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.
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.
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.
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.