Arbitration Agreement

2024 in Review, ACICA, Arbitration Agreement, Australia, Australian Arbitration Week, Energy, Immunity, Investment Arbitration, Legislative amendment, Liability, New Zealand, Pacific Islands, Party autonomy, PCA, Public Policy, Standard of Proof

, , and (Munro Leys)/ /Leave a comment

Continuing with the trend of previous years, 2024 saw continued development throughout the region. In Australia, we saw an influx of meaningful, pro-arbitration court decisions, in the Pacific Islands, we saw the strengthening of legal frameworks, and in New Zealand, we saw a clarification of public policy considerations. We delve into these standout developments and…

Ad hoc arbitration, Arbitration Agreement, China, Competence-Competence, Interim measures, PRC, Seat of the arbitration, Validity

, (Hui Zhong Law Firm)/ /1 Comment

On November 8, 2024, the Standing Committee of the 14th National People’s Congress released for public comment the draft amendment to the PRC Arbitration Law (“2024 Draft”) after its first review during the Twelfth Session meeting. The 2024 Draft version generated immediate and widespread concerns and criticism. In stark contrast to the draft amendment released…

Arbitration Agreement, Germany, Interim measures, Set aside an arbitral award

, (Luther)/ /Leave a comment

On 12 July 2024, more than 25 years after adopting its current arbitration law, the German government agreed on a draft reform law (“Draft Law”). It is based on a White Paper issued in April 2023 (reported here), including comments received thereon (see here). The now adopted version (dated 26 June 2024, to be submitted…

Arbitration Act 1996, Arbitration Agreement, CISG, UK

(Brunel University London)/ /Leave a comment

Can the United Nations Convention on Contracts for the International Sale of Goods (CISG) be applicable to arbitration agreements? The literature has been divided on this matter, with several discernible approaches. This post explores the topic of applicability of the CISG to arbitration agreements from the perspective of the now (in)famous Enka v. Chubb case,…

Arbitration Agreement, Arbitration clause, Arbitration institution, Europe, Netherlands

, (Houthoff)/ /1 Comment

On 21 February 2024, the District Court of Amsterdam (“the court”) rendered a decision in summary proceedings. The key question that arose from this decision was: Can parties facing an unclear arbitration agreement ask the national courts to resolve their disputes instead? The issue of ambiguity surrounding arbitration agreements is not a novel phenomenon (see,…

Arbitration Agreement, Australia, Hague-Visby Rules, London Maritime Arbitrators' Association, Maritime Arbitration, Referral to Arbitration, Stay of Proceedings

(Allens) and / /Leave a comment

In Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG [2024] HCA 4 (“Carmichael v BBC”), the High Court of Australia (“High Court”) upheld a stay of proceedings in the Federal Court of Australia (“Federal Court”) in favour of a London Maritime Arbitrators Association (“LMAA”) arbitration seated in London. This unanimous…

Arbitration Agreement, Chinese Arbitration Law, PRC, Uncategorized

, , (Hui Zhong Law Firm)/ /Leave a comment

Introduction This article explores the latest development of the People’s Republic of China’s jurisprudence regarding asymmetrical arbitration agreements.  (Cambodia) Fiber Optic Communication Network Co., Ltd. v. China Development Bank (2022) Jing 74 Min Te No. 4 (“Fiber Optic v. CDB”), a recent case adjudicated by the Beijing Financial Court in October 2022 and made public…

Arbitration Agreement, Assignment, Assignment of arbitration clause, India

(ANR LAW LLP)/ /Leave a comment

Under the Indian Contract Act 1872 (“ICA”), an arbitration agreement is a distinct and separate contract. Like all other contracts, it can be transferred by way of assignment to third parties under Section 37 of the ICA. The Supreme Court of India in Khardah Company Ltd vs Raymon & Co. (India) Private Ltd has held…

Arbitration Agreement, India, SIAC, Validity

(SIAC)/ /Leave a comment
Singapore International Arbitration Centre (SIAC)

The Supreme Court of India (“Supreme Court”), in its recent landmark judgment in In Re: Interplay between Arbitration Agreements under the Arbitration and Conciliation Act 1996 and the Indian Stamp Act 1899 (“the 7J Judgment”), provides welcome clarity on the question of enforceability of arbitration agreements contained in unstamped or inadequately stamped contracts, and reinforces…

Arbitration Agreement, India, Validity

and (Trilegal)/ /1 Comment

The Indian arbitration bar was waiting for an important judgment of a 7-judge bench of the Indian Supreme Court (“Judgment”), which reviewed its own earlier judgment in NN Global Mercantile Private Limited v. Indo Unique Flame Ltd. and Ors. (“NN Global”) covered in a previous blog post here. The issue before the Indian Supreme Court…

Arbitration Agreement, Non-signatory, Ukraine

(AGA Partners Law Firm)/ /Leave a comment

On 1 November 2023, the Grand Chamber of the Ukrainian Supreme Court – the highest judicial body in the country – opined on the extension of the arbitration clause to non-signatories in its judgement in case No. 910/3208/22 (Berezan Processing Plant v Grain Power, hereinafter ‘Berezan case’). This judgement is a landmark one because it…

Arbitration Agreement, Court Proceedings, Indonesia, Third Party

(Leks&Co)/ /Leave a comment

An arbitration agreement is an agreement to resolve disputes through arbitration. Its existence precludes disputing parties from bringing their dispute to court: see Article 3 of the Arbitration and ADR Law of the Republic of Indonesia (“Arbitration Law”), which stipulates that Indonesian courts have no jurisdiction to try disputes between parties bound by an arbitration…

Arbitration Agreement, Italy, SchiedsVZ

(University of Würzburg)/ /Leave a comment

Assuring a speedy resolution of potential disputes is a very important concern for most parties entering into arbitration agreements. One means to ensure a speedy arbitration can be a fixed deadline for the arbitral tribunal’s decision. With a focus on Italian law –under which Article 820(2) of the Code of Civil Procedure fixes a 240-day…

Advance on Costs, Arbitration Agreement, DIAC, Dubai

(Blanke Arbitration LLC)/ /Leave a comment

In a recent decision, Case No. 10/2023 dated 24 October 2023, the General Assembly of the Dubai Court of Cassation decided to reverse a position introduced by the Dubai Courts of Cassation in around 2013 (see, e.g., Case No. 379/2013 (Real Estate), ruling of the Dubai Court of Cassation; and then also affirmed in Case…

Advance on Costs, Arbitration Agreement, Dubai

(Al Owais Advocates & Legal Consultants) and (Galadari Advocates & Legal Consultants)/ /Leave a comment

In a recent decision, the General Assembly of the Dubai Court of Cassation (“General Assembly”) decided that non-payment of the advance on arbitration costs does not affect the arbitration clause which remains in force and can continue to be relied upon by the parties. This decision reflects a complete reversal of the prior majority view…

Arbitration Agreement, China, Separability

(Anjie Broad Law Firm (Xiamen Office)) and (China University of Political Science and Law)/ /Leave a comment
CIETAC Hong Kong Arbitration Center

In 2010, the Supreme People’s Court of the People’s Republic of China (the “SPC”) issued the Provisions of the Supreme People’s Court on Case Guidance (the “Provisions”). The Provisions are widely considered to establish a unique case guidance system in China, under which courts at all levels should refer to the selected guiding cases when…

Arbitration Agreement, Arbitration Agreements, New York Convention, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, UNCITRAL Model Law, Validity

(Law Offices of Kiran N Gore PLLC; The George Washington University Law School) and (Queen's University Faculty of Law)/ /Leave a comment

As experienced negotiators know, the process of contract negotiation can give rise to fruitful and long-lasting business relationships. The parties may meet several times to develop the precise terms of their agreements, through videoconferences, in conference rooms, or over dinner and drinks. But for many contracts, the parties’ representatives never meet, limiting their negotiations to…

Appointment of arbitrators, Arbitration Agreement, Arbitration clause, India

, , (Trilegal)/ /Leave a comment

The question of the validity of unilateral arbitral appointments in the Indian scenario has risen above the surface yet again. The Delhi High Court recently, in Margo Networks Pvt. Ltd. and Another v Railtel Corporation of India Ltd (“Margo”), reiterated the conflict in the existing legal position and the need for finality on this issue….

Arbitration Agreement, German Federal Supreme Court, German law, Germany, SchiedsVZ

, , (WAGNER Arbitration)/ /Leave a comment

Can an arbitration agreement be binding on a party that did not sign it? Generally, an arbitration agreement only binds its signatories. This is a transnational principle, also anchored in the German Constitution. There are, however, widely accepted exceptions. This article examines the extension of arbitration agreements to third parties under the requirements of Sec. 25(1)…

Arbitration Agreement, India, Validity

and (Trilegal)/ /Leave a comment

In an India-seated arbitration, if your contract is unstamped or insufficiently stamped, the Supreme Court of India has now confirmed in its authoritative judgement passed on April 25, 2023, in N N Global Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. (“NN Global”) that this would be a valid ground to disallow acting…

Arbitration Agreement, Governing Law, Turkey

, (Baysal & Demir Law Firm)/ /Leave a comment

Identifying the law governing the arbitration agreement has increasingly proven to be a complex and confusing process. This is particularly true after the UK Supreme Court’s Enka v. Chubb judgment, which already was the topic of extensive discussion on Kluwer Arbitration Blog (see here, here and here). In spite of being criticised by many scholars…

Arbitration Agreement, Korea, Law governing the arbitration agreement, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Proper law of arbitration agreement

(Kim & Chang)/ /Leave a comment

The issue of the governing law of the arbitration agreement was brought into the spotlight with the U.K. Supreme Court decision in Enka v. Chubb (discussed on the Blog here and here), and it became a hotly debated topic following the conflicting decisions from French and English courts on Kabab-Ji SAL (Lebanon) v. Kout Food…

Arbitration Agreement, Australia, Competence-Competence, Jurisdiction of the arbitral tribunal, kompetenz-kompetenz

(Victorian Bar)/ /Leave a comment

Under the UNCITRAL Model Law and the laws of many ‘arbitration friendly’ jurisdictions, courts must refer a matter subject to a valid and operative arbitration agreement to arbitration if requested by a party within the relevant time period. The principle of kompetenz-kompetenz prescribes that an arbitral tribunal may determine its own jurisdiction (which necessarily includes…

Arbitrability, Arbitration Agreement, English Arbitration Act, Singapore, Singapore Court of Appeal, YSIAC

, (Al Tamimi & Company)/ /Leave a comment
YSIAC

Issues relating to the arbitrability of disputes have gained increasing prominence in recent years. The question of which law ought to govern an arbitration agreement and concomitantly the inquiry as to whether a dispute is arbitrable, in the absence of an explicit choice of law governing the arbitration agreement has been explored in previous judgments…