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.
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.
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 deep seabed mining (DSM) industry is growing rapidly, expanding beyond national jurisdiction and onto the high seas. The legal framework governing the DSM industry is unique and continues to evolve. While the opportunities in this territory – much of it literally uncharted – are hard to overstate, with a new and evolving legal regime comes special risks. While securing project finance for DSM projects is already challenging for technical and operational reasons, sovereign risk is another major factor.
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 Supreme Court of Victoria recently approved the issuance of subpoenas compelling two witnesses to attend before an arbitral tribunal seated in Melbourne and give evidence pursuant to Section 23 of the International Arbitration Act. The application arose out of a long-running dispute concerning the sale of a food business. The court's judgment provides useful guidance on the circumstances in which it will issue subpoenas in aid of arbitration as well as the meaning of Section 23(4) of the act.
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.
Charlottenburg Local Court ordered insolvency proceedings for safeguarding NIKI Luftfahrt, a company incorporated under Austrian law with its registered office in Vienna. At the time, its indirect shareholder, Air Berlin (with its registered office in Berlin), had already commenced proceedings in Germany. While Charlottenburg Local Court was satisfied that NIKI's centre of main interest was in Berlin, the Berlin Court of Appeal decided that it had been wrong to assume jurisdiction.
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.
German regulations obliging managing directors to monitor the liquidity of a company during crisis situations are typically strict and give rise to the risk of personal liability in cases of non-compliance. Legislation requires company management to file for insolvency proceedings without undue delay in the case of illiquidity or over-indebtedness. Continued trading where the company is considered to be materially insolvent can have serious consequences.
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.
On February 9 2017 the Great Senate of the Federal Fiscal Court published a decision stating that the Restructuring Order was illegal. On June 27 2017 the legislature introduced new legislation which provides that the tax authorities may waive taxes or assess taxes at a lower level. However, the new legislation can be applied only where creditors have waived their claims after February 8 2017.
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.
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.