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Arbitration Agreements, Arbitration clause, Shareholders Agreement, South Africa

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Herbert Smith Freehills

There is extensive commentary on South Africa’s evolution into a pro-arbitration jurisdiction. Its courts have long issued strong pro-arbitration judgments under the 1965 Arbitration Act (“Domestic Arbitration Act“) and, more recently, under the (relatively) new 2017 International Arbitration Act (“IAA“). Johannesburg also hosted the inaugural Johannesburg Arbitration Week in 2024, bringing together delegates from around the…

Arbitrability, Australia, Climate change, Consumer disputes

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Herbert Smith Freehills

Greenwashing has become a key target of regulators and climate activists alike, as they bring claims against companies who now face fines, litigation and potential brand damage for misrepresenting the environmental benefits of their products, services and policies. Regulators across the world have launched campaigns against greenwashing. In the US, prior to its recent disbandment,…

Arbitration Act 1996, English Arbitration Act, English courts, English Law, Governing Law, Uncategorized

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Herbert Smith Freehills

The English Arbitration Bill, introduced to UK Parliament in November 2023, aimed to ensure that the Arbitration Act 1996 remained fit for purpose and maintained England’s status as a leading destination for commercial arbitration. However, the bill was lost when the 2024 UK general election was called. In July 2024 the new government reintroduced the…

Arbitrability, Intellectual Property, Intellectual Property Rights

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Herbert Smith Freehills

Intellectual property (“IP“) rights are becoming increasingly valuable assets for businesses, especially for sectors like technology and life sciences. These rights can be key to a business’ success. While IP disputes have traditionally been litigated, there has been a notable shift toward ADR, including arbitration. For example, the WIPO Arbitration and Mediation Center, which specializes…

European Union, Ireland, Third party funding

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Herbert Smith Freehills

Several recent developments across the EU portend increased availability of third-party funding by parties to EU-seated arbitral proceedings, albeit within a context of regulation of that funding beyond the self-regulatory approach of funder codes of conduct or the rules of funder organizations.   Legalisation of Third-Party Funding of International Arbitration in Ireland Ireland, the only…

Annulment, Public Policy, Spain

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Herbert Smith Freehills

Spanish regional High Courts of Justice (Tribunales Superiores de Justicia) have heard applications to annul awards since the 2011 amendment to the Spanish Arbitration Law (“SAL”). The most active among the seventeen regional courts has been the High Court of Justice of Madrid (“TSJM”), in charge of hearing annulment proceedings of Madrid-seated arbitral awards. According…

English Arbitration Act, UK

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Herbert Smith Freehills

One of the proposed changes to the English Arbitration Act 1996 (the “Act”) introduced in the Arbitration Bill is an express power for tribunals to make an award on a summary basis in relation to any issue claim, or defence, if the tribunal considers that the party has no real prospect of succeeding on that…

Uncategorized

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Herbert Smith Freehills

The English High Court (“Court“) in Hulley Enterprises Limited and others v. Russian Federation [2023] EWHC 2704 (Comm) has recently dismissed a jurisdictional challenge brought by the Russian Federation (“Russia“), concluding that the State could not invoke sovereign immunity to resist enforcement of arbitral awards, which were issued in 2014 in favour of the former…

BIT, Enforcement, India, Investment Disputes, Investor-State arbitration, Jurisdiction, Set aside an arbitral award, Singapore, Switzerland

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Herbert Smith Freehills

In 2013, Deutsche Telekom AG (“DT”), a German corporation, commenced an UNCITRAL arbitration in Switzerland under the Germany-India BIT claiming that India had (amongst other things) breached the fair and equitable treatment (“FET”) standard. In the arbitration, India raised various jurisdictional objections, which the Tribunal rejected in an Interim Award issued on 13 December 2017….

Australia, Climate change, Investment, Investment Arbitration

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Herbert Smith Freehills

The recently reported investment treaty claim by Singapore-based mining company Zeph Investments (“Zeph”) against Australia appears to be the latest in investor-State dispute claims arising out of climate change-related measures introduced by States. The claim was first disclosed on 10 July 2023 by the Attorney General’s Department of Australia in response to a question on…

Arbitration, Insolvency, Spain

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Herbert Smith Freehills

Since 2020 insolvency activity in Spain slowed down because of the moratorium declared by the Spanish government in the wake of Covid-19, under which the obligation to file for insolvency was suspended until 30 June 2022. Perhaps unsurprisingly, official statistics for the third quarter of 2022 showed a dramatic increase in the insolvency declarations within…

Energy, Energy Charter Treaty, Japan, Renewable energy

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Herbert Smith Freehills

Renewable energy is front-and-centre in the Japanese energy agenda. Japan is still heavily reliant on fossil fuels for its electricity generation needs with one-third of its carbon emissions coming from its 78 thermal power stations. The Japanese prime minister has pledged that Japan will be carbon neutral by 2050 leading to the Japanese Ministry of…

Arbitration, Japan, JCAA, Mediation

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Herbert Smith Freehills

The dispute resolution landscape in Japan is almost unrecognisable from the position 20 years ago.  In that time, Japan has evolved into a significant market for cross-border contentious legal matters.  Sophisticated Japanese corporations with significant overseas business are comfortable using international arbitration and mediation as methods of dispute resolution. 86% of the case load of…

Arbitration clause, Dispute resolution clause, Inconsistent clauses

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Herbert Smith Freehills

It is critical to invest time to ensure that there are no inconsistencies between multiple dispute resolution/jurisdiction clauses within a particular contractual relationship (whether within a single contract or across multiple related contracts). Such inconsistencies inevitably lead to disputes over how the parties should resolve their disputes – a potentially costly sideshow to the resolution…

Australia, Oil & Gas

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Herbert Smith Freehills

As the oil and gas industry continues to mature, the number of mid-to-late life assets grows. A key challenge for the energy sector is how to effectively manage the decommissioning of these assets, especially those situated offshore. In Australia: decommissioning work is expected to be required for up to 65 offshore platforms by 2026, and…

Arbitrators, Interim measures, Powers of the tribunal

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Herbert Smith Freehills

It is not uncommon in arbitration proceedings for interim measures to be necessary to avoid the relief intended on the merits from being frustrated. Interim measures in support of arbitration can now fortunately be ordered not only by national courts but also by arbitrators in most jurisdictions. In most instances, interim measures granted by arbitral…

Conditional fee agreements, Costs, Costs in arbitral proceedings, Counsel, Counsel fees, Hong Kong

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Herbert Smith Freehills

At present, Hong Kong lawyers are prohibited from charging outcome related fees in arbitration. As discussed in a previous blog, the landscape started to change since the publication of a Consultation Paper by the Outcome Related Fee Structures for Arbitration Sub-committee (the “Sub-committee“) of the Law Reform Commission of Hong Kong (the “Commission“). The Sub-committee…

Costs, Costs in arbitral proceedings, Third party funding

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Herbert Smith Freehills

The recent English Commercial Court decision in Tenke Fungurume Mining SA v Katanga Contracting Services SAS [2021] EWHC 3301 (Comm) has provided an interesting further comment on the broad discretion available to tribunals in English-seated arbitrations to award the costs of third party funding as part of costs awards. The decision by Mrs Justice Moulder…

Corruption, France, Recognition and enforcement of arbitral award

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Herbert Smith Freehills

It’s all still to play for. After the Paris Court of Appeal refused enforcement of a Swiss arbitral award against Alstom on the grounds of corruption, the French Supreme Court has now overturned that decision, ruling that the judges misinterpreted the evidence before them. The case may now be referred to the Versailles Court of…

Admissibility, Jurisdiction, Pre-arbitral procedure, Pre-arbitration Dispute Settlement Procedures

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Herbert Smith Freehills

A common issue in commercial contracts across a range of industries is whether a claimant’s failure to comply with the provisions of a dispute resolution clause gives rise to an issue of admissibility or jurisdiction. There have been a range of recent decisions from across the globe ruling on this very question, with all of…

Cultural heritage, ICSID, Investment Arbitration, Investment Disputes

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Herbert Smith Freehills

Investor-state disputes often involve an interplay of different bodies of international law.  In addition to investment law, disputes may invoke issues involving public international law, international human rights law, and international environmental law – and tribunals are faced with the challenges of trying to reconcile the sometimes conflicting rights created under these different bodies of…

Arbitration Agreement, Choice of Law, New York Convention, Non-signatory, United States, United States Courts

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Herbert Smith Freehills

The United States Supreme Court’s June 2020 decision in GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC (“GE Energy“) made clear that, under U.S. law, a non-signatory to an arbitration agreement may invoke equitable estoppel to compel arbitration under Article II(3) of the United Nations Convention on the Recognition and Enforcement of…

Admissibility, Document Production, Evidence

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Herbert Smith Freehills

An emerging consideration in international arbitration is the use of evidence acquired illegally. Illegally obtained evidence can take a variety of forms, including, for example, illicit recordings, information obtained by trespass, and ‘hacked evidence’. ‘Hacked evidence’ refers to materials obtained through unauthorised access to an electronic system (either directly or through a third party), and…

Arbitration Institutions and Rules, Permanent Arbitral Institution, Russia

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Herbert Smith Freehills

The Russian 2016 Arbitration Reform (the “Reform”) was a game-changer for both arbitration practitioners and the arbitral institutions. One of the major implications of the Reform was that so-called “corporate” disputes (which definition covers a large number of post-M&A disputes, including those arising out of share purchase agreements and shareholders’ agreements) could now only be…