HSF CONTRIBUTES TO GAR’S ‘THE ASIA PACIFIC ARBITRATION REVIEW 2022’

Tokyo Partner Craig Shepherd, together with Singapore Of Counsel Daniel Waldek and Associate Mitchell Dearness, have contributed to GAR’s ‘The Asia Pacific Arbitration Review 2022′ with a section on construction and infrastructure arbitration in Asia Pacific. The authors consider the potential impacts of Covid-19 disruption and the transition to green energy on construction disputes in the Asia-Pacific region over the next decade. They also look at the steps that can be taken by contractors and project owners to mitigate associated risks.

The review covers Australia, Hong Kong, India, Malaysia, Singapore, Sri Lanka and Vietnam.

Herbert Smith Freehills’ contribution ‘Disputes in Asia-Pacific construction and infrastructure projects’ is available to download as a pdf here. The full publication can be accessed online here.

For more information, please contact Craig Shepherd, Daniel Waldek, Mitchell Dearness, or your usual Herbert Smith Freehills contact.

An extract from GAR’s The Asia-Pacific Arbitration Review 2022, first published in June 2021. The whole publication is available at https://globalarbitrationreview.com/review/the-asia-pacific-arbitration-review/2022

Craig Shepherd
Craig Shepherd
Partner
+81 3 5412 5456
Daniel Waldek
Daniel Waldek
Of Counsel
+65 68688068
Mitchell Dearness
Mitchell Dearness
Associate
+65 68688061

SURVIVAL CLAUSE UNDER AUS-INDO BIT WILL NOT SURVIVE THE IMPLEMENTATION OF IA-CEPA

The Indonesia-Australia Comprehensive Economic Partnership Agreement (“IA-CEPA”) will enter into force on 5 July 2020.

We have previously discussed the IA-CEPA’s provisions in detail (see here) and the progress of its implementation (see here).

Since our last post, the IA-CEPA has been ratified by the Indonesia and Australian parliaments and steps have been taken to terminate the existing bilateral investment treaty (“Aus-Indo BIT”).

We summarise the latest developments in this post.

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SINGAPORE ARBITRATION UPDATE: A POTENTIAL CHANGE FOR ‘OPT-IN’ APPEALS FOR ERRORS OF LAW AND COURT CONFIRMATION OF THE CORRECT STANDARD TO BE MET TO RESTRAIN WINDING UP PROCEEDINGS WHERE A CLAIM IS SUBJECT TO ARBITRATION

Two recent developments in the Singapore arbitration landscape are of interest.  First, a written response from the Singapore Minister for Law confirms that the government is considering amending the International Arbitration Act (the “IAA”) to allow for appeals on errors of law on an opt-in basis. Second, a recent Singapore High Court decision confirms the standard to be met by a party seeking to restrain winding up proceedings when there is a valid arbitration agreement.  Underscoring both developments is a common objective of respecting party autonomy in arbitration.

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Singapore court refuses set aside on the basis that the successful party in the arbitration did not call witnesses to give evidence and disclose certain documents

In BVU v BVX [2019] SGHC 69 the High Court of Singapore refused to set-aside an arbitral award on the basis that BVX, the successful party in the arbitration, did not call certain witnesses to give evidence and disclose certain internal documents.  BVU’s attempt to secure these documents by way of subpoena in the context of the set-aside proceedings also failed.  The decision highlights that parties to an international arbitration are normally subject to less stringent requirements for the disclosure of documentary and other evidence.  The decision also emphasises that belated attempts to revisit the merits of a case by procuring additional evidence in the context of set-aside proceedings are unlikely to be successful.

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Anticipated arbitration reforms in Australia

The Australian International Arbitration Act 1974 (Cth) (Act) applies to all international arbitration proceedings in Australia. The Civil Law and Justice Legislation Amendment Bill 2017 (Bill) is an omnibus bill which proposes to make certain amendments to the Act (as well as other various Australian legislation).

The International Arbitration Act incorporates the United Nations Commission on International Trade Law’s Model Law on International Commercial Arbitration (Model Law) and, much like other Model Law jurisdictions, contains additional provisions supplementing the Model Law. The proposed amendments to the Act are another effort by Australia to improve and clarify the provisions of the Model Law by addressing issues which have arisen in jurisprudence.

The key proposed change will make it easier for foreign awards to be enforced in Australia. A number of other less significant amendments are also proposed.

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