Update On Challenges to Arbitration Awards

Norton Rose Fulbright provide a cross border update of recent developments relating to challenges to awards in Singapore, Hong Kong and England. The authors cover a wide range of decisions including:

Jurisdiction

  • Non participation in an arbitration – the Singapore Court of Appeal’s decision in Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd [2019] SGCA 33, where the Court concluded that Article 16(3) of the Model Law should not be construed as having a preclusive effect to prevent a non-participating respondent from seeking to set aside an award. (click here for our earlier post on this case)
  • The power of a court to review a tribunal’s finding of no jurisdiction under s.67 of the English Act – GPF GP Sàrl v The Republic of Poland [2018] EWHC 409 (Comm), where the English Court set aside a tribunal’s ruling that it lacked jurisdiction.

Time

  • Extending the time under Article 34(3) of the Model Law for filing an application to set aside an award – BXS v BXT [2019] SGHC(I) 10, where the Singapore Court held that Article 34(3) imposed a mandatory limit which circumscribed the Court’s power to amend time limits. (click here for our earlier post on this case)
  • The discretion to extend the time limit for enforcing an award – CL v SCG [2019] HKCFI 398, where the Hong Kong Court considered that the limitation period for enforcing an award in Hong Kong was not affected by an enforcement action in China, thereby time barring the award creditor. (click here for our earlier post on this case)

Fraud, Corruption & Public Policy

  • Fraud on the tribunal – BVU v BVX [2019] SGHC 69, where the Singapore Court refused to set aside an ICC award alleged to have been procured by fraud or that it offended public policy, in this case because of the decision not to call upon a particular witness. (click here for our earlier post on this case)
  • Carpatsky Petroleum Corporations v PJSC Ukrnafta [2018] EWHC 2516 (Comm), where the English Court considered an argument that the award had been obtained by fraud because a witness who had been cross-examined in the arbitration had deliberately misrepresented the claimant’s financial position.

Serious Irregularity

  • Successful challenges under s.68 of the English Act: Oldham v QBE Insurance (Europe) Ltd [2017] EWHC 3045 (Comm), where the Court allowed a challenge to an arbitral award on costs where the applicant had not been given a reasonable opportunity to make submissions as to costs (see here); P v D [2017] EWHC 3273 (Comm), where the Commercial Court upheld a challenge to an LCIA award on the basis that the tribunal failed to deal with all the issues that were put to it (see here); RJ and another v HB [2018] EWHC 2833 (Comm), where the Commercial Court set aside an arbitral award for serious irregularity due to the tribunal’s failure to give the parties notice and a proper opportunity to consider and respond to a new point that ultimately affected the arbitrator’s reasoning in the award.

Other issues dealt with include:

  • Common law enforcement v enforcement proceedings: Xiamen Xinjingdi Group Co Ltd v Eton Properties Ltd v Eton Properties [2016] 2 HKLRD 1106 (see here);
  • Questions of multi-parties and multi contracts (Dickson Valora Group (Holdings) Co Ltd. v Fan Ji Qian [2019] HKCFI 48,(see here); Buda Pipe Rehabilitation Engineering v CPC;
  • The correct test for deciding a leave to appeal application under Schedule 2 of the Arbitration Ordinance in respect of an error of law – Chun Wo Construction & Engineering v The Hong Kong Housing Authority.

About Phillip Rompotis

Phillip practices as a barrister and arbitrator in Hong Kong. He has over 25 years’ litigation and arbitration experience in commercial disputes relating to construction & engineering, financial services, joint venture & shareholders agreements, technology, trusts, property and landlord & tenant. He is a Fellow of the Chartered Institute of Arbitrators, the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and a member of various lists/panels of arbitrators.

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