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Does an arbitration agreement protect a debtor from the threat of liquidation?

Collaboratively authored by: Hogan Lovells Mr Ben Hornan, Partner – Hogan Lovells, London (ben.hornan@hoganlovells.com) Mr George Harnett, Senior Associate – Hogan Lovells, London (george.harnett@hoganlovells.com) Mr Chris Dobby, Partner – Hogan Lovells, Hong Kong (chris.dobby@hoganlovells.com) Mr James Kwan, Partner – Hogan Lovells, Hong Kong (james.kwan@hoganlovells.com) Mr Jonathan Leitch, Partner – Hogan Lovells, Hong Kong (jonathan.leitch@hoganlovells.com) Mr Kent Phillips, Partner – Hogan Lovells, Singapore (kent.phillips@hoganlovells.com) Shardul Amarchand Mangaldas & Co Ms Mayuri Tiwari Agarwala, Senior Associate – Shardul Amarchand Mangaldas & Co (mayuri.tiwari@amsshardul.com Dr Rishab Gupta, Partner – Shardul Amarchand Mangaldas &

The USMCA enters into force: a glimpse into its investment chapter

On July 1, 2020, the United States-Mexico-Canada Agreement (USMCA) entered into force, and replaced the North America Free Trade Agreement (NAFTA). USMCA contains an investment chapter: Chapter 14. Like NAFTA, USMCA encompasses substantive protections as well as mechanisms to settle disputes arising out of violations of such investment protections. Chapter 14 does not apply to measures covered by Chapter 17 – Financial Services. Some of Chapter 14’s highlights include the following: Chapter 14 applies only to the U.S. and Mexico Although USMCA appears as a tri-partite treaty, Chapter 14 applies

Force majeure claims in future waves of COVID-19: four key actions

As countries emerge from lockdown, talk turns to The Return of COVID-19. Here’s how to succeed in future force majeure claims and stop your projects becoming what sounds like a second-rate horror movie: 1. Decide COVID-19’s status as a force majeure event Is a subsequent COVID-19 wave a new event or a continuation of the first? The World Health Organisation still says COVID-19 is a pandemic. This might mean it’s a single continuing event. However, the project may be getting back to normal when it feels the impact. Read your

FIDIC COVID-19 Guidance Memorandum

The rapid spread of COVID-19 has disrupted global commerce, destabilized the world’s leading economies and affected businesses and projects across industries. The construction industry is no exception. COVID-19 has materially impacted construction projects worldwide. Since many of the construction projects are being delivered under FIDIC standard forms of contract, the International Federation of Consulting Engineers (“FIDIC”) has recently published its COVID-19 Guidance Memorandum (see here) outlining provisions in FIDIC’s various general conditions of contract relevant to different likely scenarios that may arise as a consequence of COVID-19. The purpose of

Arbitrating competition law disputes: U.S. and European perspectives

After the US Department of Justice’s victory in its first-ever arbitration of an antitrust matter, Hogan Lovells partners Meghan Rissmiller, Thomas Kendra and Christian Ritz ask if arbitration represents the way forward in competition law. On 9 March, the US Department of Justice Antitrust Division announced its win in an arbitration over market definition related to the merger of aluminum manufacturers Novelis and Aleris. This case marks the first – but likely not last – time that arbitration has been used by the Antitrust Division to resolve a dispute. Given

Appeals and challenges under the Arbitration Act 1996: Not so appealing anymore?

It is well-recognised that an advantage of London-seated arbitration is the limited grounds on which an arbitration award may be challenged or appealed in the English courts. The three grounds of challenge / appeal under the English Arbitration Act 1996 (the “Act”) are: lack of substantive jurisdiction of the arbitral tribunal (s.67); serious irregularity affecting the tribunal, the proceedings or the award that has caused or will cause substantial injustice to the applicant (s.68); and appeal on a point of law (s.69). The Commercial Court statistics for the court year

How Far Do Tribunals Have a Duty to Investigate Corruption? The Kenyan High Court Has Its Word

It is twelve years since an ICSID tribunal dismissed World Duty Free’s claim against the Republic of Kenya for breach of a lease agreement signed in 1989. As is well known, the claimant obtained the contract with a $2 million bribe to former President Moi, and the tribunal held, inter alia, that it could not uphold a claim based on a contract obtained through corruption, deeming it contrary to international public policy (World Duty Free Company Limited v Republic of Kenya (ICSID Case No. ARB/00/7), para. 188). Despite this 2006 award, World Duty

The Paris Court upholds the supranational nature of OHADA law in dismissing annulment application (CA Paris 16/25484, 20 December 2018)

The Paris Court of Appeals recently upheld an arbitral award applying OHADA law. The application to set aside the award had been brought by the State of Cameroon based on arguments made under Cameroonian law. However, the Court applied OHADA law over Cameroonian law, in the process confirming the supranational nature of OHADA law. This is therefore an interesting decision which shows the courts of a state external to OHADA confirming that law’s pre-eminent stature. After a brief review of the facts and procedure of the Garoubé saga leading to

Hong Kong Arbitration Week Recap: Making Arbitration Fit for the Future

Hogan Lovells hosted an event yesterday, 30 October 2018, at its Hong Kong office, as part of the Hong Kong Arbitration Week, titled “Making Arbitration Fit for the Future”.  The event was graced by the presence of Bernard Hanotiau as the keynote speaker, followed by speeches from HKIAC’s Sarah Grimmer and Hogan Lovells’ James Kwan, Julianne Hughes-Jennett and Dan González. Keynote Speaker: Bernard Hanotiau Bernard Hanotiau kicked off the seminar by noting its fascinating theme of making arbitration fit for the future, which in his view is to make arbitration

The establishment of three new organisations points to further growth in African arbitration

Africa’s economic growth is picking up pace and is expected to reach 6.3% in East Africa and 3.4% in Sub-Saharan Africa by the end of this year.  Foreign direct investment into Africa is also expected to increase from $41.8bn to $50bn, due in part to the signing of the historic African Continental Free Trade Area (AfCFTA) agreement in March. As international investment and trade in Africa increases, so does the number and frequency of commercial disputes, with arbitration increasingly becoming a preferred means of resolution.  The rise in arbitration in

“Attorney eyes only” order does not breach settled arbitral norms or natural justice

The Singapore High Court has refused an application to set aside an award on the basis that there had been a breach of natural justice. The central issue in the application was whether the imposition of an “attorney eyes only” order by the arbitral tribunal, restricting inspection of certain documents produced to counsel, amounted to a breach of natural justice that justified setting aside the award. The Singapore High Court rejected this argument on the basis that the tribunal had an inherent right to issue such an order, which is

Application to adjourn enforcement proceedings dismissed (Singapore High Court)

The Singapore High Court has refused an application to challenge the enforcement of a Danish Institute of Arbitration award, and dismissed an alternate argument for the adjournment of the enforcement proceedings. The applications to challenge enforcement were made pursuant to section 31(2)(c) and section 31(4)(b) of the International Arbitration Act (IAA) (Cap 143A, 2002 Rev Ed), on the basis that the applicant had been unable to properly present its case in the arbitration and that enforcement of the award would be contrary to the public policy of Singapore because of

Late twist to the Commisimpex saga as French Supreme Court reverses its position on state immunity from execution

On 10 January 2018, the French Supreme Court issued a second decision in the Commisimpex v Democratic Republic of Congo case, shifting its position on state immunity from execution. In the light of the new Sapin II law, the court held that a waiver of immunity from execution has to be both specific and express when it comes to seizing diplomatic assets. This decision is inconsistent with the approach taken in the French Supreme Court’s previous decision on 13 May 2015 in the same case. Introduction State immunity from execution

Newly published Judicial Interpretations on arbitration in China

On 29 December 2017, the Supreme People’s Court of China (SPC) published two judicial interpretations (Interpretations) which came into force on 1 January 2018. Both Interpretations sought to clarify and provide consistency to the judicial review process between domestic, foreign-related and foreign arbitrations in China. These Interpretations have the effect of guiding and regulating the lower Chinese courts’ judicial review process and are considered to be part of the SPC’s efforts to be seen as pro-arbitration. The most important aspect of these Interpretations is the removal of the distinction between

Applying for summary procedures in international arbitration: striking the balance

This blog post was first published on the Practical Law arbitration blog. The scope of arbitrators’ powers to order summary procedures is open to debate. Any application for summary measures requires careful consideration of the possible benefits to be gained from a successful application on the one hand, and the uncertainty associated with doing so on the other. Do arbitrators have the power to grant summary procedures? Whether or not arbitrators have the power to grant summary procedures in a particular case will depend, at least in the first instance,

THE SINGAPORE COURT OF APPEAL CLARIFIES THE ARBITRABILITY OF MINORITY SHAREHOLDER CLAIMS

The Singapore Court of Appeal has overturned the High Court’s decision in Maniach Pte Ltd v L Capital Jones Ltd and another [2016] SGHC 6 (see our earlier article), which concerned a dispute between the shareholders of the international gourmet food business, Jones the Grocer. At first instance, L Capital Jones, the majority shareholder, applied for orders that court proceedings concerning a minority shareholder oppression claim be stayed and instead be settled through arbitration, as its shareholder agreement with Maniach contained an arbitration agreement. The High Court rejected this application

Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Bill 2016

On 30 December 2016 the Hong Kong Government gazetted the Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Bill 2016 (“Bill“)*.  The Bill closely follows the recommendations made by the Law Reform Commission in the Report on Third Party Funding for Arbitration (“Report“) dated 12 October 2016 (see our note here). The Bill clarifies that the centuries-old doctrines of maintenance and champerty, which prohibit third party funding for litigation, do not apply to funding of arbitration and mediation.  It also proposes a new part (Part 10A) to be added to

SIAC Announces Release of the SIAC Investment Arbitration Rules

Further to our previous post the Singapore International Arbitration Centre (“SIAC“) announced on 30 December 2016 the official release of the first edition of its Investment Arbitration Rules (“SIAC IA Rules 2017“), a specialised set of rules to address the unique issues present in the conduct of international investment arbitration. The SIAC IA Rules 2017 came into effect on 1 January 2017. A copy of the rules can be found here. Mr Gary Born, President of the SIAC Court of Arbitration, commented that the rules “contain significant modifications to the

A Dawn of a New Era in Bahrain – Enactment of a New Arbitration Law

Bahrain has recently passed Law No. 9/2015 promulgating a standalone arbitration law (the “Law”), which significantly changes its arbitration regime. The Law is applicable to locally seated arbitrations, or if the parties agree foreign seated ones as well. The main feature of the Law is the incorporation of the well-known and tested UNCITRAL Model Law. The Law also provides for some unique features. According to the Law, the Bahraini High Court is the Court entrusted with considering and determining all arbitration related applications, including applications to enforce or set aside