Arbitration Links - Linklaters
  • Jurisdiction: England & Wales

Successful challenge on basis of serious irregularity – A tribunal’s failure to deal with contribution claim

13 April 2018 Sadie Buls, England & Wales

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In P v D & Ors [2017] EWHC 3273 (Comm), London’s Commercial Court upheld a challenge to a London Court of International Arbitration award brought under s.68 Arbitration Act 1996 for serious irregularity. The claimant sought remission of the award on the basis that the Tribunal failed to deal with all the issues that were put to it (in particular, it failed to consider the claimant’s contribution claim in the proceedings), thereby causing the claimant substantial injustice. In its judgment, the Court identified a number of errors in the Tribunal’s award and provided guidance on when a LCIA Tribunal can exercise post-award powers to make corrections or issue additional awards under the LCIA Rules.

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Does a slip buy more time? English High Court considers the relationship between corrections of awards and time limits for appeal

05 April 2018 Stephen Lacey, England & Wales; Europe

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In DSMG v Songa [2018] EWHC 538 (Comm), the English High Court has examined whether an application to the tribunal to make straightforward corrections to an award extends, under the English Arbitration Act 1996 (the “Act”), the period for bringing a challenge in court against the award. It appears that it is only where an application for corrections is material - in the sense of enabling a party to know whether it has grounds to challenge an award - that it will do so.

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To reform or to update? Thoughts from the BICCL 16th Annual Review of the UK Arbitration Act

29 March 2018 Stephen Lacey; Sadie Buls, England & Wales

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The British Institute of International and Comparative Law hosted the 16th Annual Review of the Arbitration Act at the end of last year. At the event, speakers discussed whether the Arbitration Act 1996 (“the Act”) is currently in need of reform. The speakers agreed that a complete overhaul of the Act is not required, but all highlighted different areas that might usefully be revisited due to developments in international arbitration in the past two decades.

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English High Court considers the impact of third party funding in the context of a challenge to an Award

28 February 2018 Mikhail Vishnyakov, England & Wales

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In Progas Energy Limited et al v the Islamic Republic of Pakistan [2018] EWHC 209 (Comm) the English High Court considered the conditions to be imposed on the Claimants who sought to challenge an award.

The Court ordered security for costs against the Claimants notwithstanding the fact that they had the support of a commercial third party funder. However, third party funding did not impact on the Court’s refusal to order, as a condition of the challenge, the security of sums due under the award being challenged.

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An Introduction to Drafting an Arbitration Clause

21 February 2018 Matthew Weiniger, England & Wales

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What should you be asking yourself when beginning to draft an arbitration clause? In this video, Matthew Weiniger QC, Partner and Global Co-Head of International Arbitration, provides an introduction to the topic and some of the main points for consideration.

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Successful section 68 challenge where no opportunity to make submissions on costs

14 February 2018 Joanne Finnegan, England & Wales

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In Oldham v. QBE Insurance (Europe) Ltd [2017] EWHC 3045 (Comm), the Commercial Court allowed a challenge to an arbitral award under section 68 of the Arbitration Act 1996 on grounds of serious irregularity where the applicant had not been given a reasonable opportunity to make submissions as to costs.

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Brexit and International Arbitration in London

08 February 2018 Matthew Weiniger, England & Wales; Europe

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Matthew Weiniger QC, Dispute Resolution Partner & Global Co-Head of International Arbitration, has produced a short video discussing the impact of Brexit on the practice of international arbitration in London. 

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Set aside decision highlights important practice point for Requests for Arbitration under LCIA rules

31 January 2018 Stephen Lacey; Sadie Buls; Matthew Weiniger, England & Wales

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In A v B [2017] EWHC 3417 London’s Commercial Court held that the LCIA rules did not permit a Request for Arbitration filed by the claimant to include related claims under two contracts and their associated LCIA arbitration agreements (thereby denying the tribunal jurisdiction). Claimants in LCIA arbitrations may therefore well wish to consider filing multiple requests in like circumstances in future.

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Changes afoot for tribunal secretaries at the LCIA

16 January 2018 Sadie Buls, England & Wales

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The London Court of International Arbitration (“LCIA”) has recently implemented new guidelines concerning the use of tribunal secretaries with effect from 26 October 2017. The Yukos arbitration and recent English case law concerning an LCIA tribunal secretary has raised interest in their role and there is also an increasing trend amongst institutions to provide greater clarity and transparency of their role (of which the LCIA’s guidelines are part).

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No appeals on a point of law by stealth: the limits of s.69 Arbitration Act 1996

14 December 2017 Stephen Lacey, England & Wales

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In an English seated arbitration, s.69 Arbitration Act 1996 permits, albeit under certain limited circumstances, an appeal to the court on a question of English law arising from an arbitral award. The High Court’s recent decision in "The CV Stealth" [2017] EWHC 2808 illustrates the need to think carefully about such a course of action.

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Linklaters book launch event: The Political Economy of the Investment Treaty Regime

06 December 2017 Matthew Weiniger, England & Wales

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On Thursday 16 November 2017 Linklaters hosted a special forum to celebrate the launch of a new book, The Political Economy of the Investment Treaty Regime, written by Dr Jonathan Bonnitcha, Dr Lauge Poulsen and Dr Michael Waibel.  The book was recently published by Oxford University Press. 

 

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Adopting a compliance approach to fight corruption and protect investments

30 November 2017 Christian Albanesi; Adam Lurie; Caitlin Potratz, England & Wales; Latin America; North America

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At the 15th annual International Chamber of Commerce’s (ICC) Miami Conference earlier this month, one of the programme’s top-line issues for discussion was the matter of a “compliance” approach to arbitration. Here, Christian Albanesi (Head of Latin American Arbitration), Adam Lurie (US Head of Litigation and Government Investigations), and Caitlin Potratz (Senior US Associate), outline their stance on the topic.  

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High Court decides that FOS decisions are not arbitral awards

22 November 2017 Joanne Finnegan, England & Wales

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In Berkeley Burke SIPP Administration LLP v Charlton [2017] EWHC 2396 (Comm), the High Court held that a determination of the FOS was not an arbitral award and therefore cannot be appealed under section 69 Arbitration Act 1996 (the “Act”).

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English Court examines approach to interpretation of foreign law

09 November 2017 Mikhail Vishnyakov, England & Wales

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In The Kyrgyz Republic v (1) Stans Energy Corporation and (2) Kutisay Mining LLC [2017] EWHC 2539 (Comm) the English High Court rejected a challenge to an award based on a lack of jurisdiction on the part of the Tribunal. The challenge was brought under Section 67 of the Arbitration Act 1996, which applies to all London seated arbitrations. Although the claim concerned the investment protection legislation of Kyrgyzstan, and the application of Kyrgyz law, the Court’s ruling is instructive in the process that the English courts will follow in interpreting the meaning of foreign laws in general (including investment/investor protection legislation).

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English High Court considers meaning of giving “proper notice” of an arbitration

24 October 2017 Antonia Adebambo, England & Wales; Europe

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In Ekran OAO v Magneco Metrel UK Ltd [2017] EWHC 2208 (Comm), a respondent sought relief from the English Commercial Court in respect of the enforcement of an award. It argued that it had not received “proper notice of the arbitration” under the English Arbitration Act 1996 (the “Act”), as the documentation that it received was not in its home language. The Court decided that, on the facts, the respondent had nonetheless been given “proper notice”. 

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High Court restates test for extending the time to challenge arbitral awards

15 August 2017 Adrien Canivet, England & Wales

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In Rollitt (trading as CD Consult) v Ballard [2017] EWHC 1500 (TCC), the High Court rejected an application for permission to appeal an arbitral award on a point of law under section 69 of the Arbitration Act 1996 (“the Act”).  In doing so, it restated the test for extending the time to challenge an award under section 79 of the Act.

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Arbitration clauses, competition claims and the case of Microsoft Mobile

08 August 2017 Alexander Fawke; Elizabeth Jordan, England & Wales

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Earlier this year, in Microsoft Mobile OY (Ltd) v Sony Europe Limited & Ors [2017] EWHC 374 (Ch), the English High Court considered whether an arbitration clause in a supply contract caught a private cartel damages action. Its conclusion that it did needs to be kept in mind by claimants in this field.

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When, under English law, can damages be reduced for benefits obtained following a breach of contract?

20 July 2017 Francesca Fraser, England & Wales

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On 28 June 2017, the UK Supreme Court handed down judgment in Globalia Business Travel SAU (formerly TravelPlan SAU) of Spain v Fulton Shipping Inc "The New Flamenco" [2017] UKSC 43 in which it unanimously allowed an appeal on a point of English law under s.69 Arbitration Act 1996 (the "Act"). The case concerned the extent to which benefits obtained by an innocent party following a breach of contract should be taken into account in assessing its damages for that breach.

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English court allows challenge to New York Convention award based on contravention of public policy arising from fraud

12 July 2017 Joanne Finnegan, England & Wales

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The High Court has allowed a claim that a New York Convention award was obtained by fraud to go to trial, even though it was upheld by the seat's courts.

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English Commercial Court rejects suggestion that appointment of an arbitrator in related arbitrations constitutes apparent bias

06 July 2017 Charlotte Luker-Coombs, England & Wales; Europe

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The recent case of H v L & Others [2017] EWHC (Comm) 137 confirms that the appointment of an arbitrator in related references (and his/her failure to disclose those appointments) will not of itself create an appearance of bias so as to justify his/her removal under s.24(1)(a) Arbitration Act 1996 (the “Act”). The judgment summarises the test for apparent bias in an English seated arbitration and emphasises the integrity and impartiality of arbitrators as a central tenet of the same.  Separately, Popplewell J has also confirmed that orders granted pursuant to powers under the Act cannot be varied under CPR 3.1(7).

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English High Court clarifies criteria applicable to s.70(7) of the Arbitration Act 1996

29 June 2017 Erin Marsh, England & Wales

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In Erdenet Mining Corporation LLC v ICBC Standard Bank PLC & Others [2017] EWHC 1090 (Comm) the High Court clarified the criteria applicable to the exercise of its discretion under s.70(7) of the Arbitration Act 1996 (the “Act”), pursuant to which the Court may order (in relation to an arbitration seated in England) that any money payable under an arbitral award shall be brought into court or otherwise secured pending the determination of a challenge to the award under ss.67, 68 or 69 of the Act.

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English High Court rejects attempt to obtain disclosure from arbitrators in support of an application to remove them

18 May 2017 Adrien Canivet, England & Wales; Europe

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In P v. Q & Others [2017] EWHC 148 (Comm), a party to an arbitration sought an order, in support of its application to remove two arbitrators, that the tribunal disclose material to it. The High Court dismissed this request; it recognised that arbitrators’ adjudicative materials are, like judges’, immune from disclosure.  It also clarified the scope of that immunity.

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UK Supreme Court on security and challenging enforcement of arbitral awards

20 April 2017 Rebecca James, England & Wales; Europe

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The UK Supreme Court has recently overturned a ruling of the Court of Appeal which effectively required the Nigerian National Petroleum Corporation (“NNPC”) to provide security as a condition to challenging the enforcement of an award on public policy grounds pursuant to section 103(3) of the Arbitration Act 1996 (the “Arbitration Act).  This decision represents the latest development in a long-running legal saga involving protracted proceedings to challenge the award in Nigeria as well as enforcement proceedings in England.

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The High Court rules on the English court's powers in support of arbitral proceedings against non-signatories

12 April 2017 Joanne Finnegan, England & Wales; Europe

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The English court’s powers in support of arbitral proceedings in section 44 of the Arbitration Act 1996 are not exercisable against non-parties to an arbitration

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Micula brothers’ ICSID award stayed in the UK following the European Commission state aid decision

17 March 2017 Duncan Hedar, England & Wales; Europe

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Following an application by Romania and the European Commission (as intervener), the English High Court has stayed enforcement of an ICSID award in favour of Swedish business magnates the Micula brothers.  The case will be determined following the decision of the General Court of the European Union in connected proceedings brought by the Micula brothers to annul the Commission’s determination that the payment of the ICSID award by Romania would amount to illegal State aid.    The case raises important questions about the effectiveness of ICSID awards in circumstances where the awards clash with Member States’ obligations under EU law.

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