The Court of Final Appeal (“CFA“) has handed down its much anticipated judgment in Jonathan Lu & Others v Paul Chan Mo Po & Anor  HKCFA 11 (10 April 2018). The central issue in Paul Chan was the operation of “qualified privilege” when used by defendants in seeking to defeat defamation claims. “Qualified privilege” arises when the law recognises that the need for uninhibited communication outweighs the need to protect one’s reputation. Specifically, the CFA was asked to state its approach to “malice” which is a ground to rebut such a defence. In short, the CFA ruled that “malice” means any purpose apart from that protected under “qualified privilege” and that whether the defendant knew the statements to be false or not, on its own, is not sufficient to establish “malice”. Of interest to legal practitioners, the CFA also laid out the approach by which a jury should be directed when defamation cases are concerned. The CFA allowed the Plaintiffs’ appeal and directed the case to be retried at the Court of First Instance (“CFI“). Continue reading
Justin D’Agostino, Herbert Smith Freehills’ Global Head of Disputes, has been appointed chair of a new ICC Court commission to develop the ICC’s approach to dispute resolution procedures for China’s Belt and Road initiative.
“There is no ‘one-size-fits-all’ method of resolving Belt and Road disputes. But there is a concerted effort to encourage mediation clauses in Belt and Road agreements, with provision for arbitration if mediation fails,” said D’Agostino, who is also Hong Kong’s alternate member of the ICC Court.
“ICC is already a world leading provider of arbitration and mediation services, with tried and tested mechanisms and a strong pool of arbitrators and mediators. It is ideally placed to provide appropriate, effective dispute resolution services to parties all along the New Silk Road”.
The massive scale of Belt and Road is generating huge numbers of infrastructure projects across Asia and beyond – and every new project also has the potential for complex disputes.
Herbert Smith Freehills is engaged in a significant quantity of work generated by the US$900 billion Belt and Road initiative, advising on deals and projects worth over US$10 billion. Last week, the firm welcomed three new partners to our Greater China practice. Hew Kian Heong, Ellen Zhang and Michelle Li will further strengthen our existing team advising clients on Belt and Road projects.
“As China’s new business champions go global, we are increasingly well-placed to advise them on expansion around the globe, including any international disputes that may arise – both along the Belt and Road and other investment corridors,” said D’Agostino.
For further information, please contact Justin D’Agostino, Global Head of Practice – Dispute Resolution and Regional Managing Partner – Asia, or your usual Herbert Smith Freehills contact.
An international convention on the enforcement of mediated settlements – UNCITRAL moves one step closer
The UNCITRAL working group that has for several years now been considering the potential for an international enforcement regime for international mediation has now completed its work and produced draft instruments.
At its most recent meeting in New York, the UNCITRAL Working Group II (Dispute Settlement – formerly Arbitration and Conciliation) approved a draft convention and a draft amended Model Law on international settlement agreements resulting from mediation. Continue reading
Hong Kong Courts grant anti-suit injunctions to restrain foreign proceedings in breach of an arbitration agreement
In Arjowiggins HKK2 Ltd v Shandong Chenming Paper Holdings Ltd  HKCFI 93, the Hong Kong Court of First Instance has granted an anti-suit injunction in favour of a recipient of a Hong Kong arbitral award to restrain the continuation of the overseas proceedings by the losing party. The Court held that Continue reading
There has been a significant increase in interest in, and the use of, cryptocurrencies in recent times. Cryptocurrencies are essentially de-centralised virtual currencies, which are not linked to any particular country, nor regulated by any central bank or monetary authority.
In late December 2017, the Singapore International Commercial Court (SICC) decided that the nation’s first dispute involving cryptocurrency merits a full trial. While this case does not involve questions of the legality of cryptocurrency itself, it involves issues relating to the manner in which such cryptocurrencies are traded. Continue reading
It has recently been announced that a new “Japan International Mediation Centre” is to open in Kyoto, reportedly in early 2018.
Mediation is a form of alternative dispute resolution in which an independent third party helps resolve a dispute through negotiation. The opening of a new centre dedicated to resolving commercial disputes in this manner is an interesting – and welcome – addition to the international dispute resolution landscape in Japan.
To read more on this development, please click here.
Amendments to the Singapore International Commercial Court Regime to strengthen Singapore as an international arbitration seat of choice
On 9 January 2018, amendments were passed to the Supreme Court of Judicature (Amendment) Act (“SCJA “) which clarify that the Singapore International Commercial Court (“SICC“) has jurisdiction to hear proceedings relating to international commercial arbitration. The amendments also abolish the pre-action certificate procedure for applications to the SICC.
Established in 2015 as the ‘international’ division of the Singapore High Court, the SICC has gone from strength to strength in a short span of time, gaining a reputation for the quality and speed of judgments rendered. Since its establishment the SICC has heard 17 cases on matters ranging from construction, investment, banking and finance, and shipbuilding, all of which are high value cases involving international parties and counsel.
These latest amendments, along with the addition of four new esteemed international jurists to the SICC bench, are intended to further increase the popularity and usage of the SICC, and Singapore as a preferred seat of international arbitration. Continue reading
Hong Kong Court confirms third party banks do not owe a duty of care to holders of Mareva Injunctions
The Hong Kong court has for the first time held that a third party bank does not owe a duty of care to the holder of a Mareva injunction. Applying the reasoning of an English decision, the Court of First Instance in Grasberg Capital Asia Limited v Bank of Communications Limited concluded that it was not fair, just or reasonable to impose such a duty of care and that it was ‘plain and obvious’ that one did not exist. Continue reading
Court of first instance considers auditor’s duty to detect and report irregularities in accounting statements
In Days Impex Ltd v Fung Yu  HKEC 2269, the Court of First Instance refused to strike out a negligence claim brought against an audit firm for failing to detect a substantial fraud at two of its client companies, both of which are now in liquidation. Importantly, the Court held that an auditor’s duty is not as narrow as to be restricted to the provision of information and advice. Instead, the duty can extend to detecting material irregularities in the client’s accounting statements and reporting any fraud or suspected fraud to the company (and, in some cases, to relevant regulatory or enforcement authorities). Continue reading
On 1 November 2017, the Kuala Lumpur Regional Centre for Arbitration (KLRCA) and the International Court of Arbitration of the International Chamber of Commerce (ICC) signed a Memorandum of Understanding (MoU), agreeing to work together to promote dispute resolution in Asia.
The signing of the MoU will further enhance the relationship between the two institutions, on top of their previous collaborations such as the ICC-KLRCA International Arbitration Conference in 2016 and the 1st ICC-KLRCA Vis Pre Moot earlier this year. More collaboration on training and other joint programmes is anticipated as part of the two institutions’ efforts under the MoU to increase the profile of arbitration in the region and to promote and develop Malaysia as an arbitration-friendly seat for arbitration in Asia. The MOU also provides for KLRCA will to provide hearing space to ICC and its users.
There has been a steep increase in cases over recent years in Malaysia administered by the KLRCA. Additionally, the ICC recently announced the establishment of its case management office in Singapore. This MoU can is evidence of the two institutions’ plans to further expand their presence in the Asia region.
In another interesting development, KLRCA will be renamed the “Asian International Arbitration Centre” in 2018, to coincide with its 40th anniversary and as part of the KLRCA’s initiative to be the leading arbitration hub in Asia.
If you have questions or would like further information, please contact Peter Godwin (Managing Partner) of Herbert Smith Freehills’ Kuala Lumpur office or your usual Herbert Smith Freehills contact.