Construction Arbitration Podcast Series Episode 4: Preparing your case

We are pleased to share the fourth episode in our Construction Arbitration podcast series, in which we look at the importance of case preparation, both at the outset of a case and beyond.

In this episode James Doe (Partner, UK Head of Construction & Infrastructure Disputes), Maguelonne de Brugiere (Senior Associate, International Arbitration) and Olivia Liang (Associate, Construction & Infrastructure Disputes) discuss the initial preparation of the case, on-going strategy considerations throughout the life of the arbitration and preparation for the hearing. They cover a wide range of key issues, including evaluating claims and substantiating them, the context of voluminous documentary evidence, multi-party and multi-contract issues, enforcement considerations and advocacy.

You can listen to this episode here.

To listen to the previous episodes covering an introduction to construction arbitration, the role of experts and documents and factual witnesses, please visit the Construction Arbitration podcast series page here.

In the next episode, which is the last in this series, we will discuss the management of construction arbitration procedure.

If you are interested in listening to our other construction and arbitration podcasts, or reading our articles on construction and arbitration, please take a look at our Construction Notes and Arbitration Notes and subscribe to receive notifications of our latest content.

For more information, please contact James Doe, Partner, Maguelonne de Brugiere, Senior Associate, Olivia Liang, Associate, or your usual Herbert Smith Freehills contact.

James Doe

James Doe
Partner
+44 20 7466 2583

Maguelonne de Brugiere

Maguelonne de Brugiere
Senior Associate
+44 20 7466 7488

Olivia Liang

Olivia Liang
Associate
+44 20 7466 7520

 

MALAYSIAN APEX COURT DECIDES ON ARBITRABILITY OF DISPUTES INVOLVING A REMEDY OF STATUTORY FORECLOSURE, AND THE INCORPORATION OF ARBITRATION CLAUSES IN MULTI-CONTRACT TRANSACTIONS WHERE ONE CONTRACT CONTAINS AN ENTIRE AGREEMENT CLAUSE

Earlier this year, it was reported that the Malaysian Federal Court on 29 January 2018 decided an application to stay statutory foreclosure proceedings pursuant to a registered security granted over a parcel of land on the basis that the underlying dispute is subject to arbitration in Singapore.  The Federal Court made a ruling with potentially wide-ranging repercussions in the context of the scope of disputes considered arbitrable in Malaysia on the grounds of public policy, and the incorporation of arbitration clauses in multi-contract transactions.

In this post, we consider the decision of the Federal Court in Arch Reinsurance Ltd v Akay Holdings Sdn Bhd [2019] 1 CLJ 305 (“Arch Reinsurance“), its relation to its other apex decisions on arbitration, and its implication for arbitration in Malaysia.

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The DIS Rules of Arbitration of 2018

The new arbitration rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit – “DIS”) will enter into force on 1 March 2018 (“DIS Rules 2018”).

It is the first revision of the DIS Rules since the current version was adopted in 1998 (“DIS Rules 1998”). The revision process involved nearly 300 persons sitting in three different commissions, but took only 18 months. The DIS Rules 2018 were drafted concurrently in English and German. The result: The DIS maintained and enhanced those civil law elements which were already decisive for the success of the DIS Rules 1998. But it also adopted new rules to reflect the changes and developments of international arbitration practice of the last two decades.

One of the most prominent features – as under the DIS Rules 1998 – of the DIS Rules 2018 is the promotion of early settlements (I.). Further, a newly founded body, the “Arbitration Council” will enhance the transparency and the integrity of the arbitration process (II.). Next, several new rules have been adopted in order to increase the already high efficiency, quality and expeditious character of DIS arbitration proceedings (III.). Lastly, along with the amendments of several institutional rules, the DIS Rules 2018 contain several new rules for multi-party and multi-contract arbitrations (IV.).

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Podcast – “Arbitration in multi-party and multi-contract scenarios- what you need to know”

In this short podcast, senior professional support lawyers Hannah Ambrose and Vanessa Naish look at some of the issues surrounding the drafting of arbitration clauses for complex transactions, and provide insight into how to draft consolidation and joinder provisions to ensure that your dispute resolution clause is both effective and efficient. Continue reading

The ICDR amends its Mediation and Arbitration Rules: tackling some familiar issues and providing some novel solutions

The International Centre for Dispute Resolution (the ICDR), the international division of the American Arbitration Association has released a new version of its Mediation Rules and its Arbitration Rules (the Rules), effective 1 May 2014.

Many of the changes concern issues which have been the focus of many of the recent institutional rule changes – reducing the time and costs involved in resolving a dispute pursuant to the Rules, dealing with multi-party and multi-contract issues, and providing for emergency measures of protection before constitution of the tribunal. However, the revised Rules also contain some novel aspects. In particular:

  • The adoption of the “international” approach to document production in arbitration into the Rules themselves and confirmation that depositions, interrogatories and other US “discovery” procedures are “generally not appropriate” in an ICDR arbitration (Article 21);
  • Provision for joinder and the appointment of a “consolidation arbitrator” to determine whether multiple arbitrations should be consolidated;
  • An express description of the ICDR list procedure at Article 12(6) for the appointment of arbitrators (barring party agreement to an alternative method); and
  • Express inclusion of a default position on the question of privilege in international arbitration, adopting a highest standard of protection test (Article 22).

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