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Arbitration & ADR
Unilateral option clauses provide for disputes to be referred to arbitration, but give one party the exclusive right to elect to refer a dispute to litigation before the courts; the clauses also provide for disputes to be referred to a court, but give one party the exclusive right to elect to refer the dispute to arbitration instead. Parties should exercise caution when considering whether to include unilateral option clauses in their agreements.
The Court of Appeal recently considered for the first time the question of an expert's duty to avoid a conflict of interest. The court's decision, while not deciding the point finally, means that it is unlikely that a court will now recognise such a duty as a matter of law. The issue is a matter of contract. The judgment contains a useful analysis of when conflicts can arise in related cases and the circumstances in which a large organisation offering expert or litigation support services may find itself conflicted.
The Supreme Court recently unanimously upheld a Court of Appeal decision to dismiss an application to remove an arbitrator on the grounds of apparent bias. The Supreme Court confirmed the Court of Appeal's decision that arbitrators are under a duty to disclose appointments in references concerning the same or overlapping subject matter with a common party, although the Supreme Court's reasoning differed.
High Court grants unprecedented extension of time for challenges to arbitral awards where fraud allegedUnited Kingdom | 05 November 2020
The High Court recently granted an extension of time to bring challenges to arbitral awards made under the Arbitration Act. The applications were striking as it had been several years since the awards were made. While the extension granted by the court was exceptional, so too were the circumstances of the case. Here, the integrity of both the arbitration system and the court were threatened and this public policy concern outweighed the principle of finality.
The Supreme Court has clarified definitively the principles for ascertaining the law governing an arbitration agreement. In contrast to the Court of Appeal's earlier decision in the same case, the Supreme Court held that where the law governing an arbitration agreement is not expressly specified, a choice of main contract law (whether express or implied) will generally also apply to an arbitration agreement which forms part of that contract.
The High Court recently upheld an order that a petitioner should be restrained from proceeding with a winding-up petition on the basis that the petition debt in question was disputed by the alleged debtor and was subject to an arbitration agreement. The decision provides assurance that in the context of a winding-up petition, the court will consider the merits of a dispute relating to a petition debt which is subject to an arbitration agreement only in rare circumstances.
The High Court recently confirmed that the procedure for the registration and enforcement of an award made pursuant to the International Centre for the Settlement of Investment Disputes (ICSID) Convention does not require service of the claim form. The court upheld an order dispensing with service on a state of an order for the enforcement of an ICSID award. In addition, the court upheld an order for alternative service against the state.
The High Court recently dismissed a challenge to a previous decision to grant permission to enforce a Stockholm Chamber of Commerce award on the basis that contrary to the defendant's contention, there was a valid arbitration agreement between the parties and the defendant's arguments as to procedural irregularity had previously been raised in Swedish court proceedings, thereby giving rise to an issue estoppel.
In a recent decision, the Court of Appeal granted an anti-suit injunction restraining the defendants from pursuing Russian court proceedings in breach of a London arbitration clause. In reaching this decision, the court clarified the principles for ascertaining the law governing an arbitration agreement where the contract does not contain an express choice of such law and the main contract law differs from the law of the seat.
In a recent case, the High Court upheld the claimants' challenge to an award made under Section 68 of the Arbitration Act. Uncertainty as to the identities of the parties to an arbitration agreement and underlying contract had led a Chinese court to refuse to enforce the award. The High Court determined that there was uncertainty or ambiguity as to the award's effect and remitted the award to the tribunal.
The Court of Appeal recently considered whether Section 44(2)(a) of the Arbitration Act empowers the courts to issue orders for taking the evidence of a witness who is resident in the United Kingdom but not a party to an arbitration agreement. The judgment offers much-needed guidance for parties which have identified non-party witnesses who hold potentially relevant evidence but are unwilling to give evidence voluntarily.
In a rare consideration of an investment treaty award, the High Court broadly interpreted the meaning of 'investor' and 'investment' in the bilateral investment treaty between the governments of South Korea and Iran. The decision is also interesting in its comment that the question of attribution is not a jurisdictional issue.
The Court of Appeal recently considered whether service of formal court documentation on a state party was a necessary requirement when seeking to enforce an arbitral award against it or whether service could be dispensed with in certain circumstances. The significant judgment will have implications for cases in which it may be very difficult to enact service of enforcement proceedings on a state through diplomatic channels.
Clarity over English court's jurisdiction to grant anti-arbitration injunction against foreign-seated arbitrationsUnited Kingdom | 26 September 2019
The Court of Appeal has partly upheld, and partly dismissed, an injunction granted by the High Court to restrain an arbitration seated in Lebanon. In so doing, the Court of Appeal has confirmed the English court's power to grant anti-arbitration injunctions pursuant to Section 37(1) of the Senior Courts Act 1981 in respect of a foreign-seated arbitration where the dispute does not fall within the scope of the arbitration agreement and the proceedings are, or would therefore be, vexatious and oppressive.
The High Court recently granted an application for the adjournment of an arbitral award, pending the outcome of a challenge before the Paris Court of Appeal by a non-party to the arbitration agreement. The case provides a cautionary tale of the delays and additional costs that may be incurred if claimants fail to consider careful compliance with provisions on variations during the term of a contract and (at the outset of a dispute) which parties should be named as defendants.
Court grants third party access to confidential arbitration documents for disciplinary proceedings against arbitratorUnited Kingdom | 30 May 2019
A recent High Court decision concerning access to confidential documents illustrates the limits to the implied duty of confidentiality arising out of arbitration proceedings in English law. While the court was supportive of the general principle that arbitration proceedings are to be treated as confidential, it also demonstrated its willingness to depart from this general principle should one of the identified exceptions apply.
The High Court recently found that a tribunal had jurisdiction over a dispute that arose from a settlement agreement lacking an express arbitration clause. The decision serves as a reminder of the delays and additional costs that may be incurred if an agreement is unclear as to the applicable dispute resolution mechanism. Parties can reduce the risks of such delays and costs by including an express dispute resolution clause in settlement agreements.
The High Court recently considered whether service of formal court documentation on a state party is a necessary requirement when seeking to enforce an arbitral award against it or whether service can be dispensed with. The courts' unique approach to disputes involving state defendants is shaped not only by the applicable statutes, such as the State Immunity Act 1978, but also by the diplomatic considerations that feature prominently in investor-state cases.
The High Court recently examined the process for the summary dismissal of a challenge to an arbitral award on the grounds of serious irregularity. Mr Justice Males held that the purpose of oral hearings on summary dismissal is to determine only whether there is a real prospect of the challenge succeeding. Going beyond that would frustrate the objective of the summary dismissal mechanism.
State consent to arbitrate and waiver of immunity determined by clear wording of arbitration agreementUnited Kingdom | 11 October 2018
The High Court recently examined an application by Ukraine to set aside an enforcement award following a disputed arbitration award. The case highlights the importance of ensuring that any agreement being entered into with a state party contains carefully drafted arbitration provisions and appropriately worded waiver of immunity language to ensure that the dispute resolution regime is fit for purpose.
The English courts will not grant anti-suit injunctions to restrain court proceedings brought in breach of arbitration clauses in the courts of other EU member states, as seen in the High Court's recent refusal of an application for anti-suit relief to restrain court proceedings in Cyprus and its grant of an anti-suit injunction targeted at court proceedings in Russia. This decision provides, at least for now, clarity in an area of law that has been subject to debate.
The Court of Appeal recently found that there was no appearance of bias where an arbitrator had accepted multiple arbitral appointments from one party to several arbitrations where the subject matter of the arbitrations was the same or overlapping. Nevertheless, the court held that the arbitrator had had a duty in law and as a matter of good practice to disclose issues where there was a real possibility of bias.
Commercial Court sets aside partial award of LCIA tribunal – time limits for objections to jurisdictionUnited Kingdom | 15 March 2018
It is relatively rare for the English courts to overturn awards of arbitral tribunals. However, a recent decision of the Commercial Court did just that, setting aside a London Court of International Arbitration partial award made by a panel of three queen's counsel. The partial award was challenged on the basis that the arbitral tribunal had lacked substantive jurisdiction and the application had been made pursuant to Section 67 of the Arbitration Act 1996.
In a recent case regarding the enforcement of an arbitral award against Kazakhstan, the English court ruled that in light of new evidence that had not been before the tribunal when the award was rendered, the allegations of fraud raised by Kazakhstan should be fully investigated before a view could be taken as to whether the award could be enforced in England. The court confirmed that public policy is a matter for each state to consider, regardless of whether the courts of another country have ruled on the matter.
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.
Availability of emergency arbitrator procedures may limit courts' ability to support arbitral processUnited Kingdom | 02 February 2017
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.
Court refuses injunction in support of arbitration proceedings on ground of applicant's delay in seeking reliefUnited Kingdom | 12 May 2016
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.
English arbitration law allows a party to arbitral proceedings to apply to the court to challenge an award on the grounds of serious irregularity affecting the tribunal, the proceedings or the award. The High Court recently reiterated the high threshold that must be met to establish a serious irregularity and the reluctance of the courts to set aside an award on such grounds.
In a recent case, the High Court dealt with the validity of arbitration clauses contained in guarantee agreements that were considered unenforceable due to illegality, holding that the arbitration agreements were valid. In this case, the illegality that rendered the main contract unenforceable did not taint the arbitration agreement. The case once again reiterates the pro-arbitration stance of the English courts.
A recent Court of Appeal decision has clarified the scope of the Contract (Rights of Third Parties) Act as it relates to arbitration. While the act enables a third party to enforce a benefit through arbitration, it does not impose a burden on a third party to submit to arbitration without its consent; nor does it entitle a third party to require that a dispute be brought in arbitration if there is no express provision in the agreement to that effect.
The Supreme Court recently had to decide whether the courts' power to issue injunctive relief extended to a situation where arbitration proceedings were not in progress or contemplation and where judicial proceedings had been initiated in a country outside the Brussels/Lugano regime. With its decision, the court has upheld the sanctity of the arbitration agreement in line with the traditional principles of English law.
The High Court recently had to determine the proper law applicable to an arbitration agreement. The decision reflects how the legal regime applicable to an arbitration agreement can have significant implications for the resolution of disputes between contracting parties. Such parties should ensure that third parties which agree to be bound by certain terms of an agreement also agree to the dispute resolution clause.
The Admiralty and Commercial Courts Guide was recently amended to introduce changes to the procedure for applications under Section 68 of the Arbitration Act. Section 68 concerns challenges to arbitral awards on the grounds of serious procedural irregularity. The amendment enables courts to dismiss an application under Section 68 summarily – that is, on the papers only, without a hearing.
The principle of severability of arbitration clauses from the rest of the contract of which they form part is well established under English law. However, a recent High Court case clarifies the limits of the doctrine of severability. It also reassures parties that they will not be bound to arbitrate merely by engaging in commercial negotiations for the conclusion of a contract containing an arbitration clause.
The High Court recently held that the power to grant injunctions in support of arbitration proceedings is not confined to the English courts. The case provides useful guidance as to the circumstances in which parties that have agreed to submit their dispute to arbitration in London might find themselves without recourse to the English courts and instead subject to foreign court proceedings.
Many commercial dispute resolution clauses provide for claims to be submitted to conciliation or mediation before they can be submitted to arbitration or court proceedings. However, these are often only agreements to negotiate in good faith, which are not enforceable under English law. A recent High Court decision highlights the requirements that conciliation or mediation clauses should meet to be upheld by the courts.
The Court of Appeal has enforced an arbitral award that was set aside by the courts in the jurisdiction where the award was made. The case is the latest decision in the longstanding dispute between Yukos and Rosneft which has given rise to numerous arbitral and court proceedings in various jurisdictions following the expropriation of Yukos's oil assets.
The Court of Appeal has upheld the first instance decision in Sulamerica Cia Nacional de Seguros SA v Enesa Engenharia SA. The court found that the law of the arbitration agreement had its closest and most real connection with the seat of the arbitration, not the substantive law governing the underlying insurance policy.
A recent decision has reiterated the importance of the principle of comity towards the courts of "foreign and friendly states" in considering whether to grant anti-suit injunctions. The court was faced with an opaque arbitration clause providing for London as the "venue" of the arbitration, but also referring to the application of the Indian Arbitration and Conciliation Act 1996.
An arbitral tribunal has jurisdiction to grant damages for breach of an arbitration agreement. The application of that principle in the context of EU law was questioned in the latest court application in the long-running West Tankers saga. The English court confirmed that EU law did not circumscribe the arbitral tribunal's jurisdiction to award damages for breach of an arbitration agreement.
In a recent case an anti-arbitration injunction was sought to prevent the progress of two arbitrations that, it was said, had been commenced as part of a war on the enforcement of an award issued in an earlier related arbitration. The High Court did not grant the injunction, finding that it was for the arbitral tribunal to determine whether it had jurisdiction to hear the two later arbitrations
Agreements that contain conflicting court jurisdiction and arbitration provisions are not uncommon. However, in a recent High Court case, the judge was faced with an agreement that not only contained competing jurisdiction and arbitration provisions, but also threw mediation into the mix.
The High Court has confirmed the high threshold that must be overcome before the court will consider a challenge under Section 67 (on substantive jurisdiction) or Section 68 (on serious irregularity) of the Arbitration Act 1996. In the process, the court confirmed the principle that the law governing the arbitration agreement follows the law of the place of arbitration.
The Court of Appeal has confirmed one course chosen by parties to navigate around the decision of the European Court of Justice in West Tankers (The Front Comor). The court has enforced a declaratory award granted by the arbitral tribunal in that case, thereby confirming the High Court's approach in West Tankers and African Fertilizers and Chemicals NIG Ltd v BD Shipsnavo GmbH.
The fallout from West Tankers (The Front Comor) continues as parties strive to navigate around the English courts' inability to restrain proceedings in other EU member states brought in breach of an arbitration agreement. The High Court recently enforced an award made in London, declaring that the tribunal had jurisdiction to determine a dispute that had been referred to both arbitration and court proceedings in Romania.