Arbitrium Newsletter No. 12 – 1 January 2021

May 2021 bring love, joy, health, peace and prosperity to all of our readers, their families and friends.


The past few months has seen important developments in international arbitration jurisprudence.  Of particular note are two decisions from the English Supreme Court; Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb – which sought to introduce a measure of certainty in an area of the law which has long been unclear, tackling the question of how the governing law of an arbitration agreement is to be determined when the law applicable to the contract containing it differs from the law of the seat of the arbitration; and the much anticipated Halliburton Company v Chubb Bermuda Insurance Ltd, where the Supreme Court considered the approach under English law to arbitrators’ duties of disclosure and impartiality and whether an arbitrator’s failure to disclose appointments in multiple arbitrations with overlapping subject-matters and with only one common party would give rise to justifiable doubts of his impartiality.

We are pleased to have Kevin Warburton and Samantha Chan, from Tanner de Witt, one of Arbitrium’s sponsors, offer their thoughts on the Halliburton v Chubb case.  Many thanks to Kevin and Samantha for taking the time to share their thoughts on a case that has and will no doubt continue to give rise to commentary within international arbitration circles.

Arbitrator's Duty of Disclosure

Posted on December 26th, 2020 by Phillip Rompotis

Tanner De Witt provide a summary of Halliburton v Chubb, where the English Supreme Court considered issues of bias and disclosure.



In addition, we report on a number of other cases from England, Hong Kong and Singapore, including two cases dealing with time extensions in the context of set aside applications, an area which has seen a number of important decisions in recent times.



Hong Kong



Proposed Outcome-Related Fees Proposed for Hong Kong Arbitrations

Posted on December 17th, 2020 by Phillip Rompotis

按条件收费安排
On 17 December 2020, the Hong Kong Law Reform Commission published a consultation paper proposing lawyers could use outcome related fee structures for arbitration.


HK Court Refuses to Extend Time to Set Aside Award

Posted on November 15th, 2020 by Phillip Rompotis

拒绝延长时间
In a dispute arising out of a transfer agreement, the HK Court refused to extend time to apply to set aside an award, finding that the Applicants failed to give any explanation for their delay in making the application.


Arbitration and Insolvency

Posted on November 1st, 2020 by Phillip Rompotis

仲裁与破产
In a helpful and detailed review of the legal position in Hong Kong, the authors seek to ascertain HK’s position where a winding-up petition is issued on the just and equitable ground and the insolvency ground, suggesting a possible coherent approach.


HK Court Guidance on Slip Rule and Additional Awards

Posted on September 15th, 2020 by Phillip Rompotis

奖励和其他奖励的更正
The HK High Court explains the principles regarding the correction of awards under Article 33 of the Model Law, dismisses an application to set aside an award and allows the application to enforce the award.




Singapore



Singapore HC Considers Exclusive Jurisdiction and Arbitration Clauses

Posted on November 20th, 2020 by Phillip Rompotis

专属管辖权和仲裁条款
The Singapore HC considers whether the arbitration clause or the jurisdiction clause applied to the dispute, finding that the parties' intention was for the jurisdiction clause to carve out certain disputes from the arbitration clause.


Singapore CA Confirms Party Time-Barred From Challenging Award

Posted on November 10th, 2020 by Phillip Rompotis

时间栏
The Singapore CA finds that the Respondent’s set-aside application was filed more than three months after the award had been received by the parties; as the Court did not have any power to extend this time limit, the challenge was time- barred.


Singapore CA Refuses to Set Aside Award on Public Policy Ground

Posted on October 28th, 2020 by Phillip Rompotis

拒绝搁置公共政策奖
The Singapore CA dismisses an application to set aside an award on the ground of public policy because the tribunal held that they were prevented by the doctrine of res judicata from litigating on a component of their defence.




England



Proper Law of the Arbitration Agreement

Posted on October 12th, 2020 by Phillip Rompotis

仲裁协议的适当法律
The English Supreme Court introduces a measure of certainty in an area of the law which has long been unclear, tackling the question of how the governing law of an arbitration agreement is to be determined when the law applicable to the contract containing it differs from the law of the “seat” of the arbitration.


Strict Time Limit No Barrier Where Prima Facie Fraud

Posted on September 20th, 2020 by Phillip Rompotis

时间限制没有障碍
Notwithstanding the unprecedented delay in seeking to challenge the award, the English court finds that Nigeria established a prima facie case for fraudulent conduct, confirming that fairness ultimately outweighs considerations of extreme delay and finality to proceedings.




Miscellaneous



New ICC Arbitration Rules 2021

Posted on December 29th, 2020 by Phillip Rompotis

新的ICC仲裁规则
Ahead of the entry into force of the 2021 ICC Arbitration Rules, the International Court of Arbitration of the International Chamber of Commerce has released updates to its Note to Parties and Arbitral Tribunals on the Conduct of Arbitration under the ICC Rules of Arbitration, effective 1 January 2021.


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 Hong Kong 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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