Arbitration

  • Is The Scope Of Arbitration Agreement In Shareholders Agreement Wide Enough? Lessons On Drafting From A Hong Kong Case 15/07/2019 16:45

    In the recent Hong Kong decision of Dickson Holdings Enterprise Co Ltd v. Moravia CV and Others [2019] HKCFI 1424, the court considered whether the arbitration agreement contained in the parties’ shareholders’ agreement covered disputes arising from any affairs of the company. 

  • Future Profits vs Cost: When do Tribunals Consider a Damages Claim Too Speculative? 05/07/2019 14:35

    Recently published arbitral awards provide insight into Tribunals’ reasoning when the quantum of a claim is challenged for being too uncertain or speculative.

  • Dispute resolution for multi-contract projects: avoiding parallel proceedings and conflicting decisions 05/06/2019 15:11

    Construction contracts are commonly part of a wider suite of project contracts, involving multiple, overlapping parties. Depending on the project, this suite can include concession and licence agreements, joint venture agreements, offtake agreements, financing agreements, direct agreements, guarantees and agreements with subcontractors. 

  • Expert evidence: practical tips for managing party-appointed experts 05/06/2019 15:04

    Large-scale international infrastructure and construction projects always involve factual questions of what, where and when. However, responsibility invariably turns on more intricate questions of cause and effect and expert evidence is usually required, often across more than one discipline. The expert phase is often therefore the most critical, and sometimes costly, part of the arbitration process. This article offers some practical tips for managing party-appointed experts in arbitrations.

  • The UK Supreme Court to Hear Deepwater Horizon Appeal Seeking Removal of an Arbitrator 05/06/2019 14:53

    The UK Supreme Court will hear an appeal from Halliburton Company v Chubb Bermuda Insurance Ltd [2018] EWCA Civ 817 on whether an arbitrator may accept appointments in multiple references concerning the overlapping subject matter with only one common party, without giving rise to an appearance of bias and without disclosure. As it stands, the decision of the Court of Appeal means that arbitrators can accept multiple appointments in arbitrations with overlapping subject matters, without disclosure, and without necessarily giving rise to doubts about their impartiality.

  • Confidentiality of Already Disclosed Documents: Admissibility of Improperly Obtained Privileged Evidence 27/05/2019 16:23

    Arbitral tribunals have, in various instances, allowed parties to rely on documents obtained illegally as evidence. Practically, however, such documents are of a privileged character, e.g. emails exchanged between attorneys and clients, any information related to a set of confidential proceedings or communications between a psychotherapist and a patient. Privileged documents deserve higher legal protection and they cannot be admitted as evidence in arbitration proceedings. 

  • International arbitration 23/05/2019 10:31

    Arbitration offers a compelling forum for resolving international commercial disputes. As a consequence, there is now greater competition between traditional arbitral seats and emerging institutions – rivalry that is leading to greater efficiencies and innovative services. In an ever-changing socioeconomic world, issues such as increasing transparency requirements and transformative technological advances will do much to shape and define the international arbitration community over the coming months and years.

  • A Critique of Double Standards on Dispute Resolution Mechanisms of EU in Bilateral Investment Treaties and Double Taxation Treaties 23/05/2019 10:24

    This post aims at highlighting an inconsistency in the law of the European Union (“EU”) in regards to the comparison of the treatment of Bilateral Investment Treaties (“BITs”) and Double Taxation Treaties (“DTTs”) concluded between EU Member States. The inconsistency lies in the diametrically different approaches adopted by EU law and its institutions (“EU Institutions”) towards the dispute resolution mechanisms contained in these international instruments.

  • Comprehensive guidance for recognition and enforcement of foreign arbitral awards 20/05/2019 16:52

    The courts of the foreign state in which a foreign arbitral award was issued have jurisdiction over any objection or dispute concerning its validity and the Greek courts have no jurisdiction to adjudicate an action to nullify a foreign arbitral award for the reasons set out in Articles 70, 897 and 901 of the Code of Civil Procedure.

  • Arbitrating in CEE & CIS: Transparency, Accountability and Choice of Arbitrators 20/05/2019 16:46

    The second edition of the Jeantet “Arbitrating in CEE and CIS” roundtable was held during the Paris Arbitration Week on Thursday 4 April 2019 at the Jeantet offices. The topic of this year’s edition was “Transparency, Accountability and Choice of Arbitrators”.

  • French court rules that mandatory expert determination provisions do not render arbitration clauses inapplicable 20/05/2019 16:41

    The arbitral tribunal's power to determine its jurisdiction (known as 'compétence-compétence') is a fundamental principle of French arbitration law. Pursuant to Article 1465 of the French Civil Procedure Code, "[t]he arbitral tribunal has exclusive jurisdiction to determine challenges to its jurisdiction".(1) Thus, arbitrators have the exclusive power to determine the scope of their jurisdictional powers (and their validity), including with respect to the subject matter of disputes covered by an arbitration agreement. The practical consequence of this exclusivity is that a court seised of a dispute that is subject to an arbitration agreement must decline jurisdiction. That is unless, as set out in Article 1448 of the Civil Procedure Code, an arbitral tribunal has not yet been seised of the dispute and the arbitration agreement is "manifestly void or manifestly inapplicable".

  • Court upholds jurisdiction of tribunal over settlement agreement lacking express arbitration clause 07/05/2019 09:51

    In Sonact Group Limited v Premuda SPA, the High Court found that a tribunal had jurisdiction over a dispute that arose from a settlement agreement lacking an express arbitration clause. Mr Justice Males held that the parties had intended that the arbitration clause contained in the underlying charterparty would continue to apply to the informal settlement agreement. The court took into account industry practice and found that it would be extraordinary if the parties had not intended to remain bound by the arbitration clause.

  • Arbitration Agreements Concluded by Agents and the Specific Authority Issue 03/05/2019 15:56

    In order to conclude an enforceable arbitration agreement, various validity conditions are required. The authority of the signatory agent to conclude an arbitration agreement on behalf of the principal is one of these requirements. In some jurisdictions, an explicit/specific authority is also required. An agent authorized with a general power of attorney, but without an explicit statement on the authority to conclude an arbitration agreement, is not entitled to conclude so on behalf of the principal. If an arbitration agreement is concluded by an agent who lacks specific authority, the arbitral tribunal’s jurisdiction may be challenged, the award may be annulled, or the enforcement of the award may be rejected.

  • New CIArb Guidelines on Witness Conferencing 25/04/2019 09:17

    On Tuesday 22 April 2019, the Chartered Institute of Arbitrators (Singapore) issued their Guidelines for Witness Conferencing in International Arbitration (the “Guidelines”),1) providing tribunals, witnesses and parties with guidance in the conduct of witness conferencing.

  • Are recordings made without consent of counterparty admissible as evidence in arbitration? 11/04/2019 10:24

    In a recent arbitration, the claimant and the respondent were both large state-owned mining enterprises which had entered into a long-term iron ore transaction. Each year, the parties had signed a sales and purchase agreement, which had set out the manner in which the claimant would sell iron ore to the respondent.

  • Need for speed: get your anti-suit injunction fast! 11/04/2019 10:11

    Parties entering into arbitration agreements ordinarily abide by their contractually chosen dispute resolution mechanism and proceed accordingly. However, counterparties sometimes start proceedings in a foreign jurisdiction in breach of an arbitration clause. How does an innocent party restrain such conduct?

  • Hong Kong and Mainland China Agree upon Bilateral Arrangement Regarding Interim Measures for Arbitration 04/04/2019 09:56

    In a significant development for the region, Mainland China and Hong Kong have announced a bilateral arrangement by which the Chinese courts will now recognise and enforce interim measures in support of institutional arbitration seated in Hong Kong (the “Arrangement”).

  • A Changing Landscape for International Energy Arbitration: A Report from the 6th Annual ITA-ICC-IEL Joint Conference 01/04/2019 14:30

    The 6th Annual Joint Conference on International Energy Arbitration, co-hosted by the Institute for Transnational Arbitration (ITA), the Institute for Energy Law (IEL), and the International Court of Arbitration of the International Chamber of Commerce (ICC), took place on January 24-25, 2019, in Houston, Texas. 

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