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.
The English CA overturns the first instance judgment, holding that there was no fiduciary relationship between a construction expert and their client.Continue Reading
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.
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.
Tanner De Witt provide a summary of Halliburton v Chubb, where the English Supreme Court considered issues of bias and disclosure.Continue Reading
On 17 December 2020, the Hong Kong Law Reform Commission published a consultation paper proposing lawyers could use outcome related fee structures for arbitration.
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.
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.
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.
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.
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.
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.
A useful outline of the summary procedures under various rules, including the challenges and risks as well as practical guidance when considering such applications.
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.
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.
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.Continue Reading
The HKIAC publishes an update on the Arrangement concerning Mutual Assistance for interim measures between Hong Kong and the Mainland, highlighting its continued success.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.Continue Reading
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.Continue Reading
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.
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.
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.
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.
The SICC dismisses an application to set aside an award, finding that the tribunal was justified in granting the cumulative relief that it did, and that there was no apparent bias on the part of an arbitrator who made a belated disclosure about being engaged as co-counsel with the defendant’s legal representative.
The HK Court dismisses an application to set aside an arbitral award, rejecting claims that the agreement was a sham and that enforcement of the award would be contrary to public policy. Edward Chin, Pupil Barrister, reviews the case.
The HK Court denies an application for a stay of proceedings to arbitration in a case concerning bills of lading. Nick Luxton, Counsel, appeared for the successful Plaintiff, and provides a review of the decision.
The debate concerning the extent to which international arbitration poses a threat to precedent-based legal systems continues.
This month, Arbitrium features a post published in relation to the legal impact of the coronavirus outbreak, highlighting the key issues for businesses. Further, an interesting decision from the Malaysian High Court which considered the test for an application to subpoena a witness to produce documents for the purpose of an arbitration and give evidence in arbitration proceedings and a range of case notes from England in relation to ss. 67, 68 and 69 of the Arbitration Act.Continue Reading
The English CA allows a party who did not sign an agreement to enforce the right to arbitrate on the basis that an agent had entered into the agreement on the non-signing party’s behalf.
The English High Court refuses a stay to arbitration in circumstances where an escrow agreement contains an arbitration agreement.
The English Court rules that it does not have the power to compel a witness to give evidence in a New York-seated arbitration because he was not a party to the underlying arbitral agreement.
A number of law firms have published articles dealing with the legal impacts of the coronavirus outbreak. This post brings a few of them together, highlighting the key issues for businesses.
A recent report from the UK judiciary indicates a reduction in applications brought under s.68 (challenge to award on the ground of serious procedural irregularity) and under s68 (appeals on a point of law).
The English High Court confirms the default position of requiring disclosure of a first expert’s report or draft report where a party seeks to change experts without good explanation.
The Malaysian High Court considers the test for an application to subpoena a witness to produce documents for the purpose of an arbitration and give evidence in arbitration proceedings.
The English High Court deals with an application to set aside an award under s.67 of the Act on the ground that there was no arbitration agreement between the parties.
Pinsent Masons publish their 2019 International Arbitration in Construction survey; an in-depth analysis that should assist clients and practitioners in evaluating what steps might be taken to optimise the arbitral process with a view to resolving disputes more efficiently.
This month, Arbitrium brings you a range of cases including, from Singapore, the Court of Appeal’s decision in BXS v BNY (overturning the High Court on the question of the right seat of arbitration), and a High Court decision dealing with the public policy ground of objection and time limits ; a raft of cases from England, including a CA decision concerning the governing law of an arbitration agreement and consideration of no oral modification provisions; and an interesting link to the “Disputes Clause Finder”, an online tool which provides users with tailored dispute resolution clauses.Continue Reading
The Privy Council (on appeal from Mauritius) upholds a decision of the Supreme Court of Mauritius which refused to set aside an arbitral award on the basis of alleged breaches of natural justice and public policy.
The English CA considers the governing law of an arbitration agreement and whether the respondent became a party to the main agreement and/or the arbitration agreement notwithstanding the presence of No Oral Modification provisions in the main contract.