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.
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.
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.
Tanner De Witt provide a summary of Halliburton v Chubb, where the English Supreme Court considered issues of bias and disclosure.Continue Reading
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.
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.
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 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.
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 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.
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.
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 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.
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.
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.
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.Continue Reading
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.
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.
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.
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.
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.Continue Reading
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.
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.
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.
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.Continue Reading
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.
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.
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.
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.
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.
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.
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.
A cross-border update of judgments dealing with challenges to arbitration awards, dealing with decisions from the courts of Hong Kong, Singapore and England.
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.