International Arbitration Newsletter No.3

In But Ka Chon, the CA suggested that the approach in Lasmos - that a petition to wind up a company should generally be dismissed where the contract contains an arbitration clause - propounded an overly one-sided approach to the discretion to set aside a statutory demand.

In an important decision, a Singapore court finds that the time to bring a setting aside application under Article 34(3) of the Model Law cannot be extended.

The HK High Court sets out the principles to be adopted on applications to set aside court judgments and refer matters to arbitration, and the salient principles of contract interpretation.

The HK High Court finds that an arbitration clause in a head contract was not incorporated into a sub-contract, and sets out the relevant principles under Articles 7 & 8 of the Model Law.

The HK High Court grants an anti-suit injunction, holding that a party cannot pursue a claim under an insurance policy without also being bound by the dispute resolution provisions in the policy.

The HK High Court sets aside an award remitted to the tribunal following an initial challenge, stating that the defects resulting in the remission had not been cured by the route taken by the Arbitrator.

In Cape Intermediate Holdings v Dring, the English Supreme Court confirmed the extent of a non-party's right to obtain documents used in court proceedings, and the principles to be applied when such a request is made.

Norton Rose Fulbright observe that most major institutional arbitral rules provide avenues for interim relief via emergency arbitrators, expedited arbitral appointment or expedited proceedings and question whether it is still worth looking to the courts for interim relief in construction arbitrations.

The SCC issued a report in August reviewing decisions by the SCC Board concerning challenges to arbitrators during 2016-2018, finding that 8 out of 46 challenges succeeded.

The English High Court finds that an arbitration agreement continues to apply to a claim for the payment agreed as a settlement arising in the underlying contract.

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.

Herbert Smith Freehills review a Malaysian decision where a contractor unsuccessfully sought to set aside an award on the basis that the underlying contract was illegal and hence in breach of Malaysia's public policy.

Phillip Rompotis reviews an Australian decision to stay proceedings to arbitration, rejecting an argument that the arbitration agreement was "incapable of being performed".

The High Court rules on Glencore's application for an injunction to restrain the use of privileged documents that the tax authorities became aware of via the "Paradise Papers" leak.

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.

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.

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.

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.

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.