The Russian arbitration landscape is undergoing some major changes. Just a few years ago, in 2016, the arbitration regime in Russia was radically reformed with clarifications around the use of arbitration in corporate disputes, and the introduction of an accreditation regime for “permanent arbitration institutions”. While these reforms were aimed at strengthening the legitimacy of commercial arbitration in Russia, two years later, in the Autumn of 2018, arbitration practitioners and representatives of the business community in Russia were left concerned by several Russian court decisions which seemed to indicate that the standard ICC clause may not be enforceable in Russia (see our blog post on the decisions here). However, 2018 ended on a more positive note. On 26 December 2018, the Russian Supreme Court (the “SC“) issued its guidance in relation to various issues concerning international commercial arbitration (the “Overview“), where, in particular, it confirmed that arbitration clauses recommended by arbitration institutions are valid. On the following day, the Russian President signed a Federal Law modifying the current arbitration regime, which entered into force on 29 March 2019.
This post was originally published on the Kluwer Arbitration Blog, 7 March 2019.
ICC’s updated guidance to parties
On 20 December 2018 the International Court of Arbitration of the International Chamber of Commerce (ICC) published an updated Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (Note). The Note, which came into effect from 1 January 2019, introduces a number of significant updates to the ICC’s practical guidance on its Rules of Arbitration.)
- an interview with AIIB’s General Counsel, Gerard Sanders
- a presentation from AIIB’s head of corporate Law, Peter Quayle, on the international legal status of AIIB and dispute resolution
- a roundtable discussion on what makes a “shovel-ready” AIIB project involving AIIB’s senior legal consultant, Jennifer Handz
We are delighted to share with you the latest issue of the publication from the Herbert Smith Freehills Global Arbitration Practice, Inside Arbitration.
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.
At the Chartered Institute of Arbitrators (Malaysia Branch) International Arbitration Conference 2018, Peter Godwin, the Managing Partner of Herbert Smith Freehills’ Kuala Lumpur office gave a keynote address. The topic of the address was “Evolving Asia, New Frontiers in Dispute Resolution”.
The text of Peter’s keynote is set out below.
On 20 December 2018, the International Court of Arbitration of the International Chamber of Commerce (ICC) published updated guidance on the conduct of arbitration under its arbitration rules. The Note to Parties and Arbitral Tribunals on the Conduct of Arbitration under the ICC Rules of Arbitration (Note) entered into force on 1 January 2019, and represents a continuation of the ICC’s efforts to increase transparency and efficiency, and widen its range of services to users. We consider six of the most significant updates to the Note below.
As discussed in our recent blog post, the Moscow Arbitrazh Court and appeal courts recently found that a reference to the arbitration rules of an arbitral institution was not sufficiently clear evidence that the parties had agreed on that specific institution to administer the resolution of their disputes. The case related to the ICC standard arbitration clause and the ICC has applied to the Russian Supreme Court for clarity on its approach.
However, in the meantime, the ICC has issued an additional modified standard arbitration clause “to take account of the requirements of national laws and any other special requirements that the parties may have“. The ICC then proceeds to state that it is “prudent” for parties wishing to have an ICC Arbitration in Mainland China or in Russia “to include in their arbitration clause an explicit reference to the ICC International Court of Arbitration“.
The modified clause proposed by the ICC is as follows:
“All disputes arising out of or in connection with the present contract shall be submitted to the International Court of Arbitration of the International Chamber of Commerce and shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.”
For further information, please contact Alexei Panich, partner, Nick Peacock, partner, Alexander Khretinin, senior associate, or your usual Herbert Smith Freehills contact.
The English High Court has refused an application under s.103 of the Arbitration Act 1996 (“AA 1996“) to set-aside an order allowing for the enforcement of an ICC award in England. The decision is the culmination of a long-running dispute in which the award debtor has sought to set-aside the award and prevent enforcement in France, the Seychelles and England. The judgement is the latest illustration of the pro-enforcement approach of the English courts with respect to international arbitral awards, particularly where an award debtor has made efforts in multiple jurisdictions to prevent enforcement against it. While the outcome is not surprising, the level of attention given to the grounds raised by the award debtor, even in the face of issue estoppel, demonstrates the importance placed by the English Court on its New York Convention obligations.
The ICC has recently published its preliminary 2017 statistics, showing a slightly lower case load than the record-breaking 2016, but still indicating a steady long term growth. A total of 810 new cases were filed in 2017, involving 2316 parties from a record 142 countries. These newly-registered cases represented an aggregate value in dispute of over US$30.85 billion, with an average amount in dispute of US$45 million. Overall, these numbers demonstrate ICC’s global reach and leading position for complex, high-value disputes.
Herbert Smith Freehills and the ICC warmly invite you to attend ‘Investing in Latin America: How best to protect your investments?‘
|Date||Thursday 8 March 2018|
18:30: Panel discussion followed by drinks and networking
|Venue||Exchange House, Primrose Street, London, EC2A 2EG|
Please click here to view map
|Price||£120 non-members/ £85 members|
|Registration||Click here to register with the ICC directly. Registration cannot be made through Herbert Smith Freehills.|
Please note there are a limited number of spaces.
In a post-Brexit world, Latin America is likely to present British investors with significant new opportunities for growth and expansion. Drawing on the extensive experience of leading UK based practitioners and arbitrators, this seminar will analyse recent trends and examine how parties can best protect their investments in the region.