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’ Global Head of International Arbitration Paula Hodges QC Reappointed for Second Term as LCIA President

It has just been announced that the LCIA Board has, on the recommendation of the LCIA Court, reappointed Paula Hodges QC to lead the LCIA Court as President for a second term.

First appointed in 2019, Paula served her three-year term alongside LCIA Director General Dr Jacomijn van Haersolte-van Hof. Before this, Paula served as Vice President of the Court for several years and was also an LCIA Board member for a decade.

During Paula’s Presidency of the LCIA Court the LCIA has introduced and implemented the LCIA Rules 2020 and grappled with issues such as Brexit and the Covid 19 pandemic. Alongside her role at the LCIA, Paula continues to work full-time as Head of Herbert Smith Freehills’ Global Arbitration Practice.

Commenting on her appointment, Paula said:

“I am thrilled to have been given the opportunity to do a second term as LCIA President. With the 2020 Rules now being in full swing and the increasing reach of the LCIA globally, there are many exciting initiatives afoot and I am delighted to be able to work with the LCIA Secretariat, Court and Board to bring all our plans to fruition over the next three years.”

Paula’s over-arching aims are for the LCIA to continue to expand internationally attracting parties and arbitrators from all over the world, and to ensure that the LCIA keeps ahead of evolving arbitration trends.

The LCIA Court is the guardian of how the rules are applied to ensure that the high standing of the LCIA as an arbitral institution is preserved.

For a full list of new LCIA positions, please click here.

For more information, please contact Vanessa Naish, Professional Support Consultant, or your usual Herbert Smith Freehills contact.

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

HERBERT SMITH FREEHILLS LLP CONTRIBUTES TO LEXOLOGY GTDT 2022

Craig Tevendale, Vanessa Naish and Liz Kantor have contributed to the latest edition of Lexology’s Getting the Deal Through chapter on Arbitration in the United Kingdom. This quick reference guide enables a side-by-side comparison of local insights on arbitration in various jurisdictions, including on matters such as applicable laws, prominent arbitration institutions, constitution of the tribunal, jurisdictional matters, competence of arbitral tribunals and arbitral proceedings. The full chapter can be accessed online here.

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DELOS LAUNCHES OPEN ACCESS ARBITRATOR DATABASE TO IMPROVE DIVERSITY

Independent arbitration institution Delos has created a free, open access database of arbitrators, in a bid to increase the pool of arbitrators and foster diversity in appointments.

The database is open to all at no cost, and any arbitrator can post a profile – no previous appointments are required. Arbitrators can choose the information they enter, including gender, age, nationality, location, and cultural and ethnic background, alongside their experience as counsel, tribunal secretary and arbitrator, language skills, and regional, industry or other specialist expertise. To create a profile, register for free membership at www.delosdr.org, then click here to add your profile.

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DETERRING AND SANCTIONING “SPECULATIVE” CHALLENGES TO ARBITRAL AWARDS IN THE ENGLISH COURT: REVISIONS TO THE COMMERCIAL COURT GUIDE

In 2013 the English Court introduced provisions into section O of the Commercial Court Guide designed to deter parties from mounting “speculative” challenges of arbitral awards on the grounds of serious irregularity under s68 of the Arbitration Act 1996 (the Act) (see our blog post here). Small additional changes were also made in 2017.

Yesterday a new, updated version of the Commercial Court Guide was released. Further revisions have been made to Section O to deter unmeritorious challenges to arbitral awards and confirm the court’s powers to act to dismiss such claims and sanction parties who bring them. Importantly, unlike the earlier revisions to Section O, many of the amendments relate to challenges for lack of jurisdiction under s67 of the Act.

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HERBERT SMITH FREEHILLS SIGNS THE GREEN PLEDGE OF THE CAMPAIGN FOR GREENER ARBITRATION

Herbert Smith Freehills has signed the Green Pledge of the Campaign for Greener Arbitrations (the CGA), after acting as an institutional supporter of the CGA for the past year.

The CGA is a global initiative aimed at reducing the carbon footprint of arbitral proceedings. Signatories of the Green Pledge make a commitment in their personal capacity to minimise the environmental impact of the arbitrations in which they are involved. The focus of the Green Pledge is, in particular, on the reduction of the environmental impact associated with travel and the use of paper. Other commitments set out in the Green Pledge include corresponding electronically, unless hard copy correspondence is expressly needed, encouraging the use of videoconferencing facilities as an alternative to travel, and avoiding printing.

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ENGLISH COURT UPHOLDS MULTIPLE CHALLENGES TO ARBITRAL AWARD FOR BREACH OF THE TRIBUNAL’S DUTY OF FAIRNESS

In PBO v DONPRO and others [2021] EWHC 1951 (Comm), the English High Court (the Court) allowed a number of challenges brought by PBO under s68 of the Arbitration Act 1996 (the Act) against an arbitral award rendered by the Federation of Cocoa Commerce (FCC) Board of Appeal (the Board). As such, this is an unusual example of a successful s68 challenge, made all the more unusual by the number of irregularities raised by the applicant, all of which were upheld by the Court.

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ENGLISH HIGH COURT CONSIDERS SCOPE OF ARBITRATION AGREEMENT WHEN DETERMINING JURISDICTION TO GRANT INTERIM RELIEF IN SUPPORT OF ARBITRATION

In AT and others v Oil and Gas Authority [2021] EWHC 1470 (Comm), the High Court (the Court) considered an application by four claimants under s.44(3) of the Arbitration Act 1996 (the Act) for an order restraining the defendant from circulating a redacted version of a notice (the Notice) to third parties. The Court found that the underlying dispute was not within the scope of the arbitration agreement between the parties and, accordingly, that it lacked jurisdiction to grant such an interim injunction under s.44(3) of the Act. However, having determined that the claimants should pursue any claim through judicial review rather than arbitration, the Court did grant the injunction, concluding that the application was one “for interim relief in a judicial review claim“.

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INSIDE ARBITRATION ISSUE #12: PERSPECTIVES ON CROSS-BORDER DISPUTES

Welcome to the twelfth issue of Inside Arbitration

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

Uncertainty has been the watchword of 2021 so far. As the Covid-19 pandemic continues to impact our work and personal lives many questions remain about the virus and our global response to it. However, since the light at the end of the tunnel does appear to be shining more brightly, we have grasped the opportunity to look forward positively in this edition of Inside Arbitration.

Incorporating videos and soundbites from our practitioners around the network, in this edition:

  • Paula Hodges QC, Andrew Cannon, Simon Chapman QC and Vanessa Naish explore whether it is possible to predict how the post-pandemic disputes landscape may look and how arbitration practice may be impacted longer term.
  • The pandemic is not the only significant force for change and development facing the world at present. Antony Crockett, Patricia Nacimiento and Dr. Alessandro Covi look at what “ESG” means for businesses, how ESG issues are being introduced into commercial contracts, and the potential impact of these trends on international arbitration.
  • Continuing the theme of change, Craig Tevendale, Chris Parker and Charlie Morgan focus on energy transition, looking at the challenges on the horizon and the potential legal disputes that may arise from the proliferation of new infrastructure projects.
  • Change has also been felt within the Herbert Smith Freehills’ arbitration practice. Our three new talented arbitration Partners Dana Kim (in Seoul), Antony Crockett (in Hong Kong) and Ivan Teselkin (in Moscow) feature in Spotlight articles introducing their differing areas of practice and sharing their views on the outlook for arbitration in their regions.
  • The recognition of the talent of our practitioners and the growth of our global practice is exciting, but so too are successes in our cases, particularly those that can be reported publicly! Simon Chapman QC and Charlotte Benton discuss a recent success in a landmark case in Hong Kong, which has confirmed that failure to comply with escalation requirements will not affect an arbitration tribunal’s jurisdiction over the dispute.
  • Looking at wider developments across the globe, Andrew Cannon and Nihal Joseph explore the significance of an important new judgment from the Supreme Court of India which decided that two Indian parties may validly agree to resolve their disputes in arbitration seated outside India.
  • Chad Catterwell and Guillermo Garcia-Perrote look at the rise of Arbitration in Australia, and how the release of the ACICA Arbitration Rules 2021 have further strengthened ACICA’s status as the pre-eminent arbitral institution in Australia.
  • In our sector-focused piece Hew Kian Heong, James Doe and Noe Minamikata take a look at the current hot topics in construction arbitration: the impact of recent materials shortages, a possible rise in construction insolvencies and the continuing effects of the Covid-19 pandemic on construction projects.
  • Our “watch this space” feature covers the latest issues and developments in international arbitration.

Previous issues can also be viewed on our website.

We hope that you enjoy reading issue #12 of Inside Arbitration and would welcome any feedback you may have.