This judgment deals primarily with the impact of an exclusive jurisdiction clause in the context of winding up proceedings, but also provides an inkling of how an arbitration agreement may be dealt with in the same context, and considers the extent to which the “bona fide dispute on substantial grounds” general test is being nudged aside in favour of upholding the primacy of an arbitration agreement.Continue Reading
Whether a Tribunal has adequately dealt with the issues put to it, and the effect of any failure to do so, often arises in set aside applications. In yet another decision from Hong Kong refusing to set aside an award, the High Court outlines the relevant authorities in some detail.Continue Reading
The Singapore CA set aside part of an Award dealing with damages. This note deals generally with the main grounds of appeal raised before the CA, focussing on the decision in respect of damages as it gives rise to potentially problematic issues when preparing damages claims.Continue Reading
A useful 2-part series dealing with expert evidence from the team at PwC China/Hong Kong.Continue Reading
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.