On 29 April 2014, the French Cour de cassation made a decision on the criteria a multi-tiered dispute resolution clause (“multi-tiered clause”) should meet to render claims inadmissible if disregarded.1)Cass. com. Medissimo v. Logica, 29 April 2014, n° 12-27.004. In this case, Medissimo, a pharmaceutical company, entered into a contract with Logica, an IT company,…
The debate regarding the extent to which most favoured nation (‘MFN’) clauses in bilateral investment treaties (‘BITs’) can expand the scope of application of such treaties is a well-established and evolving dialogue in investment treaty jurisprudence. However, while the issues around the extension of substantive and procedural protections in BITs have received considerable attention, the…
In further nod to the non-interventionist and pro-arbitration stance of the Singapore courts, the Singapore Court of Appeal in BLC and ors v. BLB and anor [2014] SGCA 40 (“the BLC decision“) reversed the decision of the High Court to set aside part of an arbitration award (“Award“) on the ground of a breach of…
By Justin D’Agostino and Timothy Hughes, Herbert Smith Freehills The Hong Kong International Arbitration Centre (“HKIAC“) has amended its Model Clauses in order to include an optional provision that specifies the parties’ choice of law to apply to an arbitration clause. The express designation of a particular law to govern an arbitration clause does not…
In an order dated 28 January 2014 (file number III ZB 40/13), the German Federal Supreme Court (Bundesgerichtshof, the “Court”) clarified that an arbitral award can only be set aside in recognition or enforcement proceedings by a state court in “extremely exceptional cases”, i.e. if an award breaches the fundamental principles of the German legal…
Armada (Singapore) Pte Ltd (Under Judicial Management) v Gujarat NRE Coke Limited [2014] FCA 636 Justice Foster of the Federal Court of Australia handed down judgment on 17 June 2014 in an application for the enforcement of three foreign arbitral awards. The key issue for determination before the court was whether the applicant, Armada (Singapore)…
In two recent decisions, Banyan Tree v. Meydan Group LLC (Case No. ARB 003-2013) and X1 and X2 v. Y1 and Y2 (Case No. ARB 002-2013), the DIFC Court of First Instance (H.E. Justice Omar Al Muhairi and Sir John Chadwick respectively) confirmed its jurisdiction to recognise and enforce within the DIFC arbitral awards rendered…
In Honeywell v Meydan Group LLC ([2014] EWHC 1344 (TCC)) the High Court in London upheld a DIAC award against the owner of the Meydan Racecourse in Dubai, rejecting allegations that the underlying contract was procured through bribery. The decision is just one of a number of claims arising out of the construction of the…
By Justin D’Agostino, Jessica Booth and Tracy Wu, Herbert Smith Freehills Ever since the internal fight between CIETAC (Beijing) and its Shanghai and Shenzhen sub-commissions became public in May 2012, the internal jurisdictional dispute between Beijing and the two sub-commissions has loomed large, resulting in the latter two declaring independence, re-naming themselves and introducing new…
Authors: Geoff Hansen, Partner and Jennifer Galatas, Senior Associate1)The authors gratefully acknowledge the assistance of Nuwan Dias in preparing this article. 1. Introduction – APRAG and Beyond On 27 to 28 March 2014, international dispute experts converged on Melbourne, Australia to celebrate the 10th Anniversary of the Asia-Pacific Regional Arbitration Group (APRAG) Conference. APRAG is…
By Peter Godwin, Elaine Wong and James Allsop, Hebert Smith Freehills The Japan Commercial Arbitration Association (“JCAA”) has introduced an amended version of its Commercial Arbitration Rules (the “New Rules”). The New Rules, which contain comprehensive amendments, came into force on 1 February 2014 and will apply to all arbitrations initiated on or after that…
An arbitral award (PCA Case No. 2011-17, 31 January 2014) arising out of the nationalisation of an electricity generation business in Bolivia has provided useful guidance on: (1) the ability of multiple investor claimants to bring joint claims against a state under separate BITs in a single proceeding; and (2) the time at which a…
By Justin D’Agostino and Sean Izor In the past, arbitration laws and arbitral institutions in Asia have often been seen as less well developed when compared to their Western counterparts. However, just as Asia’s economies have grown at a rapid pace, catching up to (or surpassing) those of Europe and the United States, so has…
The December 2013 decision of the English Commercial Court (the Court) in Habas Sinai Ve Tibbi Gazlar Istihsal Andustrisi AS and VSC Steel Company Ltd [2013] EWHC 4071 (Comm) (Habas) summarised the guidance provided in Sulamérica Cia Nacional De Seguros S.A. and others v Enesa Engenharia S.A [2012] EWCA Civ 638 (Sulamérica) and Arsanovia Ltd…
Allegations of fraud and corruption are increasingly encountered in international arbitrations but there is at times a perception that international arbitration, which is by nature a private and consensual dispute resolution mechanism, is ill-equipped to handle the challenges thrown up by such allegations. This is particularly so when looking at arbitral procedure. Is this perception…
London-based think-tank Chatham House is predicting an increase in the number of arbitrations between governments and companies in the extractive industries. Commercial stakes being particularly high in this sector, companies generally seek to resolve disputes with a host state through negotiation, viewing arbitration as the method of last resort. Yet Chatham House believes that there…
By Justin D’Agostino and Yi-Shun Teoh In the latest instalment of Pacific China Holdings Ltd (in Liquidation) v Grand Pacific Holdings Ltd, the Hong Kong Court of Final Appeal has confirmed that parties who unsuccessfully challenge arbitral awards will generally be ordered to pay costs on the indemnity basis. This is a relatively rare and…
In a recent decision in the long-running Astro v. Lippo dispute,1)PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v. Astro Nusantara International BV and others and another appeal (2013) SGCA 57. the Singapore Court of Appeal (the “Court“) grappled with the question of whether an unsuccessful party to an international arbitration award…
The Full Court of the Federal Court of Australia (the Court) recently upheld a decision enforcing an arbitral award made by three London arbitrators (Gujarat NRE Coke Limited v. Coeclerici Asia (Pte) Ltd [2013] FCAFC 109). The Court dismissed the appeal confirming that the arbitrators did not deny the appellants procedural fairness and did not…
In a recent decision of the Swiss First Civil Law Court (X._____ v. Y.______, 4A_669/2012), an arbitral award was annulled on the basis that the arbitrator had violated the appellant’s right to be heard. Although the decision applies Swiss Federal law, the decision is relevant to practitioners in other jurisdictions which allow for annulment of…
Contracting with States or State-controlled/assimilated entities is, and has always been, tricky, especially when a dispute arises between the (private) party or investor and the State or State-controlled/assimilated entity. An increasingly common problem is the attempt by the State to raise sovereign immunity from execution/enforcement to avoid enforcement of an arbitral award (and or judgment)…
On 11 July 2013, the United Nations Commission on International Trade Law (“UNCITRAL”) adopted new Rules on Transparency in Treaty-based Investor-State Arbitration (the “Transparency Rules”), which will come into effect from 1 April 2014. The new rules provide for public access to documents generated during treaty-based investor-state arbitrations (but not commercial arbitrations) brought under the…
In a judgment dated 10 May 2013 (Sanofi-Aventis Deutschland GmbH v. Genentech, Inc., Appeal No 2012-1454) the United States Court of Appeals for the Federal Circuit (the ‘CAFC’) affirmed a first-instance decision refusing the grant of an injunction preventing Sanofi-Aventis Deutschland GmbH (‘Sanofi’) from continuing to participate in an ICC arbitration where issues of infringement…
The recent Rompetrol Group NV v Romania award provides rare guidance as to the requirements to be satisfied for a successful treaty claim arising from State conduct against individual company officers rather than the claimant investor itself. The investor claimed, inter alia, that the arrest, detention, criminal investigations and wire-tapping of its directors constituted State-sponsored…
