Latest updates

Supreme Court takes strict stance on conflict of interest
Graf & Pitkowitz Rechtsanwalte GmbH
  • Austria
  • 16 January 2020

The Supreme Court recently considered whether the fact that an arbitrator and a party counsel in one arbitration acted as co-counsel in another unrelated arbitration cast doubt on the arbitrator's independence and impartiality and thus disqualified him from acting as arbitrator in the arbitration under review. In its decision, the court correctly acknowledged the reality of the Austrian arbitration scene, which results in frequent contact between practitioners.

Seat/venue/place saga continues: Supreme Court reverses view and declares earlier judgments bad law
Khaitan & Co
  • India
  • 02 January 2020

The Supreme Court recently decided key issues relating to the interpretation of arbitration clauses and the scope of appealable orders under the Arbitration and Conciliation Act. This judgment does an admirable job of resolving residual ambiguities regarding the issue of exclusive jurisdiction where the seat of an arbitration is situated. Notably, through its decision, the Supreme Court has specifically declared that its earlier judgment in Hardy Exploration and the Delhi High Court's decision in Antrix are incorrect.

Enforcement of awards affected by international sanctions
Allen & Overy Bratislava sro
  • Slovakia
  • 19 December 2019

In 2019 the Ministry of Finance issued guidelines on procedures for the effective application of rules on the freezing of financial assets of sanctioned persons in Slovakia. The guidelines answer some practical questions but leave many questions open. One such question concerns enforcement of arbitral awards affected by sanctions – in particular, under what conditions can an award creditor enforce such an award in Slovakia?

The Hague Court of Appeal sets aside ICC award because underlying purchase contract was procured by corruption
Freshfields Bruckhaus Deringer LLP
  • Netherlands
  • 19 December 2019

In recent setting aside proceedings, The Hague Court of Appeal had to decide whether an arbitral award issued in proceedings under the International Chamber of Commerce Arbitration Rules had to be set aside due to the fact that the award was contrary to public policy. In its assessment, the court took a bold approach. The decision demonstrates that while the court is conscious of the competence and authority of arbitral tribunals, it will assess a case individually and fully when it comes to public policy.

Successful completion of cross-border asset preservation worth more than $20 million
William KW Leung & Co
  • Hong Kong
  • 19 December 2019

In September 2019 the Judicial Committee of the Supreme People's Court adopted the Arrangement Concerning Mutual Assistance in Court-Ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region (MAA). Pursuant to the MAA, a mainland court recently assisted the Hong Kong International Arbitration Centre (HKIAC) in an arbitration which had been referred to it by the HKIAC.

State-owned entity's consent to arbitrate does not bind state – in principle
Tavernier Tschanz
  • Switzerland
  • 19 December 2019

According to a recent Supreme Court decision, the fact that a party to an arbitration agreement is fully owned by a state is insufficient grounds to have that agreement extended to said state. Therefore, an arbitration agreement concluded by a state-owned entity does not necessarily bind the state itself. In order to do so, the arbitration agreement must be extended to the state.

Supreme Court confirms that inadequately justified arbitral award amounts to arbitrator misconduct
George Z Georgiou & Associates LLC
  • Cyprus
  • 12 December 2019

In a recent Supreme Court case, the appellant appealed against a first-instance judgment in which he had sought to annul an arbitral award. The dispute related to the non-payment of a loan granted by the respondent to the appellant and a subsequent challenge of the amount owed. Arbitration had taken place in which the arbitrator had issued his decision in favour of the respondent.

It's confirmed! CIPAA applies prospectively to construction contracts
Shearn Delamore & Co
  • Malaysia
  • 12 December 2019

After much anticipation, the Federal Court has finally confirmed that the Construction Industry Payment and Adjudication Act 2012 applies only to construction contracts entered into after the act took effect on 15 April 2014. As such, any adjudication proceedings based on a claim arising from a construction contract which was entered into before that date, including adjudication decisions, are null and void.

Practical aspects of recovering post-award interest
Everlegal
  • Ukraine
  • 05 December 2019

Although Ukrainian law now allows for the recognition and enforcement of arbitral awards which grant interest of an undetermined amount with no fixed maturity date or clear method of calculation, in practice, challenges may still arise during execution proceedings. A good example of this is the high-profile case Nibulon v Rise, which proves that obtaining enforcement of an arbitral award in Ukraine is only part of the battle.

Important changes to arbitration of corporate disputes introduced
Kubas Kos Gałkowski
  • Poland
  • 07 November 2019

The arbitrability of corporate disputes has long been a controversial issue in Poland. Recent changes in Polish law introduced by the Act of 31 July 2019 aimed to resolve the issues surrounding and give the green light to arbitrating corporate disputes. Unfortunately, it seems that these amendments have failed to solve all of the problems and have even created additional uncertainties.

Third-party arbitration funding – an overview
Skadden Arps Slate Meagher & Flom LLP
  • Germany
  • 24 October 2019

Third-party arbitration funding continues to be a hot topic in Germany, with a growing number of companies considering using third-party funding and more international funders than ever joining established German funders. This article outlines some of the pros and cons of third-party funding in an arbitration context.

Fraud claims in letter of guarantee not subject to arbitration clause in underlying contract
Global Law Office
  • China
  • 17 October 2019

An independent letter of guarantee involves a legal relationship between the applicant, the issuer and the beneficiary. Without an arbitration clause in a letter of guarantee, it is unclear whether the arbitration clause in the underlying contract can also bind the issuer. A recent Supreme People's Court ruling provides a clear answer to this question.

Data protection and cyber-risk issues in arbitration: regulation, cyberattacks and hacked evidence
Norton Rose Fulbright
  • International
  • 17 October 2019

Data protection and cybersecurity are hot topics in international arbitration and international surveys demonstrate that users of arbitration are concerned about data security. While there are signs that the market is listening, users seem to think that institutions, counsel and tribunals could do more to address cybersecurity. As these issues become more common, it is hoped that consistent practices will emerge to reassure users that their data will be secure.

High court rules that non-parties to arbitration are not bound by confidentiality
Shearn Delamore & Co
  • Malaysia
  • 17 October 2019

A high court recently ruled that the prohibition against third parties publishing, disclosing or communicating information relating to arbitration proceedings does not extend to non-parties to an arbitration. This decision will affect the extent to which the confidential documents used in arbitral proceedings remain confidential.

Singapore Convention: update on enforcing mediated settlement agreements
  • International
  • 10 October 2019

The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) has been signed by 46 states and will come into force six months after being ratified by at least three state parties. The convention responds to the demand from a growing body of mediation users for an enforcement mechanism applicable to mediated settlement agreements in cross-border disputes. However, its language has created some uncertainties.

Enforcement of foreign arbitral awards
  • Bermuda
  • 10 October 2019

A recent Supreme Court judgment has once again confirmed Bermuda's status as a sophisticated, arbitration-friendly jurisdiction. It is a classic example of the Bermuda courts' robust approach when asked to enforce foreign arbitral awards against award debtors in Bermuda, even in circumstances where the award in question is being challenged by the award debtor in the courts of the seat, or legal place, of the arbitration.

Recent developments in ISDS reform: the big picture
Norton Rose Fulbright
  • International
  • 03 October 2019

Investor-state dispute settlement is an important feature of investment treaties as it is the procedural mechanism through which investors can claim compensation for a violation of a substantive investor-protection standard. The traditional mechanism (ie, investment arbitration between the investor and the host state, modelled on commercial arbitration) has been increasingly criticised. Hostility to the traditional model has led to changes in individual treaties and wider reform initiatives.

Commercial dispute resolution: an overview
Makarim & Taira S
  • Indonesia
  • 03 October 2019

In general, the methods used to resolve commercial disputes in Indonesia are litigation, arbitration and alternative dispute resolution (ADR). The resolution of commercial disputes through arbitration or ADR (eg, mediation) is generally governed by the Law Concerning Arbitration and ADR, which recognises the principle of competence under which the district courts have no jurisdiction to try disputes between parties bound by an arbitration agreement.

Enforcement of arbitral awards by sanctioned entities: courts test public policy exception
Everlegal
  • Ukraine
  • 26 September 2019

Although the Ukrainian courts have released little jurisprudence with respect to the application of sanctions, this practice is gaining traction in response to Russian aggression in Crimea and the Donbas region. In a recent case, a sanctioned Russian entity sought recognition and enforcement of an arbitral award against a Ukrainian company, which the latter argued would contravene Ukrainian public policy.

Arbitrating M&A disputes: changes in arbitration landscape and the impact of technology
Norton Rose Fulbright
  • International
  • 26 September 2019

M&A lawyers mitigate buyer risk through expansive due diligence exercises and tight contractual controls. Arbitration has become a prominent forum for resolving these disputes. For example, the London Court of International Arbitration (LCIA) has reported a significant increase in the number of shareholder, share purchase and joint venture agreements being referred to LCIA arbitration. This article examines the growth of arbitration as a forum for resolving such disputes.

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