LCIA releases costs and duration data – the first of more to come?

Yesterday, 3 November 2015, the London Court of International Arbitration ("LCIA") released costs and duration data regarding actual cases administered by the LCIA under the LCIA Rules. It is thought that this is the first time an arbitral institution has released such information. This move is no doubt part of a growing trend of, and indeed demand for, increased transparency in international arbitration. It remains to be seen how other arbitral institutions – and even perhaps some less transparent domestic commercial courts competing for big ticket commercial disputes –  will react and whether they will follow suit.

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English Commercial Court rejects challenge to “conditional” award

In the latest decision relating to the arbitration between U&M Mining Zambia Ltd (“U&M”) and Konkola Copper Mines plc (“KCM”), the Commercial Court in London rejected challenges to an award made under s67 and s68 of the Arbitration Act 1996 (the “Act”).

The award included an order for KCM to pay certain invoices unless KCM “showed cause, supported by evidence, within 14 days of the Award, why such an order should not be made”. Amongst other grounds, KCM relied on the fact that the award was “conditional” and therefore “legally defective” as a ground to challenge the award under s68. The Commercial Court disagreed, stating that an award can be final and conclusive in its terms where it provides for “specific relief […] which only bites at one point in the future”.

(U&M Mining Zambia Ltd v Konkola Copper Mines plc [2014] EWHC 2374 (Comm))

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English Commercial Court rejects application by U&M Mining Zambia Ltd for security for sums due under award pending challenge

In Konkola Copper Mines Plc v U&M Mining Zambia Ltd [2014] EWHC 2146 (Comm), the English Commercial Court considered two related applications on behalf of U&M Mining Zambia Ltd (U&M) for security for costs and a payment into court, under sections 70(6) and 70(7) of the Arbitration Act 1996 (the Act), in relation to challenges made by Konkola Copper Mines Plc (KCM) under sections 67 and/or 68 of the Arbitration Act 1996 to an arbitration award dated 6 January 2014.

Eder J upheld U&M’s application for security for costs under section 70(6) of the Act; however, he rejected U&M’s application for a payment into court of US$41,259,274.47 under section 70(7) of the Act.

The case highlights the need for an applicant under section 70(7) in particular to put before the Court not only evidence that there is a real risk of dissipation of assets that could be used to satisfy the award, but also evidence that the challenges to the award would prevent, hinder or prejudice enforcement of the award.

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Commercial Court provides guidance on “serious irregularity” and confirms arbitral tribunal has jurisdiction to determine contractual rights and obligations in light of criminal conduct

In the recent decision of Interprods Ltd v De La Rue International Ltd [2014] EWHC 68 (Comm), the English Commercial Court dismissed the challenges under sections 67 and 68 of the Arbitration Act 1996 (the Act) against an arbitral award. In this case, the arbitrator held that the defendant (De La Rue) had been entitled to terminate agency agreements with the claimant (Interprods) and was not obliged to pay outstanding commission to it in circumstances where a representative of Interprods had allegedly stated that such commission would be used to pay bribes.

Interprods challenged the award under: (i) section 67 of the Act on the basis that the arbitrator had lacked jurisdiction to make the award in question; and (ii) section 68 of the Act on the basis that there had been serious irregularities in the making of the award.

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English court reaffirms its jurisdiction and willingness to compel foreign defendants to disclose their assets worldwide in aid of execution of arbitration awards

In a judgment handed down on 23 May 2013 in Cruz City 1 Mauritius Holdings v (1) Unitech Limited; (2) Burley Holdings Limited; and (3) Arsanovia Limited, the English High Court reaffirmed its jurisdiction under section 37(1) of the Senior Courts Act 1981 (the 1981 Act) to make an order to compel the Defendants to provide disclosure of all their assets worldwide. In doing so, the English court has once again demonstrated its commitment to the policy that arbitration awards should be enforced.

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High Court applies Sulamérica test in Arsanovia and gives rise to unexpected results

In December last year, the High Court upheld a challenge under section 67 of the Arbitration Act 1996 (the Act) in Arsanovia Ltd and others v Cruz City 1 Mauritius Holdings [2012] EWHC 3702 (Comm) and overturned an arbitration award on the ground that the Tribunal did not have substantive jurisdiction. The court was required to determine, by reference to the English common law conflict of law rules, the law applicable to the arbitration agreement in the absence of an express governing law. This was required in order resolve the issue of which law determined whether one of the claimants was party to the arbitration agreement.

In resolving whether to follow the law of the underlying contract (India) or the law of the seat (England) the court considered the Court of Appeal’s reasoning in the well-known cases of C v D and Sulamérica. Of particular note, the court factored in the exclusion by the parties of Part I of the Indian Arbitration and Conciliation Act 1996 (Indian Arbitration Act), and consequently held somewhat surprisingly that the parties had impliedly chosen the governing law to be Indian.

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U&M Mining Zambia Ltd v Konkola Copper Mines plc: Court of the seat does not have exclusive jurisdiction to grant interim measures in support of arbitration

In the recent case of U&M Mining Zambia Ltd v Konkola Copper Mines plc [2013] EWHC 260 (Comm), the court examined the question of whether English courts have exclusive jurisdiction to grant interim measures in support of an arbitration seated in England pending the appointment of the tribunal. Although it did not have to decide the point, the court found that, whilst English courts would have primary jurisdiction to hear applications in support of arbitral proceedings, parties may nevertheless seek interim relief or conservatory measures from other national courts where, for practical reasons, the application can only sensibly be made there.

Pending the formation of the arbitral tribunal, parties to an English-seated arbitration may wish to consider whether they may be able to get more effective interim relief in courts other than those of the seat.

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