In A and B v C, D and E [2020] EWCA Civ 409, the English Court of Appeal issued on 19 March 2020 an order compelling a non-party to arbitration proceedings seated in New York to give evidence in support of the arbitration. The Arbitration The dispute arose under two settlement agreements between A…
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…
The topic of precedent in international arbitration is not an idle one. It is widely accepted that the existence and use of precedent in any legal system leads to predictability, consistency and equality of treatment. Indeed, one of the eight strands that according to the late Lord Bingham (as summarised by Lord Neuberger) make up…
It is often said that flexibility is a cornerstone of international arbitration and that the tribunal (typically in consultation with the parties) is the master of how the proceedings are to be conducted. Yet, it remains unsettled whether certain specific rules of procedure or evidence must be complied with in arbitration – sometimes, at the…
The Roebuck lecture, delivered this year on 13 June 2019, is an annual gathering of renowned scholars, practicing lawyers, arbitrators, students and arbitration enthusiasts. It pays tribute to Professor Derek Roebuck MCIArb, the arbitration historian who made an invaluable contribution to the Institute’s work and development, in particular as editor of the CIArb’s prestigious academic…
A Mareva injunction or a freezing injunction is a form of ad personam interim relief, which is usually sought during the pendency of court or arbitration proceedings or once the proceedings are completed and a verdict is rendered, but before the judgement/award is enforced and executed. This form of injunction is essentially sought by a…
Shipping disputes might range from minor issues to complex jurisdictional claims with several parties involved in the contracts. Due to the popularity and observed benefits of arbitration, such as the privacy of the arbitral process and perceived certainty in the binding nature of arbitral awards, arbitral agreements have grown in use with the increase in…
In RJ v HB [2018] EWHC 2833 (Comm) (‘RJ’), Andrew Baker J (‘Baker J’) found that the facts disclosed a serious irregularity under s68 of the English Arbitration Act 1996 (‘the Act’).1)The author wishes to thank Ms Rachel Foxton, Mr Harry Francis Millerchip, and Ms Jenna Hare. The views in this article should not be…
A little under ten years ago Sir Rupert Jackson proposed significant reforms to reduce the costs of litigation in England and Wales. It is fair to say that while his reforms have received both praise and criticism over the past decade, they are largely considered to have been a success in curtailing the costs of…
Party-appointed arbitrators have recently been the subject of much debate in the arbitration community. There are those who see the ability to ‘choose’ an arbitrator as one of the fundamental pillars of arbitration. For others, it is a time- and cost-consuming exercise leading to potential conflicts and an increased likelihood of arbitrator challenges, both of…
The seat of arbitration is a vital aspect of any arbitration proceeding. The situs is not just about where an institution is based, where hearings will be held or where there may be a good pool of arbitrators. It is also about which courts have supervisory power over your arbitration and the scope of those…
Two recent pieces of recent research raise the question of whether arbitration users really value finality in arbitration or take it for granted. Is it time (again) to discuss whether s69 Arbitration Act 1996 is meeting users’ needs? Arbitration Act 1996, s69 Section 69 of the Arbitration Act 1996 (AA 1996, s 69) is a…
A recent ruling of the DIFC Court of First Instance (see Claim No. ARB 003/2017 – Pearl Petroleum Company Limited & Others v. The Kurdistan Regional Government of Iraq [2017] DIFC ARB 003) deals with the question as to whether a State immunity defence may be available to a State entity or a governmental defendant…
My previous blog post on this topic dealt with two issues stemming from the juxtaposition between the current arbitration legal framework and necessary due process requirements which are specifically developed for antitrust damages proceedings: (1) the necessary regulation of complex arbitration specifically designed for antitrust damages matters, and (2) the need to address information asymmetry…
The recent decision in P v Q [2017] EWHC 148 (Comm) provided, for the first time, guidance on how a Court will approach an application for disclosure in support of an application to remove Arbitral Tribunal members under s.24 Arbitration Act 1996. Background The Claimant had brought an application to remove two wing members (the…
The use of tribunal secretaries in arbitration is a hotly debated topic. For some time now, the use of a secretary has been increasing in the interests of cost and time efficiency. For some however, there is a fear that arbitrators delegate their duties and for a ‘second’ or ‘fourth’ arbitrator to be involved in…
The first blog in this two-part series, published last year, discussed the growing concern of arbitration users over “due process paranoia”. In that first blog, due process paranoia was defined as the perceived reluctance by arbitral tribunals to act decisively (for example by rejecting applications for extensions of time, refusing amendments to submissions, rejecting new…
Introduction It is a key principle in many jurisdictions across the world that arbitration clauses should be separable from the underlying contract in which they are contained. This prevents arbitration clauses from being denuded of their effect, particularly where the contract is void for fraud. However, not all jurisdictions uphold the separability principle. Therefore, in…
A new development in the third party funding arena prompts an increased analysis of the theoretical foundations of the nature of third party funding. At the moment, there are divergent views on its proper place and treatment, and with increased prevalence a piecemeal approach with little theoretical groundwork risks creating a minefield resulting in unpredictability…
Introduction As noted in Part 1 of this two-part series, the ability to select an arbitrator is widely considered one of the most valuable characteristics of international arbitration. While Part 1 focused on removal of arbitrators for apparent bias, this Part 2 focuses on the parties’ ability to remove an arbitrator if he/she proves unable,…
Introduction The ability to select an arbitrator is widely considered one of the most valuable characteristics of international arbitration. According to the Queen Mary University and White & Case 2015 International Arbitration Survey, selection of arbitrators was considered its fourth most important characteristic, with 38% of respondents rating it among their top three. Surely, then,…
A few months ago a piece was published on the Kluwer blog on s. 69 of the English Arbitration Act, a provision which gives a party to an English-seated arbitration a limited right of appeal on a point of law (absent an agreement to the contrary with its contractual counterparty). Based on a review of…
An arbitration can be severely disrupted by a party who refuses to comply with an order or direction of its tribunal. In such circumstances, a peremptory order may be used to force the non-compliant party to comply with the earlier order or direction within a specific timeframe. An arbitral tribunal’s peremptory order was recently enforced…
