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COVID-19, Expert evidence, Hearing protocol, HK Arbitration Week, Procedural Fairness, Remote hearings, Videoconferencing, Virtual hearings

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Herbert Smith Freehills

The first day of Hong Kong Arbitration Week 2020, hosted by the Hong Kong International Arbitration Centre (“HKIAC”), was an opportunity for practitioners to discuss the topic: “Socially Distanced or Procedurally Flawed: International Arbitration in times of COVID“, which sought to address some of the ever-evolving challenges of conducting virtual hearings in times of COVID.1)The…

Arbitration Proceedings, Dispositive Motions, Procedure, Summary procedure

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Herbert Smith Freehills

Over the past decade, many arbitrators and international arbitration practitioners have seen a consistent increase in parties’ interest in bringing dispositive motions within the context of the arbitration proceedings. Some commentators—especially from common law traditions—suggest that such motions should play a more prominent role in international arbitration. In the same time frame, as discussed below,…

China, Commercial Arbitration, Discovery, Document Production

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Herbert Smith Freehills

Document production in China – getting to maybe Document production (also known as “discovery”) is still a very foreign concept in China’s civil law court system. The traditional notion of “who claims, proves” (“谁主张，谁举证“) in China’s Civil Procedural Law has ingrained in people’s mind that one has to prove its case by its own evidence….

Advance on Costs, Arbitration Institutions and Rules, International arbitration

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Herbert Smith Freehills

It is not uncommon to encounter international arbitration cases in which one party, usually the respondent, refuses to pay the advance on costs set by the institution. This may occur when that party objects to the jurisdiction of the arbitral tribunal or there is a risk that the advance will not be recovered after the…

Arbitration, Commercial Arbitration, Jurisdiction, Merits, Venezuela

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Herbert Smith Freehills

Recently, the Constitutional Chamber of the Venezuelan Supreme Court of Justice (the “Court”) issued an interlocutory judgment ordering the Business Center for Conciliation and Arbitration (CEDCA) to stay an arbitration and to forward the arbitration file in order to decide on a request for “avocamiento” filed by one of the parties before the Court. This…

Australia, Disclosure, Discovery, Pre-Action Disclosure, Pre-arbitral procedure, Preliminary Discovery

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Herbert Smith Freehills

The availability and scope of ‘discovery’ or document production significantly differs across jurisdictions, most notably when comparing litigation in common law and civil law courts. In the field of international arbitration, the compromise position adopted by the International Bar Association’s Rules on the Taking of Evidence in International Arbitration is to permit disclosure of documents…

Due process, Malaysia, Set aside an arbitral award

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Herbert Smith Freehills

Due process paranoia remains a live issue in international arbitration. Arbitrators can feel under pressure to fulfil their duties to give parties an opportunity to present their case whilst also ensuring that they produce an enforceable arbitral award. This concern to be seen to have delivered due process can arguably be increased when coupled with…

Arbitration, Climate change, Environment

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Herbert Smith Freehills

The legal considerations arising out of climate change and environmental matters more generally have been considered extensively in the context of worldwide litigation, and, to some extent, in investment treaty arbitration. However, such issues have not been subject to the same level of public debate in the commercial arbitration sphere. This post analyses how environmental…

Arbitration Act, Arbitration clause, Brazil, Brazilian Arbitration Act, Consent, kompetenz-kompetenz

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Herbert Smith Freehills

On September 10, 2019, in considering an interlocutory appeal to stay arbitration proceedings, the Espírito Santo Court of Appeals decided to grant an exception to the competence-competence principle on grounds that the arbitration agreement was prima facie “manifestly illegal”. (Interlocutory Appeal No. 0013950-80.2019.8.08.0012, injunctive relief issued on September 10, 2019).   Background In 2001, the…

Awards, England, English Arbitration Act, English courts, Procedural Order, Set aside an arbitral award

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Herbert Smith Freehills

The English High Court (the Court) has recently issued two judgments clarifying its approach to determining whether a decision by an arbitral tribunal is an award or a procedural order. A few months ago in ZCCM Investment Holdings PLC v Kansanshi Holdings PLC & Anor (ZCCM), the Court identified a list of factors that it…

Africa, Arbitration Institutions and Rules, CAMAR

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Herbert Smith Freehills

“Too many cooks spoil the broth” – this expression works in both personal and professional situations. Everyone can relate to this universal concept that where each of many people involved in a common project adds his or her own idea, it actually makes it very hard, if not impossible, to work efficiently and can even…

Arbitration Institutions and Rules, Early Determination, Financial Services Arbitration, LCIA Arbitration, Summary procedure

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Herbert Smith Freehills

In 2018, financial services disputes accounted for the largest share of disputes referred to the London Court of International Arbitration (LCIA). With indications that the LCIA may adopt a form of summary dismissal procedure in its revised Arbitration Rules this autumn, the LCIA could become an even more important forum for banking and financial services…

ICSID Arbitration, Security for Costs, Third party funding

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Herbert Smith Freehills

On April 29, 2019, an ICSID annulment committee broke new ground by upholding a tribunal’s order that a party post security for costs. This decision, in the case RSM Production Corp v. Saint Lucia, is the first time that an ad hoc committee has addressed whether the ICSID Convention and Rules grant tribunals such a…

Jurisdiction, Russia, Unilateral Clauses

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Herbert Smith Freehills

Introduction Unilateral option clauses (also known as “asymmetric” or “one-sided” clauses) are clauses which give both parties the right to refer disputes to a particular dispute resolution forum, but which simultaneously give one party an exclusive right to elect to refer a particular dispute to another forum. The classic example of a one-sided clause is…

Hong Kong, Investment Arbitration, Investment protection, Investment Treaties, Investor, Investor-State arbitration, ISDS, ISDS Reform

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Herbert Smith Freehills

The year of the pig was off to a good start in Hong Kong at the Investor-State Dispute Settlement (ISDS) Reform Conference organised by the Hong Kong Department of Justice and the Asian Academy of International Law on 13 February 2019. Like the fabled pig, ISDS reform has been slow in coming, and the aim…

ICC, ICC Arbitration, ICC Note to Parties and Arbitral Tribunals

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Herbert Smith Freehills

ICC’s updated guidance to parties On 20 December 2018 the International Court of Arbitration of the International Chamber of Commerce (ICC) published an updated Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (Note). The Note, which came into effect from 1 January 2019, introduces a…

Japan, Japan Commercial Arbitration Association, JCAA, Prague Rules

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Herbert Smith Freehills

Overview1)The views expressed herein are those of the authors and should not be construed as necessarily reflecting those of their firm or of any of its clients. On 1 January 2019 the Japan Commercial Arbitration Association (the “JCAA“) amended its two current sets of arbitration rules. At the same time, it introduced an additional set…

Arbitration Act, Interim measures, South Africa, Third Party, UNCITRAL Model Law

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Herbert Smith Freehills

In December 2017 South Africa brought into law its first piece of legislation dedicated to international arbitration, the aptly named International Arbitration Act of 2017 (the New Act).   The New Act The New Act incorporates the provisions of the UNCITRAL Model Law and further aligns the country’s national law with the New York Convention….

Confidentiality, Hong Kong

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Herbert Smith Freehills

Confidentiality is frequently promoted as a key advantage of international arbitration.  It preserves the information exchanged in the arbitration proceedings and prevents the parties from disclosing information relating to the arbitration.  The extent of confidentiality afforded to the parties varies from jurisdiction to jurisdiction.  In certain jurisdictions, the law does not recognise the concept of…

Arbitral Tribunal, Arbitration, Arbitration institution, Cybersecurity

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Herbert Smith Freehills

The advent of the EU General Data Protection Regulation (GDPR), which came into force on 25 May 2018 within the EU and the European Economic Area, has sparked a renewed debate within the arbitration community about importance of adequate consideration being given to the collection, preservation and protection of data in arbitral proceedings. The GDPR…

Brazil, Cooperation and Facilitation Investment Agreements, Investment, Investment agreements, Investment protection

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Herbert Smith Freehills

Brazil has been notoriously reluctant to enter into treaties with other States that provide for the protection of investors and investments, viewing them as detrimental to the host State and its national investors. Brazil has no bilateral investment treaties in force, a limited number of its own treaties, named Cooperation and Facilitation Investment Agreements (CFIAs),…

Arbitration Institutions and Rules, Astana International Financial Centre, Early Determination, Enforcement, Institutional Arbitration, Kazakhstan, Overriding Objective

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Herbert Smith Freehills

A focus on the AIFC Arbitration and Mediation Rules 2018 and improvement to enforcement of arbitral awards in Kazakhstan Introduction to the AIFC The Astana International Financial Centre (AIFC) is a financial hub in Kazakhstan that came into operation this year. The purpose of the AIFC is to establish itself as a key centre for…

Hearings, Investment Arbitration, Supreme Court, Transparency, Transparency in investment arbitrations

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Herbert Smith Freehills

[I]t is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.1) R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, 259 (Lord Hewart C.J.) If you sought to distil [the connection between ISDS’s transparency and…

Arbitration, Blockchain, Cryptocurrency

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Herbert Smith Freehills

Blockchain and its potential applications are well-documented by technologists and early-adopters. Over the last 12 months, however, this technology has started to take centre stage in more mainstream industry discussions. With the price of Bitcoin spiking early this year (following which the cryptocurrency lost over 50% of its value), blockchain has become big news and…