REUTERS | Dani Cardona

Background

The Emirates Maritime Arbitration Centre (EMAC) was officially launched in November 2016. It signifies an important push by the United Arab Emirates (UAE) to promote a specialised regional maritime dispute resolution institution. Due to growing maritime activity, EMAC aims to provide the finest arbitration services in the region with arbitrations seated in the Dubai International Financial Centre (DIFC), unless otherwise agreed, under the (pro-arbitration) DIFC Courts’ supervisory jurisdiction. In addition, EMAC’s role extends to supervision and promotion of other dispute resolution mechanisms, including mediation. EMAC enjoys financial and administrative independence and its governance structure is composed of a Board of Trustees, an Executive Committee and a Secretariat. Continue reading

REUTERS | Edgar Su

The European Union (EU) and Singapore concluded negotiations for a free trade agreement (FTA) in June 2015. This agreement is one of the first “new-generation” FTAs, that is to say, a trade agreement which contains, in addition to the classical provisions on the reduction of customs duties and non-tariff barriers to trade in goods and services, provisions on various matters related to trade. These can include intellectual property protection, investment, public procurement, competition and sustainable development. Continue reading

REUTERS | Dominic Ebenbichler

In light of the most recent case law precedent, the development of the relationship between the onshore Dubai and the offshore Dubai International Financial Centre (DIFC) courts has taken a very unfortunate turn. Since 2004, the DIFC courts have been evolving into a common law forum of choice as an alternative to the onshore civil law Dubai courts. Part of this evolution meant that the DIFC courts gradually acquired – through their own judge-made law – the status of a conduit jurisdiction that was competent to hear applications for the recognition and enforcement of domestic non-DIFC awards for onward execution in onshore Dubai (that is, outside the DIFC, and the wider United Arab Emirates (UAE)). The status of the DIFC as a conduit jurisdiction within this domestic context was championed by the DIFC courts’ rulings in the landmark Banyan Tree line of cases and has since been extended to the recognition and enforcement of foreign awards. Continue reading

REUTERS | B Mathur

The Singapore International Arbitration Centre (SIAC) has recently announced that it entered into a cooperation agreement with Arbitrator Intelligence, a Penn State Law-affiliated initiative, to promote the use of the Arbitrator Intelligence Questionnaire amongst SIAC’s users. Continue reading

REUTERS | Edgar Su

The role of pre-contractual negotiations in contractual disputes is a much debated topic. Every English lawyer knows that, as a general rule, these materials, usually comprising of previous drafts and discussions, are not relevant to matters of interpretation (see for example Chartbrook Ltd v Persimmon Homes Ltd). There are limited exceptions to this rule, such as the “private dictionary” scenario where the parties are alleged to have attached a special meaning to their words (that is, the words should not be understood in their plain and ordinary sense). There are also other scenarios, outside the scope of pure contractual interpretation, where pre-contractual negotiations are relevant, for example where rectification is sought or fraud/misrepresentation is alleged. However, beyond these narrow exceptions or non-contractual claims, pre-contractual negotiations remain relevant to contractual disputes, especially in international arbitrations. Continue reading

REUTERS | Edgar Su

The long-awaited opinion of the Court of Justice of the EU (ECJ) on the question of whether or not the EU has exclusive competence over all aspects of the EU-Singapore Free Trade Agreement (FTA) left the most disputed issue unanswered, namely, whether or not investor-state dispute settlement (ISDS) is compatible with EU law. Continue reading

REUTERS | Edgar Su

Introduction

Since first emerging in its modern form in Australia about 20 years ago, third party funding has become widespread, first in investment arbitration, later expanding to international commercial arbitration in the common law world, as well as in a number of civil law jurisdictions. Recent changes in the law in both Hong Kong and Singapore permitting third party funding in international arbitration provide a clear indication that it is here to stay. However, the increased use of third party funding in international arbitration has raised a number of legal issues, one of which is how privilege and confidentiality can be protected when communicating with and providing documents to the third party funder.

This blog looks at the main heads of privilege that may be relevant in the context of third party funding in international arbitration. It also considers what can be done to protect privilege when communicating with third party funders. Continue reading

REUTERS | Lucas Jackson

In Daesang Corp v The NutraSweet Co, a Commercial Division Justice (a court of first instance) in New York applied the controversial “manifest disregard of the law” standard to partially vacate an international arbitration award under the Federal Arbitration Act (FAA) granting damages to the seller of an aspartame (artificial sweetener) business to The NutraSweet Company. Prior challenges to international arbitral awards on this basis have not been successful. Indeed, the New York City Bar Report of its International Commercial Disputes Committee (ICDC) in 2012 explained that the concern about manifest disregard is purely theoretical in international arbitration, noting that it was unable to find a single international award that was vacated on those grounds. Prior to Daesang, this author is unaware of any such decision issued after the ICDC 2012 report. Continue reading