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Category Archives: Legal Developments and Cases

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Arbitration: a new forum for business and human rights disputes?

This blog post was first published on the Practical Law Arbitration Blog. On 27-29 November 2017, the United Nations Forum on Business and Human Rights will convene in Geneva. Its central theme: Access to Effective Remedy. In line with this shifting focus by the international community on the third pillar of the UN Guiding Principles on Business and Human Rights (UNGPs), a working group of international law specialists published a proposal to use arbitration to resolve disputes that arise out of human rights abuses involving businesses (BHR disputes). The proposal for the

Hong Kong Court Refuses to Grant Crown Immunity to PRC State-Owned Enterprise

In TNB Fuel Services SDN BHD v. China National Coal Group Corporation HKCFI 1016 (“TNB Case“), the Court of First Instance (“CFI“) ruled that a PRC state-owned enterprise (“SOE“) was not entitled to Crown immunity. It upheld an arbitration award to be enforced against the SOE’s assets in Hong Kong. The TNB Case clarifies the position that any assertion of Crown immunity must come from the Crown; in this case by the Central People’s Government (“CPG“). SOEs will unlikely be granted Crown immunity, entitlement to which will be assessed by

PRC Court refuses to enforce SIAC arbitral award made by one arbitrator under expedited arbitration procedures when arbitration agreement provided for three arbitrators

In Noble Resources International Pte. Ltd v. Shanghai Good Credit International Trade Co., Ltd. (2016) Hu 01 Xie Wai Ren No. 1, the Shanghai No.1 Intermediate People’s Court in a judgment dated 11 August 2017 refused recognition and enforcement of a Singapore International Arbitration Centre (“SIAC“) arbitral award under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (“New York Convention“) on the basis that the composition of the arbitral tribunal and/or the arbitral procedure was not in accordance with the agreement of the parties.

Will life sciences provide a growth injection for international arbitration?

This blog post was first published on the Practical Law Arbitration blog. The use of international arbitration has expanded over the years to encompass a wide array of sectors. For example, while the majority of financial services disputes still end up in court, many of them are submitted to arbitration. Of the London Court of International Arbitration’s (LCIA’s) caseload in 2016, 20% comprised of such disputes. This was more than either construction or shipping. This raises the question of which other industry sectors might provide a larger number of arbitrations

ICC opens in the Abu Dhabi Global Market

The International Chamber of Commerce (“ICC“) has announced that it will open a new arbitration centre in the Abu Dhabi Global Market (“ADGM“), Abu Dhabi’s financial freezone located in the Al Maryah Island, which began operating in 2014. The centre will be known as the ADGM Arbitration Centre and is expected to open for business in January 2018. The ICC is a reputable and leading international arbitral institution with its headquarters in Paris. The ADGM Arbitration Centre will be the ICC’s third representative office worldwide – joining Shanghai and Sao Paolo

Hong Kong court appoints receivers to preserve assets in aid of arbitral proceedings in China

The Hong Kong High Court has appointed receivers over shares in a Hong Kong company as an interim measure to preserve the status quo and the value of the shares, pending the outcome of CIETAC arbitration proceedings in mainland China. The decision provides useful guidance on how parties can seek interim relief in aid of foreign arbitral proceedings, particularly in Mainland China or other jurisdictions that do not have comprehensive provisions for granting interim relief to preserve of assets pending the outcome of arbitral proceedings. In particular, the judge noted

Updates to Hong Kong Arbitration Ordinance: third party funding and arbitration over IP rights

On Wednesday, 14 June 2017, two sets of amendments to Hong Kong’s arbitration law were passed to clarify that: third party funding of arbitration, mediation and related proceedings is permitted under Hong Kong law, and disputes over intellectual property rights (“IPRs“) can be resolved through confidential arbitration and that it is not contrary to the public policy of Hong Kong to enforce arbitral awards involving IPRs. The relevant bills were the Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Bill 2016 (“Third Party Funding Bill“) and the Arbitration (Amendment) Bill 2016

Somewhere beyond the seen: Paris Court of Appeal sets aside an award on the basis of serious indications of money laundering after considering new evidence and reevaluating the record.

Abstract: On 21 February 2017, the Paris Court of Appeal set aside an UNCITRAL award on international public policy grounds due to serious indications of money laundering. Allegations of corruption and criminal activity have been used increasingly in recent years in French courts to argue for the setting aside of arbitral awards on the grounds of a breach of international public policy. This is the first time, however, that the Paris Court of Appeal has set aside an award on the basis of alleged money laundering. Further, this decision appears

More pro-arbitration measures in China for foreign investors

The PRC Supreme People’s Court recently announced changes promoting arbitration between companies incorporated in pilot free trade zones: wholly foreign owned enterprises incorporated in pilot free trade zones can now submit commercial disputes to foreign arbitration; and there is a possibility that China is opening the door to ad hoc arbitration. These changes, issued on 30 December 2016 in the Opinions on Provision of Judicial Safeguards to the Development of Pilot Free Trade Zones (Fa Fa [2016] No. 34) (“Opinions“), are major pro-arbitration changes to promote business in China’s free

The New VIAC Rules – Effective from 1 March 2017

On 1 March 2017, the new arbitration rules of the Vietnam International Arbitration Centre (VIAC) came into force, replacing the 2012 rules. The 2017 VIAC Rules include the following changes: Multiple Contracts (Article 6) – under the 2017 VIAC Rules parties will now have the opportunity to bring claims relating to more than one contract in a single Request for Arbitration, irrespective of whether the claims are made under one or more arbitration agreement. Consolidation (Article 15) – parties may now agree to consolidate two or more pending VIAC arbitrations

Effective Today: Revised ICC Rules of Arbitration

The revised ICC Rules of Arbitration are in effect as of today, 1 March 2017.  The Rules were revised to increase efficiency and accountability in ICC arbitrations and, most significantly, the revised Rules provide for a new expedited procedure that brings the ICC into line with fast-track procedures already available in a number of other arbitral institutions around the world. Unless parties opt out, the ICC’s new Expedited Procedure Rules will automatically apply to all arbitrations with arbitration agreements concluded after 1 March 2017 and with amounts in dispute up

The DIFC Courts – a “conduit jurisdiction” no more?

As we predicted in our Annual Seminar on Recent Developments in the UAE Dispute Resolution Landscape, back in November 2016, the use of the DIFC Courts as a “conduit jurisdiction” has been called into question. There has been much discussion in the Dubai legal community and beyond about the use of the DIFC Courts as a conduit jurisdiction for the recognition and enforcement of both foreign and domestic arbitral awards following the line of decisions in Banyan Tree v Meydan Group LLC, DNB Bank ASA v Gulf Eyadah, and the

The Hong Kong Court of First Instance Narrowly Construes the Arbitration Ordinance in Relation to Domestic Arbitrations and the Application of Schedule 2

In A v D [2016] CFI 1014/216 the Honourable Mimmie Chan J dismissed as “totally without merit” proceedings to set aside the decision of an arbitral tribunal and counterclaim on the alleged grounds of serious irregularity under section 4 of Schedule 2 of the Arbitration Ordinance, Cap. 609 (“the 2011 Ordinance“), imposing significant cost sanctions on the applicants. Background The Claimants and the Respondent were equity partners of a firm pursuant to terms set out in a letter dated 11 May 2007 (the “Agreement“). In accordance with the Agreement the

Consistency restored as Astro v Lippo appeal dismissed

In the latest instalment of the long-running dispute between Astro and Lippo, the Hong Kong Court of Appeal (CA) has dismissed Lippo’s appeal against a 2015 first instance decision allowing the enforcement of five arbitral awards, despite a ruling of the Singaporean courts refusing enforcement on the basis that the arbitral tribunal had acted outside its jurisdiction in making the awards. Although it upheld the first instance decision, the CA notably disagreed with the High Court’s finding that Lippo did not act in good faith and reflected this in its

Hong Kong Court Shows Zero Tolerance for Unmeritorious Applications to Set Aside Arbitral Awards

In Arjowiggins HKK2 Limited v X Co [2016] HCCT 53/2015, the Honourable Madame Justice Mimmie Chan of the Hong Kong Court of First Instance gave short shrift to an application for setting aside an HKIAC award on technical and procedural grounds that she “dismissed as totally without merit.” Background Arjowiggins HKK2 Co Ltd (the “Claimant”) entered into a joint venture agreement in October 2005 (the “JV Agreement“) with X Co (the “Respondent”) to set up a company for the purpose of manufacturing paper products in China (the “Company”).  Under the

CETA paves the way for Investment Court System

After seven years of negotiations, the European Union (EU) and Canada signed the Comprehensive Economic and Trade Agreement (CETA) on 30 October 2016. One innovative yet controversial aspect of CETA is the establishment of an international court to resolve investor-State disputes under the Agreement. As a result of demands by Belgium’s regional Walloon government, which previously threatened to block the Agreement, the introduction of this court has been deferred until the Court of Justice of the EU determines its compatibility with EU law.  Nevertheless, CETA marks the first time that

French Conseil d’Etat outlines its power to set aside an international arbitration award

On 9 November 2016, the French supreme administrative court (Conseil d’Etat) affirmed its power to review international arbitration awards arising from certain public law contracts, while the review of arbitral awards traditionally falls within the jurisdiction of Civil courts. In this decision, the Conseil d’Etat partially set aside an ICC award arising out of a public law contract, rendered in a Paris-seated arbitration, on the basis that it had violated a mandatory rule of administrative law. At the same time, however, the Conseil d’Etat proceeded to limit the scope of

What the International Arbitration Bill, 2016 will mean for arbitrations in South Africa

During the next few months, the International Arbitration Bill, 2016 will be presented to the South African National Assembly. The Bill, once enacted, is set to place South Africa on the main international arbitration stage by aligning the administration of arbitrations in South Africa to the Model Law of the United Nations Commission on International Trade Law (UNCITRAL). Previously, arbitrations were subject to the Arbitration Act (Act No. 42 of 1965), unless otherwise agreed. In terms of the Bill, any international commercial dispute which the parties have agreed to submit

Heads up for 23 October 2016 – the new 12 month time limit for Indian seated arbitration

In October 2015 India’s arbitration law underwent major changes with the enactment of the Arbitration and Conciliation (Amendment) Act 2015 (“Amendment Act“).  One of the most controversial provisions in the Amendment Act was the introduction of a 12 month time limit within which an arbitral award must be rendered (section 29A). The Amendment Act According to section 29A all arbitrations seated in India commenced after 23 October 2015 are required to have a final award issued within 12 months of the appointment of the tribunal. For parties who have commenced

Macanese Investor Succeeds in Reversing Singapore High Court’s Decision on Jurisdiction in its BIT Claim

A Macanese investor, Sanum Investments Ltd (“Sanum“), has successfully appealed a Singapore High Court decision on a tribunal’s jurisdiction to determine Sanum’s claims under the bilateral investment treaty (“BIT“) between the People’s Republic of China (“China“) and the Lao People’s Democratic Republic (“Laos“). The Court of Appeal’s decision in Sanum Investments Ltd v Government of the Lao People’s Democratic Republic [2016] SGCA 57, which was handed down on 29 September 2016, is discussed below. Background While Macau was under Portuguese rule, the China-Portugal Joint Declaration (“Declaration“) was signed in 1987,

English High Court Indicates New LCIA Rules Limit Court’s Power To Grant Interim Relief

Gerald Metals SA V The Trustees of the Timis Trust & others [2016] EWHC 2327 Summary In an important recent decision on the intersection between emergency arbitrator provisions and applications to court for interim relief, the English High Court held that it was only entitled to provide interim relief to a party to an arbitration agreement where either an emergency arbitrator or an expeditiously formed tribunal were unable to provide the requested relief.  The court also held that there was no substantive distinction between the various tests for interim relief

One Step Forward, Two Steps Back – PRC Court refuses to enforce an ICC award on the ground of public policy

In Wicor Holding A.G. v. Taizhou Haopu Investments Limited (Civil Action (2015) Tai Zhong Shang Zhong Shen Zi No. 00004), the Taizhou Intermediate People’s Court refused to enforce an ICC award on the ground of public policy. Facts Taizhou Haopu Investment Limited (“Haopu“) entered into a joint venture agreement (“JVA“) with Wicor Holding A.G. (“Wicor“) in 1997, establishing a joint venture company (“JV“).  The parties agreed in the JVA to have their disputes arbitrated “in accordance with ICC mediation and arbitration rules“.  The JVA also provided that “if one party

Hong Kong courts are to have due regard to decisions affecting an arbitral award rendered by a court at the seat of arbitration

In Dana Shipping and Trading SA v Sino Channel Asia Ltd (HCCT47/2015), the Honourable Madam Justice Mimmie Chan of the Hong Kong Court of First Instance (“CFI“), in the latest decision in this case, declined enforcement of an arbitral award that had been set aside at its seat in London. Background The enforcement proceedings concerned an arbitral award rendered in London-seated arbitral proceedings in favour of the Applicant (“the Award“). On 16 November 2015, the CFI granted an order to enforce the award (“the Enforcement Order“). On 27 November 2015,