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Sun sets on the Arbitration blog
Section 57 of the Arbitration Act: an under-valued tool in the arbitration toolbox
Faced with an unsatisfactory arbitral award, a party may turn its mind to the potential recourse available under the Arbitration Act 1996 (AA 1996). That may include sections 67 to 69 of the AA 1996, which allow a challenge to be brought to an award based on, respectively, a lack of substantive jurisdiction, a serious procedural irregularity, or an error of law. However, parties less often consider the further options available under section 57 of the AA 1996, under which a party may request the correction of errors or the removal of ambiguities in an award, or request an additional award in respect of a claim that has not been addressed. Many arbitral rules also contain a similar provision. In certain circumstances, an application under section 57 may provide a sufficient standalone remedy. In others, it will be a prerequisite to a subsequent application under sections 67 to 69 of the AA 1996 and may also strengthen the challenge brought under those provisions.
It has been said that: “[a]s Vietnam solidifies its position as a highly attractive destination for investment, it is expected that the inflow of investments would be even greater, and with it, an increasing demand for international arbitration as a means of dispute resolution”(Asian International Arbitration Journal, Volume 18 Issue 1, L Chen & Nguyen S V, Rising Giants: Charting the Growth of Arbitration in Vietnam and China).
Of the arbitral institutions commonly used in disputes with a Vietnamese nexus, the International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC), and Vietnam International Arbitration Centre (VIAC) are the most prominent. No doubt sophisticated parties will consider the differences between the arbitral rules before deciding on the most suitable one for each transaction.
We take a closer look at the VIAC Rules in this article. The current VIAC Rules were released in February 2017, and introduced new provisions on consolidation and expedited procedure. 2023 is an apt time to rethink the 2017 Rules. Of which, three aspects may merit a rethink.
Arbitration: 2022 in review
2022 will be remembered as the year that the world moved from pandemic disruption to geopolitical chaos. While many of us welcomed the return to international travel, in-person hearings, and our offices, the biggest story was undoubtedly Russia’s invasion of Ukraine and the seismic shift that has followed.
While the cost of living crisis and an eventful year in British politics held the public’s attention, arbitration practitioners were as busy as ever, with significant commercial disputes moving ahead, the Energy Charter Treaty (ECT) becoming increasingly controversial, and major court decisions in Canada, US and elsewhere. Read on for our recap of the year in arbitration.
BCLP Arbitration Survey 2022: reform of the Arbitration Act: evolution in a changing world
For over ten years, BCLP have conducted an annual survey on issues affecting the arbitration process. This year’s survey focuses on the reform of the English Arbitration Act 1996, a topic chosen to coincide with the Law Commission’s ongoing consultation on reform of the legislation.
ARI v WXJ: pragmatism in arbitral appointments
In ARI v WXJ, the English High Court adopted a “pragmatic approach” to determine whether an arbitrator had been validly appointed in a London-seated arbitration, holding that an appointment required first, that the arbitrator had given a “clear and unequivocal communication of acceptance”, and secondly, that the appointing party acted on the acceptance by communicating the appointment to the opposing party (paragraph 22).
The winter of our discontent
It is not news that Europe has been hit hard by soaring energy prices. Power generators that had been shut down during the COVID-19-related economic downturn could not be ramped up in time to meet the increased demand as lockdowns waned. A prior long, cold winter had already depleted the amount of gas in storage, while droughts caused by global warming shut down hydro and nuclear plants. The situation was exacerbated by European sanctions in response to the events in Ukraine (and Russian retaliation). Gas prices in Europe have since risen to more than 10 times their historical average values due to a depletion of Russian natural gas supply, a major source of power for electric generators and home heating on the continent. The final nail in the coffin was the shutdown of the key Nord Stream 1 pipeline, the biggest Russian gas pipeline to Europe, on 2 September. Continue reading
Singapore Court of Appeal partially sets aside arbitral award for breach of the fair hearing rule, and declines to adopt the “no evidence rule” as part of Singapore law
In a recent set aside action, the Singapore Court of Appeal (SGCA) has once again demonstrated its pro-arbitration stance. Being a Model Law jurisdiction, the Singapore courts will only set aside arbitral awards on limited grounds, for example, for breach of Singapore’s public policy and breach of natural justice. In CEF and other v CEH, the SGCA had the opportunity to consider whether the “no evidence rule” should be adopted as a specific rule of natural justice such that an arbitral award would be liable to be set aside for breach of natural justice if it contains findings of fact made with no evidential basis whatsoever. The SGCA declined to adopt the rule, reaffirming Singapore’s policy of minimal curial intervention in arbitral proceedings.
To swear or not to swear, that is the question…
In a recent ruling (see Case Nos 78 and 96/2022, ruling of the Dubai Court of Cassation), the Dubai Court of Cassation has put an end to speculation about whether or not oath-taking is mandatory in arbitration conducted under the Law No. 6 of 2018, the UAE Federal Arbitration Law (FAL).
In the first post-Brexit case concerning the interface between arbitration law and consumer protection law, the Court of Appeal (CA) in Soleymani v Nifty Gateway LLC partially overruled the lower court’s earlier ruling declining a stay of court proceedings in favour of arbitration. The decision’s impact on consumer arbitration in the UK remains to be seen.