Expert Evidence: Avoiding Pitfalls & Navigating the Minefield
A useful 2-part series dealing with expert evidence from the team at PwC China/Hong Kong.
Continue ReadingAuthor: Phillip Rompotis
Russia’s Favourite Arbitration Institutions
在俄罗斯的外国仲裁机构
Georgiou Payne Stewien LLP, one of Arbitrium’s sponsors, reviews the current state of recognition granted to foreign arbitration institutions in Russia, including the HKIAC, ICC and SIAC.
Privy Council Considers Illegality and Public Policy as Set Aside Ground
非法与公共政策
The Privy Council of England considers contract illegality and public policy as a ground to set aside an arbitration award, setting out the extent of permissible court intervention where illegality of contract has been determined by an arbitral tribunal.
HK Court Confirms Obligation to Negotiate Goes to Admissibility Not Jurisdiction
谈判义务属于可受理性而非管辖权
The HK Court confirms that an obligation to negotiate prior to commencement of arbitration proceedings goes to the admissibility of a claim, not to the jurisdiction of the tribunal.
HK Court Refuses to Set Aside Enforcement Order on Public Policy Ground
香港法院拒绝撤销执行中国裁决的命令
The HK Court refuses to set aside an order enforcing a PRC award on the basis that it was contrary to public policy or that certain orders made by the tribunal were outside the scope of the arbitration agreement between the parties.
Arbitrium Newsletter No. 13 – 1 June 2021
国际仲裁通讯
A range of cases from the region in this newsletter, highlighting that while the set aside remedy is relatively rare, courts will not hesitate to set aside an award where the award debtor can clearly demonstrate a statutory ground and the court considers the set aside justified.
Asymmetric Clauses, Multiple-Contracts and Arbitrating Against Non-Parties
更新财务仲裁中出现的常见问题
Tanner De Witt, one of Arbitrium’s proud sponsors, provides an update of common issues arising in financial arbitration proceedings, dealing with asymmetric arbitration clauses, multiple contracts incorporating multiple arbitration agreements and arbitrating against non-parties.
Overview of International Arbitration in the British Virgin Islands
英属维尔京群岛的国际仲裁概述
Harneys, one of Arbitrium’s proud sponsors, provides a useful overview of some of the key points of international arbitration in the British Virgin Islands.
Natural Justice & Jurisdiction Not Sufficient Grounds for Set Aside
没有根据自然正义或管辖权理由撤销裁决的依据
The Singapore Court of Appeal finds no basis to set aside an award on the grounds of excess of jurisdiction and/or breach of natural justice, and refuses to adopt the Hong Kong position of an award of indemnity costs against the unsuccessful party.
Australian Court Upholds Liberal Construction of Arbitration Clause
澳大利亚法院支持自由裁量权仲裁条款
An Australian court finds that an arbitration clause providing that “disputes or differences arising between the Parties” merited a liberal construction, and encompassed claims for relief based on estoppel by convention or statutory unconscionable conduct under the Australian Consumer Law.
Enforcement Allowed Despite Pending Setting Aside Applications
尽管有待搁置的申请，但仍允许执行
The Singapore High Court grants leave to enforce arbitration awards in circumstances where there were pending applications to set aside the same arbitral awards before the Singapore seat court.
Public Policy / Extension of Time / Fraud / Model Law Article 34(3) / Setting Aside Award / Singapore
Singapore CA Confirms Setting Aside Time Period Cannot be Extended
预留时间段不能延长
The Singapore Court of Appeal confirms that the 3-month time limit for setting aside an award cannot be extended even in cases of fraud.
Hong Kong Court Finds Third Party Bound by Arbitration Agreement
香港法院中止诉讼
The Hong Kong High Court stays third party proceedings on the basis that the parties were bound by the arbitration clause contained in the insurance policy, reinforcing the principle of party autonomy.
Wrongful Identification of Party Leads to Setting Aside in Hong Kong
错误的一方导致奖励被搁置
The Court sets aside an award on the basis that the party against whom an award had been rendered was not the party to the arbitration agreement.
Singapore Court Finds Breach of Natural Justice, Setting Aside Award
自然正义奖在新加坡被搁置
The Singapore High Court deals with a tribunal’s decision to deny a party a right to respond to new arguments introduced at the very end of the arbitral proceedings, deciding to set aside part of the award.
Natural Justice and Jurisdiction Concerns Results in Set Aside in Singapore
新加坡的自然正义与司法管辖权问题
The Singapore Court of Appeal deals with the issue of whether a tribunal has the power to convene a hearing only for oral submissions in circumstances where a party requests a hearing to submit oral evidence.
Hong Kong Court Refuses Enforcement
香港法院搁置执行裁决的命令
The Hong Kong High Court sets aside an order to enforce an arbitration award on the basis that the tribunal’s findings were beyond the scope of the arbitration clause and the parties submission to arbitration and that the respondent in the arbitration had not been given a reasonable opportunity to present its case and to meet the claimant’s case in the arbitration.
Implied Consent? Swiss Court Finds Non-Signatory Could Not be Joined
仲裁协议非当事人
Swiss Court finds that while a subcontractor was demonstrably involved in the performance of a main contract, it was insufficient to constitute implied consent to be bound by the arbitration agreement.
English CA Holds No Fiduciary Relationship Between Expert and Client
The English CA overturns the first instance judgment, holding that there was no fiduciary relationship between a construction expert and their client.
Continue Reading Arbitrium Newsletter No. 12 – 1 January 2021
仲裁通讯
In the first Newsletter for 2021, we report on two important English Supreme Court decisions – Enka Insaat and Halliburton, and a number of other decisions from England, Hong Kong and Singapore.
New ICC Arbitration Rules 2021
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.
Arbitrator’s Duty of Disclosure
Tanner De Witt provide a summary of Halliburton v Chubb, where the English Supreme Court considered issues of bias and disclosure.
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Proposed Outcome-Related Fees Proposed for Hong Kong Arbitrations
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.
Singapore HC Considers Exclusive Jurisdiction and Arbitration Clauses
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.
HK Court Refuses to Extend Time to Set Aside Award
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.
Singapore CA Confirms Party Time-Barred From Challenging Award
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.
Arbitration and Insolvency
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.
Singapore CA Refuses to Set Aside Award on Public Policy Ground
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.
Proper Law of the Arbitration Agreement
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.
Summary Procedures in International Arbitration
国际仲裁简易程序
A useful outline of the summary procedures under various rules, including the challenges and risks as well as practical guidance when considering such applications.
Strict Time Limit No Barrier Where Prima Facie Fraud
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.
Enforcement / Hong Kong / Hong Kong Arbitration Ordinance s.69 / Model Law Article 33 / Setting Aside Award / Slip Rule
HK Court Guidance on Slip Rule and Additional Awards
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.
Arbitrium Newsletter No. 11 – 1 September 2020
This month, Arbitrium contains a host of articles from Hong Kong, Singapore and England, including an important decision from the English Court of Appeal clarifying an issue that has vexed courts for some time – the relative weight to be given to the law of the seat and the law of the main contract, where they differ, in determining the proper law of the arbitration agreement.
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Hong Kong / Arrangement concerning mutual assistance / China Arbitration / China Enforcement / Interim Relief
Continued Success of the Hong Kong/Mainland Arrangement Concerning Interim Measures
临时措施安排的持续成功
The HKIAC publishes an update on the Arrangement concerning Mutual Assistance for interim measures between Hong Kong and the Mainland, highlighting its continued success.
English High Court Reviews Principles Applicable to s.68 Serious Irregularity Challenges
英国法院对严重不规则原则的审查
The English High Court dismissed a serious irregularity challenge under s.68 of the Act, reviewing the applicable legal principles, emphasising that s.68 should not be used to attack an arbitrator’s findings of fact and evaluation of evidence.
Updated LCIA Arbitration & Mediation Rules in Force on 1 October 2020
更新的LCIA仲裁与调解规则
The LCIA has updated its rules, designed to “make the arbitral and mediation processes even more streamlined and clear for arbitrators, mediators and parties alike.” The Rules take effect on 1st October 2020.
Singapore Court Refuses Set Aside Under Article 34 Model Law
新加坡法院拒绝申请撤销裁决
The High Court of Singapore refuses to set aside an award on the basis that the Tribunal lacked jurisdiction or by reason of a breach of natural justice and reviews the applicable legal principles under Article 34 of the Model Law.
Singapore Court Reviews Natural Justice and Public Policy Principles
新加坡法院审查自然正义与公共政策原则
In considering a challenge to a domestic international award arising out of the sale and purchase of vessels, the Singapore High Court reviews the applicable principles of breach of natural justice and public policy.
English Court Upholds Point of Law Appeal Under s.69
英格兰法院维持法律上诉点
Appeals under s.69 of the English Arbitration Act rarely succeed, but in a recent case, the English Court allowed an appeal, helpfully setting out the “guiding principles of fundamental importance” when considering s.69 applications.
English CA Provides Clear Guidance on Law Governing Arbitration Agreements
英国法院仲裁协议法律指导
In an important decision the English Court of Appeal clarifies an issue that has vexed courts for some time – the relative weight to be given to the law of the seat and the law of the main contract, where they differ, in determining the proper law of the arbitration agreement.
HK High Court Grants Hadkinson Order and Stays Enforcement Proceedings
香港法院批给令及暂缓执行
The HK High Court grants a Hadkinsons order and stays proceedings to set aside orders enforcing CIETAC awards (pending set aside proceedings in the PRC) on condition that the respondents pay 40% of the award sums into court.
English Court Grants Anti-Suit Injunction
英格兰法院授予反诉讼禁令
The English Court finds that an arbitration agreement was effectively incorporated by reference and grants and anti-suit injunction to cease court proceedings in Bangladesh.
Interim Injunction Extended For Breach of Duty of Loyalty
扩大对违反忠实义务的临时禁令
The English High Court continues an interim injunction to restrain the defendants from acting as experts by reason of the defendants having acted for the claimant in a separate arbitration relating to the same project.
Singapore CA Considers Arbitration and Insolvency Proceedings Interplay
新加坡审议仲裁和破产程序
The interplay between arbitration and winding up proceedings continues to attract judicial attention, with a recent decision from Singapore’s highest court affirming the prima facie test, meaning that a debtor need only show that there is a dispute subject to an arbitration agreement.
Arbitrium Newsletter No. 10 – 1 April 2020
In this month’s Newsletter, Arbitrium features an update in relation to the legal impact of the coronavirus outbreak, bringing together posts from a range of law firms at the forefront of advising commercial parties, and a range of judgments dealing with set-aside applications from England, Hong Kong and Singapore.
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Covid-19 Legal Impact: Update
Like last month, the aim of this post is to bring together a number of recent articles published by law firms at the forefront of advising commercial parties in dealing with the pandemic. It is my hope that an update next month will not be necessary.
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English CA Holds it can Compel Witness Evidence in Aid of Foreign Arbitrations
英国法院可以强制证据
The English CA overturns the first instance court, holding that English Courts do have jurisdiction under s.44(2)(a) of the Arbitration Act 1996 to grant orders for taking evidence from non-party witnesses in aid of foreign arbitrations.
Enforcement of Awards Between Hong Kong and Mainland China
香港与中国之间执行仲裁裁决
Tanner De Witt, one of Arbitrium’s sponsors, outlines the operation of the Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the HKSAR.
Singapore CA Refuses to Set Aside Award on Grounds of Breach of Natural Justice
法院拒绝基于自然公正裁定裁决
The Singapore Court of Appeal declines to set aside an award on the grounds of breach of natural justice in proceedings arising out of the termination of a construction contract.
HK Court Analyses the Salford-Lasmos Approach
仲裁和清算程序
In the latest decision from the HK High Court to consider the interplay between arbitration and winding-up proceedings, Lavesh Kirpalani, Counsel at Prince’s Chambers, reviews the decision in Re Asia Master Logistics, where he appeared for the successful petitioner.