On 15 May 2023, Herbert Smith Freehills co-hosted London International Disputes Week’s inaugural International Arbitration Day, welcoming over 350 external guests to our London office. International Arbitration Day was a flagship arbitration event, showcasing the importance of London as a global arbitration centre. Herbert Smith Freehills was chosen as one of three LIDW member firms (alongside Allen & Overy and Mayer Brown) to host panel events throughout the day.

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The Law Commission’s Second Consultation Paper – an evolving approach

This week the Law Commission published a second Consultation Paper as part of its review of the English Arbitration Act (the Act).

The Paper raises three issues for consultation: (1) how the proper law of the arbitration agreement should be determined under English law; (2) the procedure for jurisdictional challenges before the English court under section 67 of the Act; and (3) tackling discrimination in arbitral appointments and procedure.

Issue (1) was not addressed by the Law Commission in its first Consultation Paper. However, thirty-one responses raised this as something that was in need of review and potential reform.  Although issues (2) and (3) were addressed in the first Consultation Paper, the Law Commission’s thinking on these topics has developed following the initial round of responses. As a consequence, it has taken the opportunity to tweak its original proposals and, in the case of issue (3) on discrimination, identify new topics of potential reform.  We set out below a summary of the new proposals and questions raised by the Law Commission.

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  1. Third Party Funding: recoverability and regulation

In Tenke Fungurume Mining S.A. v Katanga Contracting Services S.A.S, [2021] EWHC 3301 (Comm), the Commercial Court considered a challenge to an arbitral award under s68 of the Arbitration Act on the grounds that the tribunal’s award of the successful party’s costs of third party funding constituted a serious irregularity. The Court refused the challenge, finding that the tribunal had not exceeded their powers or wrongly exercised their discretion in awarding third party funding costs. The case provides some clarity on whether an award of third party funding costs in arbitration constitutes a serious irregularity under the Act. However, it is important to note that the English court was not asked to rule on whether such fees are recoverable in arbitration as a matter of English law: i.e. whether it should be open to an arbitral tribunal to award third party funding costs in the first place. Given that there is no recovery of third party funding costs in English litigation, it leaves a difference in recovery between litigation and arbitration and raises the question as to whether this should be permitted. This is only likely to be addressed by the English courts in the rare (and perhaps unlikely) event that a party raises this point in a challenge or question of English law under s69 or s45 of the Act.

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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


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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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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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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