REUTERS | Edgar Su
December 22, 2020

Drafter beware: High Court of Singapore confirms approach to interpreting apparently “conflicting” arbitration and jurisdiction clauses

On 16 November 2020, the High Court of Singapore rejected an application from the defendant to the litigation for a stay in favour of arbitration. In doing so, the court provided a helpful summary of the court’s analysis when faced with prima facie overlapping dispute resolution clauses in the same or related agreements. On the facts of the case, the court concluded that the parties’ intentions, objectively ascertained, were that, notwithstanding the existence of an arbitration agreement, a separate jurisdiction clause in favour of the Singapore courts operated as an effective carve out for certain defined disputes.

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REUTERS | Russell Cheyne
December 16, 2020

A firmer view on conflicts of interest (Part 2)

There are two obvious differences between the Brazilian and English disclosure regimes. First, we have no codified duty to disclose in England. We only have grounds upon which a party can challenge the arbitrator, which much be read in the context of the justifiable doubts test from section 24(1)(a) of the English Arbitration Act 1996 (AA 1996). Secondly, when Lord Saville was drafting the AA 1996, which succeeded the English Arbitration Act 1950, he purposely excluded the word “independence”, which appears in article 12 of the Model Law and article 14(1) of the Brazilian Arbitration Act 1996 (Brazilian Act).

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REUTERS | Yuriko Nakao
December 7, 2020

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 time to recall the importance that English law gives to protecting parties’ choice of arbitration as their means of dispute resolution and within that, their choice of seat and governing law for the arbitration. Two recent decisions of the Commercial Court illustrate that support.

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REUTERS | Dominic Ebenbichler
November 19, 2020

Termination of arbitration proceedings under article 45 of UAE Federal Arbitration Law

Article 45 of the UAE Federal Arbitration Law (FAL), which entered into force on 16 June 2018, addresses the question of how arbitration proceedings conducted under the FAL are terminated. Despite taking inspiration from the UNCITRAL Model Law, the FAL contains a number of provisions, including article 45, that are not of Model Law origin. Given the importance of the question of termination to the proceedings and its comparatively unprecedented nature in both the Model Law and most domestic arbitration legislation, article 45 of the FAL deserves further scrutiny.

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REUTERS | Benoit Tessier
November 13, 2020

Draft ICC Rules 2021: drawing a line under some issues of debate in arbitration?

In October 2020, the ICC released the new ICC Rules 2021 in draft. The rules could still be subject to editorial changes, but, once finalised in December, will come into force on 1 January 2021. This current draft of the new rules leaves the fundamental framework introduced in 2012 largely unchanged and this is unsurprising. Few were expecting a seismic shift in approach only eight years after the 2012 revisions, given how fundamentally they changed the shape of arbitral procedure for the community and arbitral institutions globally.

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REUTERS | Eduardo Munoz
November 12, 2020

For arbitrations in New York, it matters whether federal or state law governs

A recent New York Supreme Court Commercial Division decision precluded the petitioner from seeking to vacate an arbitral award because, although he objected to the jurisdiction of the arbitrators, he participated in the arbitration proceedings. This post-award challenge to the jurisdiction of the arbitrators would have come out differently had the case been decided under the Federal Arbitration Act (FAA) rather than under article 75 of New York’s Civil Practice Law and Rules, under which the parties briefed and the court ruled on the issue.

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REUTERS |
November 10, 2020

Adamakopoulos v Cyprus may provide a blueprint for “mass claims” in investment arbitration

Claims brought by more than one investor are not unusual in the investor-state context, even where the claims are brought by claimants of different nationalities under several treaties. However, such claims have typically emanated from one investment operation, such as where a single claim is brought by joint venture partners in relation to their respective shareholdings in the same special purpose vehicle.

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