Category: Arbitration

Singapore Court of Appeal introduces a lower standard of review for debtors defending a disputed debt that is subject to an arbitration agreement

In AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Company) [2020] SGCA 33, Justice Steven Chong, delivering the judgment of the Court, (1) overturned the decision of the High Court which allowed a creditor (VTB Bank) to proceed with its winding up petition against a debtor (AnAn), and (2) upheld the arbitration agreement pursuant to which the dispute underlying the debt should first be resolved.  In doing so, the Court of Appeal reaffirmed Singapore’s pro-arbitration stance while also recognising that special considerations may apply in the context of possible insolvency.

The Court of Appeal removed the “triable issue” standard that ordinarily applies to debtors who challenge a winding up application on the basis of an underlying dispute. The Court of Appeal found that where any such dispute is subject to an arbitration agreement, the standard to be applied should be the lower “prima facie” standard of review. This does not mean, however, that debtors will be permitted to defeat all winding up applications by raising disputes which are subject to arbitration agreements. A debtor must still prove its bona fides in alleging a dispute over the debt. Further, where the creditor has legitimate concerns over the solvency of the debtor company, the ‘triable issue’ standard is reintroduced: if the debtor is unable to prove any triable issues, the winding up application will be stayed, and not dismissed, offering the creditor some security over the management of the company’s assets until the arbitration is concluded. Alternatively, the debtor may be required to provide an undertaking to that effect until the arbitration is concluded. Continue reading

Malaysia: Court of Appeal suspends recognition and enforcement of an award on the basis it is not yet binding

In Malaysian Bio-Xcell Sdn Bhd v Lebas Technologies Sdn Bhd and another appeal (Civil Appeal Nos. W-02(IM)(C)-1532-07/2018 and W-02(IM)(C)-1533-07/2018), the Court of Appeal determined, for the first time, an application to suspend the enforcement of an award on the basis that the award has not yet become binding on the parties to the award. Faced with an application to refuse the recognition of the award, the Court of Appeal was asked to consider the circumstances in which an award is deemed to be ‘not yet binding’ under Malaysia’s Arbitration Act 2005 (“Act”). Continue reading

Hong Kong Court affirms discretion to wind up foreign company, refuses stay to arbitration

In Champ Prestige International Limited v China City Construction (International) Co, Limited and Dingway Investment Limited, the Hong Kong Court of First Instance reaffirmed the court’s discretion to order the winding-up of a foreign-incorporated company on just and equitable grounds, but refused to stay the winding-up petition in favour of arbitration. Continue reading

Malaysian Court of Appeal considers injunctions to restrain the calling of performance bonds in support of arbitration

In the first half of 2019, Malaysia’s Court of Appeal considered no less than four appeals relating to applications to restrain the calling of performance bonds in the construction sector. These applications were made in support of arbitration under Section 11(1)(f) and (h) of the Malaysian Arbitration Act 2005 (“Act”) (prior to its amendments in 2018), which reads:

“11 Arbitration agreement and interim measures by High Court
(1) A party may, before or during arbitral proceedings, apply to a High Court for any interim measure and the High Court may make the following orders for:

(f) the preservation, interim custody or sale of any property which is the subject-matter of the dispute;

(h) an interim injunction or any other interim measures”

We briefly consider the four decisions of the Court of Appeal where the injunction sought to restrain the call on a performance bond was based on unconscionability,[1] and the practical considerations arising from the Malaysian courts’ treatment of such applications. Continue reading

Hong Kong Court dismisses set aside application where party alleges arbitration agreement a sham

The Hong Kong Court of First Instance dismissed an application to set aside an arbitral award, rejecting claims that the underlying agreement was a sham and that enforcement of the award would be contrary to the public policy of Hong Kong. The Court did not accept that the Defendant had signed the relevant agreement as agent for another party, in order to conceal that party’s involvement in breach of his fiduciary duties. If it had, the Plaintiff was complicit, and could not be allowed to benefit financially from the arrangement.

The Court also refused to set aside on public policy grounds. Hong Kong courts construe the public policy ground narrowly. Moreover, a set aside application must clearly set out the grounds on which it is based, as must the supporting affidavit; the Court cannot consider any other grounds. Continue reading

CICC delivers first ruling, confirms arbitration agreements severable

The First International Commercial Court of the Supreme People’s Court of China (“CICC“) has recently published its first rulings [1] on the validity of three arbitration agreements in relation to one same transaction. CICC recognised the principle of severability of arbitration agreement and held that although the underlying contracts had not been formally signed, the parties had reached valid arbitration agreements.

Background

The dispute concerns a proposed sale of shares in Newpower Enterprise Inc. (the “Target“) by Luck Treat Limited (the “Seller“) to Zhongyuan Cheng Commercial Investment Holdings Co., Ltd. (the “Purchaser“) for a consideration of RMB900 million. The parties negotiated the sale and purchase agreement (the “SPA“) but it was never signed. The Seller is a subsidiary of China National Travel Service Group Corporation and holds 100% shares in the Target. The Seller and the Target are incorporated in the BVI, while the Purchaser is a PRC company.

In connection with the share transfer, the Purchaser and a number of the Seller’s affiliates also intended to enter into a debt settlement agreement (the “DSA“) under which the Purchaser was to pay certain debts owed by the Target and the Seller’s affiliates.

In the course of May 2017, the parties negotiated on the terms of the SPA and the DSA through email correspondence. The draft SPA and DSA both provide that the SPA/DSA shall be governed by PRC law and that disputes shall be submitted to arbitration administered by the Shenzhen Court of International Arbitration (“SCIA“). The dispute resolution clauses in the draft SPA and the draft DSA have not been changed since 11 May 2017.

The negotiations were very advanced and the parties proceeded to their respective internal approvals for signing in mid-May 2017. On 1 June 2017, the Seller issued a letter to the Purchaser, indicating that the purchase of Target’s shares would constitute an overseas investment under the applicable PRC laws, and thus the Purchaser was required to apply for certain governmental approval or filing procedures. The intended signing did not take place subsequently.

On 4 April 2018, the Purchaser commenced arbitration against the Seller and its affiliates in SCIA. In response, the Seller and its affiliates applied to the Intermediate People’s Court of Shenzhen for a confirmation that parties have not entered into valid arbitration agreements.

CICC considered this case significant and took it over.

CICC’s Rulings

The main issue for CICC to decide was whether the arbitration agreements in respect of the SPA and the DSA have been validly formed.

CICC first confirmed that this issue falls within its jurisdiction as a dispute on the validity of the arbitration agreement under Article 20 of the PRC Arbitration Law (the “Arbitration Law“).

It further confirmed that the governing law of the arbitration agreements was PRC law because the parties agreed so, and went on to apply PRC law to determine the validity of the disputed arbitration agreements at the beginning of the formal inquiry of the case. CICC then referred to Article 16 of the Arbitration Law, which provides that an arbitration agreement includes (1) the arbitration clauses provided in the contract, and (2) any other written form of agreement concluded before or after the disputes. In this case, the disputed arbitration agreements were in the form of arbitration clauses in the SPA/DSA.

CICC emphasised that it has been well established that an arbitration agreement (including in the form of an arbitration clause) is separable and independent from the underlying contract in which it is contained (the doctrine of severability of an arbitration agreement). The existence, validity and governing law of the arbitration agreement are to be considered separately from those of the underlying contract.

CICC referred to the doctrine of severability of arbitration agreement under PRC law as the legal basis. Article 19(1) of the Arbitration Law provides that an arbitration agreement shall exist independently, and any changes to, rescission, termination or invalidity of the contract shall not affect the validity of the arbitration agreement. In addition, Section 10(2) of the Interpretation of the Supreme People’s Court on the Application of the Arbitration Law specifically provides that where the parties reach an agreement for arbitration regarding the dispute when entering into a contract, the validity of the arbitration agreement shall not be impacted even if the contract is not formed.

In arriving at its decision that the disputed arbitration agreements have been validly formed, CICC looked at the parties’ negotiation history and considered whether the parties had in fact consented to submit any disputes to arbitration. Arbitration agreements, like other contracts, are governed by the relevant rules on contract formation, and specifically, rules regarding offer and acceptance under PRC law.

CICC gave weight to the fact that the earliest draft SPA provided by China Beijing Equity Exchange contained a clause allowing parties to submit the dispute to Beijing Arbitration Commission for arbitration. Upon negotiation, the parties changed the arbitration institution to SCIA and the arbitration clauses in the draft SPA and the draft DSA remained unchanged since 11 May 2017. Therefore, CICC came to the conclusion that the parties have consented to the agreement to arbitrate. Valid arbitration agreements have been formed, regardless of whether the SPA and DSA were signed. CICC also stated that whether valid SPA and DSA have been entered into is a separate issue for the arbitral tribunal to decide.

Comment

The first rulings of CICC are significant as CICC expressly confirms the doctrine of severability of arbitration agreement under PRC law. While Article 20 of the Arbitration Law does not expressly provides so, CICC confirmed that the dispute over formation of an arbitration agreement falls within the scope of a dispute over validity of the arbitration agreement.

This case also demonstrates CICC’s efforts to reduce any possible delays due to the tiered reporting mechanism and improve the efficiency to resolve international commercial disputes through its review of significant international commercial cases at first instance.

 

[1] The case reference numbers for the first three rulings are (2019) Zui Gao Fa Min Te No.1, 2 and 3, respectively.

 

For more information, please contact Helen Tang, Stella Hu, Briana Young or your usual Herbert Smith Freehills contact.

Helen Tang
Helen Tang
Partner, Mainland China
+86 21 2322 2160
Stella Hu
Stella Hu
Senior Consultant, Hong Kong
+852 2101 4248
Briana Young
Briana Young
Foreign Legal Consultant (England & Wales)/Professional Support Consultant, Hong Kong
+852 2101 4214

Hong Kong–Mainland interim relief arrangement takes effect today, 1 October

The Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region takes effect today, 1 October 2019, in both Mainland China and Hong Kong.  The SPC has also released an explanatory memo setting out its understanding of key aspects of the Arrangement and its implementation.

The SPC and the DOJ signed the Arrangement on 2 April 2019.  As  reported in our posts of 2 April and 4 April, the Arrangement empowers Mainland Chinese courts  to order interim measures in support of Hong Kong-seated arbitrations, making Hong Kong the only seat outside Mainland China to benefit from such support.

The SPC and DOJ also released a list of “qualified arbitral institutions” in Hong Kong. These are the only institutions whose arbitrations  enjoy the benefit of the Arrangement.  They include:

  • Hong Kong International Arbitration Centre
  • China International Economic and Trade Arbitration Commission Hong Kong Arbitration Center
  • International Court of Arbitration of the International Chamber of Commerce – Asia Office
  • Hong Kong Maritime Arbitration Group
  • South China International Arbitration Center (HK)
  • eBRAM International Online Dispute Resolution Centre

Among other things, the SPC memo confirms that the Arrangement will apply to arbitral proceedings commenced prior to, but not yet completed as of, 1 October 2019.  As such, we anticipate that interim relief applications under the Arrangement are likely to emerge soon.

Dominic Geiser
Dominic Geiser
Partner, Hong Kong
+852 2101 4629
Kathryn Sanger
Kathryn Sanger
Partner, Hong Kong
+852 2101 4029
Helen Tang
Helen Tang
Partner, Shanghai
+86 21 2322 2160
Stella Hu
Stella Hu
Senior Consultant, Hong Kong
+852 2101 4248
Jojo Fan
Jojo Fan
Senior Consultant, Hong Kong
+852 2101 4254

 

HONG KONG: COURT GRANTS ANTI-SUIT INJUNCTION TO RESTRAIN FOREIGN PROCEEDINGS IN BREACH OF AN ARBITRATION AGREEMENT UNDER AN INSURANCE POLICY

In the recent case of AIG Insurance Hong Kong Ltd v Lynn McCullough and William McCullough [2019] HKCFI 1649, the Hong Kong Court of First Instance (CFI) considered the effect of an arbitration agreement under an insurance policy and, in particular, the circumstances in which an anti-suit injunction may be granted to restrain a party from pursuing foreign proceedings.

The CFI held that, as a matter of Hong Kong law, a party is not entitled to found a claim on rights arising out of an insurance policy without also being bound by the dispute resolution provisions in the policy. The CFI went on to hold that an anti-suit injunction will ordinarily be granted to restrain such a claimant from pursuing proceedings in a non-contractual forum unless there are strong reasons to the contrary.

The full judgment is available here.

BACKGROUND

The underlying facts of the case relate to an accident which took place whilst Mrs Lynn McCullough and Mr William McCullough were on holiday in the Caribbean in 2015. During that holiday, Mrs McCullough suffered a fall from a zip line, owned and operated by Rain Forest Adventures (Holdings) Ltd, Rain Forest Sky Rides Ltd and Rain Forest Tram Ltd (together, Rain Forest), and was rendered permanently quadriplegic.

AIG Insurance Hong Kong Ltd (AIG) had previously issued a Directors’ and Officers’ Liability Insurance Policy to Rain Forest (the Policy). The Policy covered Rain Forest (as the policyholder) and its directors, including a Mr Harald Joachim von der Goltz. The Policy referred any disputes arising under the Policy to arbitration in Hong Kong under the rules of the Hong Kong International Arbitration Centre (HKIAC).

On 15 January 2016, the McCulloughs commenced a claim in the Florida courts against several defendants, including Rain Forest, alleging negligence in the operation of the zip line excursion. They sought damages for the injuries that Mrs McCullough sustained.

On 14 July 2016, the McCulloughs filed a Second Amended Complaint adding Mr von der Goltz as a defendant, who subsequently gave notice to AIG that he was seeking an indemnity under the Policy as a director of the policy holder. The claim was rejected by AIG on the basis that claims resulting from a bodily injury were excluded under the Policy.

On 24 April 2018, a dispute resolution agreement was entered into by the McCulloughs and the Rain Forest defendants now including Mr von der Goltz. This agreement was approved by the Florida court which referred the matter to arbitration. The arbitration award was subsequently issued on 28 May 2018 and judgment was entered into on 12 July 2018 in favour of the McCulloughs against, among others, Mr von der Goltz, in the sum of US$ 65.5 million.

On 20 August 2018, the McCulloughs filed the Third Amended Complaint adding AIG as a defendant. The Third Amended Complaint contained a “common law tort claim available under Florida law against [AIG] for having failed to act in good faith in handling, litigating, and settling the US Proceedings, resulting in an excess judgment (i.e. judgment in excess of Policy limits) being entered into against the insured, Mr. von der Goltz” (the Bad Faith Claim). The nature of the Bad Faith Claim was that if AIG had honoured the Policy and provided Mr von der Goltz with US$ 5 million in coverage (i.e. the Policy limit), it would have been possible for him to have settled the McCulloughs’ claim. It was submitted that this failure by AIG exposed Mr von der Goltz to a liability of US$ 65.5 million and as a result, he had a claim against AIG for this amount. The right to claim directly against AIG for the US$ 65.5 million was said to be based on the McCulloughs being judgment creditors of Mr von der Goltz.

In the instant case, there were two applications before the CFI:

  1. An application from AIG for a continuation of an ex parte injunction originally issued on 18 December 2018 by DHCJ Simon Leung restraining the McCulloughs from pursuing proceedings in the Florida courts against AIG on the basis that the Policy provides that all disputes regarding coverage under the Policy should be settled by arbitration in Hong Kong under the HKIAC Rules; and
  2. An application from the McCulloughs for, amongst other things, (1) a declaration that the CFI should not exercise any jurisdiction that it may have; and (2) an order staying the action in the Hong Kong courts in favour of the proceedings in the Florida courts.

AIG’s position was that the underlying issue of coverage under the Policy should be determined by arbitration in Hong Kong under the HKIAC rules, irrespective of whether or not the McCulloughs were the insured under the Policy.

The McCullough’s position was that their cause of action against AIG was a freestanding tortious claim and that, as non-parties to the Policy, they cannot be compelled to arbitrate it.

Accordingly, the principal question for the CFI to decide was whether the proceedings commenced by the McCulloughs in the Florida courts, despite the McCulloughs not being parties to the Policy, amounted in substance to a claim to enforce the Policy such that the McCulloughs were bound by the agreement to arbitrate as set out in the Policy.

DECISION

The CFI accepted the position of AIG that the dispute was to be resolved in accordance with the dispute resolution procedure provided for in the Policy, namely by arbitration in Hong Kong under the HKIAC rules, and exercised its equitable jurisdiction to grant an anti-suit injunction restraining the McCulloughs from pursuing proceedings in the Florida courts.

The CFI held that the relevant issue for the purposes of determining whether the anti-suit injunction should be granted was whether there was coverage under the Policy: “Such issue is clearly contractual, since it determines the liability of the insurer to the insured under the terms of the policy“. The CFI went on to hold that the establishment of coverage is a pre-condition to the Bad Faith Claim against AIG and, as a matter of Hong Kong law, the governing law of the Policy, AIG is entitled to have it determined in accordance with the contractual procedure.

In this regard, the CFI followed the principle applied in Qingdao Huiquan Shipping Company v Shanghai Dong He Xin Industry Group Co Ltd [2018] EWHC 3009 (Comm) that a party “is not entitled to found a claim on rights arising out of a contract without also being bound by the forum provisions of that contract“.

The CFI concluded that an anti-suit injunction will ordinarily be granted to restrain a claimant from pursuing proceedings in a non-contractual forum unless there are strong reasons to the contrary, whether the claimant is a party to the policy or not. The basis of the CFI’s decision was that a dispute resolution provision is an essential part of the contractual basis upon which coverage arises under an insurance policy, and a party seeking to enforce a policy cannot do so free of its contractual dispute resolution mechanism.

COMMENTS

This case serves as a useful reminder of the Hong Kong courts’ desire to give effect to an arbitration agreement wherever appropriate, albeit on this occasion in somewhat unusual circumstances. In so doing, the CFI has further reinforced Hong Kong’s reputation as a pro-arbitration jurisdiction.

In making its decision, the CFI has helpfully confirmed that an anti-suit injunction to restrain a party from pursuing proceedings in a non-contractual forum will ordinarily only be denied if there are strong reasons not to grant it. Accordingly, the Court has emphasised the high bar that the counter-party has to meet in order to resist such an injunction.

May Tai
May Tai
Managing Partner, Greater China
+852 2101 4031
Simon Chapman
Simon Chapman
Partner, Hong Kong
+852 2101 4217
Kathryn Sanger
Kathryn Sanger
Partner, Hong Kong
+852 2101 4029
Madhu Krishnan
Madhu Krishnan
Registered Foreign Lawyer (England & Wales)
+852 2101 4207

 

No If, No But – Will an arbitration agreement always trump a winding-up petition?

In But Ka Chon v Interactive Brokers LLC [2019] HKCA 873, the Hong Kong Court of Appeal dismissed an appeal to set aside a statutory demand arising out of online forex futures trading debts. In doing so, Vice-President Kwan of the Court of Appeal made obiter comments on the circumstances in which a winding-up petition would be set aside where the parties to a contract had agreed to arbitration for dispute resolution.

Background

Mr But’s margin account with Interactive Brokers (“IB“) suffered a large loss when the Swiss Franc/Euro exchange rate was unpegged in 2015. IB issued a margin call but Mr But did not inject funds into his account to resolve the margin deficit. IB accordingly proceeded to liquidate Mr But’s assets and positions and served a statutory demand on Mr But for the balance of the deficit plus interest at margin interest rates.

Mr But sought to set aside the statutory demand on the basis of (i) a counterclaim for misrepresentation and (ii) that the dispute should be arbitrated pursuant to an arbitration clause in his contract with IB. The application failed and Mr But appealed to the Court of Appeal.

Decision in the High Court

The High Court noted that the judgment in Re Southwest Pacific Bauxite (HK) Ltd [2018] 2 HKLRD 449 (known as the Lasmos case“) had departed from previous authorities and had adopted a new approach. This was to generally dismiss winding-up petitions where three requirements were met:

  1. the company disputes the debt relied on by the petitioner;
  2. the contract under which the debt is alleged to arise contains an arbitration clause that covers any dispute relating to the debt; and
  3. the company takes the steps required under the arbitration clause to commence the contractually mandated dispute resolution process (which might include preliminary stages such as mediation) and demonstrates this to the Court.

The effect of the Lasmos case is that, where these three requirements are met, the company is entitled to have the petition dismissed without having to show that the petitioning debt is bona fide disputed on substantial grounds. Where there is an arbitration clause, it is sufficient to show that the debt is “disputed” and for that it is sufficient to show the debt is not admitted.

The High Court in But Ka Chon did not challenge the Lasmos approach, but simply found that the new approach was inapplicable to the instant case because the lower court judge had already adjudged on the dispute by way of Mr But’s claim that he had been induced by IB’s misrepresentations to enter into the contract. The misrepresentation claim was of no merit. There was therefore no genuine dispute to be arbitrated.

The judge also found that, even had the Lasmos approach been applicable, Mr But had not satisfied the third requirement in the Lasmos approach because he had not taken any steps to commence arbitration. The lower court judge therefore declined to set aside the statutory demand.

Decision in the Court of Appeal

The Court of Appeal agreed with the rationale of the judge below and found that it did not need to determine whether the Lasmos approach or previous approaches were applicable to the instant case. It held that, if the Lasmos approach was applicable, the third requirement of Lasmos would in any event not have been complied with based on the fact that Mr But had not demonstrated his genuine intention to arbitrate for more than two years after having first raised the possibility of commencing arbitration, and that no Notice of Arbitration was ever served on IB. The appeal was therefore dismissed.

Obiter commentary on the Lasmos approach

The Court of Appeal also made the following obiter observations on the Lasmos approach given the importance of this issue to insolvency proceedings:

  1. Insolvency petitions do not fall into Article 8(1) of the UNCITRAL Model Law on International Commercial Arbitration (which is adopted in section 20 of the Arbitration Ordinance). There is no automatic, mandatory or non-discretionary stay on insolvency petitions where there is an underlying arbitration agreement.
  2. The Court has a discretionary power under insolvency legislation whether to dismiss or stay a petition where the alleged debt arises out of a transaction containing an arbitration agreement. The Court will consider all relevant circumstances, including the financial position of the company, the existence of other creditors and the position taken by them.
  3. The creditor has a statutory right to petition for bankruptcy or winding-up on the ground of insolvency.
  4. The Lasmos case decided (following the English case Salford Estates (No 2) Ltd v Altomart Ltd (No2) [2015] Ch 589) that the discretion under the insolvency legislation should be exercised only one way (i.e. that the petition should “generally be dismissed” save in “exceptional” or “wholly exceptional” circumstances, upon satisfaction of the three requirements). It is settled law that the “petitioning debt not being admitted” means a dispute sufficient for the purpose of arbitration, without regard to the quality of the dispute or substantive merits.
  5. The Lasmos approach constitutes a substantial curtailment of the creditor’s statutory right to petition for bankruptcy. Separately, in the case of Sit Kwong Lam v Petrolimex Singapore Pte Ltd [2019] HKCFI 920, it has also been held that an arbitration clause which purports to restrict or fetter a creditor’s statutory right to petition would not be allowed by the Court for public policy reasons.
  6. The Eastern Caribbean Court has refused to adopt the Salford approach, as the BVI Court’s statutory jurisdiction to wind up a company based on its inability to pay its debts as they fall due unless the debt is disputed on genuine and substantial grounds is too firmly a part of BVI law to now require a creditor exercising the statutory right to prove exceptional circumstances to establish his status to wind up a company. The statutory jurisdiction is satisfied once the creditor is applying on the basis of a debt that is not disputed on genuine and substantial grounds. The position is the same as regards the insolvency legislation in Hong Kong.
  7. The Court of Appeal therefore has reservations if the discretion under the insolvency legislation should be exercised only one way to substantially curtail the right of the creditor to present a petition.
  8. Considerable weight should be given to the factor of arbitration in the exercise of the Court’s discretion.
  9. Discretion should not be exercised in a way that would inevitably encourage parties to an arbitration agreement to seek to bypass the arbitration agreement/legislation by presenting a winding-up petition. The Court is not powerless to deal with such tactics. The discretion should also not invariably be exercised in favour of the creditor where the Court is satisfied that there is no bona fide dispute on substantial grounds.
  10. Possible ways of exercising this discretion include requiring the debtor to establish in the normal way that there is a bona fide dispute on substantial grounds, failing which, the debtor can only expect a short adjournment to enable it to commence arbitration.
  11. The debtor cannot simply put up its hands and say: “You, the court, have no jurisdiction because of my contract.” That is not what the contract says, and the Court is entitled to be satisfied that there is a proper dispute

Comments

The Court’s obiter comments indicate the Court already has the tools it needs to deal with the tension between the creditor’s right to petition for a debtor’s bankruptcy and the parties’ rights to agree to arbitration in a contract. Vice-President Kwan’s analysis suggests that she believes that the Lasmos Case propounded an overly one-sided exercise of the Court’s discretion. She has reiterated that, where the Court is satisfied there is no bona fide dispute on substantial grounds, the discretion should not invariably be exercised in favour of the creditor.

 

Gareth Thomas
Gareth Thomas
Partner, Hong Kong
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Simon Chapman
Simon Chapman
Partner, Hong Kong
+852 2101 4217
Philip Lis
Philip Lis
Senior Associate, Hong Kong
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Jacob Sin
Jacob Sin
Associate, Hong Kong
+852 2101 4230

 

 

 

Singapore International Mediation Centre signs MOU with China International Economic and Trade Arbitration Commission and Korean Commercial Arbitration Board

The Mane Forum was held today in Singapore on the eve of a historic moment – the signing of the United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention.

This morning, the Singapore International Mediation Centre signed a Memorandum of Understanding with China International Economic and Trade Arbitration Commission and Korean Commercial Arbitration Board to commit to jointly promoting mediation consulting, joint conferences and training amongst other initiatives.

There was gripping discussion in the afternoon on the differing standards applicable to mediators and mediations around the world. Singapore was urged to take the lead to form a working group with prominent mediators from different jurisdictions to explore drawing up a uniform mediation practice code and submit a draft to the United Nations for further discussion.

Also explored was the potential to use Online Dispute Resolution as an additional tool to resolve suitable disputes.

Notable speakers today included Mr Edwin Tong, SC (Senior Minister of State, Ministry of Law and Ministry of Health), Dr Noeleen Heyzer (Former Under Secretary General of the United Nations), Ms Anna Joubin-Bret (Secretary of UNCITRAL), Mr Rimsky Yuen (Former Secretary for Justice in Hong Kong SAR), and various chairpersons and heads of eminent Arbitration and Mediation centres around Asia.