Tag: Herbert Smith Freehills
We are very proud to announce that Simon Chapman, Head of Greater China Disputes, is to be appointed Queen’s Counsel.
The award of Queen’s Counsel is for excellence in both written and oral advocacy before the higher courts and arbitration tribunals. Simon is to be one of only 4 solicitor-advocates amongst the 114 QCs appointed this year. Simon will be one of a handful of Solicitor QCs in Asia, and the fourth QC currently practising at Herbert Smith Freehills. The prestigious appointment of QC is made by Her Majesty The Queen on the advice of the UK Lord Chancellor, following consideration by an independent Queen’s Counsel Selection Panel. The appointment is given to distinguished practitioners based on merit, and in recognition of their professional ability, reputation and integrity.
Simon is an international arbitration specialist focusing on cross-border disputes in Asia. He leads the Herbert Smith Freehills Practice in Greater China and appears regularly as lead counsel before arbitral tribunals all over the world. His practice covers both investment treaty and commercial arbitration and he has particular expertise in claims in fraud and breach of warranty, as well as post-M&A, joint venture, and shareholder disputes. Simon’s clients have included governments, state-owned entities, sovereign wealth funds and corporations across a range of industries, including the energy, private equity, finance, hospitality, and TMT sectors.
“With Simon’s appointment, Herbert Smith Freehills joins a very small group of firms that can offer its clients in-house access to senior advocacy through a practising QC based in Asia” said Executive Partner and CEO Elect Justin D’Agostino. “The appointment highlights the high calibre of talent and the bench strength of the firm’s market-leading disputes practice in the region and across our global disputes practice.”
“Simon is an extremely talented advocate, and we are very proud of this richly deserved appointment”, said Paula Hodges QC, Global Head of the International Arbitration practice at Herbert Smith Freehills. “It reflects Simon’s legal excellence and demonstrates the high esteem in which he is held by his peers, colleagues and clients.”
Simon will officially take silk at a ceremony on 16 April 2020.
The Supreme People’s Court of China and the Department of Justice of Hong Kong SAR announced today that the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region will come into effect on 1 October 2019 in both Mainland China and Hong Kong. The SPC also released an explanatory memo setting out its understanding of key aspects of the Arrangement and its implementation.
The SPC and the DOJ signed the Arrangement on 2 April 2019. As reported in our posts of 2 April and 4 April, the Arrangement empowers Mainland Chinese courts to order interim measures in support of Hong Kong-seated arbitrations, making Hong Kong the only seat outside Mainland China to benefit from such support.
The SPC and DOJ also released a list of “qualified arbitral institutions” in Hong Kong. These are the only institutions whose arbitrations enjoy the benefit ofthe Arrangement. They include:
- Hong Kong International Arbitration Centre
- China International Economic and Trade Arbitration Commission Hong Kong Arbitration Center
- International Court of Arbitration of the International Chamber of Commerce – Asia Office
- Hong Kong Maritime Arbitration Group
- South China International Arbitration Center (HK)
- eBRAM International Online Dispute Resolution Centre
Among other things, the SPC memo confirms that the Arrangement will apply to arbitral proceedings commenced prior to, but not yet completed as of, 1 October 2019. As such, we anticipate that interim relief applications under the Arrangement are likely to emerge soon.
In P v. M  HKCFI 1864; HCCT 6/2019 (24 July 2019), the Hong Kong Court of First Instance set aside parts of two arbitral awards which were found to be in breach of procedural fairness resulting in substantial injustice.
This is the second of two set aside applications arising from the same underlying arbitration based on a construction contract (Contract) which provided for domestic arbitration in Hong Kong. M had claimed against P for monies to which it was entitled under the Contract. After a first hearing in November 2017, the tribunal issued an interim award against P, ordering it to pay damages for loss and expense (First Award).
Challenge to the First Award
P raised a challenge to the parts of the First Award relating to a sum in respect of site overheads and insurance costs (Disputed Sum).
- P argued that M’s case on the Disputed Sum was that it was not required to give notice of the claim for the Disputed Sum, or that even if such notice were required, P had waived this requirement or was estopped from asserting M’s failure to do so.
- While the tribunal had rejected M’s pleaded claims, it nevertheless awarded M the Disputed Sum by finding that certain letters from M to P constituted notice as required by the Contract. P argued that in doing so, the tribunal had exceeded its powers, or had failed to conduct the arbitral proceedings in accordance with the procedure agreed by the parties.
- P thus sought to impugn certain paragraphs of the First Award pertaining to the Disputed Sum (Challenged Paragraphs), or alternatively, to set aside the First Award on the ground that P had been denied a reasonable opportunity to present its case in the arbitration.
P’s application was heard and granted by Mimmie Chan J.
- Chan J found that P had been “deprived of the fair opportunity to present its case and to make submissions to the tribunal on the effect and adequacy of the [letters] as proper notices under the Contract”, given that P had not been informed of this argument during the arbitration proceedings.
- While noting the need for finality of awards, and that only extreme cases would justify the court’s intervention, Chan J found that this was a case where a serious error had affected due process and the structural integrity of the arbitral proceedings, with the result that P had suffered substantial injustice.
- Since the complaint was that P had been deprived of a fair opportunity to make relevant submissions to the tribunal, Chan J remitted the matter to the tribunal for reconsideration. In addition, she declared that the Challenged Paragraphs would have no effect pending the reconsideration, and ordered the parties to file further submissions to the tribunal on specific issues, including the meaning and effect of the letters and whether they constituted valid notification of claims as required under the Contract.
Challenge to the Second Award
Following Chan J’s decision, the parties filed further submissions and the tribunal issued a second interim award (Second Award), which reinstated the Challenged Paragraphs in the First Award. P then raised a challenge to the Second Award on the same grounds as its first challenge.
- P again argued that the tribunal had exceeded its powers and/or failed to conduct the proceedings in accordance with the procedure agreed by the parties or as directed by Chan J by, among others:
- summarily rejecting P’s submissions on “threshold issues” that injustice arising from matters not raised in the substantive arbitration could not be rectified by further submissions on remission in the absence of a further evidentiary hearing;
- taking into account submissions made by M which were not “in reply” to P’s submissions on remission and had not been pleaded or dealt with in evidence in the arbitration;
- directing further submissions on matters which could not properly and fairly be addressed by a further evidentiary hearing;
- embarking on its own enquiry and making findings that were not contended by M.
- P submitted that it was denied an opportunity to address such matters, of which P had had no prior notice.
- P further submitted that there was no benefit in remitting such matters to the tribunal again.
Decision on the Second Award
Coleman J first canvassed the principles applicable to the challenge, which he regarded as “reasonably well-settled”:
- it is for the applicant to establish both serious irregularity and substantial injustice. The test of a serious irregularity giving rise to substantial injustice requires a high threshold to be met, so as drastically to reduce the extent of intervention by the Court in the arbitral process;
- the Court is concerned with the structural integrity of the arbitration proceedings, and not with the substantive merits of the dispute;
- a balance has to be drawn between the need for finality of the award and the need to protect parties against unfair conduct in the arbitration. Therefore, only an extreme case will justify the Court’s intervention;
- the effect of setting aside an award or declaring an award, or part thereof, to be of no effect is that the award, or the relevant part, is a nullity. The arbitration can revive or carry on as necessary to deal with the matters that were set aside or declared to be of no effect;
- following a remission, the tribunal’s revived authority extends only to the matters that are so remitted; it cannot go beyond the scope of the revived jurisdiction.
On the evidence, Coleman J agreed with P that there had been a serious irregularity leading to substantial injustice.
- Coleman J opined that “once it [was] identified and directed that parties are bound by their pleaded cases, and by the evidence already traversed at the arbitration hearing, and by the findings of fact made on that evidence, then there was really only one proper conclusion which the [tribunal] could have reached” – that the claim must fail.
- If M had wished to advance a case on the suggestion of the tribunal that the letters constituted the required notice, then “it could only properly have done so by making an application to amend its pleadings, which if allowed would almost certainly have required re-opening the evidentiary hearing.”
- While the tribunal was mindful of Chan J’s decision, and sought to provide proper opportunity for P to present its case by giving P the “final right of reply”, the defects “have not been cured, and could not have been cured, by the route taken by the Arbitrator”.
- The Court had in fact already considered that intervention in this arbitration is justified and necessary. Despite the remission for reconsideration, the serious irregularity warranting intervention has not been cured.
Coleman J thus proceeded to set aside the paragraphs in the First Award that had been impugned by Chan J, as well as the relevant paragraphs of the Second Award that exceeded M’s pleaded case.
While Hong Kong courts are slow to set aside arbitral awards, they will do so where they consider that the high threshold of serious irregularity resulting in substantial injustice has been met. To avoid challenges based on serious procedural irregularities, arbitrators must resist any temptation to look beyond the case as set out in the parties’ pleadings.
This year marks the ninth edition of the Herbert Smith Freehills – SMU Asian Arbitration Lecture Series.
We are delighted that The Honourable Justice Judith Prakash will deliver the lecture on Wednesday 2 October, on the topic “The Court’s role in arbitral proceedings: regulator or promoter?”
The Herbert Smith Freehills-SMU Asian Arbitration Lecture Series was established in 2010 through funding from Herbert Smith Freehills, and promotes collaborative forms of dispute resolution and access to justice. It also aims to promote Singapore as a leading centre for dispute resolution in Asia, particularly in arbitration and mediation. Each year, a distinguished jurist delivers the lecture, which is also published in a leading global arbitration journal.
Date: Wednesday, 2 October 2019
Time: 4:30pm – Registration
5:00pm – Lecture
Cocktail Reception to follow
Venue: Singapore Management University
Mochtar Riady Auditorium, Level 5
81 Victoria Street
Click here to register
The lecture will be a SILE accredited CPD activity.
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.
Herbert Smith Freehills has appointed Christian Leathley to the role of US Head of International Arbitration in New York.
Christian, who is also the Head of the firm’s Latin America Group, is based in Herbert Smith Freehills’ New York office, where he has been based since 2015. Prior to relocating to the New York office Christian was based in the firm’s London office.
A highly-regarded international arbitration specialist with nearly 20 years of experience, Christian focuses his practice on international commercial and investment arbitration servicing clients’ interests in all countries throughout Latin America. He also regularly appears as an advocate before all major international arbitration tribunals, with particular experience in the practice of public international law.
Herbert Smith Freehills is accepting applications for short-term internships with the firm’s international arbitration group in Hong Kong. Three to four paid internship positions are open for three to four months each (not extendable), beginning in or around January, May and September 2019.
Interns will work alongside our Greater China international arbitration team. They will have a varied workload, including assisting with current arbitrations and other client work; arbitration-related research; writing blog posts and articles; producing arbitration-related internal know-how, and similar projects.
For more detail, please refer to the Herbert Smith Freehills Careers page (click “Apply Now” and search Hong Kong openings).
Applications must be submitted via the Careers page on or before 31 August 2018.
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
1 Marina Boulevard
Level 7, Stephen Riady Auditorium @ NTUC
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.
Global Arbitration Review (GAR) has unveiled its annual ranking of the world’s leading international arbitration practices, with Herbert Smith Freehills ranked in the top three for the third year in a row.
The firm’s GAR 30 ranking appears in the 11th edition of the GAR 100, which was revealed last night at the eighth annual GAR Awards ceremony at the Four Seasons George V hotel in Paris.
Highlighted again by the publication as a “force to be reckoned with”, GAR reports that the firm has seen an “influx” of high-value work “on the back of some high-profile results”. GAR reveals that the firm’s portfolio of pending investment treaty work is “as large as it’s ever been” – with nine cases worth more than US$1 billion (including one worth US$18 billion).
The firm also achieves a large number of peer-recognised specialists across the global network, having a total of 13 people featured in ‘Who’s Who Legal’.