The Federal Court recently declined an application for leave to issue subpoenas pursuant to Section 23 of the International Arbitration Act 1974 on the basis that Section 23 of the act did not give the court jurisdiction to do so in aid of an arbitration seated outside Australia. While some practitioners will agree with the court's strict interpretation of the act, others – particularly those engaged in international arbitration in Asia-Pacific – may find the decision less satisfactory.
In a recent case, the Federal Court stayed the proceedings brought before it and referred the dispute to arbitration, save for the ultimate question of whether a winding-up order against the first defendant should be made. Among other things, the decision illustrates the policy of minimal curial intervention that the Australian courts follow where arbitration is concerned. It also confirms the arbitrability of certain claims under the Corporations Act 2001.
Dispute resolution clauses providing for arbitration, but giving one party the exclusive right to elect to refer a particular dispute to litigation before the courts – known as 'unilateral option clauses' – are a common feature in many transaction documents. In light of the result of the UK referendum on membership of the European Union, it is worth considering whether unilateral option clauses remain fit for purpose.
A recent case has provided useful guidance on the availability of the courts' powers to grant interim relief in support of arbitral proceedings in circumstances where similar relief may be available through the arbitral process. This is the first time that an English court has considered the way in which emergency arbitrator provisions (which remain relatively new in the industry) interact with the courts' powers under Section 44 of the Arbitration Act 1996.
As mediation increasingly becomes a routine form of alternative dispute resolution, the format of mediation continues to evolve and the typical procedure continues to adapt itself to different types of dispute in which mediation is used. While a number of recent mediations have employed an interventionist tactic to bridge the gap between the parties, this type of process involves a number of risks.
A recent ruling on the recoverability of third-party funding costs in English-seated arbitrations has caused controversy. The decision contrasts with the restrictive costs regime applicable to litigation in England and Wales, which does not allow recovery of lawyers' success fees. This decision should enhance the attractiveness of London as an arbitral seat for parties wishing to take out third-party funding.
While rarely used in practice, Section 42 of the Arbitration Act 1996 – which provides that a court may order a party to comply with a peremptory order made by a tribunal – was the subject of a recent English High Court decision. This case provides useful guidance as to the circumstances in which the courts will exercise their discretion to make an order under this section and enforce peremptory orders from arbitral tribunals.
A party seeking to avoid being drawn into litigation before a foreign court may apply for an anti-suit injunction from the English courts, ordering the other party not to start or continue the foreign proceedings. However, in the circumstances of a foreign court having already issued an adverse judgment, a party may apply for an anti-enforcement injunction instead, ordering the other party not to take any steps to enforce the foreign judgment.
The High Court recently considered an application to set aside an arbitral award on the grounds that the tribunal had no substantive jurisdiction, and that there was serious irregularity during the proceedings that had caused injustice. The court rejected the application on both grounds, applying the Fiona Trust presumption and determining that the arbitration agreement at the centre of gravity of the parties' dispute should apply.
The English court recently refused the enforcement of a foreign award made under the New York Convention because it had been set aside by the court of the seat. The decision demonstrates deference to the court of the seat to regulate arbitral awards issued under its auspices, but does not affect the English court's general pro-enforcement stance when faced with recognising convention awards.
If a claim is brought against an insolvent party, questions may arise over whether the dispute, or parts of it, should be determined by the insolvency practitioner, an arbitral tribunal or the court. The High Court recently answered these questions in the context of a claim against a company in voluntary liquidation that was party to an arbitration agreement.
A recent High Court decision provides guidance on the English courts' approach to determining an application to remove an arbitrator under Section 24 of the Arbitration Act and considers the circumstances in which the right to challenge might be lost under Section 73. The decision also makes clear that it is for the arbitrator to disclose circumstances giving rise to doubts as to his or her impartiality.
A recent High Court decision serves as a reminder that arbitral parties should use clear language when drafting submissions, and arbitral tribunals should not adopt solutions – however beneficial they may seem – without first giving the parties an opportunity to comment. The decision is a rare instance of a successful application under Section 68 of the Arbitration Act for serious irregularity.
Toyota Tsusho Sugar Trading Ltd v Prolat SRL is a reminder that a party can still be bound to a contract and the arbitration agreement contained in it, even where it has not signed the contract, if it has agreed to its terms through an authorising agent acting on its behalf. It is also the the first case to consider the effect of the recast EU Brussels Regulation, which came into effect in January 2015.
Agreements in commercial contracts to negotiate before submitting a dispute to formal arbitration or litigation have generally been regarded by English courts as bare and unenforceable 'agreements to agree'. In a departure from this approach, the High Court recently ruled in Emirates Trading Agency LLC v Prime Mineral Exports Private Limited that such an agreement can be legally enforced.
The recent Commercial Court decision in Diag Human v Czech Republic was the first time that the common law doctrine of issue estoppel has prevented the enforcement of an award under the Arbitration Act 1996. This decision considered the scope of the doctrine of issue estoppel and whether the enforcing courts must follow the decisions of previous enforcing courts.
Towards the beginning of arbitration proceedings, parties are often ordered to pay a deposit on account of the expected costs of the arbitration. A recent High Court decision illustrates what can happen if a respondent fails to pay its share of the advance on costs and the claimant refuses to pay the balance of the advance on the respondent's behalf.
The London Court of International Arbitration (LCIA) is the latest arbitral institution to overhaul its arbitration rules. The amendments bring the LCIA Rules up to date with current arbitration practice and procedure. Like other institutions, the LCIA has addressed key issues facing the arbitral process. Among other things, the amendments seek to promote efficiency and economy.
A recent High Court decision concerned a law firm that acted against its former clients' owners in London Court of International Arbitration proceedings and court proceedings. The decision illustrates that law firms can act against their former clients, but not in circumstances where they were given confidential information and where there is a real – not just theoretical or fanciful – risk that the information will be misused.
The right of appeal on points of law under Section 69 of the Arbitration Act is a peculiarity not found in many other jurisdictions. In practice, the courts only sparingly exercise the power conferred by Section 69. A recent Court of Appeal decision provides a good example of the courts' approach to considering appeals of awards where the right of appeal under Section 69 has not been excluded.