Tag: Paula Hodges QC

INDIAN SUPREME COURT ALLOWS INDIAN PARTIES TO CHOOSE A FOREIGN SEAT OF ARBITRATION

Settling a much-litigated issue, the Supreme Court of India (“Court”) recently decided that two Indian parties can choose a foreign (non-Indian) seat of arbitration. Some courts had previously held that at least one party had to be a non-Indian person or company for such a clause to be effective. The Court clarified the position and held that an award issued by an arbitral tribunal in such circumstances would be enforceable in India and that the parties could also seek interim relief in India. The decision brings welcome certainty particularly for Indian subsidiaries of international companies that have negotiated contracts providing for offshore arbitration in jurisdictions like Singapore, London, Hong Kong and others.

Background

The judgment, in PASL Wind Solutions Private Limited v. GE Power Conversion India Private Limited, followed from an appeal from a decision of the Gujarat High Court (which we covered here). It involved two Indian companies, one a subsidiary of a French company, that had entered into an agreement for the sale of converters. The agreement provided for arbitration in Zurich under the ICC Rules and was governed by Indian substantive law. The Tribunal issued an award and GE Power applied to enforce it in Gujarat. The Gujarat High Court held that the award was enforceable notwithstanding that the two Indian parties had chosen a foreign seat, but also held that parties to such an arbitration would not be entitled to interim relief in the Indian courts. PASL Wind Solutions appealed to the Court.

The Judgment

Meaning of ‘Foreign’ Award

Part II of the Indian Arbitration and Conciliation Act 1996 (the “Arbitration Act”) applies to the enforcement of foreign awards in India. One question before the Court was how the term ‘foreign award’ should be interpreted.

The appellant argued that the definition turns on the nationality of the parties, and that an award could not be considered ‘foreign’ because it involved two Indian parties. The Court rejected this argument and held that there were four criteria for an award to be considered a foreign award: (i) the dispute must be considered to be a commercial dispute under the law in force in India, (ii) it must be made pursuant to a written arbitration agreement, (iii) the dispute must arise between “persons” (without regard to their nationality, residence, or domicile), and (iv) the arbitration must be conducted in a New York Convention country.

The Court held that these criteria were met by the award in question. Section 44 of the Arbitration Act (which defines foreign awards) was “party-neutral” and the key factor is the place of arbitration.

The appellant also argued that the term ‘foreign award’ in Part II must be understood by reference to terms used in Part I (which deals with domestic or India-seated arbitrations). The Court rejected this argument and held that it was not possible to interpret the provisions of one part of the Arbitration Act using provisions of another part, following its earlier decision in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services.

Public policy

Another issue before the Court was whether an agreement between two Indian parties to arbitrate in a foreign seat was against the provisions of the Indian Contract Act 1872. In particular it was argued that this was against Section 23, which makes agreements against public policy void, and Section 28, which provides that agreements in restraint of legal proceedings are void.

On public policy, the Court found that on balance there was no harm to the public in allowing two Indian parties to resolve their disputes offshore: “The balancing act between freedom of contract and clear and undeniable harm to the public must be resolved in favour of freedom of contract as there is no clear and undeniable harm caused to the public…”. Where issues of fundamental Indian public policy where involved, the Court found that there were adequate safeguards in the Arbitration Act and under conflict of laws rules.

The Court also echoed its previous judgments which held that party autonomy was “the brooding and guiding spirit of arbitration” and that there were no grounds on which to restrict this autonomy by preventing Indian parties from arbitrating abroad.

Interim Relief

Finally, the Court overruled the Gujarat High Court’s finding that interim relief would not be available for arbitrations between Indian parties seated abroad. The Court found that this was based on an erroneous reading of the provisions of Parts I and II of the Arbitration Act.

Comment

The Court’s judgment will be a welcome clarification on an issue that has divided many High Courts in India including those in Delhi, Bombay and Gujarat. For contracts entered into before this question was widely litigated, parties will welcome the clarity. Looking ahead, for parties now negotiating contracts, the Court’s decision offers a wider menu of available forums in which to resolve their disputes, which is consistent with the global reach of Indian businesses.

For more information please contact Paula Hodges QC, Head of Global Arbitration Practice, Andrew Cannon, Partner, Nihal Joseph, Associate, or your usual Herbert Smith Freehills contact.

Paula Hodges QC
Paula Hodges QC
Head of Global Arbitration Practice
+44 20 7466 2027

Andrew Cannon
Andrew Cannon
Partner
+44 20 7466 2852
Nihal Joseph
Nihal Joseph
Associate
+44 20 7466 2212

HERBERT SMITH FREEHILLS PROMOTES FOUR ARBITRATION SPECIALISTS TO ITS GLOBAL PARTNERSHIP

Herbert Smith Freehills has promoted eleven disputes lawyers to its partnership out of a total of 23 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, four are arbitration specialists, reflecting the strength and importance of the practice area to the firm.

Continue reading

HSF’S PAULA HODGES QC TO JOIN PANEL IN “ARBITRATION LAW AND PRACTICE IN NIGERIA” WEBINAR

We are pleased to be a part of a webinar being hosted by Streamsowers & Köhn on ‘Arbitration Law and Practice in Nigeria‘, taking place on 28 April 2021.

Arbitration has long been recognised globally as a more commercial means of resolving disputes, especially where contracting parties are from different jurisdictions and is currently undergoing a resurgence in Nigeria as a preferred means among commercial parties of resolving disputes.

Paula Hodges QC, Global Head of HSF’s Arbitration Practice, will be joining the panel to discuss the evolution of the approach internationally and of the English courts to arbitrability, anti-arbitration injunctions, and the enforcement of arbitration awards.

To register for this webinar, please click here.

For more information, please contact Paula Hodges QC, Global Head of Global Arbitration Practice, or your usual Herbert Smith Freehills contact.

ICC Russia and ICC United Kingdom: Leading Arbitration Cases 2020: Different Perspectives

Paula Hodges QC, Global Head of International Arbitration, will be joining an online discussion on “Leading Arbitration Cases 2020: Different Perspectives” on 17 February 2021 (11.00 – 14.15GMT). Hosted by ICC Russia and ICC United Kingdom, the event offers the opportunity to gain practical insights from experts on topics including:

  • Arbitrator Disclosures approaches in Russia & UK
  • Applicable laws/procedural laws in agreements and relevant provisions in arbitration clauses (comparison between Russia & UK)
  • Insolvency disputes in Russia & UK

Should you wish to find out more or join the conversation, the full agenda, details of the panelists and registration details and costs can be found here.

For further information, please contact Paula Hodges QC, or your usual Herbert Smith Freehills contact.

Paula Hodges QC
Paula Hodges QC
Head of Global Arbitration Practice
+44 20 7466 2027

HERBERT SMITH FREEHILLS-CAMPAIGN FOR GREENER ARBITRATIONS WEBINAR: SUSTAINABILITY IN ARBITRATION – REDUCING THE ENVIRONMENTAL IMPACT OF OUR DISPUTES

Herbert Smith Freehills and the Campaign for Greener Arbitrations are delighted to invite you to attend our webinar on Sustainability in Arbitration. Environmental sustainability is not a new subject, but is one that is increasingly at the forefront of government and corporate strategy and headlining the papers, as grappling with climate change has become a global priority. Every industry is impacted, including arbitration, and every industry is able to reduce its carbon footprint.

Continue reading

HERBERT SMITH FREEHILLS GLOBAL ARBITRATION PRACTICE RANKED TOP THREE IN THE WORLD

Herbert Smith Freehills’ Global Arbitration Practice has been showcased as being the third busiest in the world as part of the annual Global Arbitration Review (GAR) 30 rankings.

The firm’s latest GAR 30 ranking appears in the 13th edition of the GAR 100, which was revealed last night at the tenth annual GAR Awards ceremony. This year, more than 300 members of the arbitration community joined together from across the world for a “virtual” ceremony, taking place during Paris Arbitration Week.

Highlighted once again by the publication as a “force to be reckoned with”, GAR reports that the firm has a “strong reputation in public international law and investment treaty arbitration, increasingly acting for governments in state-to-state negotiations and boundary and treaty disputes”. GAR reveals that the total value of the firm’s arbitration portfolio has increased by more than US$20 billion in the past two years, with more than 10 cases over the US$1 billion mark.

The firm also achieves a large number of peer-recognised specialists across the global network, having 15 people featured in ‘Who’s Who Legal’ and 18 as “Future Leaders”.

A construction client involved in a critical billion-dollar arbitration says the firm’s work “100% satisfied our expectation.”

GAR highlights the fact that the firm has achieved notable victories for clients such as Chevron, helping the energy major to thwart the enforcement of an US$18 billion sham award rendered by an allegedly sham arbitral institution in Cairo. Also noted is the partial award on liability won by the firm for Sinopec against Repsol in a US$5.5 billion fraud claim, thought to be among the largest cases ever filed at the Singapore International Arbitration Centre. They also showcase the firm’s work for major gas pipeline owner and operator Nord Stream 2, in the first-ever Energy Charter Treaty claim against the European Union.

As in previous years, the GAR 30 is based on a quantitative analysis of a number of different markers of a busy arbitration practice, looking at the  number of merits and jurisdiction hearings conducted by a firm over a two-year period, the amount in dispute in those cases, the split of work between commercial and investment treaty arbitration and the number of hours recorded by the arbitration practice over that period.

The ranking is also based on the number of arbitrator appointments a firm’s members have received and the number of individuals who appear in GAR’s sister publication, Who’s Who Legal: Arbitration – a guide to the leading practitioners in the field as selected by their peers.

The full GAR 30 can be found here.

Paula Hodges QC, who heads Herbert Smith Freehills’ Global Arbitration Practice, said:

“I am delighted to see the practice ranked amongst the top three in the world and am proud that we have appeared in the top five for six years in a row. This is a fantastic achievement, and provides well deserved recognition for the talent and hard work of our global team. It truly demonstrates the strength of our practice right across the world.”

As in previous years, GAR donates all proceeds from the awards to the Swawou School for Girls in Sierra Leone, supporting the school in what is a particularly difficult period for the students.

For more information, please contact Paula Hodges QC, Global Head International Arbitration, Vanessa Naish, Professional Support Consultant, Rebecca Warder, Professional Support Lawyer, or your usual Herbert Smith Freehills contact.

Paula Hodges QC
Paula Hodges QC
Global Head International Arbitration
+44 20 7466 2027

Vanessa Naish
Vanessa Naish
Professional Support Consultant
+44 20 7466 2112

Rebecca Warder
Rebecca Warder
Professional Support Lawyer
+44 20 7466 3418

LOW OIL PRICE – HIGH DISPUTES RISK: THE SCOPE FOR DISPUTES IN A WORLD OF LOW OIL PRICES

Oil prices have collapsed since the start of the year, driven down by concerns around oversupply, compounded by the collapse in demand caused by COVID-19 and the price war between Russia and Saudi Arabia.

This briefing published on our website here looks at the implications of low oil prices on certain key trading and operational agreements for oil companies, and considers the scope for disputes to arise. It considers the position under English law, which is commonly adopted by parties in the oil and gas industry, but many of the same themes apply to contracts governed by other common law systems.

For more information, please contact Paula Hodges QC, Partner, Craig Tevendale, Partner, James Baily, Partner, Steven Dalton, Partner, James Robson, Senior Associate, or your usual Herbert Smith Freehills contact.

Paula Hodges QC
Paula Hodges QC
Partner
+44 20 7466 2027

Craig Tevendale
Craig Tevendale
Partner
+44 20 7466 2445

James Baily
James Baily
Partner
+44 20 7466 2122

Steven Dalton
Steven Dalton
Partner
+44 20 7466 2537

James Robson
James Robson
Senior Associate
+44 207 466 2641

INSIDE ARBITRATION: ISSUE #8 OF THE PUBLICATION FROM HERBERT SMITH FREEHILLS’ GLOBAL ARBITRATION PRACTICE

We are delighted to share with you the latest issue of the publication from the Herbert Smith Freehills Global Arbitration Practice. We once again take a regional focus, turning to our practitioners in Europe for their latest insights.

The full digital edition can be downloaded in PDF via the link below.

DOWNLOAD NOW

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.

Continue reading

NEW INSTITUTIONAL APPOINTMENTS FOR HSF ARBITRATION PRACTITIONERS

Head of Herbert Smith Freehills’ Global Arbitration Practice, Paula Hodges QC, has officially begun her Presidency of the LCIA Court. Lauded by the legal directories as “brilliant” and the “most complete arbitration practitioner in London”, Paula has over 25 years’ experience advising clients in international disputes, particularly in the energy, telecommunications and technology sectors. Paula has been Vice President of the Court for several years and also a LCIA Board member for a decade.  Paula has taken over the role from outgoing President Judith Gill QC in May 2019 and will continue in practice at Herbert Smith Freehills whilst undertaking her new LCIA responsibilities.

Continue reading