There have been three recent legal developments in Dubai and the DIFC on the enforcement of court judgments and arbitral awards.
Recent developments in enforcement of judgments and awards in Dubai and the DIFC
Filed under Middle East
The law of the arbitration agreement – which law applies and why does it matter?
The Court of Appeal has, on 16 May 2012, rendered its keenly awaited decision in the case of Sulamerica v Enesa Engenharia.[1] It clarifies what has, for some time, been an uncertain area of law as to which law should apply to the arbitration agreement where none is expressly stated. Whilst it upheld the High Court’s decision that the law of the seat should apply in this case, it explains that this need not necessarily be the case and sets out a helpful test by which to ascertain the relevant law.
Until now, cases have been divided as to whether the arbitration agreement follows the law of the underlying contract or the law of the seat/supervisory jurisdiction selected by the parties. The law of the arbitration clause is legally distinct from the contract of which it forms a part (following the principle laid down by the House of Lords in Fiona Trust v Privalov).[2] This is significant because its law governs issues of its validity and effectiveness. Different laws may, as in this case, apply restrictions on the right to arbitrate which would need to be considered when selecting the appropriate applicable law.
However, although the case provides useful guidance, to avoid surprises it is always worthwhile for parties to stipulate the law they wish to apply to the arbitration agreement within their contract.
Filed under Europe
Herbert Smith releases updated guide on dispute resolution and governing law clauses in India-related commercial contracts
Herbert Smith has released an updated version of its guide to dispute resolution and governing law clauses in India-related commercial contracts, to take account of recent developments in the legal landscape.
In India-related commercial contracts, dispute resolution and governing law clauses need to be tailored to reflect the nuances of the Indian legal system. Model form clauses which are perfectly effective in other jurisdictions may not (without amendment) work satisfactorily in the Indian context. A party to an India-related agreement containing a non-India specific dispute resolution clause may find itself – contrary to its expectations and intentions – embroiled in lengthy litigation before the Indian courts.
In response to the need for guidance on such clauses, Herbert Smith’s guide provides a practical introduction on the nuances of drafting dispute resolution and governing law clauses in the Indian context to in-house counsel who handle India-related commercial contracts on behalf of non-Indian companies. .
The publication focuses in particular on what works and what does not, traps to avoid and sensible drafting solutions. It is divided into two sections:
- the first sets out five key principles to consider when drafting dispute resolution clauses; and
- the second sets out a general approach for non-Indian parties to consider when drafting governing law clauses and highlights the restrictions on the choice of governing law.
The guide is helpful as a framework for finding workable solutions, deciding when to compromise and when to stand firm, and spotting when an issue has arisen on which advice is required.
Click here for an electronic copy of this publication. To order a printed copy, please click here.
Filed under Arbitration clauses, India
Herbert Smith named International Arbitration Law Firm of the Year at the South East Asia Law Awards 2012
Herbert Smith has been named International Arbitration Law Firm of the Year at the Asian Legal Business/Thomson Reuters South East Asia Law Awards 2012.
The Awards cover the entire South East Asian legal services market, including Singapore, India, Indonesia, Malaysia, the Philippines, Thailand and Vietnam. Herbert Smith was one of 11 finalists in the International Arbitration category.
The International Arbitration practice in South East Asia works closely with the Energy practice, which practice was a finalist in the category for Energy and Resources Law Firm of the Year.
Filed under Asia, News, South East Asia
New Swiss Rules of International Arbitration in force from 1 June 2012
The Chambers of Commerce and Industry in Switzerland (the Swiss Chambers) have recently published revised Rules of International Arbitration which come into force on 1 June 2012 (the 2012 Swiss Rules). The 2012 Rules will apply to arbitration proceedings initiated on or after that date unless the parties agree otherwise.
While the amendments are not as substantial as those made to the 2012 ICC Rules (see blog dated 10 October 2011), the Swiss Chambers have followed the general trend amongst the arbitral institutions to seek to promote greater time and cost efficiency in its proceedings.
Key amendments include:
- Greater power given to the newly named Arbitration Court, including extending and shortening time-limits and ruling on arbitrator challenges.
- Requirement that all participants in the arbitral proceedings act in good faith, making every effort to contribute to the efficient conduct of the proceedings and to avoid unnecessary costs and delays.
- Shorter deadlines for the appointment of arbitrators and challenge of arbitrators.
- Requirement that parties serve their evidence with any pleadings.
- Increased flexibility in the consolidation of arbitration proceedings.
- Clarification of joinder provisions.
- Recognition of, and provision for, tribunals to grant interim relief in support of an arbitration, including on an ex parte basis.
- Introduction of new Emergency Arbitrator proceedings.
Filed under Europe, Institutions
Herbert Smith holds successful seminar on privilege
On 9 May 2012, over a hundred people attended a seminar at Herbert Smith’s London offices. One of the key topics was the role of privilege in international arbitration which was covered by London partner Chris Parker.
International arbitration differs from court litigation in this regard as the relevant rules of evidence are much more flexible. Approaches taken by arbitral tribunals vary as arbitrators generally possess broad discretion to determine issues of evidence under national laws and institutional rules. They may apply a number of different laws as well as internationally developed principles.
The seminar covered privilege as it relates to court litigation as well as international arbitration and focussed on legal professional privilege under English law. Those dealing with disputes under English law may be interested in Herbert Smith’s new guide to legal professional privilege under English law, comprising:
• A decision tree: intended as a quick reference to help determine which documents can legitimately be withheld on grounds of privilege; and
• Practical tips for maintaining privilege: aimed at minimising the risks of unhelpful material being produced.
The guide is available both as an interactive PDF, with links to more detailed information and articles, and as a hard copy guide. Click here to access the “Handy client guide to privilege” home page on our “litigation notes” blog or contact Christina Southgate if you would like a hard copy.
For more detailed information on privilege in international arbitration in particular, please click here for an article published by Partner Craig Tevendale or contact a member of the Herbert Smith arbitration team.
Hong Kong Court of Appeal issues landmark decision on setting aside
Herbert Smith’s Hong Kong arbitration practice has secured an important victory in an appeal against the setting aside of an ICC award.
In Pacific China Holdings Ltd v. Grand Pacific Holdings Ltd CACV 136/2011, the Hong Kong Court of Appeal has today overturned a first instance decision to set aside an ICC award for alleged violations of Article 34(2) of the UNCITRAL Model Law. Click here for a copy of the decision.
Filed under Arbitration laws, Challenges to awards, Hong Kong & China, News
CIETAC Shanghai announces split from CIETAC Beijing
On 1 May 2012, the Shanghai sub-commission of the China International Economic and Trade Arbitration Commission (CIETAC) announced that it has split from CIETAC Beijing, declaring itself an independent arbitral institution. Over the Chinese May Day holiday, CIETAC Shanghai also published a separate set of arbitration rules and established its own panel of arbitrators, separate from the panel published by CIETAC Beijing in May 2011. In response, CIETAC Beijing has rejected the Shanghai body’s move, accusing it of violating China’s Arbitration Law and of “seriously affecting parties’ exercise of their arbitration rights”.
Click here to access the announcement by CIETAC Beijing.
Filed under Hong Kong & China, Institutions, News
Herbert Smith Global Arbitration Practice announces promotion of Francesca Albert to Of Counsel
Herbert Smith has announced the promotion of Francesca Albert to Of Counsel. Francesca is an English-qualified lawyer of Italian and US nationality specialising in international arbitration. Working from the Moscow office, Francesca has developed a particular expertise in advising Ukrainian, Russian and international clients in relation to commercial and shareholder disputes in various industry sectors including the construction, property development, hospitality sectors. Francesca has also spent a year and a half in Tokyo where she advised in particular on the applicability of international treaties to structuring investments in emerging markets. In addition to native English, she is fluent Russian, Italian, Spanish and French. Francesca is viewed as one to watch in the international arbitration community, admired for her “great promise” and “professionalism” by clients (Chambers Global).
Filed under News
Amendments to Singapore’s arbitration laws
The Government of Singapore has recently passed an International Arbitration (Amendment) Bill and a Foreign Limitation Periods Bill. These measures reflect Singapore’s continuing efforts to fine tune its arbitration laws and maintain its position as one of the world’s leading international arbitration forums. In this post, we provide an overview of the changes and consider their practical impact.
Background to the changes
The Ministry of Law began a one month public consultation on 21 October 2011, seeking feedback on proposed amendments to the International Arbitration Act (“IAA“) and the enactment of a new Foreign Limitation Periods Act. The consultation period closed on 21 November 2011 and the Ministry commented that the feedback received was “mostly in favour of the amendments put forwards in both Bills“. The Bills were introduced in Parliament on 8 March 2012 and were passed on 9 April 2012.
A summary of the legislative changes is set out below.
Filed under Arbitration laws, Asia, South East Asia
