“The 1996 Act is not a complete code of the law of arbitration, but allows judges to develop the common law in areas which the Act does not address.”
So said Lord Hodge in his lead judgment in the widely reported UK Supreme Court decision in Halliburton v Chubb.
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:
Section 69 of the AA 1996 provides a procedure for challenging mistaken determinations of law. Section 68 provides a procedure for challenging awards affected by serious irregularity, including irregularity caused by mistake or inadvertence on the part of the tribunal.
What was once a mirage on the horizon of the arbitration landscape of the United Arab Emirates (UAE) has now become reality under the UAE Federal Arbitration Law (FAL), which entered into force with effect from 16 June 2018. Following a consistent line of recent case law precedent, there can be no more doubt that the doctrine of apparent authority applies to the formation of arbitration agreements under the FAL and as such relaxes the strict requirement for a special power of attorney in the terms of article 58(2) of the UAE Civil Procedures Code (CPC). That requirement, which used to exist under the former UAE Arbitration Chapter on the basis that arbitration qualifies as an exceptional form of dispute resolution in derogation from the fundamental right to go to court, persists under the FAL in the terms of article 4(1), pursuant to which “on the pain of nullity”, only an original rightsholder or “a representative with a specific authority to arbitrate” is empowered to bind to arbitration.
The Practical Law Arbitration Blog will resume in early January 2021. Until then, from the Practical Law Arbitration team, thank you to all of our contributors for another packed year of excellent commentary, to you for reading. Happy holidays and stay safe all.
2020 may have been many things, but it will not have been forgettable. While the biggest story in the world of arbitration was undoubtedly the impact of the COVID-19 pandemic, it did not stop major steps being taken to reform investor-state dispute settlement (ISDS), significant arbitration decisions being handed down by the English courts and arbitration practitioners having another busy year of bringing and defending claims.
In Halliburton Company v Chubb Bermuda Insurance Ltd, the UK Supreme Court dismissed Halliburton’s appeal concerning its application to remove an arbitrator for apparent bias on the facts. However, it also emphasised the importance of arbitrator impartiality in London-seated arbitrations. The judgment addresses the circumstances in which an arbitrator may appear to be biased and the scope of an arbitrator’s duty of disclosure in this context.
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.
In a recent, still unpublished award, India lost an arbitration dispute initiated by Vodafone because India had imposed a hefty tax bill of several billion dollars retroactively.
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).
On 5 January 2018, Practical Law Arbitration Blog published an article I wrote on the Abengoa case in Brazil “A firm view on conflicts of interest”. It was a rare case where the Brazilian Superior Court of Justice (STJ) refused to enforce a foreign judgment, for reasons of lack impartiality of the arbitrator.