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 … Continue reading ARI v WXJ: pragmatism in arbitral appointments
Confidentiality undone? Publication of Court judgments in challenges to arbitration awards
One well-known reason for commercial parties to choose arbitration is the reassurance that such proceedings are confidential. For various reasons, parties prefer not to air “dirty linen” in public.
Expedited arbitration, autonomy and due process (part two)
This is the second part of a two-part blog post that considers the key features of expedited arbitration and what balance they achieve between efficiency, autonomy and due process. Part one addressed appointment of arbitrators and the arbitral procedure. Part two looks at hearings in expedited arbitrations.
Expedited arbitration, autonomy and due process (part one)
This two-part blog post considers the key features of expedited arbitration and how they modulate the balance between efficiency, autonomy and due process. Part one addresses appointment of arbitrators and the arbitral procedure, and part two addresses hearings in expedited arbitrations.
Irrelevance of arbitration awards on related legal proceedings: Vale SA v Steinmetz
In the recent case of Vale SA and others v Steinmetz and others, the Court of Appeal was asked to determine whether an arbitration award issued in respect of an arbitration between Vale SA (Vale) and BSG Resources Ltd (BSGR) was binding on Vale in respect of Commercial Court proceedings brought by it against Nysco (owners … Continue reading Irrelevance of arbitration awards on related legal proceedings: Vale SA v Steinmetz
Multi-contract disputes and arbitration: minimising time and costs
Where a number of disputes arise between the same parties under different contracts or between related contracts and different parties, the courts have a number of procedural and legal mechanisms to ensure that, as much as possible, there is a “one-stop shop” for resolution of all issues at the same time. This is commonly encountered … Continue reading Multi-contract disputes and arbitration: minimising time and costs
Article 12(9) of new ICC Rules: is party autonomy really being eroded?
The principle of party autonomy is expressed and enshrined in section 34(1) of the English Arbitration Act 1996: the right of the parties to ultimately decide on all procedural and evidential matters. It allows parties to an arbitration agreement the freedom to choose how their arbitration is conducted as well as how their arbitral panel … Continue reading Article 12(9) of new ICC Rules: is party autonomy really being eroded?
Witness recollection and international arbitration
A recently published report from the International Chamber of Commerce (ICC), The Accuracy of Fact Witness Memory in International Arbitration, covers the work undertaken by the ICC Task Force on Maximising the Probative Value of Witness Evidence. This blog post reviews the ICC Report’s salient findings and suggestions, and asks whether it advances matters.
What happens when an arbitral tribunal makes a mistake? Doglemor Trade Ltd v Caledor Consulting Ltd
There are various means open to a party to an arbitration to seek correction of a mistake by an arbitral tribunal depending on the nature of the mistake. For example, section 57 of the English Arbitration Act 1996 (AA 1996) empowers the tribunal of its own initiative or upon the application of a party to: Correct … Continue reading What happens when an arbitral tribunal makes a mistake? Doglemor Trade Ltd v Caledor Consulting Ltd
An issue of consent? English courts emphasise the importance of party choice in exercise of court’s powers in support of arbitration and when balancing competing issues of public policy
The judgment of the Supreme Court in Halliburton v Chubb is likely to be the subject of critical comment as to whether the test under English law for apparent bias is consistent with the approach of the wider international arbitration community on conflicts of interest. Before that debate becomes too intense, it is a good … Continue reading An issue of consent? English courts emphasise the importance of party choice in exercise of court’s powers in support of arbitration and when balancing competing issues of public policy
Preliminary issues and issue estoppel in arbitration… proceed with caution
Issue estoppel may bar a party from amending their claim submissions to raise new claims after the determination of a preliminary issue which meant the end of their original claim.
Taking a stand for the law of the seat: anti-suit injunctions and arbitrations
Parties to arbitration agreements often find that their counterparty nonetheless seeks to pursue proceedings in a foreign court (in many cases their home court). The foremost weapon in order to restrain such abuses is the anti-suit injunction, and the existence of this type of remedy under English law is well known internationally. Injunctive relief is … Continue reading Taking a stand for the law of the seat: anti-suit injunctions and arbitrations
Environmental claims by states in investment treaty arbitration
With environmental concerns and the attendant existential threat they pose at the forefront of the public consciousness, it is perhaps unsurprising that investment arbitration tribunals increasingly find themselves asked to determine claims and counterclaims by states against investors and other operators whose business activities have an environmental impact.
English courts’ supportive powers over English seated arbitrations: Minister of Finance v International Petroleum Investment Company
On 26 November 2019, the Court of Appeal handed down judgment in Minister of Finance (Inc) and another v International Petroleum Investment Company and another. The appeal addressed the ambit of the supportive powers of the English courts over English seated arbitrations, and the proper approach when issues of fact arise for determination both in a … Continue reading English courts’ supportive powers over English seated arbitrations: Minister of Finance v International Petroleum Investment Company
ICSID arbitration in the age of populism: the case for reform
On 12 November 2019, Quadrant Chambers held its biannual international arbitration seminar. The topic for discussion and debate was “ICSID arbitration in the age of populism: the case for reform”. The panel event was chaired by Ruth Hosking of Quadrant Chambers and the speakers were Emma Johnson, partner at Ashurst; Guy Blackwood QC of Quadrant … Continue reading ICSID arbitration in the age of populism: the case for reform
Section 70 Arbitration Act 1996: challenge or appeal: supplementary provisions
Mention section 70 of the Arbitration Act 1996 (AA 1996) to most arbitration practitioners and it is likely that they will immediately think of the sections 70(2) and (3). They require:
P v D and the dangers of failing to cross-examine witnesses
The judgment of Sir Michael Burton in P v D provides a salutary warning to those appearing as advocates in London seated arbitrations of the dangers of failing to cross-examine key witnesses on essential issues. In addition, it provides a salutary warning to arbitrators of the dangers of failing to ensure that “proper” cross-examination is conducted … Continue reading P v D and the dangers of failing to cross-examine witnesses
Confidentiality and transparency in arbitral applications
The extent to which confidentiality debars disclosure or inspection of documents, or an award or associated document, in arbitration proceedings has long fuelled debate within the law reports.
Anti-arbitration injunctions: the implications of Sabbagh
In Sabbagh v Khoury, the Court of Appeal confirmed the court’s jurisdiction to grant an anti-arbitration injunction (AAI) in exceptional cases where it would be vexatious and oppressive because of proceedings in England. Additionally, it held that it was not necessary for the exercise of that jurisdiction to show that England was forum conveniens.
The protection of arbitral jurisdiction under English law: the approach to section 67 challenges
The modern approach of English law to arbitration (as reflected in the English Arbitration Act 1996 (AA 1996)) reflects the core principle of party autonomy: see the Departmental Advisory Committee on Arbitration Law Report on the Arbitration Bill (DAC Report) at paragraphs 19-22.
Prague Rules… or does it?
A week before Christmas 2018, the Rules on the Efficient Conduct of Proceedings in International Arbitration (Prague Rules) were published. The title suggests that, without them, arbitral proceedings are condemned to be inefficient. The prefatory note from the working group reinforces that impression:
Preserving the right to arbitrate: where are the boundaries to an arbitration agreement?
Whether it is in the context of a jurisdiction challenge or by way of response to an application to restrain proceedings said to be in breach of an arbitration agreement, the wording of the arbitration clause is the usual starting point for determining the arbitrability of a dispute. The courts will be generous in their … Continue reading Preserving the right to arbitrate: where are the boundaries to an arbitration agreement?
What on earth happens next? Foreseeing the impact of Brexit on international arbitration
On 12 February 2019, Quadrant Chambers hosted an evening where the international arbitration community could gather and ventilate their experiences, concerns, and hopes as the United Kingdom moves closer towards exiting the European Union.
Arbitrators and evidence gathering: a note on Fleetwood Wanderers Limited v AFC Fylde Limited
It is a not uncommon feature of arbitration that an arbitral tribunal will from time to time take “judicial notice” of notorious facts without requiring the parties to adduce specific evidence to prove those facts. Furthermore, arbitrators are almost always appointed because of their particular expertise or experience of particular types of disputes.
Feeding back to arbitrators?
On 20 November 2018, about 50 participants attended Quadrant Chambers’ biannual international arbitration seminar. The topic for discussion and debate was “Feeding back to arbitrators”. The panel event was chaired by Simon Rainey QC of Quadrant Chambers and the speakers were Paula Hodges QC, head of global arbitration at Herbert Smith Freehills and future LCIA … Continue reading Feeding back to arbitrators?
New claims may be added relatively late in a proceeding if they are within scope of reference to arbitration
Arbitration specialists in solicitors’ firms are familiar with the evening phone call from transactional colleagues: “Can you look at our arbitration clause? We need to sign the contract tonight”. Frustrating as such entreaties can be, it is preferable to be asked in advance than to encounter a problematic clause for the first time after a … Continue reading New claims may be added relatively late in a proceeding if they are within scope of reference to arbitration
Who is my arbitrator? The need for greater transparency in arbitration
Roy Cohn, the well-known US lawyer, said, “I don’t want to know what the law is, I want to know who the judge is”. One of the advantages of arbitration over court litigation is that the parties know from the outset the arbitrator(s) who will be making the decisions in their case. As international arbitration … Continue reading Who is my arbitrator? The need for greater transparency in arbitration
Tribunal secretaries and decision-making in arbitration
Just as the increasing use of law clerks in the US court system has led to increased academic study and public discussion of their role and function, so too has the increased use of tribunal secretaries in international arbitration promoted discussion about their use and role. However, the nature of international arbitrations is such that … Continue reading Tribunal secretaries and decision-making in arbitration
Permission to appeal on a point of law: Agile Holdings Corporation v Essar Shipping Ltd
Getting the court’s permission to appeal an arbitral award on a point of law under section 69 of the Arbitration Act 1996 (AA 1996) is not straightforward. An applicant must establish not only that the tribunal’s approach to a question of law was obviously wrong or, if the matter is one of general public importance, … Continue reading Permission to appeal on a point of law: Agile Holdings Corporation v Essar Shipping Ltd
A newly announced legal duty of disclosure for arbitrators in England and Wales
The Court of Appeal held in Halliburton Company v Chubb Bermuda Insurance Ltd that an arbitrator may have a legal duty to disclose circumstances relating to impartiality, even if they do not meet the test for apparent bias under section 24(1)(a) of the English Arbitration Act 1996 (AA 1996). In other words, even if the circumstances … Continue reading A newly announced legal duty of disclosure for arbitrators in England and Wales
Who should pay for serious irregularities in international arbitration?
The case of P v D, X & Y, heard in November 2017 but only recently published, concerned an application under section 68(2)(d) of the English Arbitration Act 1996 (AA 1996) in which P, the claimant in a London Court of International Arbitration (LCIA) arbitration, claimed that the failure of the tribunal to deal with … Continue reading Who should pay for serious irregularities in international arbitration?
Interim court assistance in arbitral proceedings under section 44 of the Arbitration Act 1996: a reducing or expanding jurisdiction?
The English courts have traditionally followed the principle of non-intervention in arbitral proceedings. This non-interventionist stance was given statutory force under section 1(c) of the English Arbitration Act 1996 (AA 1996), which provides that “the court should not intervene except as provided by [the Arbitration Act 1996]”.
Jurisdiction issues in arbitration
On 20 February 2018, about 80 participants attended Quadrant Chambers’ biannual international arbitration seminar. The topic for discussion and debate was “Jurisdiction Issues in Arbitration”. The panel event was chaired by Simon Rainey QC of Quadrant Chambers and the speakers were Louis Flannery (now QC), Head of International Arbitration at Stephenson Harwood, Philippa Charles, Head … Continue reading Jurisdiction issues in arbitration
When does a party lose the right to object that the tribunal lacks substantive jurisdiction at the outset of proceedings in international arbitrations?
Sections 31 and 73 of the Arbitration Act 1996 (AA 1996) prescribe the circumstances in which a party may lose the right to object to the tribunal’s jurisdiction. These provisions are mandatory.
Emergency interim relief: where do you go?
Despite the tensions that sometimes arise in the relationship between national courts and the institutions of international arbitration, one critical area of cooperation is the support that national courts provide by way of interim relief. One of the most obvious examples of that relief is the granting of freezing injunctions and disclosure orders restraining a … Continue reading Emergency interim relief: where do you go?
Relief and confidentiality: Sowden v Smyth-Tyrrell and UMS Holdings Ltd v Great Station Properties SA
Two recent decisions of the High Court have provided salutary illustrations, reminders and guidance as to substantive and procedural aspects of English arbitration law: one in the context of the requirements for relief under section 68 of the Arbitration Act 1996 (AA 1996), and the other as regards arbitral confidentiality and the extent to which … Continue reading Relief and confidentiality: Sowden v Smyth-Tyrrell and UMS Holdings Ltd v Great Station Properties SA
