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.
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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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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.
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.
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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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.
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.
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.
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.
Arbitrium Newsletter No. 9 – 4 March 2020
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.
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English CA Holds Non Signatory Entitled to Enforce Arbitration Agreement on Agency Principles
非签署人可以执行仲裁协议
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.
English Court Refuses Stay Under Escrow Agreement
英国法院拒绝中止仲裁
The English High Court refuses a stay to arbitration in circumstances where an escrow agreement contains an arbitration agreement.
Non-Party Cannot be Compelled to Give Evidence
无法强迫证人作证
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.
The Legal Impacts of the Coronavirus Outbreak
冠状病毒爆发的法律影响
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.
English Report Shows Decline in s.68 and s.69 Applications
第68和69条的申请下降
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).
Disclosure Requirement Upon Change of Expert
公开专家证据
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.
English Court Dismisses s.67 Jurisdiction Challenge to Award
仲裁与管辖权
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.
Survey of International Arbitration in Construction Disputes
国际仲裁与建设
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.
Arbitrium Newsletter No. 8 – 2 February 2020
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.
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Privy Council Refuses to Set Aside Award on Natural Justice & Public Policy Grounds
不违反自然正义和公共政策
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.
CA upholds English Law as Express Choice of Law & Considers Oral Modification provisions
英国法院维持英国法律作为仲裁协议的明确选择
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.
English Court Confirms Power of LCIA Tribunal to Correct Award
英国法院确认仲裁庭有权更正裁决
The English court extends time and then confirms that the LCIA Tribunal has power to correct award under Article 27.1 of the LCIA Rules.
Irish Court Provides Useful Summary of De Novo Review Under Art.16(3) Model Law
第16条第3款规定的法院在管辖权挑战中的作用摘要
The Irish High Court provides a useful summary of the authorities dealing with a Court’s de novo review under Art.16(3) of the Model Law following a decision on jurisdiction by a tribunal.
International Arbitration Newsletter No.7 – 1 January 2020
Arbitrium wishes all our readers, subscribers and sponsors the very best for 2020. This month, we welcome two additional sponsors, Hong Kong law firms GPS McQuhae LLP and Yang Chau Law Office and report on several cases dealing with anti-suit injunction applications.
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UK Court Refuses Anti-Suit Injunction Against Non-Party
法院拒绝针对非当事人的反起诉令
The English Court considers an application for the continuance of an anti-suit injunction against a non-party to an arbitration agreement, based on the non-party pursuing proceedings in Russia which raised overlapping issues to those which were the subject of the arbitration.
(Re) Emphasising the Importance of the Seat of Arbitration
仲裁地的重要性
IA practitioners know the importance of the seat of arbitration, and its impact on the conduct of arbitration proceedings and any subsequent court applications to set aside and enforce. A brief recap.
Anti-Arbitration Injunction / England / English Arbitration Act s.67 / English Arbitration Act s.68 / Jurisdiction
Sections 67 & 68 English Act Take Precedence Over Subsequent Arbitrations
英国法院授予反仲裁禁令
In an important decision, the English Court of Appeal grants an anti-arbitration injunction, saying it will do so only in “exceptional circumstances” and that parties cannot contract out of ss.67 & 68 of the English Act.
English Court Dismisses Appeal Under s.69
英国法院驳回上诉
The English Court dismisses an appeal under s.69 of the Act, highlighting the limited circumstances in which parties will be allowed to appeal arbitration awards on a point of law.
International Arbitration Newsletter No.6
We are delighted to report that in the space of only a few months, Arbitrium now boasts a subscriber list of nearly 1,800 specialist international arbitration practitioners from around the globe. Many of these subscribers have also joined the Arbitrium group on LinkedIn. Thank you to all our readers, our contributors and our sponsors for their support.
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English High Court Grants Anti-Suit Injunction in Insurance Dispute
英国法院在保险纠纷中授予反诉讼禁令
The English High Court considers an insurance policy containing “service of suit” provisions and continues an anti-suit injunction against the defendant on the basis that it was satisfied that the parties had agreed to submit their dispute to London arbitration.
Overview of s.68 Serious Irregularity Challenges
严重的违规挑战
Section 68 of the English Act provides the basis for challenging an arbitration award where there has been a serious irregularity. This is a useful overview of the (only seven) successful challenges brought under the section, highlighting the difficulties in success.
Award Enforced But Successful Party Denied Costs
成功党否认费用
The English Court finds that a successful enforcement action did not entitle the Claimant to an award of costs as it failed to satisfy the requirements of full and frank disclosure.
Arbitrium Monthly Newsletter No.5
A range of cases from Hong Kong, England, Malaysia and Singapore including an update on the Arrangement Concerning Mutual Measures between Hong Kong and the Mainland, an Arbitrator’s duty of impartiality and independence, and a host of enforcement-related cases.
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Arbitrator Appointment / England / English Arbitration Act s.33 / English Arbitration Act s.68 / IBA Rules / Impartiality
Arbitrator’s Duty of Impartiality: Almazeedi And Halliburton
仲裁员的公正义务
The requirement for arbitrators to act “impartially” is enshrined in the English Arbitration Act (and together with “independence”, in the Model Law and many institutional rules). This note reviews these concepts in light of the judgments in Almazeedi and Halliburton.
Construction / England / English Arbitration Act s.33 / English Arbitration Act s.68 / Procedural Fairness / Serious Irregularity
English Court Rejects s.68 Challenge Brought For Breach Of Tribunal’s Duty Of Fairness
英国高等法院拒绝第68条对违反法庭职责的挑战
The English High Court considers an argument that the tribunal breached its duty of fairness, rejects the challenge under s.68 of the Arbitration Act, and sets out some guiding principles.
English Court Refuses To Enforce Unchallenged Award
英法院拒绝执行无可争议的裁决
In a serious and unusual case, the English High Court refuses to enforce an unchallenged arbitral on the basis that to do so would not be in the interests of justice, demonstrating that s.66 is not a simple rubber-stamping exercise.
Arbitration and Winding Up / Enforcement / England / English Arbitration Act s.68 / Security / Setting Aside Award / Stay of Enforcement
English Court Considers Applications In Set Aside Matter Where Party In Administration
英国法院考虑债务人管理的申请
The English High Court deals with various interlocutory applications in a forthcoming challenge to an arbitration award, including payment of security and a stay of enforcement.
Arbitrator Erred in Referring To Without Prejudice Comms When Deciding Costs
仲裁员在决定成本时参考无偏见通信时犯了错误
The English Court finds that an arbitrator cannot consider WP communications when deciding costs issues but could take into account “impliedly without prejudice” communications created as part of an attempt at compromise.
England / English Arbitration Act s.68 / Expert Evidence / Remission of Award / Serious Irregularity / Setting Aside Award
English Court Refuses To Set Aside Due to Tribunal’s Refusal to Admit Expert Report
由于法庭拒绝接受专家报告，英国法院拒绝搁置
The English Court refuses to set aside and remit an award stating that s.68 is concerned solely with due process and represents an exhaustive list of what constitutes “serious irregularity” under the Act.
Australia / Cayman Islands / China Arbitration / England / Hong Kong / India / Newsletter / Singapore / USA
International Arbitration Newsletter No.4
国际仲裁通讯第4号
This month, in addition to the usual International Arbitration updates from around the globe, we highlight an issue which arises regularly and continues to vex courts around the world – the extent to which third parties/non-signatories may rely on or be bound by an arbitration agreement.
Enforcement / England / English Arbitration Act s.67 / English Arbitration Act s.68 / Hong Kong / Jurisdiction / Model Law Article 16(3) / Model Law Article 34(3) / Setting Aside Award / Singapore
Update On Challenges to Arbitration Awards
关于仲裁裁决挑战的最新信息
A cross-border update of judgments dealing with challenges to arbitration awards, dealing with decisions from the courts of Hong Kong, Singapore and England.
China Arbitration / England / Guide to International Arbitration / Hong Kong / Singapore / Third Party Funding
Third Party Funding Of Belt & Road Disputes
第三方争议资金
A practical overview of third party funding in belt and road disputes in the main arbitral seats together with practical takeaways on what a party should consider when considering third party funding and tips to ensure its use is successful.
Enforcement / England / English Arbitration Act s.103(5) / Model Law Article VI / Security / Stay of Enforcement
English Court Stays Award Enforcement Proceedings And Orders Security
英国法院暂缓执行仲裁裁决和命令安全
The English High Court stays enforcement proceedings in England under s.103(5) of the Arbitration Act in favour of pending set aside proceedings and orders the party resisting enforcement to provide security for the award.
International Arbitration Newsletter No.3
In addition to the usual IA updates from around the globe, we highlight two cases, a HK CA decision dealing with a stay application in the context of insolvency proceedings, the other from Singapore refusing an extension of time to bring a setting aside application under Article 34 of the Model Law.
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English Court Enforces US$9b Award Against The Republic Of Nigeria
The English High Court enforces a USD$9b award against Nigeria finding that the seat of arbitration was England and that there were no public policy reasons to refuse enforcement.
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