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.
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 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.