INSIDE ARBITRATION ISSUE #14 PERSPECTIVES ON CROSS-BORDER DISPUTES

Welcome to issue 14 of Inside Arbitration.

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

Despite signs of post-Covid recovery, the invasion of Ukraine has had global ramifications, exacerbating the already challenging cost-of-living crisis, with soaring inflation as energy, food and consumer product prices have spiked. Many of our corporate clients have been faced with closing their Ukrainian operations and supporting staff through enormously challenging circumstances. As trusted advisors to our clients, we need to be able to anticipate and respond to the challenges and opportunities on the horizon as political and financial instability have knock-on effects across regions and sectors.

Incorporating articles, interviews and videos from our practitioners around the network, this edition features articles and interview spotlights from across our global team in addition to recent arbitration news and developments including:

  • The war in Ukraine – implications for investments and contracts: Andrew Cannon, Hannah Ambrose, Olga Dementyeva and Jake Saville-Tucker explore some of the principal considerations in relation to terminating Russia-related commercial contracts and how investment treaties may offer an avenue for recourse if investments in Ukraine or Russia are affected by Russian state action.
  • The future of energy disputes: shocks to the system: Craig Tevendale, Louise Barber and Divyanshu Agrawal discuss how battered supply chains and turbulent geopolitics mean the energy sector should brace for a surge in disputes
  • Cyber disputes – are there borders in the blockchain? With the cyber economy fast emerging, courts are struggling with drawing borders in a decentralised world. Simon Chapman QC and Troy Song highlight one recent case that hints at the path ahead
  • Arbitration in Dubai: wa hala’ la wein (where do we go from here?): Following a busy year, Stuart Paterson, Nick Oury and Patrick O’Grady reflect on how the consolidation of two leading Dubai arbitration centres has radically changed the UAE disputes landscape
  • Whether virtual or physical, we can do more to make arbitration hearings sustainable: Amal Bouchenaki, Craig Tevendale, Maguelonne de Brugiere and Olga Dementyeva present the findings of our study comparing the carbon impact and expense of virtual hearings with in-person equivalents.
  • Investor-state dispute resolution series part II: Reform or rebirth?: With concerns from stakeholders growing, Andrew Cannon and Vanessa Naish consider how ongoing reforms could rebalance the ISDS process.
  • Asia-Pacific private equity disputes to rise as deal volumes grow: Following a period of pandemic-enforced turbulence, private equity deals have rebounded strongly, with disputes likely to grow as a result. Chad Catterwell and Guillermo Garcia-Perrote consider the implications of recent developments for disputes in this sector.
  • Spotlight interviews: Our three new arbitration partners Jonathan Ripley-Evans, Dan Waldek and James Allsop feature in our Spotlight articles, shedding light on their specialisms in their regions (and their story so far)

Previous issues can also be viewed here. We hope that you enjoy reading issue #14 of Inside Arbitration and would welcome any feedback you may have.

HERBERT SMITH FREEHILLS PROMOTES THREE ARBITRATION PARTNERS, THREE COUNSEL

Herbert Smith Freehills has promoted nine Disputes lawyers to its partnership out of a total of 34 worldwide. The promotions in the Disputes practice, which take effect on 1 May 2021, span across the firm’s international network.

Of these new partners, three are arbitration specialists, reflecting the strength and importance of the arbitration practice area to the firm.

The new arbitration partners are:

Jonathan Ripley-Evans, Johannesburg

Jonathan is a disputes lawyer whose practice is geared towards alternative dispute resolution, including arbitration and mediation. He also has extensive experience in general commercial litigation.

Jonathan specialises in resolving commercial disputes in a wide variety of sectors, including energy, mining, tourism, hospitality, property, and engineering. He has also acted as mediator and as an advisor in both mediations and arbitrations.

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STATE-OF-THE-ART HEARING FACILITY IN TOKYO OFFICIALLY LAUNCHES

On 12 October 2020 the new Tokyo hearing facility of the Japan International Dispute Resolution Centre (JIDRC) officially launched. The opening ceremony for the purpose built, state-of-the-art facility – held in person at its premises in central Tokyo and joined virtually by participants from around the world – represents a key milestone in Japan’s quest to increase its popularity as a seat for international arbitration.

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HERBERT SMITH FREEHILLS PROMOTES THREE ARBITRATION SPECIALISTS TO COUNSEL

Herbert Smith Freehills has promoted three new Counsel from within the global arbitration practice with effect from 1st May. With promotions in Moscow, Tokyo and Melbourne the new Counsel are:

Maria Dolotova, Moscow: Maria is a Russian-qualified disputes lawyer with an arbitration specialism.  Maria joined Herbert Smith Freehills in 2013 having previously worked in the dispute resolution practice of an international law firm in Moscow. Maria has been involved in arbitrations under a number of different institutional rules and been involved in court actions in support of arbitration (including injunction and enforcement applications) in many jurisdictions. Maria has developed a particular expertise in corporate claims involving bankruptcy and restructuring proceedings.

James Allsop, Tokyo: James’ practice centres on advising Japanese and international clients in complex commercial disputes, primarily through international arbitration.  He has acted as counsel and advocate in arbitrations under various institutional rules (HKIAC, ICC, JCAA, LCIA, SIAC, TOMAC, VIAC and before ad hoc tribunals) with seats across Asia and Europe.  He also has extensive cross-border litigation experience in the English High Court and Appellate Courts having practiced for several years in Herbert Smith Freehills’ London office. James is qualified as a solicitor in England & Wales and is also a qualified solicitor advocate.  He is licensed to advise in Japan as a Gaikokuho Jimu Bengoshi.

Timana Hattam, Melbourne: Timana is a specialist in the resolution of disputes in construction and infrastructure projects, and has significant experience advising in relation to disputes and generally in the project delivery phase of Public Private Partnerships (PPPs), particularly in the transport sector. Timana’s practice also includes energy related disputes, with a focus on renewables projects, having acted for clients across Australia and internationally.

Paula Hodges QC notes, “We are delighted to have three new Counsel promotions within our global arbitration practice. This – together with our recent Partner promotions – showcases the outstanding lawyers we have across the full breadth of our international arbitration network.”

For more information, please contact Maria Dolotova, Of Counsel, James Allsop, Of Counsel, Timana Hattam, Executive Counsel, or your usual Herbert Smith Freehills contact.

Maria Dolotova
Maria Dolotova
Of Counsel
+7 495 36 36839

James Allsop
James Allsop
Of Counsel
+81 3 5412 5409

Timana Hattam
Timana Hattam
Executive Counsel
+61 3 9288 1860

Arbitral tribunal’s refusal to strike out a claim could not be challenged under s68 or s69 of the Arbitration Act 1996

In a recent decision, the Mercantile Court dismissed two appeals under s68 (procedural irregularity) and s69 (error of law) of the Arbitration Act 1996 (the "Act") which sought to challenge an arbitral tribunal's refusal to strike out a claim. The appeals were dismissed on the basis that the tribunal's orders did not constitute "awards" for the purposes of the Act.  The fact that the parties had consented to the s69 appeals did not remove the need to establish that the court had jurisdiction under s69 of the Act: Enterprise Insurance Co Plc v (1) U-Drive Solutions (Gibraltar) Ltd (2) James Drake QC [2016] EWHC 1301 (QB). 

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