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ASEAN, Asia, Investment agreements, Investment Arbitration, Trans-Pacific Partnership

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Herbert Smith Freehills

The Asian economy is considered an engine of global economic growth, accounting for almost two-thirds of forecasted global economic growth for 2016.1)“Asia: Growth Remains Strong, Expected to Ease Only Modesty”, International Monetary Fund Survey Magazine, 3 May 2016, https://www.imf.org/external/pubs/ft/survey/so/2016/CAR050316B.htm. Over the last decade, the flows of foreign investment into and out of Asia have consistently…

Law of the Sea, Permanent Court of Arbitration, State-to-state arbitration, Transparency, UN and Int’l Organizations, UNCLOS

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Herbert Smith Freehills

On 26 June 2015 Italy commenced inter-state arbitral proceedings by serving on India a notification of dispute under Article 287 and Annex VII, Article 1 of the United Nations Convention on the Law of the Sea (“UNCLOS”); both States are Parties to UNCLOS. In Italy’s submission the dispute concerns an incident approximately 20.5 nautical miles…

France, Investment Arbitration, Uncategorized

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Herbert Smith Freehills

No less than two years ago, in a series of related judgments (the NML Ltd et al. v the Republic of Argentina saga), the French Court of cassation gave greater protection to state immunity from execution.1)G. Travaini, State 1 – Investor 0: Recent French Decisions regarding Sovereign Immunity from Execution, Kluwer Arbitration Blog (27 August…

Indonesia, Investment, TPP, Trans-Pacific Partnership

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Herbert Smith Freehills

In October 2015, during an official visit to the United States, President Joko “Jokowi” Widodo, announced that Indonesia intended to join the Trans-Pacific Partnership (TPP). Jokowi’s plan immediately ran into political opposition at home, including from within the ranks of his own Indonesian Democratic Party of Struggle (PDI-P). The Government, however, appears determined to follow…

Africa, Annulment, Arbitrator's Fees, arbitrators’ conduct, Award Scrutiny, CCJA Arbitration, OHADA, Set aside an international arbitral award

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Herbert Smith Freehills

In a highly unusual arbitral decision, the Cour Commune de Justice et d’Arbitrage (CCJA), the court created by the Organisation pour l’Harmonisation en Afrique du Droit des Affaires (the Organisation for the Harmonisation of Commercial Law in Africa) (OHADA) Treaty, signed by 17 African States, has ruled that an award should be set aside on…

Admissibility, Arbitration Proceedings, Germany, Seat of the arbitration

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Herbert Smith Freehills

Drafted by HSF Partner, Mathias Wittinghofer, and Associates, Tilmann Hertel and Nils Kupka, from HSF’s Frankfurt office In 1999 Germany adopted the UNCITRAL Model law on International Commercial Arbitration (“ML”), but with a material addition: German law stipulates that prior to the constitution of the arbitral tribunal an application can be made to a German…

Hong Kong, Third party funding, Uncategorized

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Herbert Smith Freehills

On 19 October 2015, the Hong Kong Law Reform Commission published a Consultation Paper recommending that third party funding should be permitted for arbitrations in Hong Kong. The Paper invites public comment on the recommendation, and how third party funding should be adopted in Hong Kong. A link to the paper can be found here….

interim relief

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Herbert Smith Freehills

There appears to be a gradual shift in international arbitration, towards an assumption that parties to an arbitration agreement who are seeking interim relief will look first to the tribunal, rather than to the national courts.  This is seen in recent iterations of the institutional rules, such as the 2012 ICC Rules, the 2014 LCIA…

ADR, Arbitration, European Union, Mediation, Singapore, Transatlantic Trade and Investment Partnership

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Herbert Smith Freehills

At the CIARB’s London centenary conference earlier this month, the Honourable Chief Justice of Singapore, Sundaresh Menon, cautioned that: “we should remain mindful that there is no place for complacency or reason to assume that [the] international system of dispute resolution which so many have invested so much in, will continue on its recent trajectory…

Arbitration Institutions and Rules, Commercial Arbitration, Dispute Resolution, LCIA Arbitration

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Herbert Smith Freehills

Two months ago I commenced a five-month secondment with the London Court of International Arbitration (LCIA), a change of scene from my usual post at Herbert Smith Freehills LLP in London where I am a New York-qualified associate working on both commercial and investment arbitration matters. While in many ways the secondment has so far…

Australia, Investment Arbitration

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Herbert Smith Freehills

Keeping abreast of Australia’s stance on ISDS can be a confusing exercise. Australia’s approach to investor-state dispute settlement (ISDS) continues to be hotly debated in the wake of recent revelations by Wikileaks that the investment chapter of the Trans-Pacific Partnership (TPP) is likely to include ISDS provisions. The Australian government’s stance on ISDS has undergone…

Arbitration, Asia-Pacific, Russia, Sanctions

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Herbert Smith Freehills

and Brenda Horrigan and Rebecca Soquier, Herbert Smith Freehills LLP, Shanghai The sanctions arising out of the Ukrainian crisis have led commercial entities to consider their options for resolving current or potential disputes. In this post, we consider the impact of the sanctions against Russia on the future of dispute resolution for Russian entities and…

MENA, Middle East, Multilateral Investment Treaties, North America

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Herbert Smith Freehills

The nation states of Middle East and North Africa (MENA) have long been active participants in the world of international investment protection and arbitration. Pakistan was a signatory to one of the first ever Bilateral Investment Treaties (BITs)1)BIT between Pakistan and Germany dated 25 November 1959. and of the estimated 2,750 BITs that exist today,…

Arbitration Act, England, English Law, Set aside an arbitral award

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Herbert Smith Freehills

An often cited advantage of arbitration, as opposed to litigation, is the finality of the process. The grounds for time-consuming and costly challenges and appeals are limited. Under the English 1996 Arbitration Act (the “Act”), parties can only challenge or appeal an arbitration award on three grounds: (i) a challenge on the grounds that the…

Enforcement, Jurisdiction of the arbitral tribunal

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Herbert Smith Freehills

It is well known that the Singapore Court of Appeal refused enforcement of Awards in favour of Astro in 2013 (discussed here), on the grounds that the tribunal lacked jurisdiction over the claimants. The same Awards have now been enforced against First Media, a Lippo company, in Hong Kong (Astro Nusantara International B.V. v PT…

Arbitration clause, Dubai, Enforcement of an arbitration clause, Middle East, Unilateral Clauses

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Herbert Smith Freehills

Dispute resolution provisions in banking and finance transaction documents in the UAE sometimes include a unilateral option provision which, where a dispute arises, purports to reserve to the contracting bank, investment fund or lender, the right to choose arbitration or litigation, or sometimes litigation in a different forum to the local courts. The rationale for…

Brazil, Enforcement, Recognition and enforcement of arbitral award

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Herbert Smith Freehills

In article 35 of the Brazilian Arbitration Law (“BAA”) it states that, in order to be enforced in Brazil, a foreign arbitral award (i.e., an award issued outside Brazil’s territory) must be recognized by the judiciary. This judicial recognition rests with the Superior Tribunal of Justice (Superior Tribunal de Justiça – “STJ”), which retains exclusive…

Arbitration Proceedings, Australia, Commercial Arbitration

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Herbert Smith Freehills

This article is published as a result of the cooperation agreement between  Kluwer Arbitration Blog and ArbitralWomen.  The views expressed in this article are those of the author alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or the author’s law firm. In 2010 Australia amended its International Arbitration Act (Cth) 1974 (IAA)…

Arbitration, Singapore, Singapore International Commercial Court

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Herbert Smith Freehills

At the opening of the legal year in Singapore on 5 January 2015, the Singapore International Commercial Court (“SICC“) was officially launched. In the words of Chief Justice Menon, the SICC is intended to “build upon and complement the success of [Singapore’s] vibrant arbitration sector and make [Singapore’s] judicial institutions and legal profession available to…

Uncategorized

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Herbert Smith Freehills

The Singapore International Mediation Centre (“SIMC”) was officially launched on 5 November 2014. Set up following the recommendations of a Working Group chaired by Edwin Glasgow CBE QC and George Lim SC, the SIMC will supplement the array of international dispute resolution options available in Singapore. Of particular note is the establishment of a new…

Uncategorized

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Herbert Smith Freehills

The US District Court for the District of Vermont, part of the Second Circuit that also embraces New York and Connecticut, recently compelled a Canadian businessman (Mr. Kastner) to arbitrate his patent dispute against a Swedish footwear company’s US subsidiary called Icebug USA (“Icebug”), even though Icebug was not a signatory to the arbitration agreement…

Brussels Regulation, Domestic law, Enforcement, European Law, Parallel Proceedings

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Herbert Smith Freehills

As has been discussed previously on this blog, the recast Brussels Regulation contains a number of important clarifications to the arbitration exception. Paragraph 3 of Recital 12 and Article 73(2) make it clear that the recast Regulation shall not affect the application of the New York Convention (the “Convention”). The recast Regulation should allow a…

Appointment of arbitrators, Arbitration Proceedings, Consolidation

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Herbert Smith Freehills

Whilst many institutional rules now contain provisions which expressly address the complex issue of consolidation, the recently revised rules of the International Centre for Dispute Resolution (the “ICDR”), the international arm of the American Arbitration Association (the “AAA”), are the first to have introduced the novel concept of the “consolidation arbitrator”. Under the ICDR Rules,…

Annulment, Awards, Enforcement, Thailand

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Herbert Smith Freehills

Introduction On 13 March 2014, Thailand’s Central Administrative Court annulled an arbitration award in the case between Hong Kong-based Hopewell Holding and the Thai Ministry of Transport (“MoT”) and State Railway of Thailand (“SRT”). The dispute arose out of a 30-year concession dating back to 1990 to build a 60-km elevated highway and rail line…