On 19 April 2013, Justice Foster of the Federal Court of Australia handed down judgment in the case of Eopply New Energy Technology Co Ltd v EP Solar Pty Ltd  FCA 356. The question before his Honour was whether a foreign arbitral award made in China ought to be enforced in Australia against an Australian company in liquidation. The judge allowed Eopply to proceed with its originating motion seeking leave under Australia’s Corporations Act 2001 (Cth) (Corporations Act), and ordered enforcement of the award under the International Arbitration Act 1974 (Cth) (IAA).
Paris the Home of International Arbitration (Paris Place d’arbitrage) unveiled its newly drafted Paris Arbitration Rules on Monday, April 15 at the group’s annual conference, held at the Hôtel de Ville in Paris. The conference, chaired by Charles Kaplan (President of Paris Home of International Arbitration and Co-Head of Herbert Smith Freehills’ Global Arbitration Practice), featured several speakers including Alexis Mourre (Honorary President) and Philippe Pinsolle (Vice President). Professor François-Xavier Train (Université Paris Ouest (Nanterre La Défense)), Pierre-Yves Tschanz, and Isabelle Hautot (General Counsel, International Conflicts Resolution, Groupe Orange) provided additional commentary from the perspectives of academics, practitioners, arbitrators and users. The conference also featured an address by Christiane Féral-Schuhl, Bâtonnier of the Paris Bar.
The Paris Arbitration Rules set out an innovative mechanism for ad hoc arbitration.
They grant broad discretion to the Arbitral Tribunal with respect to case management and procedural issues, and impose corresponding obligations on the parties to cooperate in the resolution of such issues. This combination of discretion and cooperation is intended to “provide a framework for the swift, efficient and cost-effective resolution of disputes” (Article 1.1). Further emphasizing the focus on efficiency, the Tribunal exercises its discretion within strict time limits. The Rules also provide for the timely awarding of interim measures, either by a specially-appointed Interim Arbitrator, or by the Tribunal itself.
In a much-anticipated decision concerning the reach of the Alien Tort Claims Act (“ATS“) to foreign actors, the US Supreme Court has concluded that ATS claims alleging a violation of international law “occurring outside the United States” are “barred.” Kiobel v. Royal Dutch Petroleum Co. — U.S. —, No. 10–1491, slip op. at 14 (Apr. 17, 2013). Applying the presumption against extraterritorial application of US laws, a five-justice majority held that foreign nationals could not sue Dutch, British, and Nigerian-based corporations in US federal court based on claims of aiding and abetting human rights violations committed in Nigeria.
HSF held first in a series of webinars: ‘A Beginner’s Guide to BITs: What are they and why do you need them?’. Have your say on what you want to hear next….
On Thursday 11 April 2013, Herbert Smith Freehills delivered a live audio webinar entitled: ‘A Beginner’s Guide to BITs: What are they and why do you need them?’. The webinar – an online seminar delivered to individual desktops – was hugely successful and hundreds of listeners from around the world participated.
If you would like to listen to a recording of the webinar, please contact Jane Webber.
The session looked at Bilateral Investment Treaties (BITs), which give investors direct rights to sue foreign states hosting their investments. These rights enable investors to protect their business interests abroad more effectively than ever before. It covered the basic principles that you need to be aware of when structuring your investment to maximise treaty protection as well important issues to consider when bringing a claim under a BIT.
Our panel was comprised of Matthew Weiniger, who leads our Investment Arbitration practice and is based in our London office. Matthew was joined by Dominic Roughton and Brenda Horrigan, partners in our Shanghai and Tokyo offices respectively. It was chaired by Joanne Greenaway, a Professional Support Lawyer for the Global Arbitration practice.
This webinar was the first in a series of webinars that we will be presenting looking at investment treaty issues of both a topical and regional nature.
We are interested in your views as to what you would be most interested in attending both on investment treaty issues and on international arbitration more broadly. Please open the link to our short Survey Monkey and feed in your views:
Please click here for further details about other upcoming events.
Joanne GreenawayProfessional Support Lawyer
+44 20 7466 2723
The International Swaps and Derivatives Association (“ISDA“) has released a number of model arbitration clauses for use with the ISDA 2002 Master Agreement and ISDA 1992 Master Agreement (Multicurrency – Cross Border), which are the market leading standard form agreements for documenting derivatives transactions. This development follows an extensive consultation process amongst ISDA’s members that started in January 2011.
The model clauses, together with guidance notes on arbitration, have been issued to ISDA’s members for further comment. The deadline for comments is 31 May 2013. Herbert Smith Freehills will be providing comments on the model clauses as part of the consultation process; please contact us if you would like to discuss ISDA’s proposals or would like to feed in any comments. ISDA plans to hold a number of follow-up meetings before finalising the model clauses and publishing them for use.
The model clauses have been drafted on the basis that they will be included in the Schedule to a Master Agreement. As such, they are principally intended for use when entering into new Master Agreements, although they are readily adaptable for use when amending an existing Master Agreement so as to provide for arbitration.
To mark the opening of Herbert Smith Freehills’ new office in Seoul today, we examine arbitration in South Korea.
Whilst the Korean Commercial Arbitration Board (“KCAB“) has reported growth in the number of international arbitrations, South Korea is seldom considered as a seat of international arbitration and use of the KCAB’s International Arbitration Rules has been limited so far (the “International Rules“). But is this about to change, and might it be heralded by the recent increase in foreign law expertise in Seoul?
Following a decision of the United Nations Human Rights Committee (“UNHRC“) in 2010 that a Turkish businessman had suffered violations of his human rights after being illegally convicted of economic crimes, a claim for compensation is now being pursued under the Turkey-Turkmenistan bilateral investment treaty (“BIT“). This case therefore highlights the interesting interaction between the human rights and investment protection regimes.
An end to “speculative” challenges to arbitral awards? The English courts raise the sanction of indemnity costs for unmeritorious s68 applications
Over the past few years, we have seen a substantial rise in the number of applications to the English court challenging arbitral awards on grounds of “serious irregularity”. Such applications are made under s68 of the Arbitration Act 1996 and require the applicant to show that a serious irregularity has occurred which has caused or will cause substantial injustice to the applicant. While the bar is set high, it has not stopped parties making backdoor appeals dressed up as.68 challenges or mounting “speculative” applications to the court under s68 for tactical reasons (for example, delaying enforcement).
This sort of application may now be given very short shrift in the English courts. The 2013 Commercial Court Guide came into effect yesterday and includes an expanded provision, O8.8, which aims to reduce the number of such unmeritorious challenges by imposing cost consequences on the party that brings them.
The Singapore International Arbitration Centre (SIAC) has published the fifth edition of its arbitration rules, which came into force on 1 April 2013 (the 2013 Rules). The 2013 rules will apply to arbitration proceedings commenced on or after 1 April 2013 unless the parties have agreed otherwise.
Key amendments include:
- introduction of a new governance structure, which separates SIAC’s business and governance functions from its legal and technical ones, in order to address the centre’s increased caseload and expansion plans (SIAC recently announced it plans to open offices in Seoul, Mumbai and the Gulf).
- expansion of the powers and discretion of the Registrar, including the power to review jurisdictional challenges before they are referred to the Court.
- express power of the arbitral tribunal to consider issues not specifically raised in the parties’ pleadings, in line with recent case law in Singapore.
- power of the tribunal to award post-award interest, in line with the latest legal developments in Singapore and the rules of other institutions.
- express authorization for SIAC to publish redacted awards.
- clarification of certain rules, including referring to instruments other than contracts in the Notice of Arbitration, and the timing of the commencement of the arbitration.
These changes demonstrate again that SIAC seeks to retain its position as a modern international arbitration institution at the forefront of international best practice and ensure that parties arbitrating under the 2013 Rules enjoy as efficient a process as possible. However, it is noteworthy that SIAC has not introduced any provisions governing the consolidation of two or more arbitrations, unlike the changes made to the ICC rules (which came into force on 1 January 2012) and the anticipated changes to both the LCIA and HKIAC rules later this year.
On 28 March 2013, Hong Kong gazetted The Arbitration (Amendment) Bill 2013. The Bill will amend Hong Kong’s Arbitration Ordinance (Cap. 609) to implement an arrangement for mutual enforcement of awards between Hong Kong and Macao, allow for enforcement of emergency arbitrator decisions in Hong Kong, and provide for court taxation of arbitration costs on a “party and party” basis.
The Bill will be introduced to Hong Kong’s Legislative Council on 24 April, and it is hoped the amended legislation will come into force by the end of August 2013. Click here to see a copy of the Bill.