approach to FTAs

It is likely that the FTA will include a comprehensive investment chapter that provides for substantive protections and seeks to regulate ISDS.

DFAT has indicated that it is committed to seeking improved market access for Australian investment and that it will also seek an undertaking from the EU not to impose residency and/or citizenship requirements on senior representatives of Australian companies established in the EU. DFAT has also indicated its commitment to upholding Australia’s right to regulate for “legitimate public purpose and screen investments for national interest”.

The EU’s push for bilateral and multilateral Investment Courts

Much ink has been spent debating the relative advantages and disadvantages that would attend a permanent Investment Court operating as the final and sole arbiter (subject to an appellate mechanism) of investment disputes. Advocates point to issues of coherence and consistency with ISDS as well as the perennial question of costs, whilst detractors point to the potential politicisation of such a body and question its capacity to address the perceived concerns around ISDS.

Investors will be particularly interested in how Australia responds to any suggestion by the EU that the proposed FTA replace the ISDS mechanism with an Investment Court System. The EU in its recently negotiated investment agreements with Canada, Mexico, Singapore and Vietnam has jettisoned ISDS in favour of establishing a bilateral Investment Court. Under each treaty a standing tribunal is established, with members pre-selected by the contracting states, invested with power to establish its own procedural rules. In one of our previous blog posts we have considered the Investment Court System under the Canada-EU Comprehensive Economic and Trade Agreement and the procedural rules adopted there.

These agreements also include provisions allowing for the transition to a multilateral Investment Court System. Such a body, made up of pre-selected members, would in principle provide a procedural framework for any investment dispute arising under any treaty that submits to its jurisdiction.

In March this year the EU released its report of the 10th round of negotiations which indicated that Australia and the EU have agreed on “objectives for the [Dispute Settlement] Chapter, which include transparent, efficient and effective dispute settlement procedures”. The report also indicates that good progress has been made on the articles relating to the substantive investment protections to be included in the investment chapter.

We will issue an update if further information is released regarding ISDS under the proposed Australia-EU FTA.

Australia-UK Free Trade Agreement

On 15 June 2021, Prime Ministers Scott Morrison and Boris Johnson announced that Australia and the UK had reached an ‘in principle’ agreement on core elements of a new FTA. In a media release, DFAT indicated that, “When the agreement is finalised it will deliver the most comprehensive and liberal agreement outside [Australia’s] partnership with New Zealand”.

The UK is one of Australia’s largest trading partners for both goods and services. According to the information released to date, when the agreement comes into force, 99 per cent of Australian goods will be able to enter the UK duty-free. Tariffs on wine and rice will be eliminated upon entry into force, while tariffs on beef, sheep, and sugar will be eliminated in eight to 10 years. The agreement will also contain provisions to improve the ease of investing and doing business, and provisions to enhance recognition of qualifications for professional services.

Although the investment chapter contains a number of investment protections, there will be no ISDS mechanism. DFAT has indicated that, “as two well governed countries with a strong investment relationship, sound domestic legal systems and a strong commitment”, there is no need for ISDS in the FTA.

DFAT have declined to give a precise timeframe on when the FTA is likely to be finalised, noting that the negotiations will be concluded “as quickly as possible, without compromising on quality or ambition”.

Recent legislative measures and government initiatives

Australia has recently introduced Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 (Cth), which establishes a legislative scheme for Commonwealth engagement with arrangements between State or Territory governments and foreign governments, and their associated entities. Relevantly, the Act empowers the Minister for Foreign Affairs to review, and potentially veto, any existing and prospective arrangements between State/Territory governments and foreign entities. Previously, the Security of Critical Infrastructure Act 2018 (Cth) sought to address national security risks posed by foreign involvement in Australia’s critical infrastructure, namely around 200 assets in the electricity, gas, water and ports sectors.

Recent discussion concerning Darwin Port and how the Federal Government may utilise the new legislative framework to potentially affect the 99-year lease of the port granted to the Chinese-owned Landbridge have drawn increased attention to foreign investments in Australian infrastructure.

Looking forward

Many will be watching Australia’s next moves in the investment protection space, be it investors or counterparties to its BITs and upcoming FTAs.

DFAT’s conclusions on its review of Australia’s BITs and the negotiations of the EU-Australia FTA and the UK-Australia FTA will be closely watched alongside ongoing discussion concerning Darwin Port and other investments in Australian infrastructure.

For more information, please contact Leon Chung, Partner, Guillermo García-Perrote, Senior Associate, or your usual Herbert Smith Freehills contact.

Leon Chung
Leon Chung
Partner, Sydney
+61 2 9225 5716
Guillermo Garcia-Perrote
Guillermo Garcia-Perrote
Senior Associate, Sydney
+61 2 9322 4903
Imogen Kenny
Imogen Kenny
Solicitor, Melbourne
+61 3 9288 1657

Mark Peters
Mark Peters
Law graduate, Sydney
+61 3 9322 4099

AUSTRALIAN COURT PROVIDES GUIDANCE ON DRAFTING OF ARBITRATION AGREEMENTS AND REASONING OF AWARDS

In a recent post, we discussed Australia’s pro-enforcement approach to foreign arbitral awards. A recent case of the Victorian Court of Appeal (VCA) affirms this approach in relation to domestic awards.

In Pinchus Feldman and Yosef Feldman v Corey Stephen Tayar [2021] VSCA 185, the VCA considered an appeal from a decision to order enforcement of a domestic arbitral award. The grounds of appeal were (1) a challenge to the validity of the arbitration agreement; and (2) a challenge to the adequacy of the arbitrators’ reasons. The VCA dismissed the appeal, upholding the primary judge’s decision to partially enforce the award pursuant to the Commercial Arbitration Act 2011 (Vic) (the Act).

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Federal Court of Australia continues to reinforce Australia’s pro-enforcement approach to foreign arbitral awards

A recent case of the Federal Court of Australia affirms the Australian courts’ pro-enforcement approach to foreign arbitral awards under the regime of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).

In Neptune Wellness Solutions, Inc v Azpa Pharmaceuticals Pty Ltd [2021] FCA 676, the Federal Court applied the New York Convention regime in an efficient manner that aligns with best practice in UNCITRAL Model Law jurisdictions and demonstrates the support of the Australian courts towards arbitration: Neptune Wellness Solutions, Inc v Azpa Pharmaceuticals Pty Ltd [2021] FCA 676

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New ACICA 2021 Arbitration Rules

The Australian Centre of International Commercial Arbitration (ACICA) has unveiled revised Arbitration Rules due to enter into force in April 2021. As arbitration continues to be on the rise in Australia, and ACICA enjoys record caseloads, the 2021 ACICA Rules set out ACICA’s vision for the future of arbitration.

The 2021 Rules further strengthen ACICA’s status as the preeminent arbitral institution in Australia. The revision modernises the ACICA Rules by codifying recent practices in relation to technology, virtual and hybrid hearings, and anticipating the needs of the arbitration community in key areas such as consolidation and multi-contract arbitrations, effective case management and costs.

We set out below the salient features of the 2021 ACICA Arbitration Rules (which are broadly similar to those made to the ACICA Expedited Rules).

Notable amendments in the 2021 ACICA Rules

New provisions embracing the digitalisation of arbitration: Virtual hearings and paperless filing

The new rules include timely revisions expressly allowing Tribunals to hold conferences and hearings virtually or in a combined (or ‘hybrid’) form. The holding of virtual hearings has become the norm during the present COVID-19 pandemic, and the revision modernises the ACICA Rules in line with recent trends and practices.

Under the new rules, if a hearing is held virtually it will be deemed to be held at the seat.

ACICA has moved to a default electronic position of requiring e-filing of a Notice of Arbitration and Answer by email or through its dedicated online portal. Notices may also be delivered electronically or by “any other appropriate means that provides a record of its delivery” reflecting evolving practices. The provision on delivery addresses for notices has been extended to include an address “according to the parties’ practice in prior dealings”.

Recognising the increased movement of sensitive information electronically, the Tribunal may adopt measures to protect information shared in the arbitration and ensure any personal data produced or exchanged in the arbitration is processed and/or stored with regard to any applicable law.

Under the new rules, unless the parties agree otherwise, or the Tribunal or ACICA directs otherwise, any award may be signed electronically and/or in counterparts and assembled into a single instrument.

Extended scope for consolidation and multi-contract arbitrations

The 2021 Rules adopt a more liberal approach to consolidation. In this regard, the compatibility of the relevant arbitration agreements has become central in order to allow for consolidation in relation to a vertical chain of contracts.

Article 16 (Consolidation of Arbitrations) states that ACICA may consolidate two or more arbitrations into a single arbitration, if:

  • the parties have agreed to the consolidation;
  • all the claims in the arbitrations are made under the same arbitration agreement; or
  • the claims in the arbitrations are made under more than one arbitration agreement, a common question of law or fact arises in both or all of the arbitrations, the rights to relief claimed are in respect of, or arise out of, the same transaction or series of transactions, and ACICA finds the arbitration agreements to be compatible. (Emphasis added).

ACICA’s power to consolidate proceedings therefore encompasses proceedings arising out of the same transaction or series of transactions, where ACICA finds the arbitration agreements to be compatible.

The 2021 Rules also present a streamlined approach for multi-contract arbitration. Article 18 (Single Arbitration under Multiple Contracts) now allows for composite Notices of Arbitration, which means that parties can commence a single arbitration in respect of disputes under multiple contracts. An arbitration can therefore be commenced under multiple contracts with a single Notice of Arbitration, provided that the Notice includes an application to ACICA addressing the threshold issues for consolidation, together with identifying and providing a copy of each contract and arbitration agreement invoked. In the event ACICA rejects the application for consolidation, the claimant is required to file a separate Notice of Arbitration for each arbitration that has not been consolidated.

In addition, the new Article 19 (Concurrent Proceedings) empowers the Tribunal to manage related proceedings, following consultation with the parties. The Tribunal can exercise case management powers to conduct related proceedings concurrently, or suspend a proceeding, where the same Tribunal is constituted in each arbitration and there is a common question of law or fact. This allows Tribunals to manage related proceedings in a time and cost efficient way.

Early dismissal procedure

The new Article 25.7 (General Provisions) expressly empowers the Tribunal to make an award granting early dismissal or termination of any claim, defence or counterclaim. Consistent with other developments, this provision enhances the Tribunal’s broad powers under the ACICA Rules, now expressly including summary dismissal and early termination.

Effective case management

Time limit for rendering awards

An Arbitral Tribunal is required, absent a shorter period being required by law or the parties, to render an award no later than the earlier of 9 months from the date the file is transmitted to the Tribunal, or 3 months from the date the Tribunal declares the proceedings closed, under the new Article 39.3 (Closure of Arbitration Proceedings).

ACICA may extend these time frames following a reasoned request from the Tribunal, or if ACICA otherwise deems it necessary.

Alternative dispute resolution

The previous version of Article 25 (General Provisions) already required Tribunals to raise for discussion with the parties, as soon as practicable after being constituted, the possibility of using other techniques to facilitate the settlement of the dispute. The 2021 Rules supplement this mandate by specifying that such other techniques to facilitate the settlement of the dispute include mediation and other forms of alternative dispute resolution (ADR).

In any case, under the new Article 55 (Alternative Dispute Resolution), Tribunals must discuss with the parties the possibility of using mediation, or other forms of ADR, “to facilitate the quick, cost effective and fair resolution of the dispute.” Further, parties can apply for the suspension of the arbitration to allow for mediation or other form of ADR on such terms as the Tribunal considers appropriate, with the arbitration resuming at any time upon the written request of any of the parties.

Third-party funding disclosures

There is a new requirement, under Article 54 (Third Party Funding), to disclose third-party funding and a continuing obligation to disclose any changes to the third-party funding arrangement. In this regard, the Tribunal has the power to order a party to disclose the existence and identity of a third-party funder at any time during the proceedings.

Costs and fees

There are new substantive provisions on deposits for costs and costs decisions by the Tribunal and by ACICA. The new Article 48 (Costs of Arbitration) sets out a detailed list of the items comprising the term “costs of the arbitration” and subsequent Articles govern, in detail, the deposit of costs and the decisions on costs of the arbitration by ACICA and by the Tribunal.

The revised rules state that the Tribunal may make costs decisions at any time during the arbitration, and expressly stipulate the default position that the unsuccessful party shall bear the costs of the arbitration, subject to a Tribunal’s discretion to apportion costs having regard to the circumstances of the case.

Further, under the new Article 49 (Deposit of Costs), the Tribunal will not proceed with the arbitration without ascertaining at all times from ACICA that ACICA is in possession of the requisite funds. In the event that any deposit of costs directed to be paid by ACICA remains unpaid (in whole or in part), the Tribunal may, after consulting ACICA, order the suspension or termination of the whole or any part of the arbitration.

The rules also prohibit the Tribunal from charging additional fees for interpretation, correction, or completion of the award.

If you have any questions about the new rules or how they might affect you, please reach out to the contacts below or your usual Herbert Smith Freehills contact.

Brenda Horrigan
Brenda Horrigan
Head of International Arbitration (Australia)
+61 2 9225 5536
Chad Catterwell
Chad Catterwell
Partner, Melbourne
+61 3 9288 1498
Guillermo Garcia-Perrote
Guillermo Garcia-Perrote
Senior Associate, Sydney
+61 2 9322 4903

 

Arbitration is on the rise in Australia

On 9 March 2021, the Australian Centre for International Commercial Arbitration (ACICA) released the inaugural Australian Arbitration Report. The Report analysed data obtained by ACICA and FTI Consulting in the inaugural Australian Arbitration Survey. The Survey collected data on arbitrations commenced, conducted and concluded in the period between 2017 and 2019 with an Australian ‘connection’ from 111 respondents.

Key takeaways

Please click on our infographic below for a summary of the key takeaways, which include:

  • The total amount in dispute for arbitrations that were active during the relevant period exceeded A$35 billion.
  • For international arbitrations, the Survey indicated that the most favoured arbitration rules were those of the SIAC and ICC and the most popular arbitration seat was Singapore.
  • For domestic arbitrations, the most favoured arbitration rules of Survey respondents were those of ACICA followed by the Resolution Institute, with no particular city leading as a favoured seat.
  • There is significant use of arbitration by ‘other’ industries (about 20%), including property, banking, agriculture and others (in addition to construction, engineering, mining and infrastructure).
  • Regrettably, less than 10% of arbitrator appointments were women.

Booming arbitration industry

Strong international and domestic application

The Report identified 223 unique arbitrations with an Australian ‘connection’, meaning: one or more of the parties involved in the arbitration was an Australian entity; the seat of the arbitration was in Australia; or there were participants based in Australia involved in the conduct of the arbitration. The total amount in dispute for these 223 arbitrations exceeded A$35 billion.

Of these 223 arbitrations there was almost a 50:50 split between international (111) and domestic (109) arbitrations (for three arbitrations this question was not answered). However, the amount in dispute in international arbitrations (approx. A$26 billion) far exceeded that in domestic arbitrations (approx. A$9 billion), with about 75% of the quantum in international arbitrations.

For international arbitrations, the Survey indicated that the most favoured arbitration rules were those of SIAC and the ICC and the most popular arbitration seat was Singapore. However, there was also indication of a growing inclusion of ACICA arbitration clauses (now almost equal to the use of SIAC / ICC rules) in cross-border contracts, which we would expect to translate into a greater proportion of Australian-seated ACICA arbitrations in the future.

For domestic arbitrations, the most favoured arbitration rules of Survey respondents were those of ACICA followed by the Resolution Institute. There was no clear winner on which city in Australia was the most favoured seat. This is likely due to the largely uniform commercial arbitration laws applicable in each State/territory of Australia, and the widespread support of the courts in each State/territory for arbitration.

Broad industry use

The bulk of the 223 arbitrations referenced occurred in relation to construction, engineering and infrastructure (about 43%), oil and gas (about 20%), mining and resources (about 13%), and transport (about 4%) industries. There was also a significant use by ‘other’ industries (about 20%), including property, banking, agriculture and others.

These trends are largely consistent with expected sector trends projected by the Queen Mary University of London in the 2018 International Arbitration Survey: The Evolution of International Arbitration released on 9 May 2018, including a strong use of arbitration in construction, engineering and infrastructure, and oil and gas sectors. However, we expect to see greater uptick in arbitration use by the technology, consumer product and banking and finance sectors in the future given the confidentiality and enforceability of the arbitral process.

Tribunal diversity challenges

The Survey also asked questions about diversity, although not all respondents answered those questions. Of the responses received:

These two data trends indicate a preference to appoint high-profile arbitrators who fall within a narrow demographic. A strong track record and familiarity with the common law legal systems found in Australia and the United Kingdom are desirable characteristics for arbitrators involved in disputes with an  Australian connection. However, a more nuanced approach to arbitrator appointments based on sector and subject matter experience will result in a broader pool of arbitrators, and more desirable results for arbitration users.

Chasing efficiency

While 80% of Survey respondents indicated that they were satisfied with arbitration, two key perceived weaknesses of the arbitration process, for some respondents, were costs and time. Further, users remarked that, particularly in the domestic context, there was a “tendency for arbitration to resemble litigation” and “not always follow international best practice”.

The “tendency to conduct arbitration like litigation” can impede arbitration users from maximising the time and cost efficiencies that arbitration can achieve. To unlock tangible efficiency gains, both arbitrators and party representatives must: embrace the flexibility of arbitration; incorporate only those stages of a dispute resolution process that serve a particular dispute; condense stages of the process where appropriate; and leverage international best practices. This can simply be achieved by appointing arbitrators and representatives who have a deep appreciation of arbitration and who can steer the arbitration process in a way most beneficial to parties.

For further information, please contact Brenda Horrigan, Partner, Chad Catterwell, Partner, Guillermo Garcia-Perrote, Senior Associate, Imogen Kenny, Solicitor, or your usual Herbert Smith Freehills contact.

Brenda Horrigan
Brenda Horrigan
Head of International Arbitration (Australia)
+61 2 9225 5536
Chad Catterwell
Chad Catterwell
Partner, Melbourne
+61 3 9288 1498
Guillermo Garcia-Perrote
Guillermo Garcia-Perrote
Senior Associate, Sydney
+61 2 9322 4903
Imogen Kenny
Imogen Kenny
Solicitor, Melbourne
+61 3 9288 1657

 

INTERNATIONAL ARBITRATION IN AUSTRALIA IN 2020 – STATE OF PLAY

International arbitration continues to play an increasingly important role in Australia. In this note we canvass some of the key developments in the international arbitration space in 2020, including:

  • Recent judicial support for international arbitration and the enforcement of arbitral awards, reaffirming Australian courts’ pro-arbitration stance.
  • Australia’s ratification of the Mauritius Convention, the recently announced review of Australia’s 15 bilateral trade agreements, and investor-state arbitrations initiated by Australian companies.
  • The impacts of COVID-19 and the associated prevalence of virtual hearings.
  • The Singapore Convention, establishing an international regime for the enforcement of settlements reached through mediation, which came into force in September this year.

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ENFORCING AWARDS DOWN UNDER CONTINUES TO PAY OFF: FEDERAL COURT OF AUSTRALIA ENFORCES FOREIGN AWARD DESPITE PROCEDURAL IRREGULARITIES

Overview

The Australian Federal Court has granted an application to enforce a foreign arbitral award despite procedural irregularities in the arbitration proceedings.

The decision in Energy City Qatar Holding Company v Hub Street Equipment Pty Ltd (No 2) [2020] FCA 1116 (‘ECQ v Hub) builds upon Australian jurisprudence promoting ease of enforcement of foreign arbitral awards. Continue reading

INSIDE ARBITRATION ISSUE #9: PERSPECTIVES ON CROSS-BORDER DISPUTES

Welcome to the ninth issue of Inside Arbitration

We are delighted to share with you the latest issue of the publication from the Herbert Smith Freehills Global Arbitration Practice. With a new decade afoot, the articles in this issue focus on trend spotting and change.

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In addition to sharing knowledge and insight 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 you can find:

  • Kathryn Sanger and Marco de Sousa looking at the statistics of the main arbitral institutions, highlighting interesting similarities and differences and offering some predictions for the future.
  • Jonathan Ripley-Evans interviewing Professor David Butler, Emeritus Professor of Law at Stellenbosch University and lead advisor to the South African Government on the International Arbitration Act in South Africa who provides insights into the future of arbitration in South Africa.
  • Nick Peacock, Vanessa Naish and Jerome Temme looking at common drafting issues in arbitration and whether arbitration agreements work in unilateral documents.
  • Natasha Blycha, Brenda Horrigan and Guillermo García-Perrote providing an update on what smart legal contracting may mean for businesses and dispute resolution in the future.
  • Charlie Morgan looking at technology as a disruptor for arbitration and considering how data analytics may change the way we approach all stages of the arbitral process.
  • Chinnawat Thongpakdee and Warathorn Wongsawangsiri offering their insights into the Thai arbitration market and how Bangkok is developing as an arbitral seat.
  • Nick Peacock sharing his views on arbitration trends in the banking and finance and technology sectors, including some insights on cybersecurity issues in arbitration.
  • Nick Peacock and Olga Dementyeva looking at investment treaty claims that have arisen from the dispute over Crimea and what the future may hold for investors.
  • An infographic sharing some statistics about our Global Arbitration Practice and our case load from 2017-2019.
  • Our regular “Watch this space” piece highlighting some key developments in global arbitration.

Previous issues can be viewed on our website by clicking on this link here. To obtain hard copies, please contact Arbitration.Info@hsf.com.

We hope that you enjoy reading issue #9 of Inside Arbitration and would welcome your feedback.